^9  ^ 


^ 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


JUDICIAL  DECISIONS 

OF   THE 

STATE    SUPERINTENDENT    OF   COMMON 

SCHOOLS 

STATE    SUPERINTENDENT    OF    PUBLIC 
INSTRUCTION 

STATE    COMxMISSIONER    OF    EDUCATION 


FROM 


1822    TO     I9I3 


BY 

THOMAS  E.  FINEGAN  ALA.  Pd.D.  LL.D. 
Of  the  Albany  County  Bar 

Assistant  Commissioner  for  Elementary  Education  of  the  State  of  New  York 


ALBANY,  N.  Y. 

THE  UNrV^ERSITY  OF  THE  STATE  OF  NEW  YORK 

1914 

'J  ^ 


THE  UNIVERSITY  OF  THE  STATE  OF  NEW  YORK 

Regents  of  the  University 

With  years  when  terms  expire 

191 7  St  Clair  McKelavay  ALA.  LL.D.  D.C  L.  L.H.D. 

Chancellor  Brooklyn 
1926  Pliny  T.  Sexton  LL.B.  LL.D.   Vice  Chancellor  Palmyra 

191 5  Albert  Vander  Veer  M.D.  M.A.  Ph.D.  LL.D.  Albany 

1922  Chester  S.  Lord  M.A.  LL.D.      -----  New  York 

1918  William  Nottingham  M.A.  Ph.D.  LL.D.     -    -  Syracuse 
192 1  Francis  M.  Carpenter     ------    -  Mount  Kis2o 

1923  Abram  I.  Elkus  LL.B.  D.C.L.     -    -    -    -    -  New  York 

1916  Lucius  N.  Littauer  B.A.        ------  Qloversville 

1924  Adelbert  AIoot       ---------  Buffalo 

1925  Charles  B.  Alexander  M.A.  LL.B.  LL.D.  Lit.D.  Tuxedo 

1919  John  Moore-    ----'-----    -  Elmira 

1920  Andrew  J.  Shipman  ALA.  LL.B.  LL.D.       -    -  New  York 

^  President  of  the  University 

l^tvJ  Y  SO  ^^'^  Commissioner  of  Education 

Hn3B  \  John  H.  Finley  ALA.  LL.D. 

Augustus  S.  Downing  ALA.  L.H.D.  LL.D.  For  Higher  Education 
Charles  F.  Wheelock  B.S.  LL.D.  For  Secondary  Education 
Thomas  E.  Finegan  M.A.  Pd.D.  LL.D.  For  Elementary  Education 

Director  of  State  Library 

James  L  Wyer,  Jr,  ALL.S. 

Director  of  Science  and  State  Museum 

John  AL  Clarke  Ph.D.  D.Sc.  LL.D. 

Chiefs  of  Divisions 

Administration,  George  Al.  Wiley  M.A. 

Attendance,  James  D.  Sullivan 

Educational  Extension,  William  R.  Watson  B.S. 

Examinations,  Harlan  H.  Horner  B.A. 

History,  James  A.  Holden  B.A. 

Inspections,  Frank  H.  Wood  ALA. 

Law,  Frank  B.  Gilbert  B.A. 

Library  School,  Frank  K.  Walter  ALA.  ALL.S. 

Public  Records,  Thomas  C.  Quinn 

School  Libraries,  Sherman  Williams  Pd.D. 

Statistics,  Hiram  C.  Case 

Visual  Instruction,  Alfred  W.  Abrams  Ph.B. 

Vocational  Schools,  Arthur  D.  Dean  D.Sc. 


To 

The  Late  Andrew  S.  Draper  LLB.  LLD. 

In 

Recognition  of  his  services  to  pubUc  education 
as  a  teacher,  a  member  of  a  city  board  of  edu- 
cation, a  trustee  of  a  State  Normal  College,  a 
State  Superintendent  of  Public  Instruction,  a 
superintendent  of  schools  in  a  leading  American 
city,  a  president  of  a  great  university,  and  Com- 
missioner of  Education  of  the  State  of  New 
York  from  April  i,  1904,  to  March  29,  191 3. 

[3] 


INTRODUCTION 

In  1822,  the  Legislature  conferred  upon  the  State  Superintendent  of  Common 
Schools  the  authority  to  hear  and  determine  all  questions  in  controversy  which 
might  arise  in  the  administration  of  the  common  school  system.  The  decision 
of  the  State  Superintendent  upon  such  questions  was  made  final.  As  the  public 
school  system  has  developed,  the  authority  of  the  chief  school  officer  of  the  State 
has  been  extended  in  such  matters  until  the  Commissioner  of  Education  is  not 
only  authorized  but  is  required  to  hear  and  determine  such  cases  as  are  properly 
brought  before  him.  These  cases  are  called  appeals  and  include  all  disputed 
points  which  may  arise  at  school  district  meetings  or  school  board  meetings  or 
that  may  grow  out  of  the  official  action  or  decision  of  any  school  officer.  The 
language  of  the  law  is  broad  and  includes  the  official  act  or  decision  of  any 
officer,  school  authorities  or  meetings  under  the  general  Education  Law  or  any 
other  law  pertaining  to  the  common  school  system.  The  Commissioner  of  Edu- 
cation is  given  great  power  in  this  respect,  as  the  law  distinctly  provides  thai 
his  decision  in  all  such  cases  shall  be  "  final  and  conclusive  and  not  subject  to 
question  or  review  in  any  place  or  court  whatever." 

It  will  be  observed  that  the  chief  educational  officer  of  the  State  has  exercised 
this  judicial  function  for  ninety  years.  The  exercise  of  this  authority  for  such 
a  long  period  has  resulted  in  the  establishment  of  rules  of  practice  so  that  a 
proceeding  before  the  Commissioner  of  Education  must  be  instituted  as  an 
appeal  or  petition  and  with  the  formality  of  a  court  proceeding.  The  law  gives 
the  Commissioner  of  Education  the  authority  to  make  such  necessary  orders  in 
a  proceeding  as  will  make  effectual  his  decision  therein. 

More  than  twelve  thousand  formal  opinions  have  been  rendered  by  the  chief 
officer  of  the  State  education  system  during  the  ninety  years  that  this  practice 
has  been  in  operation.  For  many  years  these  decisions  were  not  numbered  but 
over  six  thousand  of  such  decisions  have  been  rendered  since  the  plan  of  num- 
bering them  was  commenced. 

The  decisions  in  these  cases  have  been  regarded  as  binding  in  the  interpre- 
tation of  the  laws  relating  to  the  schools,  as  the  decisions  of  the  courts  have 
generally  been  upon  the  interpretation  of  all  laws. 

This  method  of  disposing  of  contested  cases  involving  the  administration  of 
the  schools  has  been  of  vital  service  to  the  interests  of  public  education.  It  has 
provided  an  inexpensive,  expeditious  means  for  the  settlement  of  the  numerous 
questions  which  are  bound  to  rise  in  the  administration  of  a  work  involving  so 
much  detail  and  such  important  interests  as  a  great  system  of  education  which 
is  designed  to  meet  the  necessities  of  ten  million  people.  This  plan  also  placed 
the  interpretation  of  these  questions  with  the  officer  charged  with  the  general 
supervision  and  direction  of  the  State's  educational  policies  so  that  such  questions 
..should  be  determined  upon  sound  educational  principles. 

[5] 


O  INTRODUCTION 

The  preparation  of  this  vokime  has  necessitated  great  labor  and  research. 
These  decisions  were  not  all  in  printed  form.  It  was  necessary  to  obtain  copies 
and  read  the  entire  number  of  twelve  thousand  and  more.  From  these  about 
eight  hundred  cases  have  been  selected.  Those  have  been  chosen  which  are  of 
value  in  showing  the  historical  development  of  the  school  system  and  more 
particularly  those  which  have  a  bearing  upon  the  interpretation  of  the  present 
laws  governing  that  system.  The  labor  of  preparing  this  volume  was  commenced 
during  the  period  which  I  served  as  Chief  of  the  Law  Division  of  the  Education 
Department  and  had  been  completed  at  the  time  of  the  Capitol  fire  on  March  29, 
191 1  when  the  manuscripts  thereof  were  destroyed  in  that  fire.  Some  courage 
and  some  faith  in  the  necessity  of  the  work  were  necessary  for  the  duplication  of 
the  labor  required  to  prepare  the  manuscripts  a  second  time.  This  task  is  again 
completed  and  in  the  hope  that  the  volume  may  be  of  sufficient  service  to  those 
officially  charged  with  the  management  of  the  schools  to  cause  them  to  feel 
that  the  labor  of  the  author  has  been  well  directed. 

T.  E.  F. 
Albany,  N.  Y. 

December  //,  ipjj 


APPEALS 

JURISDICTION     OF    SUPERINTENDENTS    DISCUSSED    AND    DETERMINED 

If   commissioners   withhold   assent   to   raise   a  tax  larger  than  $400  for  building  a  school- 
house,  their  refusal  is  subject  to   review  upon  appeal. 
Decided  September  18,  1841 

Spencer,  Superintendent 

The  inhabitants  of  the  village  of  Cuba  had  been  united  in  one  district  by 
the  consolidation  of  two  others.  'They  had  been  offered  a  site  for  a  schoolhouse, 
in  a  central  and  commodious  location,  upon  the  sole  consideration  that  they 
should  erect  upon  it  a  house  worth  $800.  They  unanimously  voted  to  accept  the 
site  and  raise  the  tax,  and  applied  to  the  school  commissioners  for  consent  to 
levy  that  sum.  Consent  was  refused  on  the  ground  that  the  consolidation  of  the 
districts  would  be  the  means  of  breaking  up  the  select  school  hitherto  maintained 
in  the  district,  and,  further,  that  the  inhabitants  were  unable  to  bear  the 
increased  burdens  of  such  an  organization. 

The  commissioners  have  a  discretionary  power  to  grant  or  refuse  their  con- 
sent. But  in  this  case  it  was  not  wisely  exercised.  They  were  bound  to  have 
a  stronger  interest  in  the  improvement  of  the  common  schools  than  in  the  welfare 
of  a  private  select  school.  The  inhabitants,  who  ought  to  understand  their  own 
interests,  and  know  their  pecuniary  resources,  had  unanimously  resolved  to  raise 
the  tax  and  shoulder  the  burden  of  the  new  organization.  The  commissioners 
ought  not  to  assume  that  they  had  overestimated  their  ability. 

The  majority  of  the  inhabitants  of  a  district  may  consist  of  persons  destitute 
themselves  of  pecuniary  resources,  and  desirous  to  avail  themselves  of  the 
property  of  the  minority  to  build  an  unnecessarily  costly  schoolhouse  for  the 
district.  The  check,  which  the  commissioners  possess,  to  abuses  like  this,  is  wase 
and  salutary,  and  that  check  was  undoubtedly  conferred  with  a  view  to  the 
possible  happening  of  cases  of  this  description. 

The  discretion  exercised  in  this  case,  like  that  of  granting  or  refusing  a  cer- 
tificate to  a  teacher,  is  the  subject  of  appeal.  The  authority  of  the  Superintend- 
ent upon  appeal  extends  to  all  matters  arising  under  the  school  laws.  His  deci- 
sions have  been  treated  as  conclusive  by  the  courts,  and  acquiesced  in  by  the 
Legislature  and  the  people. 

The  commissioners  were  ordered  to  give  their  consent  to  the  tax  of  $800. 
Per  Spencer,  July  19,  1841. 

Subsequently  the  same  case  came  up  a  second  time,  on  the  refusal  of  the 

[7] 


5  THE   UNIVERSITY    OF   THE   STATE    OF   NEW   YORK 

commissioners  to  obey  the  order  of  the  Superintendent.  The  previous  decision 
was  sustained  and  enforced  in  an  elaborate  opinion,  from  which  we  take  the 
portions  treating  of  discretionary  powers,  and  the  appellate  jurisdiction  of  the 
school  department. 

"  The  discretion  of  public  officers  is  a  legal  one,  to  be  governed  by  sound 
principles,  and  not  by  the  capricious  whim  of  the  individual,  and  the  instances 
are  frequent  where  courts  of  law  regulate  and  direct  the  exercise  of  discre- 
tionary power  by  officers,  where  third  persons  have  an  interest  in  such  exercise. 
The  only  discretion  which  courts  do  not  undertake  to  control  is  that  which,  accord- 
ing to  Justice  Sutherland  (5  Wendell  125),  'is  not  and  can  not  be  governed  by 
any  fixed  principles  and  rules.'  Few  matters  would  seem  more  susceptible  of  the 
application  of  fixed  rules  than  the  size  of  a  schoolhouse  necessary  to  accommo- 
date properly  a  given  number  of  children,  the  amount  of  money  required  for 
its  construction,  and  the  ability  of  a  district  to  raise  a  given  sum.  So  that  even 
upon  any  of  the  ordinary  processes  of  law,  this  would  be  a  case  where  the  dis- 
cretionary power  of  commissioners  could  be  regulated  and  controlled.  But  when 
we  consider  that  a  tribunal  has  been  erected  for  the  express  purpose  of  super- 
vising all  the  officers  engaged  in  the  administration  of  the  common  school  system ; 
that  there  is  scarcely  an  act  to  be  performed  by  them  which  does  not  involve 
more  or  less  discretion,  and  that  an  appeal  is  given  from  all  these  acts  in  the 
most  comprehensive  terms ;  we  see  at  once  that  the  rules  which  would  govern 
legal  proceedings  on  common  law  process  are  not  the  proper  guides,  and  that 
we  must  recur  to  broader  and  more  enlarged  principles. 

"  The  word  '  appeal '  comes  from  the  civil  law,  and  its  nature  and  office  is 
to  substitute  the  appellate  tribunal  for  that  whose  acts  are  examined ;  and,  if  the 
case  be  one  involving  discretion,  then  the  appeal  invokes  that  very  discretion  in 
the  superior,  in  the  same  manner  and  to  the  same  extent  that  it  was  possessed 
by  the  inferior.  '  The  cause  is  in  the  appellate  court,'  says  the  Supreme  Court 
of  the  United  States,  in  i  Wheaton  112,  'as  if  it  were  in  the  inferior  court.' 

"  The  great  majority  of  cases  decided  in  this  Department  are  those  involving 
more  or  less  discretionary  power. 

"  The  statute  itself  enumerates  many  cases  that  are  entirely  of  a  discre- 
tionary character.  The  decisions  of  district  school  meetings  upon  any  subject 
upon  which  they  are  competent  to  act,  such  as  the  designation  of  the  site  of  a 
schoolhouse,  the  amount  of  money  to  be  raised  by  tax,  and  the  omission  to  levy 
taxes,  involve  large  discretion,  but  are  nevertheless  subject  to  appeal  by  the 
express  words  of  the  law.  The  formation  and  alteration  of  school  districts  must 
be  guided  by  a  sound  judgment  upon  various  facts  and  circumstances,  such  as 
the  number  of  children,  the  amount  of  taxable  property,  the  extent  of  territory, 
and  the  convenience  of  the  inhabitants.  Some  fixed  rules  may  be  applied,  but 
in  many  cases  the  decision  must  depend  on  general  ideas  of  the  propriety  and 
fitness  of  things. 

"Among  cases  not  enumerated,  and  which  fall  within  the  fourth  subdivision 
of  the  section  conferring  the  right  of  appeal,  the  following  are  of  daily  occur- 
rence, viz:  the  granting  or  refusing  a  license  to  a  teacher;  the  valuations  of 


JUDICIAL    DECISIONS  :       APPEALS  Q 

schoolhouses  or  other  property  on  the  formation  of  new  districts;  the  refusal 
of  trustees  to  call  special  meetings,  to  employ  teachers,  or  to  keep  the  schools 
open,  and  the  employment  and  dismissal  of  teachers;  the  government  of  the 
school;  the  admittance  and  expulsion  of  scholars,  etc.  Indeed  it  would  be 
difficult  to  specify  a  single  act  which  any  officer  concerned  in  the  administration 
of  the  system  may  perform,  that  has  not  been  the  subject  of  appeal. 

"  The  present  case  presents  less  opportunity  for  the  exercise  of  discretion 
than  many  of  those  above  enumerated.  The  expense  of  a  schoolhouse  must 
depend  upon  its  size  and  materials.  Its  size,  the  number  of  rooms,  and'  the 
proper  conveniences,  will  depend  upon  the  number  of  children  in  the  district  of 
the  proper  age  to  occupy  it.  The  only  other  element  for  consideration  is  the 
ability  of  the  district,  a  fact  easily  ascertained  from  the  assessment  roll.  There 
is,  therefore,  nothing  in  the  nature  of  the  decision  to  be  made  to  prevent  its 
being  reviewed  and  examined  upon  fixed  and  settled  principles. 

"  So  far  as  our  laws  afford  any  analogy  in  cases  of  appeal,  there  does  not 
appear  to  be  any  distinction  between  discretionary  and  other  cases.  Thus, 
appeals  to  county  judges  from  commissioners  of  highways,  respecting  the  opening, 
altering  and  discontinuing  of  highways,  necessarily  involve  that  discretion  which 
depends  on  private  judgment. 

"  Upon  the  most  mature  deliberation,  then,  I  can  not  doubt  that  the  granting 
or  refusing  of  a  certificate,  that  a  larger  sum  than  $400  should  be  raised  for 
building  a  schoolhouse,  is  necessarily  the  subject  of  an  appeal  to  the  Superin- 
tendent. And  as,  in  all  cases  of  appeal,  the  statute  declares  his  opinion  to  be 
'  final,'  there  must  be  some  mode  of  giving  it  effect.  In  the  present  case,  the 
commissioners  decline  obedience  to  the  order  directing  them  to  grant  the  required 
certificate.  From  that  refusal  an  appeal  has  been  made,  and  the  commissioners 
have  answered.  The  whole  system  must  be  very  defective  if  there  be  no  power 
to  have  an  act  performed  which  the  competent  tribunal  has  determined  to  be 
legal  and  proper.  Perhaps  the  appellants  may  enforce  the  order  of  the  Superin- 
tendent, by  an  application  to  the  Supreme  Court  for  a  mandamus. 

"  But,  if  there  be  a  more  direct,  simple  and  less  expensive  remedy,  I  am 
bound  to  pursue  the  policy  of  the  statute  in  erecting  this  tribunal  by  furnishing 
it.  I  think  there  is.  It  is  a  universal  principle,  recognized  in  England  and  in 
this  country,  that  the  court  to  which  a  writ  of  error  or  an  appeal  is  brought  is 
bound  to  render  the  judgment  which  the  inferior  tribunal  should  have  rendered. 
Upon  this  principle,  this  Department  may  authorize  the  inhabitants  of  the  district, 
at  a  lawful  meeting,  to  raise  the  additional  sum  necessary  for  building  a  new 
schoolhouse  that  being  the  judgment  or  decision  which,  in  the  opinion  of  the 
Superintendent,  the  commissioners  should  have  made.  I  find  an  order  of  my 
immediate  predecessor,  founded  on  this  principle,  and  analogous  to  the  one  pro- 
posed to  be  made  on  this  appeal,  in  the  case  of  the  trustees  of  school  district 
no.  30,  in  Johnstown,  in  Common  School  Decisions,  page  161.  The  inhabitants  of 
the  district  had  authorized  the  trustees  to  make  such  repairs  to  the  schoolhouse 
as  they  should  think  necessary  and  proper,  and,  in  pursuance  of  such  authority, 
they^ad  contracted  with  a  workman  to  make  the  repairs,  and  agreed  to  pay 


10  THE   UXIVERSITV    OF   THE   STATE    OF    NEW   YORK 

him  $30.  But  the  district  refused  to  vote  more  than  $25.  On  appeal,  the  Super- 
intendent, Mr  Dix,  held  that  the  district  was  bound  to  indemnify  the  trustees; 
and  he  ordered  that  the  trustees  should  make  out  a  tax  list  for  the  whole  amount 
and  collect  it." 

In  pursuance  of  this  opinion,  the  district  was  authorized  to  raise  a  tax  of 
$400,  over  and  above  the  $400  which  the  district  could  otherwise  raise,  and  the 
trustees  were  empowered  to  levy  and  collect  it. 


3583 

The  law  intends  the  jurisdiction  of  the  Superintendent  of  Public  Instruction  to  be  state- 
wide and  to  cover  all  controversies  touching  any  official  act  of  local  school  officers. 
His  jurisdiction  is  not  obtained  from  local  school  acts,  but  from  the  general  school  law, 
and  is  general  unless  taken  away  by  a  special  act  in  language  so  clear  as  to  leave  no 
doubt  of  its  intent. 

Decided  April  4.  1887 

Draper,  Superintendent 

In  an  appeal  brought  from  the  action  of  the  board  of  education  of  the  city  of 
Binghamton  in  the  matter  of  the  change  or  designation  of  certain  textbooks,  the 
board  denied  that  the  Superintendent  had  any  jurisdiction  to  hear  and  decide  the 
appeal. 

"  It  is  said  that  the  school  system  of  the  city  of  Binghamton  is  governed 
by  a  special  act  of  the  Legislature  (chapter  322,  Laws  of  1861)  and  its  amend- 
ments and  that  there  is  nothing  in  this  special  act  conferring  upon  the  State 
Superintendent  the  authority  to  detennine  appeals  from  the  acts  of  the  board 
of  education  of  that  city.  It  is  also  insisted  that  the  provisions  of  the  Consoli- 
dated School  Act  (chapter  555,  Laws  of  1864)  concerning  appeals  to  the  State 
Superintendent  from  the  acts  of  local  school  officers  do  not  extend  jurisdiction  to 
t^e  act  of  a  board  of  education  in  a  city  having  a  special  school  act.  It  is  accord- 
ingly argued  that  there  is  no  jurisdiction  at  all  in  the  present  case." 

The  question  is  an  important  one  and  I  have  endeavored  to  give  it  that  exami- 
nation which  its  gravity  demands. 

I  have  examined  the  statutes  specially  referring  to  the  supervision  of  the 
schools  of  the  city  of  Binghamton  with  considerable  care  and  am  of  the  opinion 
that,  if  jurisdiction  in  this  case  depended  alone  upon  these  statutes,  it  would  not 
be  difficult,  reading  the  several  successive  acts  together,  to  discern  an  intention 
to  confer  it,  on  the  part  of  the  Legislature. 

But  in  my  opinion  it  does  not  depend  upon  the  provisions  of  the  special 
acts,  having  reference  only  to  a  particular  locality.  Title  12,  section  i,  chapter 
555,  Laws  of  1864,  is  as  follows: 

Section  i  Any  person  conceiving  himself  aggrieved  in  consequence  of  any 
decision  made 


JUDICIAL    DECISIOXS:       APPEALS  II 

1  By  any  school  district  meeting. 

2  By  any  school  commissioner  or  school  commissioners  and  other  officers, 
in  forming  or  altering,  or  refusing  to  form  or  alter,  any  school  district,  or  in 
refusing  to  apportion  any  school  moneys  to  any  such  district  or  part  of  a  district. 

3  By  a  supervisor  in  refusing  to  pay  such  moneys  to  any  such  district. 

4  By  the  trustees  of  any  district  in  paying  or  refusing  to  pay  any  teacher, 
or  in  refusing  to  admit  any  scholar  gratuitously  into  any  school. 

5  By  any  trustee  of  any  school  district  library  concerning  such  library,  or 
the  books  therein,  or  the  use  of  such  books. 

6  By  and  district  meeting  in  relation  to  the  library. 

7  By  any  other  official  act  or  decision  concerning  any  other  matter  under 
this  act,  or  any  other  act  pertaining  to  common  schools,  may  appeal  to  the 
Superintendent  of  Public  Instruction,  who  is  hereby  authorized  and  required 
to  examine  and  decide  the  same;  and  his  decision  shall  be  final  and  conclusive, 
and  not  subject  to  question  or  review  in  any  place  or  court  whatever. 

The  seventh  subdivision  of  this  section  contains  language  as  comprehensive 
as  could  well  be  employed.  It  authorizes  any  person  aggrieved  at  "  any  other 
official  act  or  decision  concerning  any  other  matter  under  this  act,  or  any  other 
act  pertaining  to  common  schools,"  to  appeal  to  the  State  Superintendent.  The 
contention  of  the  respondent's  counsel  that  the  phrase,  "  any  other  official  act," 
refers  only  to  acts  by  the  same  body,  or  of  the  same  nature  as  though  specified 
in  the  first  six  subdivisions  of  the  section,  can  not  be  adopted.  It  is  an  official 
act  concerning  "  any  other  matter  under  this  act,  or  imder  any  other  act  pertain- 
ing to  common  schools,"  which  is  the  subject  of  appeal.  It  was  the  obvious  intent 
of  the  Legislature  to  provide  an  easy,  inexpensive,  speedy  and  conclusive  way  for 
procuring  a  determination  of  complaints  against  any  official  act  of  any  local 
school  official.  Both  the  language  of  the  law  and  the  different  steps  taken  by 
the  Legislature  to  bring  it  to  its  present  state,  sustain  this  construction.  Enacted 
in  the  early  days  of  the  school  system,  it  has  from  time  to  time  been  added  to 
with  the  evident  purpose  of  making  it  clear  that  the  jurisdiction  of  the  Super- 
intendent is  intended  to  be  statewide,  and  is  to  cover  all  controversies  touching 
any  official  act  of  local  school  officials. 

These  provisions  of  the  general  law  were,  in  substance,  in  force  long  before 
the  passage  of  the  special  laws  referring  only  to  the  city  of  Binghamton.  If 
the  Legislature  had  intended  to  cut  off  the  right  of  appeal,  as  to  that  city,  it 
would  have  so  provided  in  the  laws  particularly  applicable  to  it.  It  not  only 
did  not  do  this,  but  it  is  worthy  of  note  that  it  expressly  preserved  the  right  in 
the  first  instance,  and  omitted  to  do  this  only  upon  a  reenactment  of  the  Bing- 
hamton school  laws,  consequent  upon  the  granting  of  a  city  charter  to  the  place. 
It  is  fair  to  assume  that  the  omission  at  that  time  was  either  because  of  inad- 
vertence or  because  an  express  reservation  was  deemed  unnecessary.  In  any 
event,  the  State  Superintendent  does  not  get  jurisdiction  from  local  school  acts, 
but  from  the  general  school  law.  The  authority  must  be  held  to  be  general, 
unless  taken  away  by  a  special  act,  in  language  so  clear  as  to  leave  no  doubt  of 
its  intent,  and  there  is  no  such  taking  away  in  the  statutes  applicable  only  to 
the  city  of  Binghamton. 


12  THE   UNIVERSITY   OF  THE   STATE    OF   NEW   YORK 

There  is  another  consideration  which  has  not  been  suggested  by  the  able 
and  alert  counsel  who  appeared  upon  the  argument  of  this  appeal,  and  which, 
in  view  of  the  foregoing,  is  perhaps  not  material  to  the  determination  of  the 
question  of  jurisdiction,  and  yet  it  has  sufficient  bearing  upon  it  to  justify  me 
in  mentioning  it.  The  appellant  claims  that  the  action  of  the  respondent  is  in 
violation  of  chapter  413  of  the  Laws  of  1877,  entitled  "An  act  to  prevent 
frequent  changes  of  textbooks  in  schools."  This  is  an  "  act  pertaining  to  common 
schools."  The  question  brought  here  is  one  arising  under  it.  The  determination 
of  this  question  may  involve  the  construction  of  the  provisions  of  this  general 
law,  rather  than  of  the  special  laws  relating  to  Binghamton.  It  will  hardly  be 
contended  that  the  Legislature  meant  to  leave  it  to  the  board  of  education  or 
trustees  in  each  city  or  district  having  a  special  school  act,  to  place  such  con- 
struction as  it  should  see  fit  upon  this  general  law,  and  to  suit  its  acts  to  its 
views  of  the  meaning  of  the  law,  without  affording  a  means  of  redress  to  persons 
differing  with  it  in  opinions  and  aggrieved  by  its  acts.  Such  a  view  would  result 
in  as  many  different  constructions  of  the  meaning  of  this  statute  as  there  are 
different  localities  having  special  acts,  and  would  defeat  the  purpose  and  intent 
of  this  general  law. 

In  view  of  these  considerations,  it  seems  clear  to  me  that  the  grievance  of 
the  appellant  is  properly  brought  before  the  Department  by  means  of  an  appeal, 
and  that,  under  the  laws,  it  is  the  duty  of  the  Superintendent  to  determine  the 
matter. 

On  this  same  subject,  see  also  decision  no.  3576,  dated  ]\Iarch  19,  1887, 


5384 

In  the  matter  of  the  appeal  of  Elias  P.  Mann,  mayor  of  the  city  of  Troy,  from 
the  decision  of  the  board  of  education  of  the  city  of  Troy,  dismissing  the 
charges  preferred  against  Edwin  S.  Harris,  superintendent  of  schools. 

The  Appellate  Division  of  the  Third  Department  has  held  that  the  Commissioner  of  Edu- 
cation has  the  legal  authority  to  hear  and  determine  an  appeal  from  the  action  of  a 
board  of  education  of  a  city  of  the  second  class  operating  under  the  uniform  charter 
for  cities  of  such  class  in  a  proceeding  to  remove  the  city  superintendent  of  schools 
on  charges. 

Decided  March  9,  1908 

Hon.  George  B.  Wellington,  corporation  counsel  and  attorney  for  appellant 
Hon.  John  T.  Norton,  attorney  for  respondent 

Draper,  Commissioner 

On  May  24,  1907,  Elias  P.  Mann,  mayor  of  the  city  of  Troy,  preferred 
charges  against  Edwin  S.  Harris,  superintendent  of  schools  of  said  city.  The 
board  of  education  gave  a  hearing  on  such  charges  and  thereafter  dismissed  the 
same.    On  September  4,  1907,  Mayor  Mann  instituted  this  proceeding  to  review 


JUDICIAL    DECISIONS  :       APPEALS  I3 

the  action  of  the  board  of  education  in  dismissing  such  charges.  Superintend- 
ent Harris,  a  party  in  interest  in  such  proceeding,  raised  the  question  of  juris- 
diction of  the  Commissioner  of  Education  to  entertain  such  appeal.  On  October 
2,  1907,  I  gave  a  hearing  upon  the  question  of  ni}^  jurisdiction  to  hear  such  appeal 
and  heard  argument  of  counsel  for  the  respective  parties  to  this  proceeding. 
At  the  close  of  such  hearing  I  decided  that  the  statutes  made  it  my  duty  to  hear 
and  decide  such  appeal.  On  October  9,  1907,  an  alternative  writ  of  prohibition 
was  obtained  from  ]\'Ir  Justice  Betts  by  Superintendent  Harris  restraining  me 
from  hearing  or  deciding  such  appeal.  Such  writ  was  returnable  at  Kingston 
Xovember  16,  1907.  Proper  return  was  made  and  argument  heard  on  that 
date  on  a  motion  to  quash  such  writ.  On  February  25,  1908,  Justice  Betts 
rendered  a  decision  holding  that  the  Commissioner  of  Education  did  have  the 
legal  authority  to  hear  and  determine  such  appeal  and  dismissing  the  writ  of 
prohibition. 

The  object  sought  by  this  appeal  was  the  removal  of  Superintendent  Harris. 
During  the  latter  part  of  January  Mr  Harris  resigned  the  office  of  superintend- 
ent of  schools  of  the  city  of  Troy.  It  appears  unnecessary  therefore  to  give 
this  proceeding  further  consideration  and  on  motion  of  Mr  Wellington,  attorney 
for  appellant,  the  appeal  is  hereby  dismissed. 


Edmund  VVhittier  against  the  inhabitants  of  school  district  no.  11  in  the  town  of 

Ogden. 

An  appeal  to  the  Superintendent  will  not  be  entertained  when  the  point  at  issue  has  been 

settled  by  an  adjudication  upon  the  same  case  in  a  court  of  competent  jurisdiction. 
Decided  June  23,  1826 

Flagg,  Superintendent 

This  was  an  appeal  from  the  prpceedings  of  a  meeting  of  the  inhabitants 
of  school  district  no.  11  in  the  town  of  Ogden,  at  which  a  tax  of  $250  was  voted 
to  build  a  schoolhouse.  The  facts  are  fully  set  forth  in  the  decision  of  the 
Superintendent. 

It  is  alleged  that  the  vote  imposing  the  tax  was  carried  by  the  admission 
on  the  part  of  the  moderator  of  the  illegal  votes  of  William  Hill  and  Alsen 
Smith. 

The  appellant  has  presented  a  number  of  affidavits  to  show  that  Hill  and 
Smith,  in  the  opinion  of  those  who  testify,  were  not  legal  voters.  The  affidavits 
set  forth  generally  that  the  persons  testifying  have  no  knowledge  that  Hill  and 
Smith  were  legal  voters,  and  from  their  situation  and  circumstances  do  not 
believe  they  were. 

On  the  other  side,  the  record  of  proceedings  before  a  magistrate  is  pro- 
duced and  duly  authenticated,  by  which  it  is  shown  that  Hill  and  Smith  were 
•prosecuted  for  having  voted,  without  being  entitled  to  vote  by  law,  and  that  on 


14  THE   UNIVERSITY    OF   THE   STATE    OF   NEW   YORK 

the  trial  of  Ihe  cause  it  appeared  that  they  were  legal  voters  at  the  time  of  the 
meeting,  from  the  proceedings  of  which  the  appeal  is  brought.  In  addition  to 
this,  Smith  and  Hill  testify  that  they  were  at  the  time  of  the  meeting  worth 
$50  in  taxable  property. 

The  Superintendent  feels  bound  to  recognize  the  decision  of  the  court  as 
having  settled  the  point  that  Hill  and  Smith  were  legal  voters.  This  being  the 
only  point  at  issue,  it  is  ordered  that  the  appeal  in  this  case  be  dismissed. 


3375 

Frank  J.  Alverson  v.  Michael  Joy,  jr,  trustee  of  school   district  no.   14,  town 

of  Springwater,  county  of  Livingston. 

The   courts   having  acquired   jurisdiction   of   the   subject   matter  -of    an   appeal   through   an 

action  brought  thereon  by  the  appellant,  the  appeal  will  not  be  entertained. 
Decided  April  22,  1890 

Draper,  Superintendent 

The  appellant,  on  the  15th  day  of  October  last,  was  employed  by  the 
respondent  to  teach  the  common  school  in  said  district  for  the  period  of  sixteea 
weeks.  No  agreement  was  made  between  the  appellant  and  the  respondent  on 
the  subject  of  janitor  work,  or  the  care  of  the  schoolhouse.  The  appellant 
alleges  that  upon  assuming  the  charge  of  the  school,  he  found  that  no  arrange- 
ment had  been  made  for  building  fires  and  cleaning  the  school  building;  that  he 
applied  to  the  trustee  who  assured  the  appellant  that  he  would  attend  to  the 
matter  at  once.  This,  however,  he  neglected  to  do,  and  the  appellant  cared  for 
the  fires  and  cleaned  the  schoolhouse ;  that  the  appellant  then  engaged  a  boy  who 
assisted  in  those  services  for  a  period  of  five  weeks,  for  which  assistance  the  boy 
charged  $3,  which  the  respondent  refused  to  pay.  Thereafter,  the  appellant  con- 
tinued to  care  for  the  schoolhouse,  sweeping  the  same  and  building  fires  until 
the  close  of  his  term.  The  appellant  claims  for  such  services  the  sum  of  $15, 
and  for  the  services  of  the  boy  the  further  sum  of  $3. 

The  respondent  admits  that  there  was  no  agreement  with  the  appellant 
relative  to  the  janitor  work,  denies  that  he  ever  agreed  to  arrange  for  having 
this  work  done,  and  avers  that  it  was  the  custom  of  the  district  for  the  teacher 
to  perform  this  work.  It  appears  further,  that  before  taking  this  appeal  the 
appellant  brought  an  action  against  the  respondent  before  a  justice  of  the  peace 
in  said  county  for  the  value  of  the  identical  services  claimed  by  this  appeal. 

The  fact  that  an  action  had  been  commenced,  and  that  the  appellant  had 
sought  in  the  courts  the  same  remedy  he  now  seeks  by  this  appeal,  makes  a 
decision  by  me  improper,  if  not  unnecessary.  It  is  a  well-established  rule  that, 
when  the  courts  have  acquired  jurisdiction  of  a  matter  in  controversy  over  which 
this  Department  has  concurrent  jurisdiction,  an  appeal  will  not  be  entertained. 
It  is  unnecessary,  therefore,  to  look  into  the  merits  of  this  appeal. 

The  appeal  is  overruled. 


JUDICIAL  decisions:     appeals  is 


3754 


In  the  matter  of  tl.e  appeal  of  Irving  Holcomb  v.  school  district  no.  17,  of  the 
town  of  Hancock  in  the  county  of  Delaware. 

Appeals  to  the  Department  will  not  be  sustained  when  the  papers  submitted  are  so  very 
defectively  prepared,  and  so  poorly  arranged  as  to  render  it  altogether  impossible  to 
gain  any  intelligent  understanding  from  them. 

Decided  January  19,  1889 

Draper,  Superintendent 

Several  appeals  are  brought  before  the  Department  by  the  appellant  above 
named,  all  of  which  involve  the  right  of  the  respondent  to  tax  certain  parcels  of 
land  owned  by  the  appellant  and  described  by  him  as  lots  nos.  5,  6,  7,  16,  17,  18, 
26,  27,  28,  36,  2)7'  38,  46,  47,  48,  56,  57,  58,  lying  in  the  Spooner  tract.  These 
lots  all  He  in  district  no.  17,  but  the  appellant  claims  that  they  are  owned  and 
occupied  by  him,  and  that  they  lie  in  one  body,  and  that  as  his  residence  is  in 
district  no.  12  of  the  town  of  Hancock,  the  lots  referred  to  should  be  taxed  in 
that  district. 

The  papers  submitted  by  the  appellant  are  numerous,  and  are  very  defect- 
ively prepared  and  so  poorly  arranged  as  to  render  it  altogether  impossible  to 
determine  in  which  case  he  desires  each  to  be  considered.  Indeed,  it  is  difficult  to 
understand  after  the  most  earnest  efforts,  what  the  purpose  of  the  several  sepa- 
rate appeals  may  be.    There  is  no  map  worthy  of  consideration  submitted. 

I  shall  not  imdertake  to  finally  determine  upon  these  papers  the  question  as 
to  whether  the  lots  referred  to  are  properly  taxable  in  school  district  no.  12  or 
no.  17,  but  have  concluded  to  discuss  the  appeals  and  permit  the  taxes  now  levied 
to  be  collected,  for  the  following  reasons : 

1  Because  of  the  defective  papers  and  insufficient  map. 

2  Because  it  is  shown  that  the  property  referred  to  lies  bodily  within  dis- 
trict no.  17,  and  is  described  as  separate  lots. 

3  Because  it  is  shown  that  it  has  been  taxed  in  that  district  for  many  years. 

4  Because  it  appears  that  the  appeals  were  longer  delayed  than  they  should 
have  been;  in  one  case  at  least,  the  proceedings  have  gone  so  far  as  a  levy  and 
sale  under  execution  by  the  district  collector. 

In  view  of  the  foregoing,  the  several  appeals  are  dismissed  without  preju- 
dice to  the  right  of  the  appellant  to  raise  the  question  as  to  the  right  of  district 
no.  17  to  tax  this  property  at  any  future  time. 


4169 

In  the  matter  of  the  appeal  of  Seymour  C.  Bishop  and  others  from  proceedings 
of  a  special  school  meeting  of  district  no.  i,  town  of  Fairfield.  Herkimer 
county. 

To   sustain   an  appeal  to  this   Department,   the   appellant   must   show   that  he  is   aggrieved, 

"  that  is,  injured,  by  the  action  or  decision  of  which  he  complains.    There  should  be  some 

real  grievance,  some  positive  and  serious  injury  sustained  to  justify  a  resort  by  appeal 


l6  THE   UNIVERSITY    OF   THE   STATE    OF   NEW   YORK 

to  this  Department  for  redress.     Where  there  is  no  proof  that  the  appellant  or  any 
quahfied  voter  of  the  district  has  sustained  any  damage  or  injury,  or  that  the  educational 
interests  of  the  district  have  sustained  damage,  the  appeal  will  be  dismissed. 
Decided  March  9,  1893 

P.  H.  McEvoy,  attorney  for  respondent 

Crocker,  Superintendent 

On  or  about  December  i,  1892,  the  trustee  of  district  no.  i,  town  of  Fair- 
field, Herkimer  count}^,  removed  from  said  district,  thereby  creating  a  vacancy 
in  the  office  of  trustee  in  said  district.  The  clerk  of  said  district  issued  a  notice, 
stating  the  fact  of  the  vacancy  in  the  office  of  trustee,  and  calling  a  special  meet- 
ing of  said  district  to  be  held  at  the  schoolhouse  in  said  district  on  December  2y, 
1892,  at  7  o'clock  p.  m.,  for  the  purpose  of  electing  a  trustee  to  fill  said  office. 
That  said  clerk  posted  said  notice  for  seven  full  days  prior  to  said  December 
27,  1892,  in  seven  conspicuous  places  in  said  district,  but  did  not  serve  any  other 
notice  of  said  meeting.  That  on  said  December  27,  1892,  said  special  meeting 
was  held  and  one  Simon  Eustace  was  elected  trustee  to  fill  said  vacancy.  That 
said  Eustace  accepted  said  office  and  entered  upon  the  discharge  of  the  duties 
thereof,  contracted  for  a  teacher  and  a  school  is  being  conducted  in  said  district. 
From  the  proceedings  of  said  special  meeting  this  appeal  is  taken. 

The  appeal  states  that  the  appellant  was  not  served  with  a  notice  of  said 
special  meeting  and  had  no  knowledge  of  said  meeting,  and  upon  information 
and  belief  avers  that  Stephen  Comstock,  Charles  Rands  and  Philo  Hoover,  resi- 
dents of,  and  legal  voters  in,  said  district,  were  not  notified  of  said  meeting  and 
had  no  knowledge  thereof.  The  affidavit  of  Comstock  only  is  presented  in  sup- 
port of  this  allegation,  and  his  affidavit  is  to  the  fact  that  he  (Comstock)  had  no 
notice  or  knowledge  of  the  meeting. 

Section  7  of  title  7  of  the  Consolidated  School  Act  of  1864  provides  "  The 
proceedings  of  no  neighborhood  or  district  meeting,  annual  or  special,  shall  be 
held  illegal  for  want  of  due  notice  to  all  the  persons  qualified  to  vote  thereat, 
unless  it  shall  appear  that  the  omission  to  give  such  notice  was  wilful  and 
fraudulent." 

No  wilful  or  fraudulent  intent  on  the  part  of  the  clerk  in  the  service  of  the 
notice  of  said  special  meeting  is  alleged  or  shown;  but  he  seems  to  have  acted 
according  to  such  knowledge  as  he  had  upon  the  subject,  believing  his  action  to 
be  legal  and  proper.  There  is  a  complete  failure  on  the  part  of  the  appellant  to 
show  that  he,  or  any  one,  has  been  injured  by  the  alleged  irregularity  in  the 
service  of  the  notice  of  said  special  meeting,  and  that  the  results  of  fhe  meeting 
would,,  under  any  circumstances,  have  been  diiferent. 

No  person  can  sustain  an  appeal  unless  he  is  aggrieved,  that  is,  injured,  by 
the  action  or  decision  of  which  he  complains.  There  should  be  some  real  griev- 
ance, some  positive  and  serious  injury  sustained,  to  justify  a  resort  by  appeal 
to  this  Department  for  redress.     There  is  no  proof  that  the  appellant,  or  any 


JUDICIAL    DECISIONS  :       APPEALS  I7 

qualified  voter  of  the  district,  has  sustained  any  damage  or  injury,  or  that  the 
educational  interests  of  the  district  have  sustained  damage. 
Tile  appeal  herein  is  dismissed. 


3611 

In  the  matter  of  the  appeal  of  Octave  N.  Bonnefond,  from  certain  proceedings 
of  the  annual  school  meeting  held  in  district  no.  23,  town  of  Hancock,  Dela- 
ware county,  August  31,  1S86. 

Where  a  former  trustee  is  charged,  after  he  has  ceased  to  be  a  school  officer,  with  wrong- 
fully retaining  money  of  the  district,  the  State  Superintendent  is  without  jurisdiction 
over  the  person  charged.    In  such  case,  redress  can  be  obtained  only  through  the  courts. 

Decided  June  20,  1887 

Draper,  Superintendent 

This  is  an  appeal  by  a  resident  and  taxpayer  of  school  district  no.  23,  town 
of  Hancock,  Delaware  county,  from  the  proceedings  of  the  annual  school  meet- 
ing held  in  said  district  August  31,  1886. 

The  particular  proceeding  of  the  meeting  objected  to  by  appellant  was  the 
vote  given  to  accept  the  report  of  the  retiring  trustee,  which  contained  an  item 
of  eleven  dollars,  paid  by  said  retiring  trustee  to  his  counsel  for  his  costs  and 
disbursements  in  preparing  an  appeal  from  the  proceedings  of  the  annual  meet- 
ing, at  which  one  Thomas  Swope  was  declared  elected  trustee,  and  immediately 
thereafter  entered  upon  the  performance  of  the  duties  of  such  office.  The  appel- 
lant avers  that  said  retiring  trustee  appropriated  eleven  dollars  for  such  expense 
without  a  vote  of  a  district  meeting  authorizing  it,  or  the  determination  of  a 
county  judge  after  an  appeal  from  a  refusal  of  a  district  meeting  to  so  authorize 
the  expenditure ;  that  at  the  time  the  appeal  was  taken,  said  retiring  trustee  was 
not  a  school  officer,  and  was  not  authorized  by  a  vote  of  a  district  meeting  to 
prosecute  such  appeal. 

The  present  trustee  answering  said  appeal,  alleges  that  said  appeal  was 
decided  in  favor  of  said  retiring  trustee,  who  was  the  appellant  therein;  that  at 
the  last  annual  meeting  the  retiring  trustee  presented  his  annual  report,  and. 
after  request  by  some  voters,  presented  a  receipt  for  eleven  dollars  from  his 
attorneys  for  such  services,  after  which  the  meeting  approved  and  adopted  the 
report. 

I  shall  not  express  an  opinion  as  to  the  legality  of  the  retiring  trustee's 
action,  or  the  action  of  the  district  meeting  in  accepting  and  approving  the  same. 
The  former  trustee  having  ceased  to  be  a  school  officer  at  the  meeting  in 
question,  this  Department  has  no  jurisdiction  over  him.  If  he  has  retained 
moneys  illegally,  the  statute  points  out  the  manner  of  recovering  the  same  by 
civil  and  criminal  proceedings  in  the  courts.  The  amount  involved  is  small  and 
the  appellant's  tax  therefor  is  scarcely  noticeable,  being  ten  or  twelve  cents. 
■•  V  Having  no  power  to  enforce  a  decision  of  this  appeal,  if  one  should  be  made, 
I  disiniss  the  same. 


li)  THE    UNIVERSITY    OF   THE   STATE    OF   NEW   YORK 

3995 

In  the  matter  of  the  appeal  of  E.  R.  Fuller  v.  James  ]M.  Shultz  and  Henry 
Wheeler,  as  trustees  of  school  district  no.  8,  towns  of  Bath,  Wheeler  and 
Avoca,  county  of  Stcub:n. 

Appeals  will  not  be  entertained  where  the  allegations  are  vague  and  indefinite,  and  legal 

and  comprehensive  proof  is  not  furnished. 
Decided  September  7,   1891 

Draper,  Superintendent 

By  this  appeal  the  removal  of  the  respondents  from  the  offices  held  by  them, 
as  trustees,  is  sought. 

The  respondents  are  charged  generally  with  converting  district  funds  to 
their  own  use ;  with  receiving  pay  from  the  district  for  services  personally  ren- 
dered ;  with  giving  orders  upon  the  collector  when  there  were  no  funds  in  his 
hands ;  with  using  public  money  for  repairs  without  a  vote  of  a  district  meeting 
authorizing  such  repairs ;  with  being  discourteous  to  their  associate  trustees,  and 
with  refusing  to  respect  the  expressed  wish  of  the  voters  in  the  matter  of 
employing  a  teacher,  and  finally,  "  with  many  minor  illegal  acts  and  irregularities 
too  numerous  to  mention." 

An  answer  has  been  interposed  in  which  some  of  the  allegations  of  the 
complaint  are  flatly  denied.  Others  are  admitted  and  an  explanation  attempted, 
and  countercharges  of  irregularities  made  against  the  appellant  during  the  time 
he  w'as  a  trustee  of  the  district. 

I  am  satisfied  that  the  affairs  of  the  district  are  in  a  chaotic  state.  If  the 
respondents  have  given  district  orders  upon  the  collector  or  supervisor  when 
there  was  no  district  or  public  money  in  their  hands,  they  are  guilty  of  a  misde- 
meanor and  are  amenable  to  punishment  therefor.  If  they  have  appropriated 
district  money  to  their  own  use,  they  are  guilty  of  a  felony.  If  they  have 
become  individually  interested  in  contracts  with  the  district,  they  are  guilty  of 
a  misdemeanor,  and  if  found  guilty  of  either  of  the  offenses,  they  should  be 
punished  and  removed  from  ofiice. 

But  I  have  not  sufficient  evidence  before  me  upon  which  a  conviction  could 
be  had.  A  majority  of  the  board  of  trustees  at  a  regularly  called  meeting  of 
the  board,  could  legally  employ  a  duly  licensed  teacher,  even  though  a  majority 
of  the  patrons  of  the  school  and  taxpayers  of  the  district  were  dissatisfied  with 
such  selection.  I  have  received  numerous  letters  and  sworn  statements  upon 
each  side  relating  to  the  charges  and  counter  charges,  of  which  no  proof  is  fur- 
nished showing  service  of  copies  upon  the  other  side,  which  I  am,  in  consequence 
of  the  failure  to  show  due  service,  unable  to  use  upon  the  consideration  of  this 
case. 

From  the  correspondence,  it  would  seem  that  hght  upon  some  of  the  charges 
has  been  discovered  since  the  appeal  was  prepared. 

The  allegations  of  the  appellant  are  too  vague  and  obscure. 


JUDICIAL    DECISIONS  :       APPEALS 


I  have  concluded  to  dismiss  the  appeal,  without  prejudice  to  the  right  of  the 
appellant  to  renew  the  same,  when  the  charges  can  be  more  intelligently  and 
definitely  stated  and  more  comprehensive  and  legal  proofs  offered. 


3-01 

In  the  matter  of  the  appeal  of  Edward  Thompson  v.  George  L.  Johnson,  as 
trustee  of  joint  school  district  no.  14,  towns  of  Nassau,  Stephentown  and 
New  Lebanon,  counties  of  Rensselaer  and  Columbia. 

An  appeal  taken  four  months  after  the  performance  of  the  act  complained  of,  when  no 

sufficient  excuse  for  the  delay  is  given,  will  be  dismissed. 
Decided  May  28,  18S7 

Draper,  Superintendent 

This  is  an  appeal  by  a  resident  and  taxpayer  of  joint  school  district  no.  14, 
towns  of  Nassau,  Stephentown  and  New  Lebanon,  counties  of  Rensselaer  and 
Columbia,  from  the  action  of  the  trustee  of  said  district  in  issuing  a  tax  list  to 
collect  S193.20. 

The  tax  list  was  issued  on  the  4th  day  of  October  1886.  It  is  alleged  by  the 
appellant  that  the  district  meeting  authorized  a  tax  of  only  $150  and  that  the 
trustee  has  added  thereto  $43.20,  which  was  unauthorized. 

I'he  trustee,  who  appears  as  respondent,  alleges  that  the  sum  of  $150  was 
for  the  current  expenses  of  the  school  year,  and  that  there  existed  a  deficiency 
for  teachers'  wages  of  $43.20,  which  it  was  necessary  to  raise.  It  is  also  alleged 
that  the  appeal  was  not  taken  until  four  months  had  elapsed  after  the  return  of 
the  warrant  by  the  collector,  and  that  the  appellant  had  paid  his  tax  under  said 
tax  list  and  the  warrant  thereto  attached. 

In  view  of  the  facts,  which  are  undisputed,  that  the  tax  list  and  warrant 
were  delivered  to  the  collector  in  October  last  and  the  tax  collected  of  every 
taxpayer  but  one,  and  that  the  appeal  was  not  taken  until  February  22,  1887,  I 
am  compelled  to  dismiss  the  appeal  under  the  rules. 

Appeals  must  be  taken  within  thirty  days  from  the  time  of  the  act  com- 
plained of,  or  some  satisfactory  excuse  must  be  given  for  the  delay.  None  has 
been  given. 


5008 
In  the  matter  of  the  appeal  of  The   Hartwood  Club  v.   Frank  L.   IMuller,  as 

trustee  of  school  district  5.  Forestburgh.  Sullivan  county. 
An  appeal  from  a  school  district  tax  list  must  be  brought  by  the  party  aggrieved  immediately 
upon  being  apprised  of  the  issuance  of  such  tax  list.     A  delay  in  appealing  until  after 
the  tax  is  paid,  or  its  collection  enforced,  will  be  fatal. 
Decided  May  31,   1902 

.-  ^Villiam  H.  Crane,  attorney  for  appellant 
George  H.  Smith,  attorney  for  respondent 


20  THE   UNIVERSITY    OF   THE  STATE    OF   NEW   YORK 

Skinner,  Superintendent 

This  is  an  appeal  from  the  action  of  the  trustees  of  school  district  5,  Forest- 
burgh,  Sullivan  count}',  in  assessing  in  the  school  year  1900-1  the  sum  of  $54.50 
for  school  taxes  upon  the  property  of  the  appellant,  and  also  assessing  in  the 
school  year  1901-2  upon  such  property  the  sum  of  $60.45  for  school  taxes. 

The  appeal  herein  was  filed  in  this  Department  April  9,  1902,  and  the 
answer  thereto  was  filed  May  7,  1902. 

The  following  facts  are  established  by  the  pleadings  filed  herein : 

The  appellant  herein,  The  Hartwood  Club,  is  a  domestic  corporation  of 
the  State  of  New  York,  incorporated  in  pursuance  of  chapter  267  of  the  Laws 
of  1875,  and  the  several  acts  amendatory  thereof  and  supplementary  thereto,  and 
was  organized  in  the  year  1890  for  the  purpose  of  owning  and  maintaining  a 
game  and  fish  preserve  and  a  summer  home  for  its  members,  and  became  the 
owner,  and  still  owns,  a  large  tract  of  land  in  great  lots  17,  18,  19  and  20  in  the 
first  division  of  Minisink  patent,  which  tract  is  a  continuous  body,  and  lies 
mostly  in  the  town  of  Forestburgh,  Sullivan  county,  and  partly  in  the  town  of 
Deer  Park,  Orange  count}^  State  of  New  York. 

The  clubhouse,  barns,  cottages  and  important  improvements  owned  by  the 
appellant  are  located  on  lot  17  and  in  joint  school  district  6,  aforesaid,  and  the 
agent  of  the  appellant  resides  upon  said  tract  of  land  and  is  in  occupation  of 
the  same,  but  lives  in  a  dwelling  located  on  lot  17,  in  said  district  6,  and  the 
lands  in  lots  18,  19  and  20  are  entirely  without  buildings  thereon,  and  unoccu- 
pied except  by  the  said  agent  of  the  appellant,  as  aforesaid. 

In  the  year  1900,  upon  the  assessment  roll  of  the  town  of  Forestburgh,  all 
the  said  lands  of  the  appellant  were  assessed  as  sixty-five  acres  improved,  at  a 
valuation  of  $105  per  acre;  2783  acres  unimproved,  at  a  valuation  of  $1.50  per 
acre;  making  a  total  of  2848  acres,  at  a  total  valuation  of  $11,000.  In  sajd  year 
1900  the  assessors  of  the  town  of  Forestburgh,  in  an  apportionment  made  by 
them,  filed  with  the  clerk  of  said  town,  apportioned  the  value  of  the  property 
of  the  appellant  for  school  purposes  at  the  sum  of  $5000.  The  trustee  of  school 
district  5,  in  the  tax  list  issued  by  him  for  the  school  year  1900-1,  assessed  the 
appellant  $54.50  upon  its  property  valued  at  $5000,  which  sum  the  appellant 
paid,  under  protest,  to  the  collector  of  said  district  January  18,  1901. 

In  the  year  1901  the  property  of  the  appellant  was  assessed  upon  the  town 
roll  of  Forestburgh  at  $11,500,  and  the  town  assessors  of  1901  filed  with  the 
town  clerk  an  apportionment  of  the  value  of  the  property  of  the  appellant  for 
school  purposes  in  school  district  5  at  the  sum  of  $5250.  The  trustee  of  school 
district  5,  in  the  tax  list  issued  by  him  for  the  school  year  1901-2,  assessed  the 
appellant  $60.45  upon  its  property,  valued  at  $5250,  which  sum  the  appellant 
paid,  under  protest,  to  the  collector  of  the  district  September  30,  1901. 

The  appellant  claims  that  the  apportionment  so  made  by  the  assessors  of 
the  town  of  Forestburgh  was  null  and  void ;  that  the  assessments  so  made  upon 
the  tax  rolls  of  school  district  5  were  irregular  and  without  warrant  of  law ; 
that  the  taxes  so  levied  in  pursuance  of  such  assessments  were  without  juris- 


JUDICIAL  decisions:     appeals  21 

diction  of  the  trustee,  and  that  the  moneys  collected  thereupon  should  be 
returned  to  the  appellant. 

This  Department  has  uniformly  held  that  an  appeal  from  a  tax  list,  on  what- 
ever grounds,  must  be  brought  before  the  payment  of  the  tax,  or  the  collection 
of  the  tax;  that  such  appeals  must  be  brought  by  the  party  considering  himself 
aggrieved  immediately  upon  becoming  apprised  of  the  existence  of  such  tax 
list.  A  delay  in  appealing  until  the  tax  is  paid  or  its  collection  enforced  will 
be  fatal. 

The  rules  of  practice  relative  to  appeals  taken  to  me  provide  that  an  appeal 
should  be  taken  within  thirty  days  after  the  making  of  the  decision  or  the  per- 
formance of  the  act  complained  of,  or  within  that  time  after  the  knowledge  of  the 
cause  of  complaint  came  to  the  appellant,  or  some  satisfactory  excuse  must  be 
rendered  for  the  delay. 

The  first  act  complained  of  by  the  appellant  was  performed  in  the  year 
1900,  and  the  second  act  complained  of  was  performed  in  the  year  1901.  No 
satisfactory  excuse  is  given  by  the  appellant  for  the  delay  in  bringing  the  appeal 
herein.  The  appellant  having  paid  the  taxes  assessed  upon  its  property,  I  am 
powerless  to  afford  any  relief. 

The  appeal  herein  is  dismissed. 


3628 

In  the  matter  of  appeal  of  Abbie  ^l.  Armstrong  v.  the  trustees  of  school  district 
no.  15,  town  of  Hopkinton,  county  of  St  Lawrence. 

Appeal  dismissed,  not  having  been  taken  timely  and  no  reason  for  the  delay  being  shown. 
Decided  August  10,  1S87 

Draper,  Superintendent 

This  appeal  is  taken  by  a  person  who  alleges  she  was  employed  in  the 
month  of  December  1885,  by  Herbert  C.  Maynard,  then  trustee  of  school  district 
no.  15,  town  of  Hopkinton,  in  said  county,  to  teach  the  school  in  said  district 
for  the  term  of  twenty-eight  weeks,  commencing  on  or  about  the  20th  day  of 
December  1885,  at  the  rate  of  eight  dollars  per  week;  that  she  commenced  teach- 
ing pursuant  to  said  agreement  and  continued  for  the  term  of  ten  weeks ;  that 
at  the  expiration  of  said  ten  weeks  a  contagious  disease  prevailed  in  the  district, 
and  that,  on  account  thereof,  the  trustee  requested  the  teacher  to  dismiss  the 
school  until  such  disease  should  disappear;  that  the  appellant  dismissed  the 
school  accordingly;  that  said  appellant  was  notified  by  the  trustee  that  he  would 
advise  her  when  he  was  ready  to  have  the  school  begun;  that  in  April  1886, 
the  appellant  was  requested  by  the  trustee  to  attend  a  teachers  institute;  that 
she  did  attend  said  institute  and  at  its  close  returned  to  the  district  and  com- 
menced teachins:  the  school  and   taught   for  three  weeks;  that  thereupon  the 


22  THE   UNIVERSITY    OF   THE   STATE    OF   NEW   YORK 

appellant  was  informed  by  said  trustee  that  diphtheria  was  still  prevailing  in 
the  district  and,  acting  upon  the  advice  of  a  physician,  he  had  concluded  to  close 
the  school  for  another  term ;  that  the  appellant  returned  home  and  did  not  and 
could  not  engage  in  any  occupation  on  account  of  such  unfulfilled  engagement 
.with  the  trustee,  and  that  she  kept  herself  at  all  times  in  readiness  to  finish  out 
the  term  for  which  she  was  employed,  but  that  the  trustee  never  notified  her  to 
finish  such  term;  that  she  was  paid  the  sum  of  $112  only  on  account  of  such 
engagement,  and  that  the  district  is  now  indebted  to  her  in  the  sum  of  $112, 
which  sum  she  has  demanded  payment  of  from  the  trustee,  and  the  trustee 
refused  and  still  refuses  to  pay  the  same  or  any  part  thereof. 

This  appeal  was  verified  on  the  i6th  day  of  October  1886,  but  was  not 
filed  in  the  Department  until  the  3d  day  of  March  1887,  and  a  copy  of  the  same 
does  not  appear  to  have  been  served  upon  the  trustee  until  the  26th  day  of  Feb- 
ruary 1S87.  For  an  informality  the  petition  was  returned  to  the  appellant  and 
refiled  in  this  Department  on  the  15th  day  of  March  1887.  No  answer  has 
been  received  from  the  trustee  to  this  appeal. 

The  rules  of  the  Department  require  appeals  to  be  taken  within  thirty  days 
from  the  performance  of  the  act  complained  of,  and  without  entering  into  the 
merits  of  this  case,  or  without  intending  to  prejudice  any  rights  which  the 
appellant  may  have  in  an  action  in  the  courts  against  the  district  for  the  recovery 
of  wages,  I  am  compelled  to  dismiss  the  appeal. 


3963 

In  the  matter  of  the  appeal  of  Lovina  Munson  v.  school  district  no.  9,  of  the 
town  of  Hartwick,  county  of  Otsego. 

Appeals  not  brought  within  thirty  days,  unless  the  delay  is  excused  for  satisfactory  rea'sons 

,  shown,  will  not  be  entertained. 
Claims  for  damages  for  breach  of  contract,  when  the  extent  of  the  damages  are  altogether 

indefinite  and  uncertain,  will  not  be  entertained  by  the  Department. 
Decided  February  16,  1891 

Edick  &  Smith,  attorneys  for  appellant 
Pierce  &  Arnold,  attorneys  for  respondent 

Draper,  Superintendent 

The  appellant  claims  to  have  been  employed  by  the  trustee  of  the  district 
above  named  in  December  1889,  to  teach  the  school  in  said  district  for  the  period 
of  sixteen  weeks  in  the  next  summer,  at  the  rate  of  four  dollars  per  week. 
Numerous  conversations  between  the  father  of  the  appellant  and  the  trustee  are 
set  forth  in  their  papers,  to  establish  said  employment.  The  term  was  to  com- 
mence on  the  last  Monday  of  March  1890.  When  the  time  arrived  the  trustee 
refused  to  permit  the  appellant  to  open  the  school,  and  informed  her  that  he  had 


JUDICIAL    DECISIONS  :      APPEALS 


23 


employed  another  teacher.  She  brings  her  appeal  for  the  purpose  of  enforcing 
her  claim  to  damages  for  a  breach  of  the  alleged  contract. 

The  appellant  is  too  late  in  bringing  her  appeal.  The  rules  of  the  Depart- 
ment require  that  it  should  be  brought  within  thirty  days,  or  that  some  satisfac- 
tory excuse  should  be  rendered. 

But  aside  from  this  fact,  her  appeal  could  not  here  be  entertained.  It  has 
been  repeatedly  held  that  the  Department  would  not  undertake  to  enforce  a 
claim  for  damages  for  the  breach  of  a  contract,  when  the  extent  of  the  damage 
was  altogether  indefinite  and  uncertain. 

See  case  of  Tillson  v.  school  district  no.  4,  in  the  town  of  Forestburgh,  in 
the  annual  report  of  this  Department  for  1890,  at  page  131. 

The  remedy  of  the  appellant  is  an  action  in  the  courts.  The  appeal  is 
dismissed. 


Power  of  the  Department  to  grant  rehearings  in  matters  of  appeal  considered. 
Decided  April  18,  1859 

Van  Dyck,  Superintendent 

This  is  an  appeal  asking  for  a  rehearing  of  all  matters  in  controversy  in 
the  district  that  have  been  brought  before  this  Department  since  March  24,  1S57. 

The  main  purpose  of  this  appeal  is  to  secure  a  rehearing,  upon  the  merits, 
of  those  facts  and  arguments  presented  in  an  appeal  to  this  Department  which 
was  dismissed  December  19,  1857,  and  by  restoring,  as  far  as  may  be,  the  con- 
dition of  things  existing  at  that  time,  to  afford  the  appellants  the  relief  at  that 
time  sought. 

At  this  point  we  are  met  by  the  position  of  the  counsel  for  the  respondents, 
that  this  Department  has  no  power  to  grant  a  rehearing  of  any  matter  of  appeal, 
and  that,  the  order  of  this  Department  dismissing  the  appeal  having  been  issued, 
no  further  action  upon  the  matters  embraced  in  that  appeal  can  be  taken. 

It  would  be  doing  injustice  to  the  able,  ingenious  and  plausible  argument 
of  the  counsel  upon  this  point,  for  the  Department  to  controvert  it  simply  m 
action,  by  granting  the  rehearing,  without  any  statement  of  the  grounds  upon 
which  its  conclusions  respecting  the  extent  of  its  rights  and  powers  are  based. 

First,  upon  this  particular  case  it  may  justly  be  said  that  the  decision  of 
the  Department  upon  it  was  expressed  or  rendered  in  the  communication  to 
Commissioner  Boyce,  that  embodied  the  conclusions  at  which  the  Department 
had  arrived  from  an  examination  of  the  evidence  adduced;  it  is,  to  all  intents 
and  purposes,  the  decision  of  the  questions  at  that  time  pending,  and  it  was  pro- 
posed, when  certain  conditions  should  be  reached  by  the  further  acts  of  the 
parties  themselves,  to  issue  an  order  adapted  to  the  circumstances  of  the  case  at 
that  future  time.  On  information,  supposed  to  be  reliable,  that  the  conditions 
stated  had  been  reached,  the  order  was  issued  dismissing  the  appeal;  this  bemg 
done  for  the  sole  purpose  of  enforcing  the  decision  already  rendered.     The  dis- 


24  THE   UXIVERSITY    OF  THE   STATE    OF    NEW   YORK 

missal  of  the  appeal,  therefore,  was  not  the  decision  of  the  case,  as  appears  by 
its  terms,  in  which  it  especially  disclaims  to  act  upon  the  questions  raised  in 
the  controversy,  they  having  been  disposed  of  (as  was  supposed)  according  to 
the  terms  of  the  decision  rendered  by  the  Department.  If  it  be  objected  that  this 
decision  was  not  in  form  and  under  seal,  it  is  sufficient  to  answer  that  the  statute 
does  not  prescribe  the  manner  or  form  in  which  these  decisions  shall  be 
expressed.  That  is  left  to  the  judgment  of  the  Department  itself.  The  seal,  or 
other  forms  commonly  attending  the  rendering  of  a  decision,  are  proper  as  evi- 
dences to  third  parties  of  the  authenticity  of  the  proceedings.  But  they  are  of 
no  importance  to  the  Department  itself,  which  is  cognizant,  at  all  times,  of  its 
own  decisions. 

An  order  of  the  Department  may  be  antecedent  or  supplementary  to  a 
decision,  and  hence  may  be  continued  in  force,  or  vacated,  at  the  pleasure  of  the 
Department.  Thus,  on  an  appeal,  by  inhabitants,  from  the  proceedings  of 
trustees  in  the  matter  of  paying  public  moneys  to  a  teacher,  it  might  be  necessary 
to  issue  an  order  to  the  supervisor,  directing  him  to  withhold  the  payment  of  the 
moneys  of  that  district  until  otherwise  directed.  It  will  not  be  held  that  this 
order  is  fixed  and  can  not  be  vacated.  So,  where  an  order  is  issued  supple- 
mentary to  a  decision,  and  with  a  view,  or  for  the  purpose  of  enforcing  its  con- 
clusions, if  the  Department  shall  afterward  find  that  such  order  is  insufficient  to 
accomplish  the  enforcement  of  the  decision,  or,  owing  to  any  circumstances  of 
which  the  Department  was  unaware,  is  calculated  to  thwart  the  ends  proposed 
by  the  decision  to  be  reached,  it  is  absurd  to  maintain  that  such  order  may  not 
be  modified  or  vacated,  and  such  other  order  be  issued  as  will  conform  to  the 
doctrines  of  the  decision  rendered. 

I  come  now  to  a  review  of  the  power  of  the  Department  to  grant,  a  rehear- 
ing of  a  case  upon  its  merits,  after  a  decision  has  once  been  rendered. 

The  argument  of  the  counsel  was  chiefly  confined  to  two  points :  First,  that 
the  power  to  rehear  a  matter  of  appeal,  after  decision  rendered,  could  only  exist 
b)'-  express  legislative  provision,  and,  no  such  power  having  been  conferred  by 
the  statute,  it,  of  course,  did  not  exist.  Second,  that  the  words  of  the  statute, 
which  declare  that  the  "  decisions  of  the  Department  shall  be  final  and  conclu- 
sive," expressly  prohibit  the  exercise  of  any  such  power  as  is  asked  by  the 
appellants. 

In  the  decisions  referred  to  by  the  counsel,  I  fail  to  find  any  cases  where 
the  power  to  rehear  a  cause  upon  the  merits  has  been  denied,  that  are  at  all 
analogous  to  the  one  now  present.  In  denoting  the  distinction  between  a  superior 
and  an  inferior  court  —  that  is,  one  competent  to  grant  a  new  trial  and  one 
incompetent  —  the  courts  say:  "  We  think  that  a  superior  court  of  general  juris- 
diction must  have  full  cognizance  of  one  at  least  of  the  principal  departments  of 
tlie  law  throughout  the  State,  and  must  be  free,  in  its  primary  action,  from  the 
control  of  any  other  tribunal." 

I  can  conceive  of  no  language  that  should  more  clearly  describe  and  desig- 
nate this  Department  than  that  above  quoted.    I  can,  therefore,  draw  no  other 


JUDICIAL  decisions:    appeals  25 

conclusion  than  that  this  Department  is  a  superior  court  of  general  jurisdiction, 
and  hence  that  to  it  the  decisions  relative  to  tlie  powers  of  inferior  courts  do 
not  apply. 

But  again,  in  i  Johnson's  Cases  179,  which  the  counsel  cited  in  support  of 
his  position,  I  find  the  f ollovring  language :  "  The  power  of  granting  new  trials 
can  only  be  appHed  in  a  manner  which  precludes  the  possibility  of  its  exercise 
being  reviewed  in  this  or  any  other  court."  These  are  just  the  circumstances 
under  which  this  Department  always  exercises  this  power.  And,  further,  in 
the  same  decision,  the  court  says:  "  Indeed,  no  inferior  jurisdiction  can  possess 
this  power  without  express  authority,"  plainly  implying  that  courts  of  superior 
or  general  jurisdiction  may,  in  the  very  nature  of  their  organization,  possess  this 
power  of  granting  new  trials. 

It  is  my  conviction,  therefore,  that  the  power  to  grant  a  new  trial  of  any 
cause  brought  before  this  Department  on  appeal  may  exist  without  special  legis- 
lative designation,  being  involved  in  the  powers  distinctly  conferred,  and  the 
'purposes  and  objects  sought  to  be  accomplished  in  the  organization  of  this 
tribunal. 

I  pass  now  to  consider  the  second  point  in  the  argument  of  the  counsel 
upon  this  question  of  the  power  of  the  Department  to  grant  a  new  trial,  which 
is  based  upon  the  restrictive  terms  of  the  statute  itself,  which  says  that  "  the 
decision  of  the  State  Superintendent  shall  be  final  and  conclusive." 

This  language  has  ever  been  interpreted  as  characterizing  the  exclusiveness 
of  the  jurisdiction  of  this  Department  in  matters  brought  before  it  for  deter- 
mination, and  not  as  limiting  the  Department  itself  to  a  single  examination  of 
any  cause  before  it.  It  was  designed  as  a  check  against  the  interference  of  other 
authorities  wath  the  decisions  here  rendered,  and  not  as  defining  or  circumscrib- 
ing the  powers  of  the  Department  itself. 

The  nature  of  the  trust  committed  to  this  Department,  and  the  form  of 
procedure  necessary  for  the  proper  exercise  of  its  powers,  preclude  the  presump- 
tion that  the  Legislature  ever  intended  that  the  terms  "  final  and  conclusive  " 
should  bear  the  construction  put,  upon  them  by  the  counsel  in  this  case. 

The  indication  of  the  exercise  of  this  power  by  this  Department  to  grant 
nev/  trials  is  made  not  essentially  to  meet  the  present  case,  but  to  meet  and  put 
at  rest,  so  far  as  it  can  be  done  here,  the  general  issue  so  strongly  raised;  and 
I  must  and  shall  assume  that  the  practice  of  this  Department,  in  granting  new 
trials  for  causes  satisfactory  to  itself,  is  a  legitimate  and  necessary  exercise  of 
powers  with  which,  in  the  nature  of  its  organization,  it  is  invested. 


26  THE    UNIVERSITY    OF   THE   STATE    OF    NEW   YORK 

3508 

Nathaniel  Coon  and  others  v.  Abner  L.  Sprague,  sole  trustee  of  school  district 
no.  14,  Sandy  Creek,  Oswgeo  county. 

When    an   appeal   has   been    decided,    such    appeal    will    not   be    reopened,    unless   upon    the 

ground  of  newly  discovered  evidence. 
The  submission  of  testimony  not  contained  in  original  appeal  is  not  sufficient,  unless  it  is 

made  to  appear  that  such  testimony  was  not  known  to,  or  could  not  have  been  procured 

by  tTie  appellants  at  the  time  of  bringing  the  original  appeal. 
Decided  June  i,  18S6 

Draper,  Superintendent 

This  is  a  proceeding  purporting  to  be  an  "  amended  appeal  "  from  the  election 
of  Abner  L.  Sprague  as  sole  trustee  of  school  district  no.  14,  Sandy  Creek, 
Oswego  county,  N.  Y.,  at  the  annual  meeting  held  August  25,  1885. 

It  appears  from  the  records  of  this  Department  that  an  appeal  was  taken 
from  such  election  and  a  decision  rendered  therein  on  the  12th  day  of  December 
18S5. 

This  appeal  was  filed  in  the  Department  Alay  11,  1886.  Under  the  rules 
of  practice,  an  appeal  from  the  action  of  an  annual  meeting  must  be  brought 
within  thirty  days  from  the  date  of  such  meeting  or  some  satisfactory  excuse 
must  be  rendered  in  the  appeal  for  the  delay. 

Again  when  a  decision  has  been  rendered  in  an  appeal,  such  appeal  will  only 
be  reopened  upon  the  production  of  ncAV  evidence  which  was  not  in  the  possession 
of  the  appellant,  or  could  not  have  been  procured  when  the  appeal  was  brought. 

While  more  testimony  is  submitted  in  the  papers  now  before  me  than  was 
contained  in  the  former  appeal,  it  does  not  appear  that  such  testimony  was  not 
known  to  or  could  not  have  been  procured  by  the  appellants  at  the  time 
of  bringing  the  first  appeal,  and  no  reason  is  given  for  bringing  this  appeal 
at  so  late  a  day  except  that  it  was  supposed  that  the  papers  in  the*  former 
case  were  sufficient,  no  answer  having  been  made  to  them.  This  is  not 
a  satisfactory  excuse.  For  these  reasons  I  would  decline  to  entertain  the 
appeal.  It  might  be  well  (or  more  satisfactory),  however,  for  me  to  add  briefly, 
that  I  have  examined  the  papers  herein,  and  find  that  the  appellants  allege  as 
the  grounds  of  their  appeal,  that  the  respondent  was  not  eligible  to  the  office  of 
trustee,  and  that  the  election  was  procured  by  illegal  votes.  But  I  also  find,  by 
a  thorough  examination  of  the  testimony,  that  the  appellants  fail  to  show  either 
that  Abner  L.  Sprague  was,  at  the  time  of  his  election,  ineligible  to  the  office  of 
trustee,  or  that  his  election  was  procured  by  illegal  votes. 

The  appeal  is  overruled. 


JUDICIAL  decisions:    appeals 


3941 


In  the  matter  of  the  appeal  of  James  D.  Van  A^echten  and  others  from  the 
proceedings  of  an  adjourned  annual  meeting  held  in  school  district  no.  ii 
of  the  town  of  Schodack,  county  of  Rensselaer. 

Action  of  a  district  meeting  in  allowing  a  claim  for  legal  services   incurred  by  a  district 

ofi.-cr  in  defending  an  appeal,  sustained. 
Decided  December  i8,  1890 

Draper,  Superintendent 

This  is  an  appeal  by  residents  of  school  district  no.  11,  town  of  Schodack, 
county  of  Rensselaer,  from  the  proceedings  of  the  adjourned  annual  meeting 
held  on  the  9th  day  of  August  1890,  in  voting  to  allow  a  claim  of  $133.25  for 
legal  services  rendered  by  Messrs  Davenport  &  Hollister,  counselors  at  law,  for 
the  respondents  in  the  matter  of  the  appeal  of  Alfred  T.  Bortle  and  others  from 
the  election  of  James  Benner  as  trustee  of  the  above-mentioned  district. 

The  grounds  of  the  appeal  are:  that  the  motion  to  allow  the  claim  was  not 
made  by  a  legal  voter;  that  the  vote  was  not  taken  by  ayes  and  noes;  that  che 
said  James  Benner  was  not  instructed  by  a  resolution  of  a  district  meeting  to 
defend  the  appeal;  that  the  claim  was  not  itemized  and  verified  to  the  district 
meeting;  that  the  charge  is  exorbitant;  that  the  appeal  brought  was  sustained; 
that  the  appeal  was  not  against  any  official  act  of  the  trustee. 

The  respondent  alleges  that,  at  the  meeting  referred  to,  a  motion  was  regu- 
larly put  and  carried  authorizing  a  tax  to  raise  the  sum  of  $133.25  to  Hquidate 
the  charge  for  legal  services  rendered  by  Davenport  &  Hollister  as  attorneys  for 
said  James  Benner  and  others ;  that  the  said  Benner  made  no  charge  for  expenses 
incurred  by  himself  beyond  the  charge  for  his  attorneys  as  above  stated,  and  that 
the  same  was  regularly  presented  to  the  district  meeting  and  allowed.  Respond- 
ent alleges  that  the  motion  to  pay  the  claim  was  regularly  made  by  a  resident  and 
taxpayer  of  the  district,  and  carried  by  a  nearly  unanimous  vote,  not  to  exceed 
three  of  the  fifteen  or  eighteen  persons  present  voting  against  the  same.  He 
alleges  that  he  has  no  acquaintance  with  the  value  of  legal  services,  and  can 
not  state,  of  his  own  knowledge,  whether  the  charge  is  exorbitant  or  not. 

In  the  consideration  of  this  appeal,  my  attention  is  directed  to  subdivision  14 
of  section  16  of  title  7  of  the  Consohdated  School  Act,  which  reads  as  follows: 

The  inhabitants  so  entitled  to  vote,  when  duly  assembled  in  any  district 
meeting,  shall  have  power,  by  a  majority  of  the  votes  of  those  present,  to  vote 
a  tax  ...  to  pay  the  reasonable  expenses  incurred  by  district  officers  in 
defending  suits  or  appeals  brought  against  them  for  their  official  acts.     .     .     ■ 

I  have  no  evidence  before  me  which  will  enable  me  to  pass  upon  the  value 


I 


28  THE   UNIVERSITY    OF   THE   STATE    OF   NEW   YORK 

of  the  services  rendered  by  the  attorneys  whose  bill  is  objected  to,  except  the 
record  evidence  connected  with  the  appeal  on  file  in  this  Department,  and  the 
fact  that  the  attorneys  appeared  before  me  upon  the  argument  of  said  appeal. 

This  is  a  matter  which  the  district  meeting  had  authority  under  the  statute 
to  act  upon.  As  it  has  acted,  its  action  must  be  upheld  unless  good  ground  is 
shown  for  setting  it  aside.  The  burden  of  proof  is  upon  the  appellant  to  show 
that  the  bill  audited  was  excessive.  They  fail  to  show  this.  Indeed,  they  adduce 
no  proof  at  all  to  show  it.  The  overwhelming  vote  in  the  district  meeting  indi- 
cates a  general  willingness  in  the  district  to  pay  the  bill,  and  consequently,  a 
general  belief  that  the  amount  claimed  was  not  excessive. 

The  appeal  must  be  dismissed  and  the  stay  heretofore  granted  herein  is 
hereby  set  aside  and  revoked. 


3983 

In  the  matter  of  the  appeal  of  Jonathan  E.  Leach  and  others  v.  George  E. 
Fralick,  as  trustee  of  school  district  no.  4,  towns  of  Marathon  and  Willett, 
county  of  Cortland. 

Costs  and  expenses  incurred  in  instituting  proceeding  on  appeal  can  not  be  legally  allowed 
by  a  district  meeting,  unless  the  appeal  was  instituted  or  prosecuted  by  a  school  district 
officer  in  his  official  capacity. 

Decided  June  30,  1891 

William  D.  Tuttle,  attorney  for  appellant 
Milo  C.  Paige,  attorney  for  respondent 

Draper,  Superintendent 

By  this  appeal  an  item  for  expenses  incurred  in  preparing  and  prosecuting 
an  appeal  before  the  State  Superintendent  of  Public  Instruction,  w^ich  item  has 
been  audited  and  allowed  by  a  district  meeting,  and  thereupon  included  in  a 
district  tax,  is  objected  to,  upon  the  ground  that  the  action  of  the  district  meeting 
was  without  authority  of  law. 

From  the  evidence  before  me,  and  which  is  undisputed,  it  appears  that  the 
appellant  was  the  immediate  predecessor  of  the  respondent  herein  in  the  office 
of  trustee  of  school  district  no.  4,  towns  of  Marathon  and  Willett,  Cortland 
county,  and  that  during  the  appellant's  term  of  service  the  respondent  was  the 
clerk  of  said  district ;  that  during  this  time  an  appeal  was  taken  by  the  respond- 
ent herein  and  others  from  certain  proceedings  of  the  then  trustee. 

It  is  conceded  that  the  appeal  was  not  brought  by  the  direction  of  a  district 
meeting,  and  the  appellant  herein  alleges  that  it  was  not  brought  by  the  clerk 
ex  officio,  but  only  in  an  individual  capacity  in  which  he  was  joined  by  other 
taxpayers  of  the  district.  The  respondent  insists  that  he  proceeded  upon  such 
appeal  as  district  clerk,  and  that  he  personally  incurred  the  attending  expenses. 


JUDICIAL    DECISIONS  :      APPEALS  29 

Had  the  appeal  been  instituted  or  prosecuted  by  the  direction  of  a  district 
meeting,  or  without  such  direction  by  the  clerk,  in  his  official  capacity  in  a  case 
in  which  he  would  have  been  authorized  to  institute  such  a  proceeding,  the  item 
would  be  approved,  no  question  having  been  raised  as  to  its  reasonableness. 
My  attention  having  been  directed  to  the  former  appeal,  no.  3883,  I  have 
examined  the  pleadings  of  the  appellant  therein,  and  I  do  not  find  that  the  district 
clerk  instituted  said  appeal  in  his  official  capacity  or  in  any  other  than  an  indi- 
vidual one,  and  I  am,  therefore,  led  to  the  conclusion  that  the  case  is  not  brought 
within  the  statutory  provision  w^hich  authorizes  a  district  meeting  to  allow  the 
expenses  incurred  by  a  district  officer  in  prosecuting  an  appeal. 

The  appeal  is  sustained,  the  action  of  the  district  meeting  declared  invalid, 
and  the  order  heretofore  granted  herein  enjoining  the  collector  of  the  amount 
voted  for  expenses  incurred  on  said  appeal,  is  hereby  made  permanent. 


3558 

In  the  matter  of  the  appeal  of  Aaron  X.  Losee  and  others  v.  Alfred  P.  Blenis, 
as  trustee  of  district  no.  7,  town  of  Greenville,  Greene  county. 

The  district  meeting  appointed  a  committee  to  represent  the  district  upon  proceedings 
before  the  county  judge,  for  determining  the  amount  of  the  liability  of  the  district  for 
costs  and  expenses  of  an  appeal  in  which  the  district  had  been  involved  (section  9, 
title  13,  Consolidated  School  Act),  and  the  chairman  of  the  committee  having  been 
subsequently  elected  trustee,  levied  a  tax  for  the  sum  of  $195  to  pay  the  counsel  fee 
and  expenses  of  such  committee. 

Held,  (i)  that  a  charge  for  services  of  counsel  amounting  to  $160  for  defending  against 
a  claim  of  $180,  was  exorbitant;  (2)  that  the  committee  could  not  be  allowed  any 
compensation  for  their  services;  (3)  that  the  committee  could  not  be  allowed  for  the 
use   of   their   own   conveyances. 

Decided  January  28,  1887 

E.  C.  Hallenbeck,  Esq.,  attorney  for  appellants 
Franklin  J.  Taylor,  Esq.,  attorney  for  respondent 

Draper,  Superintendent 

The  district  from  which  this  appeal  emanates  is  very  small,  comprising,  all 
told,  about  twenty  taxable  inhabitants.  It  has  been  involved  in  a  quarrel  for  a 
long  time,  and  there  seems  little  prospect  of  a  settlement.  About  a  year  since, 
Alfred  P.  Blenis,  the  respondent  above  named,  and  others,  appealed  to  this 
Department  to  remove  from  office  Leander  \V.  Hallock,  then  trustee  of  said 
district.  The  decision  of  such  appeal,  made  upon  the  29th  day  of  March  1886, 
denied  the  application.  Subsequently  Mr  Hallock  presented  to  a  district  meeting 
a  claim  for  costs,  charges  and  expenses  incurred  by  him  upon  such  appeal,  and 
upon  the  refusal  of  the  district  meeting  to  pay  the  claim,  he  appealed  to  the 
county  judge  of  Greene  county  to  adjust  the  same,  pursuant  to  the  provisions 


30  THE   UNIVERSITY    OF  THE   STATE   OF   NEW   YORK 

of  section  9  of  title  13  of  the  Consolidated  School  Act  of  1864,  and  the  district 
subsequently  appointed  a  committee  consisting  of  Mr  Blenis,  Amos  B.  Story 
and  Oliver  H.  Bogardus  to  protect  its  interests  before  the  county  judge.  In  the 
discharge  of  its  duty,  the  committee  incurred  some  expense  and  employed  counsel. 
Two  lawyers  were  called  in  to  represent  the  district  before  the  county  judge  and 
defend  against  a  claim  amounting  to  $iSo.  There  appears  to  have  been  two 
adjournments  of  the  proceedings  before  the  county  judge,  and  finally  in  Sep- 
tember, that  officer  adjusted  the  claim  of  Hallock,  at  the  sum  of  $120.  Then 
Mr  Blenis,  the  respondent  above  named,  having  in  the  meantime  been  elected 
trustee  of  the  district,  made  out  a  tax  list  and  warrant  and  placed  the  same  in 
the  hands  of  the  collector  for  the  purpose  of  raising  the  sum  of  $195  to  cover 
the  expenses  of  the  committee.    From  this  action  this  appeal  is  taken. 

Whether  the  committee  appointed  to  represent  the  district  had  the  right  to 
employ  counsel  or  not,  is  a  matter  not  free  from  doubt,  but  as  the  trustee  who 
was  pressing  the  claim  against  the  district  was  represented  before  the  county 
judge  by  counsel,  there  would  seem  to  be  some  reason  in  the  district  being  so 
represented,  and  as  counsel  were,  in  fact,  employed,  and  did  appear  and  repre- 
sent the  district,  and  as  the  objections  of  the  appellants  here  seem  to  be  directed 
against  the  amount  of  the  claim  for  counsel  fees  rather  than  against  the  right 
of  the  committee  to  employ  counsel,  I  am  not  inclined  to  inquire  into  that  question 
too  closely.  But  in  any  event,  it  is  difficult  to  justify  the  proceedings  of  the  com- 
mittee in  employing  two  attorneys  to  represent  it  upon  a  very  simple  proceeding 
before  the  county  judge,  when  the  claim  against  the  district  was  but  for  the 
sum  of  $180,  and  it  is  still  more  difficult  to  justify  the  claim  which  is  presented 
for  counsel  fees  in  the  sum  of  $160,  for  defending  against  a  claim  for  $180. 
Furthermore,  it  is  noticed  that  the  committee  have  included  in  their  personal 
bills,  items  for  the  use  of  their  own  conveyances  in  going  to  the  county  seat 
upon  the  several  occasions  when  the  matter  was  expected  to  be  up  for  con- 
sideration. The  statute  only  authorizes  them  to  charge  for  expenses  incurred 
in  the  performance  of  their  duty,  and  provides  only  that  such  expenses  shall 
be  a  charge  upon  the  district.  It  is  not  possible  to  hold  that  they  we^i-e  subjected 
to  expense  in  the  use  of  their  own  convevances. 

I  have,  therefore,  concluded  to  sustain  the  appeal,  unless  the  respondent 
shall,  within  fifteen  days  from  the  date  hereof,  withdraw  the  warrant  and  tax 
list  from  the  hands  of  the  collector,  and  reduce  the  amount  levied  by  said  tax 
list,  by  deducting  therefrom  all  items  charged  by  members  of  the  committee  for 
the  use  of  their  own  conveyances  and  by  reducing  the  amount  claimed  for  the 
services  of  counsel  to  the  sum  of  $75.  The  said  trustee  has  my  permission  to 
withdraw  said  warrant  and  tax  list  and  correct  the  same  as  herein  indicated. 
In  case  this  is  done,  restitution  must  be  made  to  such  of  the  taxpayers  in  the 
district  as  have  paid  the  amount  levied  against  them  by  the  said  tax  list,  or.  at 
least  by  restoring  so  much  of  the  amounts  so  paid  respectively,  as  will  be  in 
excess  of  the  amount  which  they  will  be  obliged  to  pay  under  the  modified  and 
corrected  tax  list.  In  the  meantime,  the  matter  will  be  held  in  abeyance,  and 
upon  proof  of  such  modification  being  made,  the  appeal  will  be  dismissed. 


JUDICIAL  decisions:     appeals  31 

3399 

Expenses  of  a  member  of  the  board  of  education  in  defending  action  brought  against  him 

are  chargeable  against  the  district. 
.Decided  March  12,  18S5 

Ruggles,  Supcrintcndcr.t 

This  appeal  is  brought  from  the  action  of  the  annual  meeting  in  ordering 
payment  of  the  sum  of  $235  to  one  of  the  trustees  for  the  legal  expenses  incurred 
by  him  in  defending  certain  actions  brought  against  him. 

From  November  28,  1882,  until  June  30,  1883,  Sandford  S.  Gowdey  was 
employed  as  principal  teacher  in  the  school  in  that  district.  The  board  of  edu- 
cation in  May  1883,  assumed  to  discharge  Gowdey  from  the  duties  of  his  office, 
the  discharge  to  take  effect  on  the  30th  of  June  1883.  In  July  1883,  Gowdey 
claimed  that  he  had  not  been  legally  discharged,  and  appeared  at  the  schoolhouse 
of  the  district  and  interfered  with  a  teacher,  employed  by  the  board  of  education 
in  the  discharge  of  her  duties,  and  ordered  her  and  the  trustees  to  vacate  the 
school  at  once.  Gowdey  insisted  upon  his  right  of  possession  of  the  schoolhouse 
as  teacher  for  several  days  thereafter.  Finally  the  board  held  a  special  meeting 
to  consider  what  action  should  be  taken  in  the  premises  to  stop  the  intrusion 
of  Gowdey,  and  at  the  meeting  a  resolution  was  unanimously  adopted  directing 
George  W.  Payne,  the  president  of  the  board,  to  employ  counsel  to  "  defend  " 
the  board  in  the  matter  of  the  dispute  between  said  board  and  Gowdey.  Payne 
was  advised  by  counsel  to  make  complaint  to  a  justice  of  the  peace  and  have 
said  Gowdey  arrested  forthwith.  On  the  8th  of  September  Payne  reported  to 
the  board  the  retaining  of  Benjamin  W.  Downing  as  counsel  and  the  advice 
given  by  him,  and  the  board  then  and  there  adopted  a  resolution,  instructing 
Payne  to  cause  the  arrest  of  said  Gowdey.  Acting  under  this  instruction,  Payne 
made  a  complaint  against  Gowdey  to  Justice  Van  Nostrand,  of  Flushing,  who 
issued  a  warrant  for  his  arrest.  The  case  coming  on  for  trial,  counsel  deeming 
the  warrant  irregular  withdrew  it,  and  immediately  procured  another  from  the 
justice.  The  prisoner  was  immediately  rearrested  and  thereupon  tried  and 
acquitted.  After  his  acquittal,  Gowdey  brought  two  suits  against  Payne  in  the 
Supreme  Court  in  Queens  county,  one  for  false  imprisonment  and  one  for 
malicious  prosecution,  laying  his  damages  at  $10,000  in  each  suit.  These  suits 
were  tried  at  the  January  circuit  following.  The  plaintiff  was  nonsuited  in  both 
cases.  The  first  case  was  dismissed  on  the  ground  that  the  warrant  was  a  good 
one,  and  in  the  second  case  (the  action  for  malicious  prosecution),  on  the 
ground  that  upon  his  own  testimony,  there  was  probable  cause  for  the  arrest 
of  the  plaintiff  by  the  trustee,  for  disturbing  the  school.  Following  this  a  suit 
was  brought  by  Payne's  counsel  in  these  cases,  in  a  justice's  court,  against  the 
board  of  education,  some  time  in  June  or  July  1884.  In  this  suit  the  complaint 
charged  that  the  plaintiff  and  B.  W.  Downing,  rendered  certain  services  for 
said  board,  at  its  request,  and  that  the  reasonable  value  of  such  services  was  $200. 
The  answer  of   the   defendant   denied  that   the  services   were   rendered   at   the 


32  THE   UXIVERSITY    OF   THE   STATE    OF   XEW   YORK 

request  of  the  defendant,  or  for  its  benefit.  The  judgment  for  the  defendant 
in  this  case  seems  to  have  been  based  upon  the  ground  that  the  plaintiff  never 
had  any  privity  with  the  defendant,  and  that  he  failed  to  show  that  he  legally 
derived  his  claim  through  any  person  who  was  in  privity  with  such  defendant. 
The  counsel.  Drew  and  Downing,  thereupon  demanded  payment  for  these  serv- 
ices from  the  trustee  Payne,  who  at  the  annual  meeting  presented  an  account 
in  writing  of  the  costs,  charges  and  expenses  paid  by  him,  with  the  items  thereof, 
verified  by  his  oath  or  affirmation,  and  asked  the  adoption  of  the  resolution  by 
the  meeting,  that  the  same  might  be  assessed  upon  the  taxable  property  of  the 
district,  and  when  collected  to  be  paid  over  to  said  Payne. 

There  are  two  questions  worthy  of  consideration  in  this  case: 

1  Was  the  determination  of  the  case  of  Drew  against  the  board  of  education 
of  such  a  character  as  to  constitute  res  ad  judicata  f 

2  Was  Payne  a  district  officer  within  the  meaning  of  sections  7  and  8,  title 
13,  of  the  Code  of  Public  Instruction? 

A  party  setting  up  an  estoppel  by  reason  of  a  former  adjudication,  must 
by  competent  evidence  prove  affirmatively  that  the  issues  on  the  former  adjudi- 
cation were  the  same,  and  between  the  same  parties  or  their  privies.  Xow,  it 
appears  that  the  action  of  Drew  against  the  board  of  education  proceeded  upon 
the  theory  that  he  and  his  partner,  Downing,  were  employed  by  the  board.  The 
judgment  of  dismissal  in  this  case  was  based  upon  the  ground  that  they  were 
not  so  employed,  and  this  was  undoubtedly  correct.  Downing  and  Drew  were 
employed  by  direction  of  the  board  of  education  in  a  criminal  action  against 
Gowdey,  out  of  which  grew  the  suits  for  false  imprisonment  and  malicious 
prosecution  brought  by  Gowdey  against  Payne,  who  had,  in  the  criminal  action, 
made  the  complaint  under  the  direction  of  the  board.  It  can  not  be  held  that 
the  judgment  of  dismissal,  in  the  action  of  Drew  against  the  board  of  education, 
could  in  any  way  estop  a  district  meeting  from  legally  adopting  the  resolution 
from  which  this  appeal  is  taken,  if  Payne  was  a  district  officer,  within  the  mean- 
ing of  sections  7  and  8,  title  13  of  the  Code  of  Public  Instruction.  This  leads  to 
the  second  question. 

Was  Payne  a  district  officer  within  the  meaning  of  sections  7  and  8,  title  13 
of  the  Code  of  Public  Instruction? 

\\'hile  the  board  of  education  is  a  corporation,  and  the  individuality  of  its 
members  is  lost  sight  of  in  the  action  of  the  board,  yet  each  member  of  the 
board  must  be  regarded  as  a  school  officer ;  especially  so,  where  the  board 
delegates  to,  or  charges  a  member 'with,  certain  definite  duties.  Such  was  the 
case  in  the  |)roceeding  which  led  to  the  resolution  of  the  annual  meeting  and  to 
this  appeal.  The  board  of  education  vexed  and  annoyed  by  the  action  of  Gowdey, 
whom  they  had  assumed  to  dis'charge  from  his  position  as  teacher  by  a  formal 
resolution,  directed  the  president  to  take  legal  advice  as  to  the  best  means  to 
defend  the  board  under  the  circumstances.  Payne  did  as  he  was  directed,  and 
reported  back  to  the  board  the  advice  he  received,  and  was  in  terms  empowered 
and  directed  to  cause  the  arrest  of  Gowdev  for  disturbing  the  school.    All  these 


A 


JUDICIAL    DECISIONS  :      APPEALS  33 

proceedings  were  taken  in  good  faith ;  Gowdey  was  arrested,  tried  and  acquitted. 
Up  to  this  point  the  board  of  education  was  directly  responsible  for  the  action 
of  its  agent,  and  had  suit  been  brought  by  counsel  against  the  board  for  services 
in  this  criminal  proceeding,  and  for  the  advice  given  to  Payne,  acting  as  its 
agent  and  president,  there  can  be  no  doubt  that  recovery  would  have  been  had. 
But  now,  Gowdey  commenced  his  two  actions  in  the  Supreme  Court  against 
Payne.  There  is  no  doubt,  from  the  evidence,  that  in  the  trial  of  these  two 
cases  it  was  shown  that  Payne's  action  in  the  arrest  of  Gowdey  was  taken  as 
trustee ;  and  in  these  cases  he  was  forced  to  defend  the  suits  brought  against 
him  for  his  action  as  trustee.  So,  that  from  the  beginning  to  the  end  of  the 
controversy,  Payne  acted  in  his  capacity  as  a  district  officer.  I  think  there  can  be 
no  doubt  these  actions  involved  the  rights  and  interests  of  the  district,  and  that 
it  was  within  the  province  of  the  district  to  provide  for  the  payment  of  the 
reasonable  costs,  charges  and  expenses  of  tlie  district  oflicers. 


4652 
In  the  matter  of  the  appeal  of  Louis  F.  Metz  as  trustee  of  school  district  8, 
Ridgeway,  Orleans  county,  from  action  of  special  school  meeting  in  school 
district  8,  Ridgeway,  Orleans  county,  held  on  January  28,  1898. 
Where  a  school   district  meeting  refuses   to   pay  the   reasonable   expenses   incurred   by  a 
district  officer  in   defending  an   appeal   brought   against  him    for  his   official   acts,   an 
appeal  will  lie  to  the  State   Superintendent  of    Public  Instruction   from   such   refusal. 
If,  upon  such  appeal,  it  is  established  that  the  appeal  so  defended  by  the  district  officer 
was  taken  wholly  from  his  official  acts,  or  contained  allegations  charging  him  as  such 
officer  with  acting  improperly  or  illegally,  and  the  expenses  paid  by  him  in  such  defence 
are  reasonable,  the   State   Superintendent  has  jurisdiction  and   may  make   such   order 
therein  by  directing  the  levymg  of  a  tax  or  otherwise  as  shall,  in  his  judgment,  be 
proper  and  necessary  to  give  effect  to  such  decision. 
Decided  May  13,  1898 

Harry  Cooper,  attorney  for  appellant 

Irving  L'Hommedieu,  attorney  for  respondent 

Skinner,  Superintendent 

This  is  an  appeal  from  the  action  of  a  special  school  district  meeting  held 
in  school  district  8,  Ridgeway,  Orleans  county,  January  28,  1898,  in  refusing 
to  vote  a  tax  for  the  sum  of  $30  to  pay  the  expenses  incurred  by  the  appellant 
in  defending  an  appeal  brought  against  him  for  his  official  acts  as  trustee  of 
such  district. 

Watson  H.  Whipple,  a  qualified  voter  of  such  school  district,  has  answered 
the  appeal  and  alleges  that  the  appellant  defended  the  appeal  as  an  individual 
and  not  as  trustee ;  that  such  defence  was  made  by  him  without  the  authorization 
or  sanction  of  the  inhabitants  of  such  district. 

From  the  proofs  herein,  and  from  the  records  of  this  Department,  it  appears 
that  the  appellant  was  the  trustee  of  such  district  for  the  school  year  of  1896-97 ; 
that  on  August  3,   1897,  the  annual  school  meeting  was  held  in  such  district, 


34  THE   UNIVERSITY    OF   THE   STATE    OF    ^E\V    YORK 

at  which  certain  proceedings  were  taken,  from  which  one  Bowen  and  the 
respondent  herein  appealed  to  me,  alleging  in  such  appeal,  among  other  things, 
that  said  trustee  Metz  "  had  resorted  to  deceitful,  fraudulent  and  unlawful 
tactics  in  order  tp  secure  his  reelection  as  trustee,"  etc. ;  that  he  had  called  such 
meeting  to  order  at  7.30  p.  m.  when  the  notice  of  the  meeting,  as  posted  by  the 
clerk,  states  that  the  meeting  would  be  held  at  8  p.  m. ;  that  the  proceedings  of 
the  meeting  were  principally  taken  and  the  meeting  adjourned  before  the 
majority  of  the  voters  of  the  district  arrived  at  the  schoolhouse,  etc.;  that  the 
election  of  district  officers  was  illegal  and  that  illegal  votes  were  received;  that 
a  copy  of  the  appeal  was  served  upon  trustee  Metz,  who  employed  counsel  and 
filed  his  answer  thereto. 

Upon  the  proofs  filed  in  such  appeal  it  appears  that  on  July  29,  1897,  trustee 
Metz  inquired  of  the  district  clerk  whether  he  had  posted  notices  of  the  annual 
meeting,  and  was  informed  that  he  had  not,  and  thereupon  was  directed  by  the 
trustee  to  post  such  notices ;  that  such  clerk  posted  one  notice  in  which  he  stated 
that  the  meeting  would  be  held  on  August  3,  1897,  at  8  o'clock  p.  m. ;  that  on 
the  evening  of  August  3,  1897,  nearly  all  of  the  qualified  voters  of  the  district 
assembled  in  the  schoolhouse,  or  upon  the  schoolhouse  grounds,  and  a  discussion 
arose  as  to  whether  the  meeting  could  be  legally  organized  at  7.30  or  8  p.  m., 
and  Trustee  Metz  stated  to  those  present  that  the  clerk  had  not  inserted  in  the 
notice  posted  the  hour  fixed  by  the  school  law  for  holding  the  meeting,  and  the 
meeting  would  be  called  to  order  at  7.30,  and  requested  all  present  to  come  into 
the  schoolhouse  and  be  present  at  such  meeting;  that  about  one-half  of  the 
voters  present  entered  the  schoolhouse  and  took  part  in  the  meeting,  the  others 
remaining  outside  and  declining  to  take  part  in  such  meeting;  that  after  the 
adjournment  of  the  annual  meeting  the  persons  who  declined  to  enter  the  school- 
house  held  a  meeting  and  voted  to  appeal  from  the  action  of  the  annual  meeting, 
and  said  Bowen  and  Whipple  appealed. 

In  my  decision  of  such  appeal  I  decided  that  such  annual  meeting  was 
legally  held,  and  that  Metz  was  legally  elected  trustee;  that  there  was  no  one 
elected  district  clerk,  and  that  the  collector  was  not  legally  elected,  no5  was  the 
tax  legally  voted,  and  directed  that  a  special  meeting  be  called  for  the  purpose 
of  electing  a  district  clerk  and  collector,  and  to  vote  upon  the  question  of  levying 
a  tax  or  taxes. 

It  also  appears  that  Trustee  Metz  called  a  special  meeting  of  the  district, 
to  be  held  on  October  12,  1897,  to  transact  the  business  directed  by  my  decision, 
but  added  thereto  a  notice  that  such  meeting  would  also  be  asked  to  vote  a  tax 
to  defray  the  expenses  of  the  trustee  incurred  by  him  in  defending  the  appeal 
brought  by  Bowen  and  Whipple ;  that  such  special  meeting  refused  to  vote  such 
tax;  that  Trustee  Metz  appealed  from  such  refusal,  and  the  respondent  herein 
answered  said  appeal,  alleging  therein  (as  in  his  answer  herein)  that  Metz  did 
not  defend  the  appeal  of  "Bowen  and  Whipple  as  trustee,  but  as  an  individual, 
and  such  appeal  was  not  taken  from  the  official  acts  of  Metz,  and  that  he  was 
not  requested  by  the  inhabitants  to  defend.  He  also  alleges  that  as  such  special 
meeting   was   called   pursuant   to   the   directions   contained   in   mv   decision    for 


JUDICIAL   DECISIONS  :      APPEALS  35 

specific  purposes,  the  action  of  the  meeting  in  voting  upon  the  expenses  incurred 
by  Metz  was  without  authority. 

In  my  decision  of  the  appeal  of  Metz  I  stated  that  the  contention  of  the 
respondent,  Whipple,  that  Metz  did  not  answer  the  appeal  of  Bowen  and 
Whipple  as  trustee  but  as  an  individual,  was  not  well  taken ;  that  as  such  appeal 
charges  Metz  in  his  acts  as  trustee  with  deceitful  and  fraudulent  practices  to 
secure  his  reelection  as  trustee,  such  appeal  was  brought  from  his  official  acts 
relative  to  such  annual  meeting ;  that  upon  the  facts  established  he  acted  properly 
in  defending  such  appeal ;  that  the  sum  of  $30  paid  by  him  as  expenses  in  such 
defense  was  reasonable,  and  that  no  good  reason  was  shown  why  the  qualified 
voters  of  school  district  8,  Ridgeway,  should  not  vote  a  tax  to  pay  the  same. 

In  subdivision  15  of  section  14,  title  7  of  the  Consolidated  School  Law  of 
1894,  it  is  enacted  that  the  inhabitants  entitled  to  vote,  when  duly  assembled  in 
any  district  meeting  duly  called  and  held,  have  power,  by  a  majority  of  the  votes 
of  those  present,  to  vote  a  tax  to  pay  the  reasonable  expenses  incurred  by 
district  officers  in  defending  suits  or  appeals  brought  against  them*  for  their 
oflicial  acts,  or  in  prosecuting  suits  or  appeals  brought  by  direction  of  the 
district. 

When  an  appeal  is  brought,  which  alleges  improper  or  illegal  acts  on  the 
part  of  a  district  officer,  such  officer  may  apply  to,  and  obtain  from,  a  district 
meeting  authority  to  defend  the  same,  or  he  may  defend  such  appeal  without 
such  authority.  If  defended  without  obtaining  such  authority  from  the  district 
he  can  present  to  an  annual  meeting,  or  a  special  meeting  of  the  district,  duly 
called,  a  statement  of  the  expenses  incurred  by  him  in  such  defense,  and  such 
meeting  has  authority  to  vote  a  tax  to  pay  the  reasonable  expenses  so  incurred 
by  him.  If  the  meeting  refuses  to  vote  a  tax  he  may  appeal  from  such  refusal 
to  the  State  Superintendent  of  Public  Instruction  under  title  14  of  the  Con- 
solidated School  Law  of  1894.  If  upon  such  appeal  it  is  established  that  the 
appeal  defended  by  such  district  officer  was  taken  wholly  from  his  official  acts, 
or  contained  allegations  charging  such  officer  with  acting  improperly  or  illegally, 
and  that  the  expenses  paid  by  him  in  such  defence  are  reasonable,  the  State 
Superintendent  has  jurisdiction  to  entertain  such  appeal,  and  may  make  such 
order  therein  by  directing  the  levying  of  a  tax  or  otherwise  as  shall,  in  his 
judgment,  be  proper  and  necessary  to  give  eflfect  to  such  decision. 

I  decide: 

That  the  said  appeal  of  Bowen  and  Whipple  was  brought  not  only  from 
certain  proceedings  taken  at  the  annual  school  meeting,  held  in  school  district  8, 
Ridgeway.  Orleans  county,  on  August  3,  1897,  but  from  certain  improper  and 
illegal  acts  done  by  Metz  as  trustee  of  said  district;  that  said  Metz,  as  such 
trustee,  properly  interposed  a  defence  to  such  appeal;  that  the  sum  of  $30 
incurred  and  paid  by  him  in  defending  such  appeal  is  reasonable. 

It  is  ordered.  That  for  the  purpose  of  giving  effect  to  my  decision  herein, 
Louis  F.  Metz,  as  trustee  of  school  district  8,  Ridgeway,  Orleans  county,  is 
directed  to  levy  a  tax  for  the  sum  of  $30  upon  the  real  and  personal  property 
subject  to  taxation  in  such  district  for  school  purposes,  to  pay  the  reasonable 


30  THE   UXIVERSITY   OF   THE   STATE    OF   NEW   YORK 

expenses  incurred  by  him  in  defending  the  said  appeal  brought  by  Messrs  Bowen 
and  Whipple,  charging  therein  improper  and  illegal  acts  on  the  part  of  said 
Metz  as  trustee  of  such  district. 


4507 
In  the  matter  of  the  appeal  of  Harvey  D.  Titch  from  proceedings  of  annual 
school  meeting  held  August  4,  1896,  in  district  no.  10,  town  of  Andes,  Dela- 
ware county. 

Under  the  provisions  of  subdivision  15  of  section  14,  article  i,  title  7,  of  the  Consolidated 
School  Law  of  1894,  the  inhabitants  entitled  to  vote,  w^hen  duly  assembled  in  any  district 
meeting,  shall  have  power,  by  a  majority  of  the  votes  of  those  present,  to  vote  a  tax  to 
pay  the  reasonable  expenses  incurred  by  district  officers  in  defending  suits  or  appeals 
brought  against  them  for  their  official  acts  or  in  prosecuting  suits  or  appeals  by  the 
direction  of  the  district  against  other  parties. 

The  provisions  contained  in  sections  4  to  8,  inclusive,  of  article  i,  title  15,  of  the  school 
law,  have  reference  solely  to  tlie  prosecution  or  defense  by  trustees  of  school  districts 
in  actions  or  proceedings  brought  by  or  against  them  in  the  courts  of  the  State,  but 
not  expenses  incurred  by  district  officers  in  defending  appeals  brought  to  the  State 
Superintendent  of  Public  Instruction. 

Decided  November  7,  1896 

Williams   &  Conlon,   attorneys   for  appellant 
Wagner  &  Fisher,  attorneys  for  respondent 

Skinner,  Superintendent 

This  appeal  is  taken  from  the  proceedings  of  the  annual  school  meeting  held 
on  August  4,  1896,  in  school  district  no.  10,  town  of  Andes,  Delaware  county, 
in  the  adoption  of  a  resolution  that  so  much  of  an  account  of  Wagner  &  Fisher, 
amounting  to  the  sum  of  $142.50,  as  exceeds  the  sum  of  $15  therein,  be  audited 
and  allowed  at  said  amount,  and  said  sum  be  included  in  the  tax  list  as  asked 
for  by  the  trustee  in  his  report,  upon  the  ground  that  the  part  of  the  said  account 
amounting  to  $127.50  is  not  a  proper  charge  against  said  district. 

Frank  B.  Scudder,  as  trustee  of  said  district,  has  answered  said  appeal. 

The  items  in  the  account  of  said  Wagner  &  Fisher  to  which  tRe  appellant 
objects  are: 

For  services  and  disbursements  in  the  appeal  of  Lewis  C.  Titch,  against  John  G.  Scudder, 

trustee,  and  William  Middlemist,  collector  of  said  district : 

Drawing  answer  and  affidavits  and  making  copies  for  services $25  00 

Drawing  rejoinder,  affidavits  and  making  copies  for  services 25  00 

Three  days'  service  in  drawing  brief 30  00 

Disbursements  in  said  appeal 7  50 

For  services  before  county  judge  in  the  appeal  of  Harv^ey  D.  Titch  from  the 

action  of  school  meeting  held  December  10,  1S95,  in  refusing  to  allow  said  Titch 

the  expenses  incurred  by  him  in  defending  an  appeal : 
Services  before  county  judge,  making  argument,  copying  decision,  serving  same, 

and   disbursements   made 30  00 

Services  in  the  Matter  of  the  Appeal  of  Rene  M.  Jackson 10  00 

$127  50 


JUDICIAL  decisions:     appeals  37 

It  appears  that  on  or  about  January  i,  1896,  one  Lewis  C.  Titch  appealed 
to  the  State  Superintendent  of  Public  Instruction  from  the  action  of  John  G, 
Scudder,  trustee,  and  William  Middlemist,  collector  of  said  district  and  that  said 
trustee  and  collector  employed  the  law  firm  of  Wagner  &.  Fisher  to  defend  tham 
iu  said  appeal;  that  in  August  1895,  William  Middlemist  appealed  to  the  State 
Superintendent  of  Public  Instruction  from  the  proceedings  of  the  annual  school 
meeting  held  in  said  district  in  August  1895,  at  which  Harvey  D.  Titch  was 
claimed  to  have  been  elected  trustee,  and  that  said  Titch  employed  counsel  to 
defend  said  appeal,  and  at  a  special  school  meeting  held  in  said  district  on 
December  10,  1895,  said  Titch  presented  to  said  meeting  an  account  amounting 
to  $51.44  for  expenses  incurred  by  him  in  defending  said  appeal  and  asked  to 
have  said  amount  allowed  to  him;  but  said  meeting  refused  to  allow  any 
part  thereof,  and  said  Titch  presented  the  matter  to  the  county  judge  of 
Delaware  county,  who  decided  that  no  part  of  said  claim  of  Titch  ought  to 
be  charged  to  said  district;  that  at  a  meeting  held  in  said  district  on  December 
21,  1895,  at  the  house  of  one  Calvin  Smith,  John  Smith  and  William  Middlemist 
were  appointed  a  committee  to  represent  said  district  before  said  county  judge 
in  said  matter  of  the  claim  of  said  Harvey  D.  Titch;  that  said  committee 
employed  said  Wagner  &  Fisher  as  their  counsel  in  the  hearing  before  said 
county  judge;  that  in  January  1896,  Rene  M.  Jackson  brought  an  appeal  to  the 
State  Superintendent  of  Public  Instruction  from  the  refusal  of  John  G.  Scudder. 
trustee  of  said  district,  to  pay  her  the  sum  due  to  her  for  services  rendered  as 
a  teacher  in  the  school  in  said  district,  and  said  trustee  employed  said  Wagner 
&  Fisher  to  defend  said  appeal. 

It  does  not  appear  that  said  liarvey  D.  Titch,  as  trustee,  in  defending  the 
appeal  of  Middlemist,  nor  said  Scudder,  trustee,  and  Middlemist,  collector,  in 
defending  the  appeal  of  Lewis  C.  Titch,  nor  said  Scudder,  trustee,  in  defending 
the  appeal  of  Miss  Jackson,  were  or  any  one  of  them  was,  authorized  by  a  vole 
of  the  district  to  make  such  defense. 

In  subdivision  15  of  section  14,  article  i,  title  7,  of  the  Consolidated  School 
Law  of  1894,  it  is  enacted  that  the  inhabitants  entitled  to  vote,  when  duly  assem- 
bled in  any  district  meeting,  shall  have  power,  by  a  majority  of  the  votes  of 
those  present,  to  vote  a  tax  to  pay  the  reasonable  expenses  incurred  by  district 
officers  in  defending  suits  or  appeals  brouglit  against  them  for  their  official  acts, 
or  in  prosecuting  suits  or  appeals  by  direction  of  the  district  against  other 
parties. 

Under  the  provisions  of  the  school  law  above  cited,  when  an  appeal,  in  any 
school  district,  is  taken  by  any  voter  or  voters  of  said  district,  from  the  proceed- 
ings of  a  school  meeting  or  from  the  acts  of  any  school  district  officer,  or  the 
refusal  of  such  district  officer  to  act,  to  the  State  Superintendent  of  Public 
Instruction,  or  when  a  suit  in  the  courts  is  brought  against  any  district  officer, 
a  special  meeting  of  such  district  may  be  called  for  the  purpose  of  determining 
whether  the  district  shall  defend  such  appeal  or  suit.  If  such  meeting  shall 
determine  to  defend  the  appeal  or  suit,  then,  under  section  51,  article  6,  title  7, 


38  THE   UNIVERSITY    OF   THE   STATE    OF    NEW   YORK 

of  the  Consolidated  School  Law,  any  reasonable  expense  incurred  in  said  defense 
is  a  charge  upon  the  district,  and  the  trustee  or  trustees  may  raise  the  amount 
thereof  by  tax  in  the  same  manner  as  if  the  definite  sum  to  be  raised  had  been 
vo*ed  by  a  district  meeting. 

When,  however,  no  authorization  to  defend  the  appeal  or  suit  is  given  by 
the  district,  and  the  trustee  or  trustees  of  the  district  in  good  faith  believe  the 
appeal  or  suit  should  be  defended,  he  or  they  should  employ  competent  counsel 
to  assist  in  such  defense,  and  when  the  appeal  or  suit  is  decided,  an  account 
for  the  expenses  incurred  by  the  district  officer  or  officers  in  such  defense  should 
be  presented  at  an  annual  or  special  meetmg  of  the  district,  and  such  meeting 
has  authority  to  vote  a  tax  to  pay  the  reasonable  expenses  incurred  by  said 
district  officer  or  officers  therefor. 

In  the  appeal  of  Lewis  C.  Titch,  Scudder,  as  trustee,  and  Middlemist,  as 
collector,  without  any  authorization  of  the  district,  defended  the  appeal  and 
employed  counsel  who  rendered  services  therein  and  the  account  for  such 
services  was  presented  at  the  annual  meeting  and  the  aggregate  amount  of  $87.50 
allowed  by  said  meeting.  I  can  not  say  that  the  amount  allowed  was  not  reason- 
able for  the  services  rendered,  and  the  action  of  the  meeting  in  allowing  the 
same  is  approved. 

The  appeal  of  Miss  Jackson  was  brought  while  the  appeal  of  Lewis  C. 
Titch  was  pending  and  undetermined,  and  Scudder,  as  trustee,  defended  the 
appeal  and  employed  counsel  therefor.  The  counsel  for  the  appellant  and 
respondent  therein  stipulated  for  a  stay  therein  until  the  Lewis  C.  Titch  appeal 
was  decided.  The  charge  of  counsel  of  Trustee  Scudder  in  the  appeal  of  Miss 
Jackson  was  not  unreasonable,  and  the  district  meeting  allowed  it,  and  such 
action  is  approved. 

The  remaining  item  for  consideration  is  the  charge  of  Wagner  &  Fisher, 
as  counsel  for  a  committee  of  the  district  before  the  county  judge,  in  opposing 
the  claim  of  Harvey  D.  Titch  for  expenses  incurred  in  defending  an  appeal 
brought  under  title  14  of  the  Consolidated  School  Law,  by  William  Middlemist 
from  the  proceedings  of  the  annual  school  meeting  in  said  district,  held  in 
August  1895,  which  expenses  a  school  meeting  refused  to  allow,  or  to  vote  a  tax 
to  pay. 

In  the  Code  of  Civil  Procedure  the  word  "  action,"  as  used  in  the  new 
revision  of  the  statutes,  when  applied  to  judicial  proceedings,  signifies  an  ordi- 
nary prosecution,  in  a  court  of  justice,  by  a  party  against  another  party,  for  the 
enforcement  or  protection  of  a  right,  the  redress  or  prevention  of  a  wrong,  or 
the  punishment  of  a  public  offense  (section  3333,  Code  of  Civil  Procedure). 
Every  other  prosecution  by  a  party,  for  either  of  the  purposes  specified  in  the 
last  section,  is  a  special  proceeding   (section  3334,  Code  of  Civil  Procedure). 

By  section  1926  of  the  Code  of  Civil  Procedure  it  is  enacted  that  an  action 
or  special  proceeding  may  be  maintained  by  the  trustee  or  trustees  of  a  school 
district;  and  by  section  1931,  an  execution  can  be  issued  upon  a  judgment  for 
a  sum  of  money,  rendered  against  the  trustee  or  trustees  of  a  school  district 


JUDICIAL  decisions:     appeals  39 

in  an  action  or  special  proceeding  brought  by  or  against  him  or  them  in  his  or 
their  official  capacity,  and  may  be  collected  out  of  the  property  of  the  trustee 
or  trustees,  and  the  sum  must  be  allowed  to  him  or  them,  in  the  settlement  of 
his  or  their  official  accounts,  except  as  otherwise  specifically  prescribed  by  law. 

Subdivisions  15  and  17  of  section  14,  article  i,  title  7,  and  sections  4,  5.  6,  7 
and  8  of  article  i,  title  15,  of  the  Consolidated  School  Law  of  1894,  provide 
for  reimbursing  the  trustee  or  trustees  of  school  districts  for  costs,  expenses 
and  judgments  paid  in  actions  and  proceedings  in  the  courts. 

Harvey  D.  Titch,  when  the  school  meeting  refused  to  allow,  or  to  vote  a 
tax  to  pay,  the  reasonable  expenses  incurred  by  him  in  defending  the  appeal 
to  the  State  Superintendent  by  Middlemist,  seems  to  have  entertained  the  belief 
that  under  sections  4  to  8,  inclusive,  he  could  appeal  from  the  action  of  said 
meeting  to  the  county  judge  of  his  county.  In  this  he  was  mistaken,  as  the 
expenses  he  had  incurred  were  not  incurred  in  defending  any  action  or  proceed- 
ing brought  against  him  as  trustee  in  the  courts,  nor  for  any  costs  or  damages 
adjudged  against  him  as  such  trustee  in  the  courts,  and  the  county  judge  had  no 
jurisdiction  of  such  appeal  to  him. 

Sections  4  to  8,  inclusive,  have  reference  solely  to  the  prosecution  or  defense 
by  trustees  of  school  districts  in  actions  or  proceedings  brought  by  or  against 
them  in  the  courts  of  the  State,  and  not  expenses  incurred  by  district  officers  in 
defending  appeals  brought  to  the  State  Superintendent  of  Public  Instruction. 

The  alleged  special  meeting  held  at  the  house  of  Calvin  Smith,  on  December 
21.  1895,  at  which  the  committee  was  appointed  to  represent  the  district  before 
the  county  judge  on  the  appeal  of  Harvey  D.  Titch,  was,  on  appeal  to  me, 
declared  to  be  illegal  and  void,  and  all  proceedings  had  and  taken  thereat  vacated 
and  set  aside. 

Assuming,  for  the  purpose  of  argument  only,  that  said  committee  was 
legally  appointed,  and  said  Titch  was  authorized  to  appeal  to  the  county  judge, 
I  concur  with  Superintendent  Draper  in  the  opinion  expressed  by  him  in  decision 
no.  3558.  rendered  January  28,  1887,  that  whether  such  committee  had  the  right 
to  employ  counsel  is  not  free  from  doubt. 

I  decide  that  the  annual  school  meeting  held  in  said  district  on  August  4, 
1896,  did  not  have  authority  to  vote  a  tax  to  pay  the  sum  of  $30  for  the  services 
of  Wagner  &  Fisher  as  counsel  for  said  committee  or  district  in  the  hearing 
before  the  county  judge  upon  the  said  appeal  taken  to  him  by  Harvey  D.  Titch. 

The  appeal  herein  is  sustained  as  to  so  much  thereof  as  is  taken  from  the 
item  of  v$30  allowed  at  said  annual  meeting,  and  as  to  all  other  matters  it  is 
dismissed. 

It  is  ordered,  That  so  much  of  the  proceedings  of  the  annual  school  meeting 
held  in  district  no.  10,  town  of  Andes,  Delaware  county,  on  August  4,  1896,  as 
allowed  the  item  of  $30  for  the  services  of  Wagner  &  Fisher,  before  the  county 
judge  of  the  said  county,  upon  the  appeal  to  him  of  Harvey  D.  Titch,  be,  and  the 
same  is,  vacated  and  set  aside. 


40'  THE   UNIVERSITY    OF  THE  STATE   OF   NEW    YORK 

4890 

In  the  matter  of  the  appeal  of  Squire  M.  Brown  and  Alfred  E.  Stacey  from 
certain  proceedings  taken  at  the  annual  meeting  held  August  7,  1900,  in 
school  district  9,  Elbridge,  Onondaga  county. 

Under  the  Consolidated  School  Law  of  1894,  the  qualified  voters  duly  assembled  at  a  school 
meeting  in  any  school  district,  have  the  povi'er,  by  a  majority  vote,  to  levy  a  tax  to 
pay  the  reasonable  expenses  incurred  by  district  officers  in  defending  suits  or  appeals 
brought  against  them  for  their  official  acts. 

The  trustees  of  school  districts  have  the  power,  when  the  schoolhouse  is  not  in  repair,  or 
not  properly  ventilated  or  heated,  or  has  been  injured  or  damaged  by  the  elements,  or 
is  not  of  sufficient  capacity  to  accommodate  the  children  attending  school  in  the  district, 
to  hire  rooms  temporarily,  and  levy  a  tax  to  pay  the  rent  thereof. 

Decided  October  9,  1900 

Lewis  &  Crowley,  attorneys  for  appellants 
Northrup  &  Xorthrup,  attorneys  for  respondents 

Skinner,  Superintendent 

This  is  an  appeal  taken  from  the  action  of  the  annual  school  meeting  held 
August  7,  1900,  in  school  district  9,  Elbridge,  Onondaga  county,  in  authorizing 
the  levy  of  a  tax  for  the  sum  of  $85  for  the  payment  of  expenses  incurred  by 
the  trustees  of  such  district  in  defending  a  suit  or  action  brought  against  them 
for  their  official  acts;  and  authorizing  the  levy  of  a  tax  for  the  sum  of  $100  for 
the  payment  of  the  rent  of  certain  rooms  in  the  Munro  academy. 

The  appellants  allege,  as  the  grounds  for  bringing  their  appeal,  in  substance, 
that  the  levy  of  a  tax  for  the  sum  of  $85  was  illegal  and  void,  because  the  bill 
for  such  sum  was  not  properly  presented  or  verified,  and  had  not  been  paid  by 
the  trustees,  and  was  not  incurred  in  the  exercise  of  their  official  duties ;  that 
the  levy  of  a  tax  for  $100  for  rent  of  rooms  in  the  Munro  academy  is  illegal 
and  contrary  to  the  interests  of  the  district  and  the  taxpayers  therein,  and  con- 
trary to  the  policy  and  practice  of  the  Department  of  Public  Instruction  in 
regard  to  district  property. 

Messrs  Ranney,  Allen  and  Cone,  as  trustees  of  such  district,  have  answered 
the  appeal. 

The  following  facts  are  established  from  the  pleadings  and  proofs  filed 
herein : 

In  June  1899  certain  proceedings  were  taken  under  the  provisions  contained 
in  article  I,  title  8  of  the  Consolidated  School  Law  of  1894,  and  the  acts  amenda- 
tory thereof,  for  the  consolidation  of  school  districts  8,  9  and  10,  Elbridge,  Onon- 
daga county,  by  the  establishment  of  a  union  school  therefor  and  therein;  that 
the  trustees  of  school  district  10,  Elbridge,  brought  an  action  in  the  Supreme 
Court  against  Messrs  Allen,  Templar  and  Ranney,  then  trustees  of  said  school 
district  10,  individually  and  as  such  trustees,  and  against  the  trustees  of  school 
district  8,  and  others,  alleging  certain  irregularities  and  illegal  acts  in  proceed- 
ings taken  to  consolidate  said  school  districts  8,  9  and  10  by  the  establishment  of 


JUDICIAL  decisions:     appeals  41 

a  union  school  therefor  and  therein  ;  and  upon  the  complaint  and  affidavits,  and 
without  notice  to  the  defendants,  on  or  about  August  2-8,  1899,  obtained  a  pre- 
liminary injunction  restraining  the  defendants  from  further  proceedings  in  the 
establishment  of  such  union  school  during  the  pendency  of  such  action ;  that  the 
said  trustees  of  district  10  employed  the  firm  of  Xorthrup  &  Northrup,  coun- 
selors at  law,  residing  in  Syracuse,  X.  Y.,  to  appear,  act  for  them  and  .defend 
the  said  suit  brought  against  them  ;  who  did  appear  and  perform  services  for 
said  trustees  therein :  that  upon  an  order  to  show  cause,  and  an  argimient  for 
and  against  the  continuance  of  the  said  injvmction,  such  injunction  was  continued 
during  the  pendency  of  such  action;  that  no  trial  of  said  action  upon  the  merits 
was  ever  had,  but  after  the  making  of  the  order  aforesaid,  upon  a  stipulation 
of  the  respective  parties,  an  order  was  entered  at  a  special  term  of  the  Supreme 
Court,  held  at  Syracuse,  October  14,  1899,  discontinuing  said  action  without  costs 
to  either  party  as  against  the  other,  and  thereupon  and  in  the  manner  aforesaid, 
said  litigation,  in  respect  to  the  said  proceedings  for  the  consolidation  of  such 
districts  8,  9  and  10,  by  the  establishment  of  a  union  school  therefor  and  therein, 
ended  without  any  final  decision  of  the  court  as  to  whether  such  proceedings 
were,  or  were  not,  legal;  that  said  firm  of  Northrup  &  Northrup  presented  to 
said  trustees  a  bill   for  the  services  so  rendered,  as  aforesaid  and   for  which 
the  trustees  had  become  personally  liable  to  pay,  amounting  to  the  sum  of  $85 ; 
that  bill   was  presented  at  the  annual  meeting  held  August  7,    1900,   in  said 
school  district  9,  and  a  motion  or  resolution  appropriating  the  sum  of  $85,  and 
to  include  said  sum  in  tlie  tax  lev)-  for  the  payment  of  the  same,  was  adopted, 
the  vote  thereon  being  taken  by  ballot,  22  persons  voting  for  and  6  agamst. 

That  a  special  meeting  of  the  inhabitants  of  said  school  district  9,  qualified 
to  vote  at  school  meetings  therein,  duly  called,  was  held  therein  June  8,  1900,  to 
consider  the  advisability  of  building  an  addition  to  the  schoolhouse  therein,  or 
for  the  renting  of  part  of  the  :\Iunro  academy,  and  hiring  a  third  teacher;  that 
a  resolution  was  adopted  by  a  vote  of  27  in  favor  and  6  against,  ascertained 
by  a  ballot  being  taken,  authorizing  the  trustees  of  said  school  district  9  to 
rent  of  the  trustees  of  the  ^lunro  academy  the  three  east  rooms  in  said  academy, 
jn  which  to  conduct  the  school  of  such  district  upon  the  terms  and  conditions 
stated  at  such  meeting;  that  the  conditions  of  such  rental  so  made  by  said 
trustees  are  to  continue  for  two  years  with  the  privilege  of  ten  years,  the  rent 
for  the  first  year  to  be  $50,  and  making  certain  changes  to  the  extent  of  $50 ; 
that  after  one  year  it  shall  be  $100,  with  the  option  to  either  party  to  terminate 
the  lease  or  contract  by  giving  six  months'  notice  prior  to  the  end  of  the  school 
vear,  the  trustees  of  the  district  agreeing  to  vacate  such  rooms  at  any  time  in 
favor  of  a  normal  school  if  one  shall  be  established  therein ;  that  at  said  annual 
meeting,  held  August  7,  1900,  a  motion  was  adopted  by  a  vote  of  22  for  and  2 
against,  ascertained  by  a  ballot,  that  the  sum  of  $100  be  appropriated  for  rent 
of,  and  changes  in.  such  rooms  so  rented  and  authorizing  such  sum  to  be  included 
in' the  tax  levV;  that  the  school  in  said  district,  for  the  present  school  year, 
opened  September  10,  1900,  in  the  three  rooms  in  such  academy,  so  rented, 
with  three  teachers  and  an  attendance  of  93  scholars. 


42  THE    UNIVERSITY    OF   THE   STATE    OF   NEW   YORK 

It  is  also  established  that  the  schoolhouse  of  said  district  is  a  two  story 
building  with  one  room  below  and  one  above,  having  but  one  stairway;  that 
it  is  an  extremely  cold  building;  that  there  is  no  mode  of  ventilation;  that  it 
is  unsanitary;  that  it  will  not  accommodate  over  75  scholars  while  the  number 
of  scholars  now  attending  the  school  in  the  rooms  in  the  Munro  academy  is  93, 
of  which  number  only  8  are  nonresidents ;  that  the  entire  number  of  children 
of  school  age  in  the  district,  by  the  last  census,  is  127. 

The  respondents  allege  that  the  action  of  the  district  in  renting  and  occupy- 
ing the  rooms  in  the  Munro  academy  is  intended  to  be  temporary  only,  and  to 
await  the  outcome  of  a  movement  that  has  been  inaugurated  for  the  establish- 
ment of  a  normal  school  to  be  located  in  said  academy ;  that  should  the  efforts 
to  establish  such  normal  school  fail,  steps  will  be  taken  for  permanently  improv- 
ing the  schoolhouse  of  the  district,  or  building  a  new  schoolhouse. 

The  contention  of  the  appellants  that  the  action  of  the  annual  school  meet- 
ing, held  August  7,  1900,  in  the  appropriation  of  the  sum  of  $85,  and  to  include 
such  sum  in  the  tax  list,  was  illegal  and  void,  is  not  well  taken. 

Under  the  provisions  contained  in  subdivision  15  of  section  14,  article  i, 
title  7  of  the  Consolidated  School  Law  of  1894,  the  qualified  scoters  duly  assembled 
at  a  school  meeting  in  any  district,  have  the  power,  by  a  majority  vote,  to  levy 
a  tax  to  pay  the  reasonable  expenses  incurred  by  district  officers  in  defending 
suits  or  appeals  brought  against  them  for  their  official  acts. 

The  proofs  herein  show  that  the  trustees  of  district  9  were  sued  in  the 
Supreme  Court  for  official  acts  performed  by  them ;  that  they  employed  com- 
petent legal  counsel  to  defend  them  in  such  suit;  that  such  counsel  performed 
services  therein  for  which  they  charged  the  sum  of  $85  ;  that  such  sum  was 
reasonable ;  that  the  school  meeting  had  the  legal  authority  to  vote  to  annro- 
priate  money  to  pay  said  sum  and  to  authorize  the  same  to  be  included  in  the 
district  tax. 

The  contention  of  the  appellants  that  the  action  of  the  special  school  meet- 
ing, held  June  8,  1900,  in  authorizing  the  trustees  to  rent  of  the  trustees  of  the 
Munro  academy  certain  rooms  therein  in  which  to  conduct  the  school  of  the 
district,  and  the  action  of  the  annual  meeting  in  appropriating  the  sum  of  $100 
to  pay  such  rent  is  illegal,  is  not  tenable. 

Subdivision  5  of  section  47,  article  6,  title  7  of  the  Consolidated  School 
Law  of  1894  provides  that  it  shall  be  the  duty  of  the  trustees  of  every  school 
district,  and  they  shall  have  power,  to  hire  rooms  or  buildings  for  school  pur- 
poses, and  to  keep  such  rooms  in  repair,  etc. 

Subdivision  8  of  section  14,  article  i,  title  7,  provides  that  the  school  dis- 
trict meetings  have  the  power  to  vote  a  tax  to  hire  or  purchase  rooms  or  build- 
ings for  schoolrooms,  etc.,  and  to  keep  the  same  in  repair,  etc. 

It  is  the  policy  of  the  school  law  and  of  this  Department  that  school  districts 
should  own  the  buildings  in  which  their  schools  are  maintained.  Neither  the 
school  law  nor  this  Department  favors  the  hiring  of  rooms  for  school  purposes, 
in  any  school  district  except  temporarily,  and  then  only  when  the  schoolhouse 


JUDICIAL    DECISIONS  :      APPEALS  43 

of  the  district  is  not  in  repair  or  not  properly  ventilated  and  heated,  or  has  been 
injured  or  damaged  by  the  elements,  or  is  not  of  sufficient  capacity  to  accom- 
modate the  children  attending  the  school  in  the  district. 

It  is  in  proof  that  at  the  time  of  the  contract  for  the  renting  of  rooms  in 
the  Munro  academy,  the  schoolhouse  was  not  of  sufficient  capacity  to  accommo- 
date the  children  of  the  district,  with  no  mode  of  ventilation,  unsanitary,  and 
difficult  to  heat.  The  renting  of  said  rooms  was  temporary,  the  agreement  con- 
taining a  clause  that  either  party  could  terminate  the  lease  by  giving  six  months' 
notice  prior  to  the  end  of  the  school  year. 

It  is  in  proof  that  the  school  meeting  at  which  the  trustees  were  authorized 
to  enter  into  such  lease,  was  held  June  8,  1900.  No  appeal  has  been  taken  to  me 
from  the  proceedings  of  such  meeting.  This  Department  has  uniformly  held 
that  where  no  appeal  has  been  duly  and  legally  taken  from  the  action  of  a 
school  meeting,  so  far  as  this  Department  is  concerned  such  action  will  be  deemed 
to  have  been  legal  and  valid. 

The  special  meeting,  held  June  8,  1900,  having  duly  and  legally  authorized 
the  respondents  herein  to  rent  said  rooms  and  to  make  changes  therein,  the 
expense  of  which  the  first  year  was  not  to  exceed  $100,  and  no  appeal  having 
been  duly  and  legally  taken  from  such  action,  the  respondents  had  the  legal 
authority  to  raise  by  tax  said  sum  without  any  further  action  at  any  district 
meeting. 

September  11,  1900,  upon  petition  of  the  appellants,  I  made  an  order  staying 
all  proceedings  on  the  part  of  the  respondents  herein  as  trustees  of  said  district 
in  the  payment  of  said  sums  of  $85  and  $100  respectively,  and  staying  all  pro- 
ceedings on  the  part  of  the  collector  of  such  district  in  the  collection  of  the 
taxes  assessed  in  a  tax  list  delivered  to  him  by  said  trustees  with  their  warrant 
on  or  about  September  5,  1900;  until  the  hearing  and  decision  of  the  appeal 
herein,  or  until  a  further  order  should  be  made  by  me  herein. 

I  decide  that  the  appellants  herein  have  failed  in  establishing  their  appeal 
herein  and  such  appeal  should  be  dismissed  and  said  order  of  stay,  made  Sep- 
tember II,  1 000,  should  be  vacated. 

The  appeal  herein  is  dismissed  and  said  order  of  September  11,  1900,  is 
hereby  vacated. 


5433 

In  the  matter  of  the  appeal  of  Olney  A.  Gififord  from  the  tax  list  and  warrant 
issued  in  school  district  no.  i,  towns  of  Sidney  and  Unadilla,  counties  of 
Delaware  and  Otsego. 

Equalization  of  taxes  in  joint  districts;  failure  to   conform  to  order  of  supervisors. 

A  taxpayer  may  not  appeal  from  the  failure  of  a  board  of  education  to  conform  to 
the  order  of  supervisors  in  equalizing  the  taxes  in  a  district  comprising  a  portion  of 
two  or  more  towns,  unless  he  is  injuriously  affected  by  the  failure  of  the  board  to 
comply  with  such  order. 


44  THE    UXIVEKSITY    OF  THE  STATE    OF   NEW   YORK 

Notice  of  collection  of  taxes.  The  neglect  of  a  collector  to  post  a  copy  of  the  collector's 
notice  of  the  collection  of  taxes  on  the  door  of  the  schoolhouse,  as  required  by  section 
397  of  the  Education  Law  of  1909,  does  not  nullify  the  tax  list  and  warrant  nor  justify 
an  order  invalidating  the  proceedings  of  a  board  of  education  in  respect  to  the  collection 
of  taxes. 

Decided  January  6,  1910 

Olney  A.  Gifford,  attorney  for  appellant 
Charles  H.  Seeley,  attorney  for  respondent 

Draper,  Commissioner 

This  appeal  is  brought  from  the  tax  list  and  warrant  of  union  free  school 
district  no.  i,  towns  of  Sidney  and  Unadilla,  counties  of  Delaware  and  Otsego, 
which  was  prepared  by  the  board  of  education  of  such  district  and  delivered  to 
the  collector  thereof  on  the  7th  day  of  September  1909.  The  district  is  a  joint 
district  embracing  parts  of  the  towns  of  Sidney  and  Unadilla.  An  application 
was  duly  made  by  taxj}ayers  in  the  district  for  an  equalization  of  the  value  of 
the  taxable  real  property  within  the  parts  of  the  two  towns  embraced  within  the 
district.  The  supervisors  of  the  towns  met  as  provided  by  law,  and  determined 
that  "  9654  per  cent  of  all  taxes  levied  upon  the  real  property  of  the  town  of 
Sidney  lying  in  said  district,  and  3^  per  cent  of  all  taxes  levied  on  the  real 
property  of  said  district  should  be  assessed  upon  the  real  property  of  the  town 
of  Unadilla  lying  in  said  district." 

The  appellant  insists  that  the  board  of  education,  in  making  its  tax  list,  did 
not  conform  to  the  order  of  the  supervisors,  in  that  they  failed  to  assess  upon 
the  real  property  alone,  the  portion  of  the  taxes  levied  upon  real  property  in 
the  district.  It  is  apparent  that  the  board  levied  upon  both  the  real  and  personal 
property  in  the  parts  of  the  two  towns  comprised  in  the  district,  the  percentage 
of  the  entire  tax  to  be  levied  in  the  district.  What  should  have  been  done  was 
first  to  ascertain  the  portion  of  the  entire  tax  of  the  district  to  be  borne  by  the 
real  property  in  the  district,  and  then  impose  9634  per  cent  of  this  amount  upon 
the  real  property  situated  in  the  part  of  the  district  in  the  town  of  Sidney,  and 
impose  the  remaining  t,}^  per  cent  upon  the  real  property  situated  in  the  part  of 
the  district  in  the  town  of  Unadilla.  If  this  course  had  been  pursued,  the  tax 
to  be  paid  by  the  part  of  the  district  in  the  town  of  Sidney  would  have  been 
increased  a  very  few  dollars  —  not  more  than  fifteen.  Special  franchises  are 
included  as  real  property,  leaving  only  about  $20,000  of  personal  property  valua- 
tion out  of  a  total  of  about  $660,000  to  be  affected  by  the  error.  The  discrepancy 
caused  by  the  error  is  very  small.  Taxpayers  residing  in  the  town  of  Sidney 
benefit  by  the  error,  while  those  residing  in  the  town  of  Unadilla  are  adversely 
affected.  The  appellant  does  not  allege  where  he  resides ;  the  respondent  alleges 
that  he  is  not  aggrieved  by  the  mistake  complained  of,  since  he  does  not  pay  a 
tax  upon  personal  property.  The  fact  that  he  is  not  assessed  on  personal  prop- 
erty in  the  district  does  not  affect  his  standing  in  this  proceeding.  Btit  unless 
he  is  a  resident  of  tlie  part  of  the  town  of  Unadilla  comprised  in  the  district, 
he  is  not  injured  by  the  alleged  error,  and  should  not  be  heard  to  complain. 


JUDICIAL   DECISIONS  :      ArrEALS  45 

Another  allegation  of  the  petition  pertains  to  the  collector's  notice.  Its  form 
is  apparently  sufficient.  It  was  posted  throughout  the  district  in  a  number  of  con- 
spicuous places,  on  the  7th  day  of  Se]):cmber,  and  the  time  of  receiving  taxes 
at  I  per  cent  was  stated  therein  to  expire  October  6th,  which  was  thirty  days 
after  the  notice  was  so  posted.  But  it  seems  that  the  collectbr  neglected  to  post 
a  copy  of  the  notice  on  the  door  of  the  schoolhouse  as  required  by  the  statute 
(Education  Law,  §  397).  This  was  a  mistake  which  is  admitted  by  the  collector, 
but  it  does  not  necessarily  nullify  the  tax-  list  and  warrant,  nor  does  it  justify 
an  order  invalidating  the  proceedings  of  the  board  in  respect  thereto.  A  large 
portion  of  the  taxes  on  the  tax  list  had  been  paid  before  this  appeal  was  brought. 
The  warrant  was  executed  by  the  board  September  6,  1909;  it  was  delivered  to 
the  collector  September  7,  1909,  and  notices  were  posted  on  the  same  day,  and 
published  September  11,  1909.  Under  such  circumstances  the  appellant  is  roo 
late  to  raise  the  question  as  to  the  sufficiency  of  the  posting  of  the  notice. 

The  appeal  herein  is  dismissed. 


ASSESSMENTS 

Personal  property  in  the  hands   or   under  the  control  of   any   executor   or   administrator 

must  be  assessed  in  the  district  where  such  executor  or  administrator  resides. 
Decided  April  lo,  1884 

Ruggles,  Superintendent 

William  C.  Fields,  late  of  the  village  of  Laurens,  Oswego  county,  died  there 
on  the  27th  of  October  1882,  leaving  a  last  will  and  testament  in  which  executors 
were  appointed.  The  will  was  admitted  to  probate  and  the  executors  duly  quali- 
fied. The  executors  are  residents  of  Albany,  and  had  not  been  residents  of  the 
town  of  Laurens  at  any  time  for  five  years  previous  to  the  assessment  appealed 
from. 

The  trustee  of  school  district  no.  2,  Laurens,  assessed  the  personal  estate 
of  said  Fields,  deceased,  in  that  district.  The  appeal  is  brought  by  the  executors 
from  such  assessment. 

These  facts  bring  the  case  within  the  provisions  of  the  statute,  that  per- 
sonal property  in  the  hands  of,  or  under  the  control  of,  any  executor  or  adminis- 
trator is  assessable,  where  the  administrator  or  executor  resides,  and  not  else- 
where.    (Section  5,  article  i,  title  2,  chapter  13,  part  i,  Revised  Statutes.) 


RESCISSION 

When  a  special  meeting  had  voted  a  tax  for  building  a  new  house,  and  had  adjourned 
four  weeks  to  consider  proposals  for  building,  and  at  the  adjourned  meeting  voted 
to  rescind  the  vote  levying  the  tax,  the  vote  to  rescind  was  legal  and  valid,  even 
though  the  tax  list  had  been  made  out,  and  a  part  of  the  tax  voluntarily  paid. 

Decided  February  18,  1858  • 

A'an  ]3yck.  Superintendent 

At  a  special  meeting  duly  called  a  vote  was  taken  and  carried,  ayes  28,  noes 
24,  to  raise  $1000  by  tax  on  the  district,  for  the  purpose  of  building  a  new 
schoolhouse.  The  meeting  then  adjourned  for  four  weeks  for  the  purpose  of 
receivmg  propositions  that  might  meantime  be  submitted  to  the  trustees  relative 
to  site.  At  the  adjourned  meeting  a  motion  was  carried  to  reconsider  the  vote  of 
the  last  meetmg,  after  which  the  meeting  adjourned  sine  die 

In  the  meantime  the  tax  list  for  the  $1000  had  been  made  out,  and  a  part 
of  the  same  had  been  voluntarily  collected  before  the  adjourned  meeting;  but  this 
will  avail  nothing,  as  the  trustees  could  not  issue  their  warrant  till  the  expiration 
of  thirty  days  after  the  tax  was  voted.  No  legal  collection  could  therefore  have 
been  made  before  that  time.     Voluntary  payments  may  have  been  made  which 

[46] 


JUDICIAL   DECISIONS  :      ASSESSMENTS  47 

the  trustees  would  be  authorized  to  receive,  but  these  are  not  such  collections  as 
the  courts  contemplate  in  order  to  place  the  repeal  of  a  tax  levy  beyond  the 
power  of  a  district  meeting. 

It  is  assumed  by  the  appellants  that  the  special  meeting  being  adjourned 
for  a  specific  purpose,  no  other  business  could  be  transacted  than  that  specified 
in  the  notice  for  adjournment.  This  is  an  error.  The  meeting  was  competent  to 
transact  any  business  brought  before  it. 

From-  the  evidence  before  me,  I  am  compelled  to  regard  the  proceedings 
of  the  adjourned  meeting  as  a  fair  expression  of  the  will  of  the  district  upon 
lev}'ing  the  tax,  and  it  is  unfavorable  to  such  action.  The  vote  at  the  adjourned 
meeting  is  much  larger  than  that  of  the  special  meeting;  it  is  plain,  therefore, 
that  no  advantage  was  taken  of  the  absence  of  any  considerable  number  of  the 
voters  by  the  majority  in  their  vote  to  rescind  the  tax.  Under  these  circum- 
stances, therefore,  the  proceedings  of  the  adjourned  meeting  are  declared  legal 
and  are  herebv  affirmed. 


5240 

In  the  matter  of  the  appeal  of  Round  Lake  Association  and  Round  Lake  Sum- 
mer Institute  from  the  assessment  made  against  said  association  and  against 
the  property  of  said  institute  by  the  board  of  education  of  district  no.  9, 
town  of  Malta,  Saratoga  county,  for  the  year  1905,  and  also  from  certain 
acts  of  the  collector  of  said  district  in  refusing  to  receive  certain  taxes. 

The  school  law  does  not  confer  upon  district  trustees  the  power  to  review  in  their  discretion 

the  assessments  made  by  town  assessors. 
The  power  of  such  trustees  to  assess  property  is  only  incidental  to  their  general  functions 

and  is  restricted  to  cases  of  emergency  or  to  correcting  undisputed  errors  for  which 

the  law  distinctly  provides. 
Decided  February  16,  1906 

Irwin  Esmond,  attorney  for  appellants 

Draper,  Coiiiniissioner 

The  Round  Lake  Association  is  a  domestic  corporation  organized  and  exist- 
ing under  the  provisions  of  chapter  617  of  the  Laws  of  1868  and  the  acts  amend-- 
atory  thereof. 

This  corporation  acquired  title  to  certain  real  estate  located  in  the  town  of 
Malta,  Saratoga  county.  This  real  estate  was  divided  into  lots,  streets  were 
established,  etc.,  and  such  lots  leased.  These  lots  were  leased  for  a  period  of 
99  years  and  renewable  to  the  lessee,  "  his  heirs  and  assigns  for  a  like  term  of 
years  forever."  For  some  time  there  has  been  a  difference  of  opinion  between 
the  town  assessors  and  the  Round  Lake  Association  as  to  whom  this  real  prop- 
erty should  be  assessed.  The  association  has  contended  that  these  lots  should  be 
assessed  to  the  individual  lessee  while  the  town  assessors  have  claimed  that  they 
should  be  assessed  to  the  Round  Lake  Association.    The  town  assessors  in  assess- 


48  THE    UXIVERSITY    OF   THE   STATE    OF    NEW    YORK 

ing  property  for  the  year  1905  assessed  each  of  these  lots  separately  but  to  the 
Round  Lake  Association. 

It  appears  that  on  August  25,  1905,  an  agreed  statement  of  facts  relating  to 
this  controversy  was  presented  to  the  State  Tax  Commissioners  and  a  stipulation 
entered  into  between  the  assessors  of  the  town  of  Malta  and  the  Round  Lake 
Association  by  which  the  parties  thereto  agreed  that  the  decision  of  the  said 
tax  commissioners  on  the  questions  therein  presented  for  determination  should 
"  be  final  and  binding  upon  all  the  parties  hereto  with  respect  to  the  said 
assessments  for  the  year  1905,  and  that  no  other  or  further  proceedings  shall 
be  instituted  for  the  purpose  of  reviewing  said  assessments  for  said  year." 

It  also  appears  that  the  State  Tax  Commissioners  referred  all  matters  sub- 
mitted to  them  and  pertaining  to  this  subject  to  the  Attorney  General  and  on 
September  13,  1905,  that  officer  wrote  an  opinion  on  the  qusetions  presented, 
holding  that  the  real  estate  in  question  had  been  erroneously  assessed  and  that 
such  property  should  be  assessed  to  the  individual  lessees  and  not  to  the  Round 
Lake  Association.  This  opinion  appears  to  have  been  filed  with  the  town 
assessors  of  the  town  of  Malta  on  September  15,  1905,  the  last  day  allowed 
assessors  under  section  38  of  the  tax  law  for  filing  with  town  clerks  the  completed 
and  verified  assessment  roll  of  the  town. 

The  town  assessors  do  not  appear  to  have  been  governed  by  the  opinion 
expressed  by  the  Attorney  General  and  the  State  Tax  Commissioners.  No 
change  was  made  by  the  town  assessors  in  the  method  of  assessment  of  the  prop- 
erty in  question  before  filing  the  completed  and  verified  assessment  roll  of  the 
town  with  the  town  clerk. 

It  further  appears  that  William  A.  Bedell,  supervisor  of  the  town  of  Malta, 
Saratoga  county,  petitioned  the  board  of  supervisors  of  said  county  to  change 
the  assessment  of  the  property  in  question  from  the  Round  Lake  Association 
to  the  individual  lessees  of  such  property  pursuant  to  the  provisions  of  section  60 
of  the  tax  law.  On  December  6,  1905,  the  law  and  finance  committee  of  that 
board,  to  whom  had  been  referred  the  petition  of  Supervisor  Bedell,  made  a 
report  recommending  that  said  petition  be  given  favorable  consiideration.  The 
report  of  this  committee  also  contained  the  opinion  of  the  Attorney  General  to 
the  effect  that  the  board  of  supervisors  possessed  the  power  under  section  60 
_of  the  tax  law  to  make  such  change.  This  report  was  adopted  and  the  board  of 
supervisors  directed  Supervisor  Bedell  of  the  town  of  Malta  to  change  the  assess- 
ment of  this  property  on  the  town  assessment  roll  from  the  Round  Lake  Associa- 
tion to  the  individual  lessees  of  such  property. 

None  of  the  questions  above  mentioned  came  within  the  jurisdiction  of 
the  Commissioner  of  Education.  They  have  been  recited  here  because  of  the 
relation  which  they  bear  to  the  questions  which  are  wit'.iin  his  jurisdiction  and 
which  we  are  now  to  consider. 

On  October  25,  1905,  the  board  of  education  of  school  district  no.  9,  town 
of  Malta,  issued  a  tax  list  and  w^arrant  and  placed  such  list  in  the  hands  of  the 
collector  of  the  district  for  collection.    The  boundaries  of  the  Round  Lalce  Asso- 


jrnuiAL  decisions:     assessments  49 

cia^ion  grounds  appear  to  be  identical  with  the  boundaries  of  this  school  district. 
The  property  in  question  is  therefore  all  located  within  the  boundaries  of  such 
school  district.  The  president  of  the  board  of  education  is  one  of  the  town 
assessors  and  his  views  on  the  matter  of  assessing  this  property  for  school  pur- 
poses would  of  course  be  the  same  as  his  views  on  the  method  of  assessing 
such  property  for  town  and  county  purposes. 

Section  63  of  title  7  of  the  Consolidated  School  Law  provides  that  school 
district  taxes  shall  be  apportioned  by  trustees  upon  all  the  real  estate  within  the 
boundaries  of  the  district  and  that  such  property  shall  be  assessed  to  the  person 
or  persons  or  corporation  owning  or  possessing  the  same  at  the  time  such  tax  list 
shall  be  made  out.  Section  64  of  the  same  title  provides  that  the  valuations  of 
taxable  property  shall  be  ascertained  so  far  as  possible  from  the  last  assessment 
roll  of  the  town  after  revision  by  the  assessors.  It  is  therefore  the  duty  of 
tntstees  in  making  out  a  tax  list  to  assess  real  estate  to  the  person  or  corporation 
owning  it  at  the  time  such  tax  list  is  made  out  and  at  the  valuation  at  which  such 
property  is  assessed  upon  the  latest  completed  and  verified  assessment  roll  of 
the  town.  If  it  is  known  by  the  trustees  at  the  time  the  tax  list  is  made  out  that 
the  title  to  a  parcel  of  real  estate  has  been  transferred  since  the  assessment  made 
Ijy  the  town  assessors,  it  is  the  duty  of  the  trustees  to  assess  such  property  to 
the  owner  thereof  at  that  time  and  in  such  amount  as  the  property  is  assessed 
on  the  town  assessment  roll. 

Section  65  of  title  7  of  the  Consolidated  School  Law  confers  upon  trustees 
the  power  to  make  original  assessments.  This  section  defines  the  conditions 
under  which  such  original  assessments  may  be  made.  If  any  person  shall 
request  a  reduction  in  the  assessed  valuation  on  his  property,  or  if  the  assessed 
valuation  of  taxable  property  can  not  be  ascertained  from  the  last  assessment 
roll  of  the  town,  or  if  the  valuation  of  property  shall  have  increased  or  dimin- 
ished since  the  last  assessment  roll  of  the  town  was  completed  and  verified,  or 
if  an  error,  mistake  or  omission  on  tlie  part  of  the  town  assessors  has  been  made 
in  the  description  or  valuation  of  taxable  property,  the  trustees  have  power  to 
ascertain  the  true  value  of  such  property  and  to  assess  it  accordingly.  These  are 
the  only  cases  wherein  a  board  of  trustees  may  make  an  original  assessment  and 
in  making  such  assessment  they  must  proceed  in  the  same  manner  as  town 
assessors  proceed  in  the  assessment  of  property.  Trustees  are  not  required  to 
appoint  a  grievance  day  unless  they  have  made  an  original  assessment. 

The  necessity  of  empowering-  trustees  to  make  original  assessments  in  the 
foregoing  cases  is  quite  obvious.  Many  clerical  errors  are  made.  The  value  of 
property  often  changes  bet\veen  the  date  of  assessments  made  by  assessors  and 
the  date  of  issuance  of  a  tax  list.  It  often  occurs  that  new  buildings  are  erected 
and  then  again  buildings  are  destroyed  so  that  the  value  of  a  piece  of  property 
may  materially  change.  In  such  cases  an  injustice  and  many  times  a  hardship 
would  follow  if  some  authority  did  not  possess  the  power  to  make  equitable 
changes  under  these  circumstances.  Provision  is  also  made  in  section  84  of  title 
7  for  the  correction  of  errors  in  a  tax  list. 


50  THE    UNIVERSITY    OF  THE   STATE    OF   NEW   YORK 

The  provisions  of  the  school  law  above  mentioned  do  not  confer  upon 
trustees  the  power  to  review  in  their  discretion  the  assessments  made  by  town 
assessors.  Where  an  issue  relative  to  the  assessment  of  property  is  raised  pre- 
vious to  the  assessment  of  such  property  and  the  town  assessors  with  a  full 
knowledge  of  the  points  involved  in  that  issue  proceed  to  a  determination  of 
such  issue  and  thereby  fix  a  valuation  upon,  and  the  ownership  of,  a  piece  of 
property,  the  right  to  review  such  action  of  the  town  assessors  is  not  vested  by 
law  in  school  district  trustees.  To  hold  that  the  law  extends  such  power  to 
trustees  of  school  districts  would  practically  give  such  officers  of  the  several 
school  districts  of  a  town  the  right  to  change  the  valuation  upon  every  piece  of 
property  in  a  town.  This  is  neither  necessary  nor  desirable.  It  is  unnecessary 
to  speculate  upon  the  results  which  would  follow  if  the  law  were  construed  to 
confer  such  power  upon  school  district  trustees. 

If  town  assessors  err  in  the  determination  of  such  questions,  the  aggrieved 
party  should  seek  redress  through  proper  channels  and  school  district  trustees 
should  not  undertake  to  review  and  correct  the  action  of  town  assessors  in  such 
cases.  I  think  it  will  not  be  claimed  that  if  the  town  assessors  had  decided  that 
the  property  in  question  was  assessable  to  the  individual  lessees  and  had  so 
assessed  it  the  trustees  of  the  school  district  could  have  lawfully  reviewed  such 
assessment  and  have  assessed  such  property  for  school  purposes  to  the  Round 
Lake  Association. 

Assessors  are  officers  especially  empowered  to  determine  the  valuation  of 
property  and  to  assess  it  accordingly.  They  are  elected  by  the  people  to 
perform  that  special  duty.  Trustees  are  the  chief  administrative  officers  of 
school  districts.  Their  power  to  assess  property  is  only  incidental  to  their 
general  functions  and  is  restricted  to  the  cases  above  cited  for  the  purpose  of 
promptly  meeting  some  emergency  or  correcting  some  undisputed  error  for 
which  other  provision  has  not  been  made.  It  was  never  contemplated  under 
the  provisions  of  the  school  law  to  which  reference  has  herein  been  made  that 
the  power  of  trustees  to  assess  property  should  be  equal  or  superior  to  that  of 
town  assessors.     [See  decision  no.  4163^] 

Appellant  sought  relief  from  the  action  of  the  town  asse'ssors.  He  peti- 
tioned the  board  of  supervisors  of  Saratoga  county  to  correct  the  alleged  error 
of  the  town  assessors.  The  Attorney  General  of  the  State  held  that  the  board 
of  supervisors  possessed  the  power  to  make  that  correction.  The  board  of 
supervisors  in  due  time  authorized  that  such  assessment  should  be  changed. 
Appellant's  relief  from  the  action  of  the  board  of  education  was  an  appeal  to 
the  Commissioner  of  Education  and  a  petition  to  restrain  the  authorities  of  the 
school  district  from  collecting  the  tax  imposed  by  the  tax  list  issued  until  the 
final  determmation  by  proper  authority  of  the  question  involved. 

It  is  unnecessary  to  determine  whether  in  this  particular  case  the  board  of 
education  was  bound  by  the  agreement  between  the  town  assessors  and  the 
Round  Lake  Association  and  was  required  to  assess  this  property  in  accordance 
with  the  method  which  the  Attorney  General  held  was  proper  and  legal.  The 
State  Tax  Commissioners  and  the  Attorney  General  of  the  State  hold  that  the 


JUDICIAL  decisions:    assessments  51 

method  of  assessing  the  property  in  question  was  wrong.  The  Attorney  General 
holds  that  the  board  of  supervisors  could  legally  correct  the  error  made  by  the 
assessors.  Such  correction  has  been  made.  The  property  is  now  assessed  upon 
the  town  assessment  roll  to  the  individual  lessees  of  the  property.  The  opinion 
of  the  tax  commissioners  and  of  the  Attorney  General  should  be  respected  and 
considered  sound  until  the  courts  shall  hold  otherwise.  Could  this  error  have 
been  corrected  previous  to  the  issuance  of  the  tax  list  in  the  school  district,  it 
would  have  been  the  duty  of  the  board  of  education  to  have  assessed  this  prop- 
erty in  accordance  with  the  corrected  town  roll.  Appellant  should  not  be  com- 
pelled to  pay  a  tax  levied  for  school  district  purposes  upon  the  property  in  ques- 
tion through  such  error.  Provision  has  been  made  in  the  school  law  whereby 
relief  can  be  afforded  through  an  order  made  by  the  Commissioner  of  Educa- 
tion.    Such  action  will  be  taken. 

In  the  agreed  statement  of  facts  presented  to  the  tax  commissioners,  two 
other  questions  were  submitted  for  determination.  The  Round  Lake  Associa- 
tion and  the  Round  Lake  Summer  Institute  are  two  separate  corporations.  Each 
claimed  exemption  from  taxation  on  certain  properties.  In  the  Attorney 
General's  opinion  that  officer  holds  that  the  Round  Lake  Association  was  not 
entitled  to  such  exemption.  He  expressed  no  opinion  on  the  claim  of  the  Round 
Lake  Summer  Institute  to  such  exemption.  The  property  owned  by  this  cor- 
poration and  the  amount  for  which  it  is  assessed  is  as  follows:  George  West 
Museum  S5000;  Alumni  Hall  $500;  Kennedy  Hall  $2000;  and  Garnsey  Hall 
S2500. 

Round  Lake  Summer  Institute  was  incorporated  under  the  Regents  on  Jan- 
uary 12,  1889,  as  an  academy.  However,  the  only  one  of  these  buildings  which 
appears  to  be  used  exclusively  for  educational  purposes  is  the  George  West 
Museum  and  that  property  should  be  exempt  from  taxation  for  school  purposes. 
[32  App.  Div.  197;  74  App.  Div.  553] 
The  appeal  herein  is  sustained. 

It  is  ordered,  That  the  board  of  education  of  said  school  district  no.  9,  town 
of  ]\Ialta,  Saratoga  county,  be,  and  they  hereby  are.  ordered  to  change,  correct 
and  amend  the  tax  list  issued  by  said  board  on  or  about  the  25th  day  of  October 
1905,  in  and  for  said  district  by  substituting  for  the  name  of  Round  Lake  Asso- 
ciation the  name  of  the  individual  lessees  of  the  several  parcels  of  real  estate 
included  in  such  tax  list  and  assessed  to  Round  Lake  Association,  and  in  case 
any  of  such  lessees  shall  not  be  residents  of  said  school  district  no.  9,  Malta,  to 
make  such  further  changes  in  said  tax  list  as  shall  be  necessary  to  assess  the 
property  of  such  lessees  as  nonresident  land  in  accordance  with  the  provisions 
of  section  6t,,  title  7  of  the  Consolidated  School  Law. 

It  is  also  ordered.  That  the  collector  of  said  district  no.  9,  Malta,  shall 
immediately  after  said  tax  list  has  been  thus  changed,  corrected  and  amended, 
give  notice  as  provided  in  section  81,  title  7  of  the  Consolidated  School  Law  of 
the  receipt  of  such  tax  list  and  the  said  collector  shall  thereafter  receive  volun- 
tary payment  of  the  taxes  of  said  tax  list  for  thirty  days  as  provided  in  said 
section  81.' 


^2  THE    UXIVERSITY    OF   THE    STATE    OF    XEW    YORK 

It  is  also  ordered,  That  the  collector  of  said  district  no.  9,  Malta,  shall 
receive  any  tax  included  in  said  tax  list  and  which  may  be  tendered  to  hirn  by 
any  officer  or  employee  of  the  Round  Lake  Association  or  by  any  other  person 
and  shall  credit  the  same  to  the  person  to  whom  said  taxes  are  properly  charge- 
able on  said  tax  list. 

Jt  is  also  ordered.  That  the  said  board  of  education  of  district  no.  9,  Malta, 
shall  strike  from  such  tax  list  the  assessment  against  Round  Lake  Summer  Insti- 
tute of  $5000  on  the  George  West  ^Museum. 


5381 

In  the  matter  of  the  appeal  of  the  Round  Lake  Summer  Institute  from  a  certain 
assessment  made  against  said  institute  and  upon  its  property  described  as 
"  George  \\'est  ^luseum  and  Park  "'  by  the  board  of  education  of  district 
no.  9,  town  of  Malta,  Saratoga  county,  for  the  year  1907. 

When  the  Supreme  Court  holds  that  property  is  exempt  from  taxation  for  State,  county 
and  town  purposes  by  reason  of  being  exclusively  used  for  educational  purposes  and 
coming  within  the  provisions  of  subdivision  7  of  section  4  of  the  tax  law  it  v.-ill  be 
held  by  this  Department  that  such  property  is  also  exempt  from  taxation  for  school 
district  purposes. 

Decided  t'ebruary  25,  190S 

Irwin  Esmond,  attorney  for  appellant 

Draper,  Commissioner 

This  proceeding  was  filed  at  this  Department  October  24,  1907.  An  order 
was  made  by  me  on  the  date  on  which  such  proceeding  was  filed,  restraining 
the  collector  of  union  free  school  district  no.  9,  town  of  Malta,  from  collecting 
or  attempting  to  collect  from  the  Round  Lake  Summer  Institute  a  certain  tax 
levied  upon  its  property  known  as  the  "  George  West  Museum  and  Park." 

A  decision  herein  has  not  before  been  rendered  for  the  reason  that  the 
moving  papers  showed  that  appellant  had  obtained  a  writ  of  certiorari  from  .the 
Supreme  Court  of  the  State  of  New  York  to  review  the  proceedings  of  the 
board  of  assessors  of  the  town  of  Malta,  Saratoga  county,  in  assessing  the 
property  in  question,  that  a  return  to  such  writ  had  been  made  and  filed  by 
the  said  assessors,  but  that  no  hearing  had  been  given  thereon  and  therefore 
no  determination  of  the  issue  involved. 

It  appears  that  Mr  Justice  Van  Kirk  rendered  a  decision  in  such  case  on 
February  21,  1907,  holding  that  the  property  in  question  is  exempt  from  taxa- 
tion by  reason  of  being  exclusively  us^d  for  educational  purposes  and  coming 
within  the  provisions  of  subdivision  7  of  section  4  of  the  tax  law  of  the  State 
and  ordering  that  the  assessment  of  such  property  for  State,  countv  and  town 
taxes  be  stricken  from  the  tax  rolls. 

If  the  property  in  question  was  exempt   from  taxation   for  town,  county 


JUDICIAL   DECISIONS  :      ASSESSMENTS  5.3 

and  State  purposes  for  the  reasons  thus  held,  it  follows  that  it  is  also  exempt 
from  taxation  for  school  district  purposes.  It  further  appears  that  the  property 
in  question  was  assessed  for  school  purposes  in  the  year  1905  and  that  on  an 
appeal  to  this  Department  it  was  held  that  such  property  was  exempt  from 
taxation. 

The  appeal  herein  is  sustained. 

It  is  ordered,  That  the  board  of  education  of  union  free  school  district 
no.  9,  town  of  Malta,  county  of  Saratoga,  shall  strike  from  the  tax  list  of  such 
district  issued  by  said  board  of  education  on  or  about  the  24th  day  of  September 
1907,  any  assessment  against  the  Round  Lake  Summer  Institute  upon  property 
described  as  "  George  West  ]\Iuseum  and  Park  "  and  that  the  said  board  of 
education  shall  strike  from  any  other  tax  list  now  in  force  in  said  district  any 
assessment  appearing  thereon  against  the  Round  Lake  Summer  Institute  upon 
the  said  property  described  as  !'  George  West  }kluseum  and  Park." 

It  is  further  ordered.  That  the  board  of  education  of  said  union  free 
school  district  no.  9,  town  of  ]\Ialta,  county  of  Saratoga,  is  hereby  enjoined 
and  restrained  from  assessing  for  school  district  purposes  the  property  of  the 
said  Round  Lake  Institute  known  as  "  George  West  Museum  and  Park "  so 
long  as  said  property  shall  continue  to  be  used  exclusively  for  educational 
purposes. 


3967 

In  the  matter  of  the  appeal  of  G.  D.  S.  Trask  v.  the  trustees  of  school  districts 

nos.  2  and  5,  lown  of  Castleton,  Richmond  County. 

Equitable  relief  is  sought  from  erroneous  assessments  paid  long  before  this   appeal  was 

instituted.    Held,  to  be  too  late  to  secure  the  relief  from  this  Department.     Relief  so 

sought  must  come  from  the  courts. 
Opinion  determines  the  place  of  taxation  of  a  small  tract  of  land  lying  in  one  district, 

adjoining  land  of  same  occupant  and  owner  in  another  district,   for  a  succession   of 

years. 
Decided  April  20,   1891 

Draper,  Superintendent 

The  appellant  who  is  the  executive  officer  and  agent  in  charge  of  property 
owned  by  the  trustees  of  the  Sailors  Snug  Harbor,  situated  in  the  town  of 
Castleton,  Richmond  county,  where  he  resides,  has  instituted  this  proceeding 
for  the  purpose  of  having  it  judicially  determined  where  a  certain  lot  of  land, 
comprising  three  acres,  situated  within  the  boundary  of  district  no.  2,  in  said 
town,  should  have  been  taxed  for  school  purposes  since  the  title  to  such  property 
was  acquired  by  the  corporation  represented  by  the  appellant. 

It  appears  that  the  property  in  question  was  purcliased  by  the  trustees  of 
the  Sailors  Snug  Harbor,  in  April  1888,  and  adjoins  the  main  property  of  the 
corporation,  situated  in  district  no.  3  of  said  town,  upon  which  its  buildings  are 
erected  and  where  the  appellant  resides. 


54  THE    UNIVERSITY    OF  THE   STATE    OF   NEW   YORK 

The  property  in  question  was  separately  assessed  upon  the  town  assessment 
rolls  after  April  1888,  and  until  the  town  assessment  roll  of  1890-91,  when  the 
entire  body  of  land  owned  by  the  said  corporation  was  assessed  in  one  body. 

With  these  facts  conceded,  the  question  is  asked  where  should  the  three 
acres,  lying  within  the  boundary  lines  of  district  no.  2  be  taxed  for  school 
purposes. 

Section  66  of  title  7  of  the  Consolidated  School  Act  previous  to  the  amend- 
ment of  May  29,  1889,  provided  that  "  land  lying  in  one  body,  and  occupied  by 
the  same  person  either  as  owner  or  agent  for  the  same  principal,  or  as  tenant 
for  the  same  landlord,  shall,  though  situated  partly  in  two  or  more  school  districts, 
be  taxable  in  that  one  of  them  in  which  such  occupant  resides." 

By  legislative  enactment  the  above  section  was  amended  May  29,  1889,  so 
that  since  said  date,  lands  lying  in  one  body  but  in  two  districts  are  not  to  be 
taxed  together  for  school  purposes  in  the  district  in  which  the  occupant  resides, 
unless  the  said  lands  are  assessed  as  one  lot  on  the  preceding  town  assessment 
roll. 

It  will  therefore  be  seen  that  the  lot  in  question  was  taxable  prior  to  the 
amendment  of  May  29,  1889,  i"  district  no.  3,  with  the  main  land  which  it 
adjoined  and  where  the  occupant  resided. 

Since  May  29,  1889,  and  until  the  town  assessment  rolls  of  1890-91  were 
prepared  and  revised  by  the  assessors,  it  was  taxable  in  district  no.  2  as  a  separate 
lot. 

Since  the  revision  of  the  said  rolls  of  1890-91,  it  was  taxable  in  district 
no.  3.  with  the  main  land  as  one  entire  lot. 

Other  questions  are  presented  which  I  can  not  determine  upon  this  appeal. 

It  is  too  late  to  ask  for  equitable  relief  from  erroneous  assessments  paid 
long  before  this  appeal  was  instituted.  Any  relief  so  sought  must  come  from 
the  courts. 


5166 

In  the  matter  of  the  appeal  of  Allen  D.  Spink  as  trustee  of  school  district  no.  4, 
Orangeville,  and  John  S.  Head  as  trustee  of  school  district  no.  17,  Sheldon, 
county  of  Wyoming,  to  determine  whether  certain  real  estate  shall  be 
assessed  as  land  lying  in  one  body. 

No  land  can  be  assessed  as  land  lying  in  one  body  which  does  not  meet  fully  each  of  the 
four  following  conditions :  (i)  The  land  must  lie  in  one  body.  There  must  be  an  actual 
line  of  contact  between  the  boundaries  of  such  two  bodies  of  land.  (2)  Such  land 
must  be  owned  by  one  person.  (3)  The  land  must  be  occupied  by  one  person.  This 
person  must  be  either  the  owner  of  such  lands  or  the  agent  or  tenant  of  one  and  the 
same  landlord.  (4)  Such  land  must  have  been  assessed  as  one  lot  on  the  last  assess- 
ment roll  of  the  town  after  revision  by  the  assessor. 

Decided  January  17,  1905 


JUDICIAL  decisions:     assessments  ^x^ 

Draper,  Commissioner 

The  trustees  of  these  school  districts  have  submitted  a  statement  of  facts 
agreed  upon  by  them  in  relation  to  two  parcels  of  land  located  therein.  These 
facts  show  that  Ira  D.  Calkins  and  his  wife,  Emma  L.  Calkins,  jointly  own 
a  tract  of  lOO  acres  of  land  located  in  school  district  no.  17,  Sheldon,  and  that 
they  reside  thereon.  The  facts  also  show  that  adjoining  this  100  acres  of  land 
but  located  in  school  district  no.  4,  Orangeville,  is  another  parcel  of  land  of  76 
acres  owned  by  the  said  Ira  D.  Calkins.  These  two  pieces  of  property  were 
assessed  by  the  town  assessors  in  1904  as  one  body  of  land.  The  question  pre- 
sented for  my  determination  is,  Shall  this  land  be  assessed  for  school  purposes 
in  accordance  with  the  provisions  of  section  63,  title  7  of  the  Consolidated  School 
Law,  in  school  district  no.  17,  Sheldon,  as  land  lying  in  one  body,  or  shall  the  76 
acres  be  assessed  in  school  district  no.  4,  Orangeville,  and  the  100  acres  in  school 
district  no.  17,  Sheldon? 

It  appears  that  this  question  was  submitted  to  the  school  commissioner  of 
the  first  commissioner  district  of  Wyoming  county,  in  which  these  school  districts 
are  located,  and  he  decided  that  such  property  should  be  assessed  in  district  no.  17, 
Sheldon,  as  land  lying  in  one  body.  I  assume  that  the  question  was  submitted 
to  the  school  commissioner  simply  to  obtain  his  opinion  and  not  with  the  under- 
standing that  such  opinion  should  in  any  way  be  binding  upon  the  districts.  It 
was  entirely  proper  to  request  an  opinion  from  the  school  commissioner  on  this 
question  and  also  proper  that  he  should  express  one.  or  that  he  should  give  any 
advice  to  school  officers  on  the  question  which  might  be  helpful  to  them.  It 
must  be  understood,  however,  that  the  school  law  does  not  confer  on  a  school 
commissioner  judicial  or  ministerial  power  to  pass  upon  such  questions  and 
that  the  decision  of  a  school  commissioner  thereon  would  have  no  binding  effect 
upon  the  school  districts. 

The  school  commissioner  has  filed  an  answer  to  this  appeal.  Since  a  state- 
ment of  facts  has  been  submitted  by  the  trustees  of  two  districts  for  determi^ 
nation  of  a  question  of  law  which  such  commissioner  has  not  power  to  determme, 
this  Department  might  properly  refuse  to  accept  such  answer.  He  contends  that 
the  joint  ownership  of  this  100  acres  by  Mr  Calkins  and  his  wife  is  not  a 
bar  to  the  assessment  of  these  lands  as  land  lying  in  one  body.  In  this  he  is 
in  error  as  we  shall  hereafter  show.  He  also  contends  that  the  trustee  of  district 
no.  4,  Orangeville,  in  assessing  the  76  acres  in  question  to  Ira  D.  Calkins  did 
not  follow  the  course  of  procedure  directed  by  law  and  therefore  asks  that  the 
assessment  by  such  trustee  be  declared  illegal.  The  question  of  the  validity  of 
such  assessment  is  not  properly  raised.  The  only  question  which  this  Department 
has  been  asked  to  determine  in  this  appeal  is  whether  the  two  bodies  of  land  in 
question  could  be  assessed  as  land  lying  in  one  body.  This  was  the  only  question 
presented  to  the  commissioner  for  his  opinion.  This  is  the  only  question  which 
we  can  properly  determine.  The  commissioner  is  also  barred  from  raising  the 
question  of  the  validity  of  this  assessment  as  he  does  not  appear  to  be  an 
aggrieved  party  under  such  assessment. 


56  THE   UNIVERSITY    OF   THE   STATE    OF   XEW    YORK 

In  order  to  assess  two  bodies  of  land  located  in  different  districts  as  lying  in 
one  body  under  section  63  of  title  7  of  the  Consolidated  School  Law,  four  dis- 
tinct conditions  must  be  satisfied.    These  are : 

1  Such  lands  must  lie  in  one  body.  There  must  be  an  actual  line  of  contact 
between  the  boundaries  of  such  two  bodies  of  land. 

2  Such  lands  must  be  owned  by  one  person. 

3  Such  lands  must  be  occupied  by  one  person.  This  person  must  be  either 
the  owner  of  such  lands  or  the  agent  or  tenant  of  one  and  the  same  landlord. 

■  4  Such  lands  must  have  been  assessed  as  one  lot  on  the  last  assessment  roll 
of  the  town  after  revision  by  the  assessors. 

Xo  land  can  be  assessed  under  this  provision  of  law  which  does  not  meet 
fully  each  of  the  four  conditions  above  stated.  The  statement  of  facts  agreed 
upon  by  the  trustees  presenting  this  question  shows  that  in  this  particular  case 
the  lands  in  question  do  not  meet  the  second  of  these  conditions.  It  is  expressly 
stated  that  the  lot  of  100  acres  is  owned  jointly  by  Ira  D.  Calkins  and  Emma  L. 
Calkins  and  that  the  lot  of  76  acres  is  owned  by  Ira  D.  Calkins.  The  whole  of 
these  two  bodies  of  land  is  not  therefore  owned  by  one  person.  It  is  unnecessary 
to  examine  into  this  case  to  determine  if  the  other  conditions  are  satisfied.  The 
failure  to  satisfy  one  condition  renders  it  impossible  to  assess  these  two  bodies 
of  land  in  one  school  district. 

I  decide,  That  the  said  lot  of  76  acres  should  be  assessed  to  Ira  D.  Calkins 
in  school  district  no.  4,  Orangeville,  and  that  the  said  lot  of  100  acres  should  be 
assessed  to  Ira  D.  Calkins  and  Emma  L.  Calkins  in  school  district  no.  17,  Sheldon. 

It  is  ordered.  That  the  trustee  of  school  district  no.  17,  Sheldon,  shall  not 
include  in  any  tax  list  issued  by  him  the  said  lot  of  76  acres  owned  by  Ira  D. 
Calkins  and  located  in  school  district  no.  4,  Orangeville;  that  if  the  trustee  of 
district  no.  17,  Sheldon,  has  already  issued  a  tax  list  and  has  included  thereon 
the  said  lot  of  76  acres  owned  by  Ira  D.  Calkins  and  such  tax  list  has  not  been 
returned,  the  said  trustee  shall  immediately  amend  such  tax  list  by  striking  there- 
from such  assessment  against  Ira  D.  Calkins ;  that  if  the  said  Ira  D.  Calkins  has 
paid  a  tax  on  such  76  acres  to  school  district  no.  17,  Sheldon,  during  the  current 
school  year  by  reason  of  such  76  acres  having  been  included  in  a  tax  list  issued 
for  tlie  current  year,  then  the  trustee  oi  district  no.  17,  Sheldon,  shall  immediately 
refund  to  the  said  Ira  D.  Calkins  any  and  all  tax  thus  paid. 


3935 

In  the  matter  of  the  appeal  of  Isaac  E.  Shipley  and  others,  trustees  of  school 
district  no.  6,  town  of  Williamson,  county  of  Wayne,  v.  Henry  P.  Benton, 
trustee  of  school  district  no.  i  of  the  same  town. 

Lands  lying  in  one  body  but  in  more  than  one  district,  owned  and  occupied  as  one  farm, 
were  not  assessed  in  one  body  upon  the  last  corrected  town  assessment  roll.  Held,  not 
taxable  for  school  purposes  in  one  body  in  the  district  in  which  the  occupant  resided. 


JUDICIAL  decisions:    assessments  57 

Each  district  is  entitled  to  levy  a  tax  only  upon  the  land  lying  within  its  own  boundary. 
Appeal  dismissed  upon  the  ground  that  appellants  not  being  the  owners  of  the  land  in 
question,  were  not  the  aggrieved  persons. 
Decided  December  3,  1890 

Draper,   Superintendent 

Appeal  from  the  action  of  the  trustee  of  school  district  no.  i,  town  of 
Williamson,  Wayne  county,  in  including  in  a  tax  list  an  assessment  against  the 
lands  of  one  John  Shipley,  93  acres  which  lie  in  one  body,  12  acres  of  which  are 
within  the  bounds  of  district  no.  i,  and  81  acres  of  which  lie  in  district  no.  6. 
The  owner  occupies  the  entire  farm,  and  resides  thereon  in  district  no.  i.  The 
land  is  assessed  in  two  parcels,  12  acres  and  81  acres,  respectively,  upon  the  last 
corrected  town  assessment  roll. 

The  following  is  the  statute  providing  for  the  assessment  of  such  lands  for 
school  purposes : 

Section  66  .  .  .  but  land  lying  in  one  body  and  occupied  by  the  same 
person, either  as  owner  or  agent  for  the  same  principal,  or  as  tenant  under  the 
same  landlord,  if  assessed  as  one  lot  on  the  last  assessment  roll  of  the  town 
after  revision  by  the  assessors,  shall,  though  situated  partly  in  two  or  more 
school  districts  be  taxable  in  that  one  of  them  in  which  such  occupant  resides. 
.     .     .     (Title;) 

It  will  therefore  be  observed  that,  if  this  land  in  question  had  been  assessed 
in  one  body  by  the  town  assessors,  the  action  of  the  respondent  would  have  been 
proper.    As  it  is,  each  piece  is  taxable  in  the  district  in  which  it  is  situated. 

But  I  must  dismiss  the  appeal  upon  another  ground.  The  appellants  are 
not  aggrieved  persons.  John  Shipley,  the  owner,  may  be,  and  may  become  so. 
The  trustees  of  district  no.  6  in  preparing  a  district  tax  list,  were  in  no  way 
prevented  from  assessing  a  tax  upon  the  81  acres.  The  fact  that  it  may  have 
been  improperly  assessed  in  district  no.  i,  was  no  bar  to  their  right  to  assess. 

For  the  reasons  given,  the  appeal  is  dismissed. 


3931 

In  the  matter  of  the  appeal  of  Theodore  G.  Peck  and  others  v.  the  board  of 
education  of  union  free  school  district  no.  3,  Haverstraw,  Rockland  county. 

Lands  lying  in  one  body  but  in  two  districts,  all  owned  and  occupied  as  one  farm  by  the 
agent  of  the  owners,  who  resides  thereon,  and  which  land  is  assessed  in  one  body  by  the 
town  assessors.  Held  to  be  taxable  in  one  body  in  the  district  in  which  the  agent  of 
the  owners  who  is  also  one  of  the  owners,  resides. 

Decided  December  3,  1890 

Draper,  Superintendent 

The  appellants,  who  reside  in  the  town  of  Haverstraw,  Rockland  county, 
and  one  Edith  P.  Halstead,  of  the  city  of  New  York,  are  the  owners  of  a  certain 


58  THE   UNIVERSITY    OF   THE   STATE    OF    NEW   YORK 

body  of  land  of  about  360  acres,  known  as  the  "  Peck  estate,"  of  which  about 
325  acres  He  in  school  district  no.  2,  Haverstraw,  and  about  35  acres  lie  in 
district  no.  3,  Haverstraw.  The  entire  property  is  occupied  by  one  or  more  of 
the  owners,  and  particularly  by  the  agent  of  the  owners,  Gordan  H.  Peck,  and 
resides  in  the  only  dwelling  thereon,  which  is  on  the  land  in  district  no.  2.  The 
entire  farm  is  in  one  body  and  is  so  assessed  upon  the  last  town  assessment  roll. 

The  board  of  education  of  union  free  school  district  no.  3,  Haverstraw, 
has  made  a  separate  assessment  upon  the  land  lying  in  their  district,  and  from 
such  action  this  appeal  is  brought. 

The  entire  farm  is  and  has  been  for  years  assessed  for  school  purposes  in 
district  no.  2.     No  answer  has  been  filed. 

The  action  of  the  board  of  education  of  union  free  school  district  no.  3, 
as  above  set  forth,  can  not  be  sustained.  The  statute  in  such  cases  provides : 
" .  .  .  but  land  lying  in  one  body  and  occupied  by  the  same  person,  either  as 
owner  or  agent  for  the  same  principal,  or  as  tenant  under  the  same  landlord, 
if  assessed  as  one  lot  on  the  last  assessment  roll  of  the  town  after  revision  by 
the  assessors,  shall,  though  situated  partly  in  two  or  more  school  districts,  be 
taxable  in  that  one  of  them  in  which  such  occupant  resides.  .  .  ."  (See 
section  66  of  title  7  of  the  Consolidated  School  Act.) 

The  assessment  of  the  35  acres  in  district  no.  3  is  therefore  invalid,  and  the 
board  of  education  is  hereby  ordered  to  withdraw  and  correct  their  tax  list 
accordingly. 

The  appeal  is  sustained. 


3680 

In  the  matter  of  the  appeal  of  Calvin  C.  Reed,  as  sole  trustee  of  district  no.  12, 
town  of  New  Lebanon,  county  of  Columbia,  for  and  on  behalf  of  the  United 
Society  of  Shakers,  v.  school  district  no.  9,  in  said  town. 

Lands  owned  bj^  the  United  Society  of  Shakers  which  lie  in  one  body,  ,but  in  different  dis- 
tricts, are  taxable  in  the  district  in  which  the  owners  reside. 

The  objection  that  the  statute  (section  66  of  title  7,  of  the  Consolidated  School  Act)  refers  to 
a  sole  ownership  or  occupancy  —  held,  not  tenable.  Lands  jointly  owned  are  controlled 
by  the  same  statute. 

Decided  April  16,  188S 

W.  C.  Daley,  attorney  for  the  appellants 
Daniel  E.  Miller,  attorney  for  the  respondent 

Draper,  Superintendent 

School  district  no.  12  of  the  town  of  Xew  Lebanon  is  comprised  of  lands 
owned  and  occupied  in  common  by  numerous  persons,  known  as  the  United 
Society  of  Shakers.  Some  of  such  lands,  lying  in  one  body,  extend  into  district 
no.  9  of  said  town.  District  no.  9  claims  the  right  to  tax  the  lands  which  lie  in 
that  district.    The  Society  of  Shakers  resist  this  claim,  and  contend  that,  under  the 


JUDICIAL   DECISIONS  :      ASSESSMENTS  59 

provisions  of  section  66  of  title  7,  of  the  Consolidated  School  Act,  said  lands 
are  liable  to  taxation  only  in  district  no.  12.  This  appeal  is  taken  from  a  tax 
list,  including  the  land  in  question,  made  and  delivered  to  the  collector  in  district 
no.  9,  for  the  purpose  of  determining  the  matter. 

In  general,  real  estate  is  taxable  in  the  school  district  in  which  it  is  situated. 
The  statute  (section  66,  title  7,  chapter  555,  Laws  1864)  makes  an  exception  to 
this  general  rule,  however,  in  the  following  words,  namely :  "  but  land  lying 
in  one  body  and  occupied  by  the  same  person,  either  as  owner  or  agent  for  the 
same  principal,  or  as  tenant  under  the  same  landlord,  shall,  though  situated 
partly  in  two  or  more  school  districts,  be  taxable  in  that  one  of  them  in  which 
such  occupant  resides." 

I  am  called  upon  to  determine  whether  the  land  in  question  must  be  held 
to  be  taxable  under  the  general  rule  or  under  the  exception  thereto. 

The  appellants  say  that  the  land  in  the  two  districts  lies  ''  in  one  body," 
and  this  is  disputed. 

They  say  also  that  such  land  is  owned  and  occupied  by  the  same  persons, 
namely,  the  United  Society  of  Shakers.  It  is  admitted  that  there  are  two  occupied 
dwellings  upon  the  Shaker  land  in  district  no.  9,  but  it  is  claimed  that  the 
occupants  are  mere  agents  or  employees  of  the  society,  and  that  seems  to  be  the 
fact. 

An  issue  is  raised  between  the  parties  as  to  the  meaning  of  the  words, 
"  occupied  by  the  same  person  either  as  owner  or  agent  for  the  same  principal, 
or  as  tenant  under  the  same  landlord."  The  respondents  contend  that  the  owner- 
ship or  occupancy  of  the  land  must  be  by  a  single  individual.  The  appellants 
assert  that  the  statute  meant  that  the  land  lying  in  two  districts  and  one  body 
must  have  an  identical  ownership,  but  that  several  persons  may  share  in  it.  In 
support  of  their  position  the  respondents  cite  the  comments  of  the  editor  in  the 
Code  of  Public  Instruction  (page  337,  edition  of  1887).  The  statements  of  the 
editor  are  based  upon  a  decision  made  by  Superintendent  Gilmour,  March  24, 
1879,  in  appeal  no.  2839.  But  an  examination  of  the  full  opinion  of  the  Superin- 
tendent clearly  shows  that  it  does  not  sustain  the  editorial  comment  referred  to. 
In  that  case  the  ownership  was  not  identical,  the  portion  in  one  district  being 
owned  by  one  person  and  that  in  the  other  district  being  owned  jointly  by  that 
person  and  another.  So  it  can  not  properly  be  said  that  the  Superintendent  has 
ever  held  that  land  lying  in  one  body  must  be  owned  wholly  by  but  one  person 
in  order  to  be  taxable  in  the  school  district  in  which  the  owner  or  occupant 
resides. 

What,  then,  did  the  Legislature  mean  when  it  used  the  language  about 
which  the  parties  to  this  appeal  differ?  In  order  to  answer  this,  it  is  pertinent 
to  inquire  what  the  purpose  was  in  enacting  such  a  provision.  It  is  evident  that 
the  object  was  to  convenience  and  facilitate  the  transaction  of  public  business. 
Land  lying  in  one  body,  with  an  identical  ownership,  is  valued  for  the  purposes 
of  taxation  bv  town  assessors,  and  their  valuation  is  fixed,  determined  and 
announced  in  the  town  assessment  rolls.  Trustees  in  school  districts  are  charged 
with  the  duty  of  levying  and  collecting  school  taxes.     But  the  law  does  not 


60  THE    UNIVERSITY    OF   THE   STATE    OF   NEW    YORK 

assume  that  they  are  as  well  qualified  to  fix  and  determine  the  values  of  real 
estate  as  are  ofticers  specially  chosen  for  that  particular  purpose,  and  it  there- 
fore provides  that  trustees  shall,  so  far  as  possible,  ascertain  the  values  of  real 
estate  from  the  last  assessment  roll  of  the  town.  Lands  lying  together,  and 
having  the  same  ownership,  are  valued  upon  the  assessment  rolls  as  one  piece. 
In  very  many  cases  the  valuations  placed  upon  these  parcels  by  the  town  assessors 
could  not  be  used  by  trustees  in  the  levying  of  school  taxes,  for  the  reason  that 
the  parcels  frequently  lie  in  two  or  more  school  districts,  but  for  the  provision 
that  they  shall  be  taxed  in  the  district  containing  the  residence  of  the  occupant. 
It  was  in  furtherance  of  the  law  that  trustees,  in  levying  taxes,  shall  follow  the 
town  assessment  rolls,  and  to  obviate  the  necessity  of  imposing  upon  them  the 
duty  of  fixing  a  value  upon  the  respective  parts  of  the  whole  parcel  lying  in 
each  district,  that  the  exception  to  the  general  principle  was  enacted.  I  can 
think  of  no  other  reason  for  this  arrangement.  Is  there  any  reason  why  such 
an  arrangement  should  be  extended  to  lands  having  a  sole  ownership  which  does 
not  apply  with  equal  force  to  lands  having  a  joint  ownership?  I  can  conceive 
of  none.  To  take  a  contrary  view  would  lead  to  endless  uncertainty  and  con- 
fusion, for  numberless  land  titles  are  involved  in  doubt,  vested  in  heirs,  and  sub- 
ject to  conflicting  claims,  the  determination  of  which  it  is  not  the  purpose  of  the 
law  to  impose  upon  the  school  authorities.  Moreover,  the  same  section  of  the 
statute  which  contains  the  provision  under  consideration  also  provides  that 
"  such  property  shall  be  assessed  to  the  person  or  persons  or  corporation  owning 
or  possessing  the  same  at  the  time  such  tax  list  shall  be  made  out."  The  phrase 
under  discussion  uses  the  term  "  persons "  and  "  occupant "  in  the  singular 
number,  but  it  will  hardly  be  contended  that  there  could  be  but  one  person 
occupying  such  a  parcel  of  land,  in  order  to  render  it  taxable  in  the  school  dis- 
trict containing  the  residence.  Yet  the  statute  seems  to  imply  that,  as  much  as 
it  does  that  the  ownership  must  be  in  but  one  person.  The  statute  not  being 
distinct,  it  is  our  dut\^  to  give  it  such  a  meaning  as  is  consistent  with  the  general 
and  manifest  purpose  of  the  Legislature  in  enacting  it.  Reading  the  whole 
section  together,  and  in  connection  with  other  sections  relate^  to  it,  I  had  no 
difficulty  in  arriving  at  the  conclusion  that  it  was  the  purpose  of  the  Legislature 
to  say  that  lands  lying  in  one  body,  and  being  owned  and  occupied  by  the  same 
person  or  persons,  no  matter  whether  the  ownership  and  occupancy  is  individual, 
or  is  shared  in  by  several  persons,  shall  be  taxed  in  the  school  districts  containing 
the  residences  of  the  owners  or  occupants. 

Coming  to  this  conclusion,  it  necessarily  follows  that  land,  the  legal  title  of 
which  is  in  trustees  representing  the  United  Society  of  Shakers,  must,  so  far  as 
the  levying  of  school  taxes  is  concerned,  be  treated  precisely  the  same  as  would 
be  the  case  if  such  title  were  vested  in  a  single  individual. 

I  have  examined  the  last  assessment  roll  of  the  town  of  New  Lebanon,  so 
far  as  any  real  estate  in  either  school  district  no.  9  or  district  no.  12  of  that  town 
is  concerned.  I  find  that  the  largest  parcel  of  land  appearing  upon  such  roll,  in 
either  of  said  districts,  consists  of  355  acres.    This  is  not  so  large  as  to  preclude 


JUDICIAL   DECISION'S:      ASSESSMENTS  6l 

undivided  occupancy.  Section  6"]  of  title  7  of  the  Consolidated  School  Act  pro- 
vides that  "  the  valuation  of  taxable  property  shall  be  ascertained,  so  far  as 
possible,  from  the  last  assessment  roll  of  the  town.''  There  was  a  wise  purpose 
in  this  provision.  Trustees  are  not  at  liberty  to  disregard  it  where  it  is  possible 
to  observe  it.  No  state  of  circumstances  is  shown  here  which  renders  it  impossible 
or  impracticable  for  the  respondents  in  the  present  case  to  follow  it.  This  being 
so,  they  are  not  at  liberty  to  divide  lands  appearing  in  single  parcels  upon  the 
town  assessment  rolls,  or  to  assume'  to  fix  and  determine  for  themselves  the 
assessable  valuation  of  the  different  parts.  The  law  contemplates  that  the  valua- 
tions fixed  by  the  assessors  shall  be  used  by  trustees,  except  where  that  is,  for 
some  reason,  impossible.  I  fail  to  find  any  reason  why  it  is  impossible  to  do  so 
here. 

The  rule  of  the  statute  that  provides  that,  in  certain  cases,  land  may  be 
taxed  for  school  purposes  in  another  school  district  than  that  in  which  it  is 
situated,  sometimes  operates  harshly.  Possibly  it  may  be  so  in  the  present  case, 
although  I  observe  that  the  acreage  and  valuation  in  the  two  districts  are  not 
widely  different,  and  I  see  nothing  which  leads  me  to  think  that  the  provision 
operates  any  more  harshly  in  this  case  than  in  innumerable  other  instances. 
What  this  district  may  lose  upon  one  side  it  may  gain  upon  another.  The  gen- 
eral advantages  which  flow  from  the  provision,  in  the  practical  transaction  of 
the  business  to  which  it  relates,  I  have  no  doubt,  outweigh  the  disadvantages 
which  may  incidentally  result  from  it. 

The  appeal  is  sustained. 


3700 

In  the  matter  of  the  appeal  of  Calvin  G.  Reed  as  sole  trustee  of  district  no.  12, 
town  of  New  Lebanon,  county  of  Columbia,  on  behalf  of  the  United  Society 
of  Shakers,  v.  school  district  no.  9  in  said  town. 

The  rule  laid  down  by  section  66,  title  7  of  the  Consolidated  School  Act  for  assessing  land 
lying  in  one  body  and  owned  or  occupied  by  the  same  person,  held,  to  apply  to  cor- 
porations as  well  as  individual  owners. 

Trustees  are  to  follow  assessors'  valuations  as  far  as  possible. 

It  is  not  the  policy  of  the  law  to  charge  school  officers  with  the  responsibility  of  making 
original  assessments  to  any  considerable  extent. 

Decided  July  24,  1888 

W.  C.  Daley,  attorney  for  the  appellant 
Daniel  E.  Miller,  attorney  for  the  respondent 

Draper,  Supei'iiiteudent 

This  is  an  appeal  from  a  tax  list  made  by  the  trustee  in  school  district  no.  9 
of  the  tx»wn  of  N<?w  Lebanon,  which  tax  list  includes  certain  real  estate  belonging 
to  the  United  Society  of  Shakers.  That  society  claims  that  such  real  estate  is  not 
taxable  in  school  district  no.  9,  but  rather  in  school  district  no.  12  in  said  town, 


62  THE    UNIVERSITY    OF   THE   STATE    OF   NEW   YORK 

which  it  adjoins,  on  the  ground  that  it  is  real  estate  lying  in  one  body  and  owned 
and  occupied  by  the  same  persons.  The  case  has  been  before  me  heretofore 
and  was  decided  on  the  i6th  day  of  April  1888,  in  favor  of  the  appellants.  The 
respondents  have  sought  a  rehearing,  and  have  been  heard  at  length  upon  their 
application.  Two  points  have  been  strenuously  urged  as  against  the  soundness  of 
the  former  decision. 

1  It  is  claimed  by  them  that  the  United  Society  of  Shakers  is  a  corporation, 
and  that  corporations  are  not  entitled  to  the  benefit  of  the  exception  stated  in 
section  66,  of  title  7  of  the  Consolidated  School  Act,  in  the  words  following: 
"  But  land  lying  in  one  body  and  occupied  by  the  same  person  either  as  owner 
or  agent  for  the  same  principal,  or  as  tenant  under  the  same  landlord,  shall, 
though  situated  partly  in  two  or  more  school  districts,  be  taxable  in  that  one  of 
them  in  which  such  occupant  resides." 

2  They  urge  that  the  town  assessment  roll  of  the  town  of  New  Lebanon 
is  erroneous  in  that  it  does  not  properly  state  the  legal  ownership  of  the  lands 
in  question.  Assuming  that  this  is  so,  they  claim  that  the  trustee  of  school 
district  no.  9  was  justified  and  will  hereafter  be  justified,  in  practically  disre- 
garding the  town  assessment  roll  and  assessing  the  real  estate  of  the  appellants 
for  school  purposes  in  the  manner  followed  by  him  in  the  present  case. 

There  seems  to  be  little  doubt  about  the  proposition  that  the  United  Society 
of  Shakers,  in  the  eye  of  the  law,  is  a  corporation  for  certain  purposes  at  least ; 
but  I  am  unable  to  adopt  the  view  of  the  respondent  that  a  corporation  is  not, 
in  a  proper  case,  entitled  to  the  benefit  of  the  exception  above  quoted.  It  is 
true  that  the  statutes  specially  provide  that  railroad,  telegraph,  telephone  and 
pipe  line  companies,  shall  be  taxed  in  the  several  school  districts  through  which 
their  lines  run,  without  reference  to  the  location  of  their  principal  offices.  The 
reason  of  this  is  obvious.  But  I  have  no  doubt  about  the  real  property  of  cor- 
porations being  subject  to  the  same  rules  which  govern  the  taxation  of  individual 
real  estate,  except  where  the  statute  expressly  provides  otherwise,  as  in  the  case 
of  railroads,  telegraph  lines,  etc.  If  this  is  so.  then  the  first  objection  urged  by 
the  respondent  is  disposed  of. 

As  to  the  other  objection,  it  may  be  said  that,  although  it  is  possible  that  the 
town  assessors  of  the  town  of  New  Lebanon  have  erred  in  the  making  of  their 
assessment  rolls  in  the  manner  claimed  by  the  respondents,  yet,  that  claim  being 
disputed,  neither  the  trustee  of  school  district  no.  9  of  that  town,  nor  this  Depart- 
ment, has  the  facilities  for  ascertaining,  nor  is  either  bound  to  ascertain,  whether 
the  claim  be  true  or  not.  I  am  entirely  confident  in  my  view,  that  it  is  not  the 
policy  of  the  law  to  charge  school  officers  with  the  responsibility  of  making  origi- 
nal assessments  to  any  considerable  extent.  The  law  wisely  provides,  for  obvious 
reasons,  that  they  shall  follow  the  town  assessment  rolls,  which  are  prepared  by 
officers  specially  chosen  with  reference  to  fixing  values  of  assessable  property. 
The  law  does  provide  that,  in  exceptional  cases,  the  trustee,  in  making  his  tax  list, 
may  make  an  original  assessment,  but  I  take  it  that  these  cases  must  be  deemed  to 
be  of  a  very  exceptional  nature,  as  for  instance,  where  a  house  had  been  destroyed 


JUDICIAL  decisions:    assessments  63 

by  fire,  or  a  building  had  been  erected,  or  something  else  had  occurred  to  indis- 
putably change  the  value  of  the  property  in  question  since  the  last  town  assess- 
ment roll  was  revised  and  perfected.  The  law  nowhere  contemplates  an  entire 
disregard  of  the  policy  of  the  assessors  in  making  their  roll.  It  nowhere  author- 
izes school  officers  to  overrule  assessors.  It  only  permits  them  to  act  upon  their 
own  motion  where  the  circumstances  have  so  changed  since  the  assessment  rolls 
were  made  as  to  make  it  obviously  necessary  that  they  should  act,  in  order  that 
justice  may  be  done.  Even  in  such  exceptional  cases  the  law  does  not  permit 
them  to  act  blindly  or  in  the  dark,  but  provides  that  it  shall  be  upon  notice  to 
the  person  interested,  and  that  they  shall  proceed  in  the  same  manner  as  the  town 
assessors  are  required  by  law  to  proceed  in  fixing  the  valuation  of  taxable  prop- 
erty. It  is  not  pretended  that  any  such  course  has  been  pursued  by  the  respond- 
ents in  making  out  the  tax  list  appealed  from. 

I  am  not  prepared  to  say  that  section  66  of  title  7  of  the  Consolidated  School 
Act  relative  to  the  taxation  of  land  lying  in  one  body  and  subject  to  the  same 
ownership  does  not  operate,  with  exceptional  harshness,  as  against  the  respond- 
ents. I  can  not  say  whether  it  does  or  not,  or  whether  or  not  they  ought  to 
receive  relief.  But  it  seems  entirely  clear  to  me  that  they  can  not  gain  redress 
in  the  vi-ay  which  they  have  undertaken.  If  the  assessors  of  their  town  are 
committing  errors  in  the  preparation  of  the  town  assessment  rolls,  it  seems  to  me 
that  the  remedy  of  the  respondents  lies  in  an  application  to  the  board  of  town 
assessors,  or  in  proceedings  in  the  courts  to  compel  a  true  and  proper  assessment, 
and  that  that  course  must  be  taken  before  the  officers  who  are  charged  only  with 
the  collection  of  school  taxes  can  be  compelled  or  permitted  to  change  their 
course.  They  are,  in  my  opinion,  bound  to  follow  the  revised  assessment  roll 
of  the  town,  and  parties  who  are  dissatisfied  with  the  assessments  must  seek 
redress  elsewhere. 

The  application  to  reopen  the  case  is  denied. 


3762 

In  the  matter  of  the  appeal  of  Benjamin  Gates  and  Robert  Valentine,  trustees  of 
the  United  Society  of  Shakers  in  Columbia  county,  and  Timothy  Rayson. 
trustee  of  school  district  no.  12,  of  the  town  of  New  Lebanon,  Columbia 
county  V.  the  trustees  of  school  district  no.  9  of  said  town. 

Certain  lots  of  land  owned  bj'  the  United  Society  of  Shakers  are  assessed  in  the  district 
in  which  the  property  was  situated.  It  was  claimed  by  the  officers  of  the  Society  of 
Shakers,  who  reside  in  an  adjoining  district,  that  because  the  land  was  a  part  only  of 
the  larger  body  of  contiguous  land  owned  by  the  Society  of  Shakers  in  the  adjoining 
district,  the  property  should  be  taxed  in  the  district  in  which  such  officers  reside.  A 
question  in  relation  to  the  taxation  of  this  property  was  before  the  Department  some 
time  ago,  and  it  then  appeared  that  it  was  assessed  in  one  body  by  the  town  assessors. 
It  now  appears  that  the  property  is  separately  assessed  by  the  town  assessors.  Held, 
that  the  trustees  having  followed  the  town  assessment  roll,  must  be  sustained.     It  is 


64  THE   UNIVERSITY    OF   THE   STATE    OF    NEW   YORK 

not  intended  that  school  officers  shall  be  charged  with  the  duty  of  fixing  the  value  upon 
real  estate,  unless  in  exceptional  cases.     As  a  general  rule,  property  should  be  taxed 
for  school  purposes  in  the  district  in  which  it  lies,  when  that  may  be  done  without 
involving  the  necessity  of  making  an  original  assessment. 
Decided  February  9,  1889 

Vv\  C.  Daley,  attorney  for  appellant 
Daniel  E.  !Miller,  attorney  for  respondents 

Draper,  Superintendent 

This  is  an  appeal  from  the  action  of  the  respondents  in  levying  taxes  about 
the  24th  day  of  October  1888,  on  property  owned  by  Benjamin  Gates  and  Robert 
\'alentine,  as  trustees  for  the  United  Society  of  Shakers,  as  follows,  namely: 
Royce  lots  $12.23,  on  Bull  lots  $5.39,  on  Ira  Royce  lots  $2.16,  on  brickyard  lots 
$5.39,  and  on  Thompson  lot  $1.35,  and  also  an  old  tax  reassessed  amounting  to 
$12.76.  This  property  lies  in  district  no.  9,  but  the  appellants  claim  that  it  should 
not  be  taxed  in  that  district,  for  the  reason  that  it  is  only  part  of  the  larger  body 
of  contiguous  land  owned  by  the  United  Society  of  Shakers,  whose  residences 
are  in  district  no.  12.  It  is  urged  that  under  the  provisions  of  section  66  of  title 
7  of  the  Consolidated  School  Act  this  property  should  be  taxed  in  district  no.  12. 

The  question  has  been  presented  to  the  Department  before,  and  decisions 
concerning  it  will  be  found  on  pages  140  and  159  of  the  annual  report  of  1889. 
It  was  there  held  that  the  property  was  taxable  in  district  no.  12,  principally 
upon  the  ground  that  it  was  then  assessed  by  the  town  assessors,  as  appeared 
by  the  town  assessment  roll,  jointly  with  the  larger  tract  belonging  to  the 
Shakers,  and  that  it  was  not  the  duty  of  school  trustees  to  separate  portions  so 
assessed  jointly  atid  make  an  original  assessment  on  the  separate  parcel. 

It  now  transpires  that,  since  the  question  was  last  before  the  Department, 
the  town  assessors  of  the  town  of  New  Lebanon,  have  changed  their  procedure 
and  assessed  the  parcels  separately,  as  appears  by  the  town  assessment  roll. 
The  trustees  of  district  no.  9,  in  making  their  tax  list,  have  followed  the  revised 
assessment  roll  of  the  town  in  levying  taxes  against  the  property  known  as  the 
Royce  lot,  the  Bull  lot,  and  the  Ira  Royce  lot.  The  assessments  against  the  prop- 
erty known  as  the  brickyard  lots  and  the  Thompson  lot,  which  are  complained 
of,  appear  to  be  original  assessments. 

So  far  as  the  trustees  have  followed  the  town  assessment  rolls,  they  must 
be  sustained. 

As  has  been  heretofore  said,  I  am  of  the  opinion  that  the  school  laws  do  not 
intend  that  school  officers  shall  be  charged  with  the  duty  of  fixing  values  on  real 
estate,  unless  in  exceptional  cases,  where  there  is  no  other  way. 

They  are  to  follow  the  town  assessments  made  by  officers  specially  chosen 
for  that  purpose.  Real  estate  is  to  be  taxed  in  the  district  where  situated,  when- 
ever that  can  be  done  without  driving  trustees  to  the  necessity  of  making  an 
original  assessment.  The  provisions  in  section  66  of  title  7  of  the  Consolidated 
School  Act,  that  "  land  lying  in  one  body  and  occupied  by  the   same  person, 


JUDICIAL   DECISIONS  :      ASSESSMENTS  65 

either  as  owner  or  agent  for  the  same  principal,  or  tenant  under  the  same  land- 
lord, shall,  though  situated  partly  in  two  or  more  school  districts,  be  taxable  in 
that  one  of  them  in  which  such  occupant  resides,"  is  only  for  the  purpose  of 
carrying  out  this  general  rule. 

It  assumes  that  such  land  would  appear  in  one  body  upon  the  assessment 
roll.  There  is  no  reason  for  the  provision  where  that  is  not  the  case.  It  seems 
to  me  that  the  proposition  that  the  land  should  be  taxable  for  school  purposes 
in  the  school  district  where  it  is  situated,  whenever  the  easy  and  natural  way, 
provided  by  law,  is  open  for  doing  it,  needs  no  argument. 

I  find  nothing  in  the  papers  and  nothing  was  said  upon  the  argument  from 
which  I  can  determine  the  validity  of  the  original  assessments  made  against  the 
property  known  as  the  brickyard  lots,  and  the  Thompson  lot.  They  must  be 
presumed  to  be  valid  until  the  contrary  is  shown.  From  these  considerations  the 
appeal  must  be  dismissed. 


4330 

In  the  matter  of  the  appeal  of  Earl  D.  Rowland  from  tax  list  and  assessment  in 
school  district  no.  8,  towns  of  Westford  and  Roseboom,  Otsego  county, 
dated  October  5,  1894. 

The  appellant  Rowland  being  the  owner  of  a  tract  or  tracts  of  land  lying  in  one  body  and 
occupied  by  him  as  such  owner,  situated  in  the  town  of  Westford,  and  said  land  having 
been  assessed  as  one  lot  on  the  last  assessment  roll  of  said  town  after  revision  by  the 
assessors;  held,  that  said  body  of  land  although  situated  partly  in  two  or  more  school 
districts  should  be  assessed  to  the  owner  for  school  purposes  in  district  no.  4  of  ^\  est- 
ford,  in  which  said  Howland  resided. 

Decided  February  28,  1895 

Barnum  Brothers,  attorneys  for  respondents 

Crooker,  Superintendent 

The  appellant  herein  appeals  from  a  tax  list  and  assessment  made  and  issued 
in  school  district  no.  8,  towns  of  Westford  and  Roseboom,  Otsego  county,  on 
October  5,  1894. 

The  trustee  and  collector  of  said  school  district  have  severally  answered  the 
appeal. 

The  following  facts  are  established :  that  the  appellant  has  for  the  seven 
years  last  past  owned  a  farm  situate  in  the  town  of  Westford,  in  school  district 
no.  8,  towns  of  Westford  and  Roseboom,  and  upon  which  he  resided  until  on 
or  about  September  25,  1894;  that  in  the  month  of  April  1894,  the  appellant  pur- 
chased a  farm,  situate  in  school  district  no.  4,  town  of  ^^'estford,  and  adjoining 
his  said  farm  in  school  district  no.  8,  both  said  farms  being  in  the  town  of  West- 
ford; that  on  the  last  assessment  roll  of  the  town  of  Westford,  after  revision  by 
the  assessors  (namely,  for  the  year  1894)  said  two  farms  or  parcels  of  land,  so 
lying  in  one  body  and  occupied  by  him,  were  assessed  as  one  lot ;  that  on  Sep- 

3 


66  THE    UNIVERSITY    OF   THE   STATE    OF   NEW    YORK 

tember  25,  1894,  the  appellant  moved  from  the  house  upon  said  part  of  his  land 
situate  in  school  district  no.  8,  to  and  upon  that  part  of  his  land  situate  in  school 
district  no.  4,  and  ever  since  has,  and  at  the  time  of  bringing  the  appeal 
herein  still  did  reside  in  said  school  district  no.  4  of  Westford ;  that  since  the 
commencement  of  the  present  school  year  the  trustee  or  trustees  of  said  school 
district  no.  4  of  Westford  assessed  a  tax  against  the  appellant  for  said  body  of 
land  owned  and  occupied  by  him  in  said  district,  which  tax  has  been  paid  by 
him;  that  on  October  5,  1894,  the  trustee  of  said  school  district  no.  8  of  West- 
ford and  Roseboom  made  out  a  tax  list  and  assessment  for  such  school  district, 
but  instead  of  ascertaining  the  valuations  of  taxable  property  in  said  district 
from  the  last  assessment  rolls  of  the  towns  of  Westford  and  Roseboom  after 
revision  by  the  assessors,  namely,  said  assessment  rolls  for  the  year  1894,  that 
said  trustee  ascertained  and  took  such  valuations  from  the  assessment  rolls  of 
said  town  of  Westford  for  the  year  1893;  that  in  said  tax  list  and  assessment 
of  October  5.  1894,  the  trustee  of  said  district  no.  8  included  that  part  of  the 
land  of  the  appellant  lying  in  one  body  situate  in  said  school  district  and  assessed 
a  tax  of  $3.17  against  the  appellant  therefor;  that  said  tax  list  and  warrant  were 
delivered  to  the  collector  of  said  district  no.  8,  and  the  appellant  refusing  to  pay 
said  tax  the  collector  collected  the  same  by  a  levy  and  sale  of  certain  personal 
properly  by  the  collector. 

Under  the  provisions  of  article  7,  title  7,  of  the  Consolidated  School  Law 
of  1894,  chapter  556  of  the  Laws  of  1894,  and  for  many  years  prior  thereto,  the 
valuations  of  taxable  property  within  school  district  for  the  purposes  of  assess- 
ments and  taxation  by  trustees  shall  be  ascertained  by  them,  so  far  as  possi- 
ble, from  the  last  assessment  roll  of  the  town  after  revision  by  the  assessors. 
Each  of  the  towns  of  Westford  and  Roseboom  had  on  October  5,  1894,  an 
assessment  roll  for  1894  revised  by  the  assessors  of  each  of  said  towns,  and  it 
was  the  duty  of  the  trustee  of  said  district  no.  8  to  ascertain  the  valuations  of 
taxable  property  in  the  assessment  made  by  him  on  October  15,  1894,  from  said 
rolls,  instead  of  which  such  valuations  were  taken  from  the  rolls  of  1893.  Such 
tax  list  and  assessment  roll  of  October  15,  1894,  was  invalid,'and  had  the  appel- 
lant taken  an  appeal  in  time  therefrom  to  me  such  assessment  would  have  been 
vacated  and  set  aside. 

This  Department  has  held  that  any  person  aggrieved  by  reason  of  errors  in 
a  tax  hst  must  bring  his  appeal  as  soon  as  he  has  knowledge  of  said  errors,  and 
an  appeal  brought  therefrom  after  the  collection  of  the  tax  by  levy  and  sale  of 
his  property  will  not  be  entertained,  his  only  remedy  being  by  a  civil  action 
against  the  collector.  By  section  63  of  article  7,  title  7  of  said  Consolidated 
School  Law  of  1894  (and  such  has  been  the  school  law  since  1886)  it  is  enacted 
that  land  lying  in  one  body  and  occupied  by  the  same  person  either  as  owner  or 
as  agent  or  tenant  for  the  owner,  if  assessed  as  one  lot  on  the  last  assessment 
roll  of  the  town  after  revision  by  the  assessors,  shall,  though  situated  partly  in 
two  or  more  school  districts,  be  taxable  in  that  one  of  them  in  which  such  occu- 
pant resides. 


JUDICIAL  decisions:    assessments  67 

Since  April  1894,  the  appellant  herein  has  been  the  owner  of  a  tract  or  tracts 
of  land  lying  in  one  body,  all  of  which  has  been  occupied  by  him  as  such  owner; 
that  said  body  of  land  is  situate  in  the  town  of  Westford,  and  was  assessed  as 
one  lot  on  the  last  assessment  roll  of  said  town  of  Westford,  after  revision  by 
the  assessors;  that  said  body  of  land  is  situated  partly  in  two  or  more  school 
districts,  namely,  district  no.  4  of  Westford  and  no.  8  of  Westford  and  Rose- 
boom  ;  that  since  September  25,  1894,  the  appellant  has  resided  upon  said  land 
in  district  no.  4  of  Westford. 

1  find  and  decide.  That  on  October  5,  1894,  under  the  provisions  of  the 
school  law  above  cited,  the  trustee  of  school  district  no.  8  of  Westford  had  no 
legal  power  or  authority  to  assess  and  tax  for  school  purposes  in  said  district 
no.  8  said  body  of  land  so  as  aforesaid  owned  and  occupied  by  the  appellant  then 
residing  in  school  district  no.  4  of  W^estford,  but  that  said  body  of  land  should 
have  been  assessed  for  taxes  for  school  purposes  in  said  district  no.  4  of 
Westford. 

As  hereinbefore  stated,  I  have  no  power  to  afford  the  appellant  equitable 
redress  for  the  act  of  the  trustee  of  district  no.  8  of  Westford  and  Roseboom 
in  assessing  his  property  for  school  purposes  in  said  district,  he  not  having 
brought  his  appeal  in  time,  and  for  such  reason  said  appeal  must  be  dismissed ; 
but  for  the  purposes  of  future  taxation  of  said  land  for  school  purposes  so 
long  as  the  conditions  relative  to  said  land,  existing  since  September  25,  1894, 
continue.  I  find  it  my  duty  to  indicate  to  the  trustees  of  each  of  said  districts, 
no.  8  of  Westford  and  Roseboom  and  district  no.  4  of  Westford,  the  proper  dis- 
trict under  the  school  law  in  which  said  body  of  land  is  taxable. 

Appeal  dismissed. 


4356 

In  the  matter  of  the  appeal  of  and  submission  by  O.  W.  Chamberlin  and  C.  L. 
Mallor\%  sole  trustee  of  school  district  no.  i,  town  of  Ischua,  Cattaraugus 
county,  for  a  decision  in  what  school  district  certain  real  property  of  said 
Chamberlin  is  taxable. 
Where  land  lying  in  one  body,  although  situate  in  two  or  more  school  districts,  is  assessed 
for  school  purposes  in  the  district  in  which  the  owner  or  occupant  resides,  such  assess- 
ment does  not  alter  the  boundaries  of  the  district,  nor  take  any  of  the  land  from  one 
district  and  transfer  it  to  another,  as  such  alterations  of  a  district  can  only  be  made 
by  the  order  of  the  school  commissioner  under  the  provisions  of  the  school  law.     The 
provisions   of   section  63.   article   7,   title   7   of   the   Consolidated    School   Law   of    1854 
provide  simply  for  the  method  of  assessing  the  land  for  school  purposes. 
Decided  June  27,  1895 

Skinner,  Superintendent 

The  persons  named  in  the  above-entitled  matter  have,  upon  a  statement  of 
facts  in  writing,  signed  by  them,  submitted  to  me  for  my  decision  the  question 


68  THE   UNIVERSITY    OF  THE   STATE    OF   NEW   YORK 

in  what  school  district  certain  real  property  owned  by  said  Chamberlin  is,  under 
the  school  law,  taxable  for  school  purposes. 

From  the  statement  of  facts  submitted  to  me  it  appears:  that  prior  to 
the  year  1850  there  existed  in  the  town  of  Ischua,  county  of  Cattaraugus,  a 
school  district  known  as  no.  i,  of  said  town,  and  in  the  town  of  Franklinville  in 
said  cotmty,  a  school  district  known  as  no.  6  of  said  town,  and  that  the  town 
line  between  said  towns  was  the  line  between  said  school  districts ;  that  there 
was  a  lot  of  land,  known  as  lot  30,  containing  234  acres  or  more,  situate  in  said 
town  of  Ischua  and  in  said  school  district  no.  i,  of  said  town;  that  in  said  year 
i^So>  70  acres  of  said  lot  30  was  set  off  from  school  district  no.  i,  town  of  Ischua 
into  school  district  no.  6,  town  of  Franklinville;  that  subsequently  to  said  year 
1850  one  Frederick  Cline,  a  resident  of  school  district  no.  6,  of  Franklinville, 
became  the  owner  of  all  of  said  234  acres  of  land,  then  lying  in  one  body,  although 
situated  partly  in  school  district  no.  6,  Franklinville,  and  partly  in  district  no.  i, 
Ischua,  and  which  land  joined  other  lands  owned  by  Cline,  and  said  land  during 
such  ownership  by  said  Cline  was  assessed  and  taxed  for  school  purposes  in 
said  district  no.  6,  Franklinville;  that  since  the  ownership  of  said  Cline  there 
have  been  different  owners  of  said  land  and  all  of  them  were  residents  of  said 
school  district  no.  6,  Franklinville,  and  during  such  ownership  said  lands  con- 
tinued to  be  assessed  and  taxed  for  school  purposes  in  said  district  no.  6,  Frank- 
linville; that  prior  to  and  in  the  year  1892,  O.  W.  Chamberlin  and  one  Henry  C. 
Farwell  became  the  owners  of  the  said  234  acres  of  land  and  also  119  acres  upon 
which  said  Chne  formerly  lived;  that  in  said  year  1892  the  said  Chamberlin 
and  Cline  made  a  division  of  the  land  so  owned  by  them;  the  said  Chamberlin 
became  the  owner  of  the  234  acres  and  the  said  Farwell  became  the  owner  of 
the  119  acres  on  which  Cline  had  resided;  that  in  said  year  1892  said  Chamberlin 
purchased  3  acres  of  lot  22,  situate  in  the  town  of  Ischua  and  school  district 
no.  I,  adjoining  said  parcel  of  234  acres,  and  in  May  1894,  he  purchased  3  acres 
in  lot  no.  30  adjoining  said  parcel  of  234  acres  situate  in  said  school  district  and 
town;  that  said  Chamberlin  has  sold  off  of  said  234  acres,  a  parcel  of  5  acres, 
situate  in  said  school  district  no.  i,  Ischua.  It  further  app^rs  that  on  June  10, 
1895,  the  date  of  the  submission  in  the  above  entitled  matter,  the  said  Chamberlin 
was  the  owner  of  235  acres  of  land  in  one  body,  of  which  70  acres  were  situate 
in  school  district  no.  6,  town  of  Frankhnville,  and  165  acres  situate  in  school 
district  no.  i,  town  of  Ischua;  that  said  Chamberlin  is  a  resident  in  the  village  of 
Ischua,  in  which  village  he  owns  a  house  and  lot,  and  is  a  resident  of  said  school 
district  no.  i,  Ischua;  that  232  acres  of  said  land  was  assessed  to  said  Chamberlin 
as  one  lot  on  the  last  assessment  roll  of  the  town  of  Ischua  after  revision  by  the 
assessors;  that  said  Chamberlin,  for  the  last  two  years,  has  been  assessed  and 
taxed  for  said  land  for  school  purposes  in  school  district  no.  6,  Franklinville,  and 
in  school  district  no.  i,  Ischua,  and  that  he  is  so  assessed  and  taxed  for  said 
land  in  a  tax  list  issued  by  the  trustee  of  school  district  no.  i,  Ischua,  which 
tax  list  is  now  in  the  hands  of  the  collector  of  said  district  for  collection. 

The  question  submitted  to  me  upon  the  foregoing  facts  is,  where  the  said 


JUDICIAL   DECISIOXS:      ASSESSMENTS  69 

235  acres  of  land  owned  by  said  Cbamberlin,  under  the  school  law,  should  be 
assessed  and  taxed  for  school  purposes. 

By  section  63,  of  article  7,  title  7,  of  the  Consolidated  School  Law  of  1894, 
cliapter  556  of  the  Laws  of  1894,  it  is  enacted  that  "  school  district  taxes  shall 
be  apportioned  by  the  trustees  upon  all  real  estate  within  the  boundaries  of  the 
district  which  shall  not  be  by  law  exempt  from  taxation,  except  as  hereinafter 
provided,  and  such  property  shall  be  assessed  to  the  person  or  persons,  or  cor- 
poration owning  or  possessing  the  same  at  the  time  such  tax  list  shall  be  made 
out ;  but  land  lying  in  one  body  and  occupied  by  the  same  person,  either  as  owner 
or  agent  for  the  same  principal,  or  as  tenant  under  the  same  landlord,  if  assessed 
as  one  lot  on  the  last  assessment  roll  of  the  town  after  revision  by  the  assessors, 
shall,  though  partly  situated  in  two  or  more  school  districts,  be  taxable  in  that 
one  of  them  in  which  such  occupant  resides."  Under  the  provisions  of  said  sec- 
tion 63,  trustees  of  school  districts  must  apportion  school  district  taxes  upon 
all  real  estate  within  the  boundaries  of  the  district,  not  exempt  by  law  from  taxa- 
tion; and  such  property  shall  be  assessed  to  the  person  or  persons  owning  or 
possessing  the  same  at  the  time  the  tax  list  shall  be  made  out.  The  direction 
to  trustees,  as  above  cited,  is  subject  to  the  following  exception  contained  in  said 
section  63.  namely :  but  land  l>^ng  in  one  body  and  occupied  by  the  same  person, 
either  as  owner  or  agent  for  the  owner,  or  as  tenant  of  the  owner,  if  assessed 
as  one  lot  on  the  last  assessment  roll  of  the  town  after  revision  by  the  assessors, 
shall,  though  situated  partly  in  two  or  more  school  districts,  be  taxable  in  that 
one  of  them  in  which  such  occupant  resides. 

As  it  appears  from  the  facts  that  there  are  232  acres  of  land  lying  in  one 
body,  occupied  by  the  same  person,  namely,  O.  W.  Chamberhn,  as  owner,  and 
that  said  232  acres  were  assessed  as  one  lot  on  the  last  assessment  roll  of  the 
to\Yii  of  Ischua  after  revision  by  the  assessors,  said  Cbamberlin,  being  a  resident 
of  school  district  no.  i,  Ischua,  it  is  clear,  under  said  section  63,  that  said  232 
acres  should  be  assessed  for  school  purposes  by  the  trustee  of  said  district  no.  i, 
Ischua,  to  said  Cbamberlin,  as  owner  and  occupant,  although  70  acres  of  said 
232  acres  are  situate  in  school  district  no.  6,  Franklinville. 

It  is  also  clear  that  the  three  acres  purchased  by  Cbamberlin  in  ]\Iay  1895, 
should  be  assessed  for  school  purposes  in  said  school  district  no.  i,  Ischua. 

Where  land  lying  in  one  body,  although  situate  in  two  or  more  districts,  is 
assessed  for  school  purposes  in  the  district  in  which  the  owner  or  occupant  resides, 
such  assessment  does  not  alter  the  boundaries  of  the  districts,  nor  tal<e  any  of 
the  land  from  one  district  and  transfer  it  to  another  district,  as  such  alterations 
of  district  can  only  be  made  by  the  order  of  a  school  commissioner  under  the 
provisions  of  the  school  law^  The  provisions  of  section  63  above  cited  provides 
simply  for  a  method  of  assessing  the  land  for  school  purposes. 

Under  the  statutes  of  the  State,  a  farm  through  which  the  line  between  two 
towns  runs,  is  assessable  and  taxable  in  that  town  in  which  the  residence  of  the 
owner  of  the  farm  is  situated ;  but  such  provisions  of  the  statute  does  not  change 
the  boundaries  of  the  towns,  nor  set  off  the  farm  into  the  town  in  which  the  tax 
is  laid. 


70  THE   UNIVERSITY    OF   THE   STATE    OF    NEW    YORK 

I  decide  that  said  232  acres  of  land,  owned  and  occupied  by  O.  W.  Cham- 
berlin,  a  resident  of  school  district  no.  i,  town  of  Ischua,  and  of  the  town  of 
Ischua,  of  which  land  70  acres  are  part  of  school  district  no.  6,  town  of  Frank- 
linville,  but  situate  in  the  town  of  Ischua,  under  the  Consolidated  School  Law 
of  1894,  is  assessable  and  taxable  for  school  purposes  in  school  district  no.  i, 
town  of  Ischua,  and  not  in  school  district  no.  6,  town  of  Franklinville. 


3730 
In  the  matter  of  the  appeal  of  Emma  B.  Fox  v.  school  district  "no.  11,  town  of 

Verona,  county  of  Oneida. 

Land  owned  by  the  same  person,  separated  by  the  Erie  canal  and  a  public  roadway,  and 
lying  in  two  districts  which  the  canal  divides,  must  be  taxed  in  the  districts  in  which 
it  lies  respectively  and  not  as  one  entire  farm. 

Decided  November  16,  18S8 

Draper,  Snperiuteiidcnt 

The  appellant  owns  certain  real  estate  lying  in  the  town  of  Verona  and  in 
school  districts  nos.  11  and  19  of  said  town,  and  upon  both  sides  of  the  Erie 
canal.  The  canal  and  a  public  highway  run  between  the  two  school  districts 
named.  The  residence  of  the  appellant  is  in  district  no.  ii.  The  trustees  of 
district  no.  1 1  have  assumed  to  tax  the  entire  tract  in  their  district.  The  appellant 
objects  to  this.  She  desires  that  the  portion  lying  in  each  district  shall  be  taxed 
in  the  district  in  which  it  is  situated.  She  says  that  this  has  been  the  case  in 
years  past,  and  she  brings  this  appeal  to  determine  her  rights  in  the  premises. 

Real  estate  must,  in  general,  be  taxed  in  the  district  in  which  it  is  located. 
The  statute  makes  one  exception  to  this  general  rule.  It  provides  that  "  land 
lying  in  one  body  and  occupied  by  the  same  person  either  as  owner  or  agent  for 
the  sam2  principal,  or  as  tenant  under  the  same  landlord,  shall,  though  situated 
partly  in  two  or  more  school  districts,  be  taxable  in  that  one  of  them  in  which 
such  occupant  resides."  This  exception  is  made  for  the  convenience  of  trustees. 
It  is  not  the  policy  of  the  law  to  require  trustees  to  fix  values  upon  real  estate  for 
the  purposes  of  taxation  to  any  greater  extent  than  is  absolutely  necessary.  The 
law,  therefore,  provides  that  trustees  shall  follow  the  last  town  assessment  roll, 
after  the  same  has  been  revised,  so  far  as  they  can  do  so,  and,  accordingly,  it 
permits  them  to  make  one  assessment  against  land  lying  in  the  same  body  and 
owned  or  occupied  by  the  same  person,  even  though  such  land  be  in  different 
school  districts.  But  the  exception  made  by  the  statute  must  be  strictly  construed. 
The  general  rule  must  be  followed  except  in  cases  which  are  strictly  within  the 
provisions  of  the  statutory  exception.  Even  the  exception  now  operates  some- 
times unjustly,_but  in  the  eye  of  the  law  this  is  more  than  compensated  for  by 
the  better  facility  with  which  it  enables  trustees  to  transact  public  business.  In 
the  present  case,  it  appears  that  the  two  school  districts  are  separated  by  the  Erie 


JUDICIAL    DECISIONS  :      ASSESSMENTS  7I 

canal  and  a  public  roadway.  This  fact  precludes  the  idea  that  the  appellant's 
land  lies  in  one  body,  and  it  seems  clear  to  me  that,  in  consequence  of  that  fact, 
such  land  should  be  taxed  in  the  district  in  which  it  is  situated. 

In  view  of  the  foregoing  considerations,  I  must  sustain  the  appeal,  and  the 
respondents  will  henceforth  levy  school  taxes  against  the  appellant  for  only  such 
portion  of  her  land  as  lies  within  their  own  school  district. 


3703 
In  the  matter  of  the  appeal  of  Thomas  Hood,  jNIartin  P.  Gale  and  Burton  L. 
Gale,  comprising  the  firm  of  Hood,  Gale  &  Company,  v.  school  district  no.  6, 
town  of  High  Market,  Lewis  county. 

A  large  tract  of  land  owned  by  a  firm  was  listed  on  the  town  assessment  roll  as  separate 
lots.  Held,  that  the  trustees'  tax  lists,  which  followed  the  town  assessment  rolls,  are 
correct. 

Decided  July  26,  1888 

J.  A.  Warmuth,  attorney  for  petitioner 

Draper,  Superintendent 

This  is  an  appeal  from  the  act  of  James  McDonald,  sole  trustee  of  school 
district  no.  6  of  the  town  of  High  Market,  county  of  Lewis,  in  levying  a  tax 
for  the  sum  of  $123.57,  ^"d  issuing  a  tax  list  and  warrant  for  the  collection 
of  the  same,  on  or  about  the  26th  of  June  1888.  The  appellants  say  that  they 
own  some  14,000  acres  of  land  in  the  town  of  High  Market,  lying  in  school 
districts  nos.  4,  6  and  7  of  said  town;  that  such  land  is  used  and  kept  for  lum- 
bering purposes,  and  that  their  mills  and  the  residence  of  the  superintending 
member  of  the  firm,  and  the  residences  of  their  employees  are  in  school  district 
no.  4.  They  insist,  that,  in  consequence  of  that  fact  and  because  all  of  the  land 
mentioned  lies  in  one  body,  they  should  be  taxed  for  school  purposes  only  in 
district  no.  4.  The  trustee  of  school  district  no.  6,  in  his  answer,  alleges  that 
the  14,000  acres  of  land  referred  to  has  always  appeared  upon  the  assessment 
rolls  of  the  town  as  nonresident  land.  While  admitting  the  ownership  of  the 
appellants,  he  claims  that  that  portion  of  said  land  being  in  his  district  is  not  in 
fact  occupied  by  the  appellants.  He  says  that  it  is  far  removed  from  their  mills, 
and  that  it  has  not  been  lumbered  by  thera  at  all.  He  furthermore  states  that 
said  lands  appear  upon  the  last  revised  assessment  roll  of  the  town  of  High 
Market  as  nonresident  lands,  and  that  in  said  roll  it  is  described  only  by  the 
number  of  lots.  He  alleges  furthermore,  that  school  district  no.  6  is  very  poor 
and  weak,  the  entire  assessable  valuation  being  but  $12,625,  while  the  lands  of 
the  appellants  lying  within  the  district,  and  upon  which  they  seek  to  avoid 
taxation,  are  valued  at  $5145. 

It  strikes  me  that  the  material  question  is  as  to  whether  the  trustee  of  school 
district  no.  6,  in  issuing  the  tax  list  appealed  from,   followed  the  last  revised 


72  THE    UXIVERSITY    OF  THE   STATE    OF   NEW   YORK 

assessment  roll  of  the  town,  as  required  by  statute.  If  the  lands  of  the  appellants 
appear  upon  said  roll  as  separate  lots,  it  is  clear  to  me  that  they  can  not  claim 
the  benefit  of  the  exception  to  the  general  rule  as  set  forth  in  section  66  of  title  7 
of  the  Consolidated  School  Act,  which  provides  that  lands  lying  in  one  body  and 
owned  or  occupied  by  the  same  person,  shall  be  taxed  in  the  school  district  in 
which  ihe  residence  of  the  owner  or  occupant  stands.  It  is  clearly  the  intent  of 
the  law  that  school  officers  shall  follow  the  last  revised  assessment  roll  of  their 
town  in  levying  taxes.  It  appears  that  the  trustee  in  the  present  case  did  so. 
That  seems  to  be  conclusive  of  the  matter. 
The  appeal  is  dismissed. 


4209 

In  the  matter  of  the  appeal  of  Monroe  Kelly  v.  union  free  school  district  no.  6 
and  school  district  no.  8  of  the  town  of  Collins,  Erie  county. 

Under  the  provisions  of  article  7,  title  7,  of  the  Consolidated  School  Act,  to  enable  land 
lying  in  one  body  and  owned  by  one  person  and  assessed  as  one  lot  on  the  last  assess- 
ment roll  of  the  town  after  revision  by  the  assessors,  thougii  situated  partly  in  two  or 
more  districts,  to  be  taxed  in  that  one  of  them  in  which  such  owner  or  occupant  resides, 
said  land  must  be  occupied  by  one  person,  either  as  owner  or  as  agent  for  the  owner, 
or  as  a  tenant  under  the  owner.  If  not  so  occupied,  said  land  must  be  taxed  ia  the 
respective  districts  in  which  it  is  situated. 

Decided  January  30,  1894 

Crooker,  Superintendent 

This  appeal  is  taken  from  the  action  of  the  trustees  in  each  of  the  above- 
named  school  districts  in  the  assessment  of  certain  lands  owned  by  the  appellant. 
The  trustees  of  each  of  said  districts  concur  in  the  statements  of  facts  contained 
in  the  appeal  herein. 

The  facts  are  as  follows :  The  appellant,  in  the  year  1893,  resided  in  the 
town  of  Collins,  Erie  county,  and  was  the  owner  of  a  parcel  of  land  lying  in 
one  body,  consisting  of  160  acres,  and  situate  in  said  town  of  Colhns;  that  60 
acres  of  said  land  are  situate  in  school  district  no.  8  of  said  town,  and  upon 
which  there  are  a  dwelling  house  and  barn,  occupied  by  appellant,  and  having  a 
garden;  that  100  acres  of  said  land  are  situate  in  union  free  school  district  no.  6 
of  said  town,  upon  which  is  a  dwelling  house  occupied  by  a  tenant  of  the  appel- 
lant; that  from  about  February  12,  1893,  the  said  160  acres  of  land,  excepting 
the  dwelling  house,  garden  spot  and  bam  room  situate  on  the  60  acre  tract  in 
district  no.  8,  and  occupied  and  reserved  by  appellant,  was  in  the  possession  of, 
and  occupied  by,  a  tenant  of  the  appellant,  said  tenant  residing  in  the  house 
on  the  100  acre  tract  in  district  no.  6  and  which  tenant  was  working  said  land 
under  a  contract  with  appellant  for  a  share  of  the  produce  of  said  land;  that 
said  160  acres  of  land  was  assessed  as  one  lot  upon  the  last  assessment  roll  of 
the  town  of  Collins  after  revision  by  the  assessors  at  a  valuation  of  $2240;  that 
the  appellant  is  assessed  on  the  last  tax  roll  of  district  no.  8  for  said  160  acres  at 


JUDICIAL   DECISIONS  :      ASSESSMEXT3  JT^ 

a  valuation  of  $1600,  and  is  also  assessed  on  the  tax  list  of  district  no.  8  for  said 
land  at  a  valuation  of  $2000;  that  the  appellant  has  not  paid  either  of  the  taxes 
assessed  to  him  by  said  districts. 

From  the  action  of  the  trustees  of  district  no.  6  and  district  no.  8,  respec- 
tively, the  appellant  has  appealed. 

The  trustees  of  district  no.  6  contend  that  all  of  said  160  acres  except  the 
house,  barn  and  garden,  situated  in  district  no.  8,  occupied  by  appellant,  is  tax- 
able in  district  no.  6.  and  the  trustees  of  district  no.  8  contend  that  all  of  said 
160  acres  except  the  house  and  garden  occupied  by  the  tenant  of  appellant  situate 
in  district  no.  6,  is  taxable  in  district  no.  8. 

I  am  of  the  opinion  that  such  contentions  are  not,  nor  is  either  of  them, 
tenable. 

By  section  66  of  title  7  of  the  Consoh dated  School  Law,  as  amended  by 
section  4  of  chapter  328  of  the  Laws  of  1889,  it  is  enacted:  "  School  district 
taxes  shall  be  apportioned  by  the  trustees  upon  all  real  estate  within  the  bound- 
aries of  the  district  which  shall  not  be  by  law  exempt  from  taxation,  except  as 
hereinafter  provided,  and  such  property  shall  be  assessed  to  the  person  or  persons, 
or  corporation  owning  or  possessing  the  same  at  the  time  such  tax  list  shall  be 
made  out,  but  land  lying  in  one  body,  and  occupied  by  the  same  person,  either  as 
owner  or  agent  for  the  same  principal,  or  as  tenant  under  the  same  landlord, 
if  assessed  as  one  lot  on  the  last  assessment  roll  of  the  town  after  revision  by  the 
assessors,  shall,  though  situated  partly  in  two  or  more  school  districts,  be  taxable 
in  that  one  of  them  in  ivhich  such  occupant  resides." 

Under  the  provisions  of  section  66,  to  assess  land  lying  in  one  body,  though 
situate  partly  in  two  or  more  school  districts,  in  that  one  of  them  in  which  such 
occupant  resides,  it  must  be  estabHshed:  (i)  that  the  land  lies  in  one  body; 
(2)  that  the  whole  body  of  land  must  be  occupied  by  one  person,  and  he  must 
be  either  the  owner  or  agent  or  tenant  of  one  and  the  same  landlord;  (3)  that 
the  land  is  assessed  as  one  lot  on  the  last  town  assessment  roll  after  revision  by 
the  assessors. 

It  is  conceded  in  the  appeal  that  the  said  160  acres  of  land  lie  in  one  body; 
that  the  appellant  is  the  owner,  and  that  it  is  assessed  as  one  lot  on  the  last  town 
assessment  roll  after  revision  by  the  assessors.  The  question  remaining  to  be 
determined  is  as  to  the  occupancy  of  the  said  160  acres.  It  is  also  conceded 
that  the  appellant,  the  owner  of  said  land,  has  leased  all  of  said  land  excepting 
the  dwelling  house  occupied  by  him  on  the  60  acre  lot  situate  in  district  no.  8, 
and  barn  room  and  garden  spot,  to  a  tenant  who  resides  on  the  100  acre  lot  in 
district  no.  6.  Upon  the  facts  conceded  there  seems  to  be  tzvo  occupants  of 
said  land  lying  in  one  body,  namely,  the  appellant,  as  owner,  of  a  portion  of  the 
60  acre  lot  expressly  reserved  by  him  in  his  lease  of  the  160  acres  to  his  tenant; 
and  the  tenant  under  his  lease  of  all  of  said  160  acres  except  the  portion  in  the 
60  acre  lot  reserved  by  the  appellant  and  occupied  by  him.  Section  66  says,  "  but 
land  lying  in  one  body  and  occupied  by  the  same  person,"  etc.  It  seems  clear 
that  the  Legislature  intended  that  when  the  ownership  of  land  lying  in  one  body 
is  in  the  same  person,  but  the  land  is  occupied  by  a  tenant,  such  occupancy 


74  THE    UNIVERSITY    OF   THE   STATE    OF    NEW   YORK 

must  be  of  the  zvhole  body  of  land,  and  not  of  a  part  only.  I  am  of  the  opinion 
that  the  i6o  acres  of  land  lying  in  one  body,  owned  by  the  appellant,  is  not, 
under  the  provisions  of  section  66  of  title  y  of  the  school  laws,  taxable  as  one 
body  in  either  of  said  districts  nos.  6  and  8  of  the  town  of  Collins,  Erie  county, 
but  that  the  6o  acres  situate  in  school  district  no.  8  is  taxable  in  said  district, 
and  the  loo  acres  situate  in  union  free  school  district  no.  6  is  taxable  in  said 
district. 

I  do  find  and  decide  that  the  assessments  made  by  the  trustees  of  union 
free  school  district  no.  6  and  school  district  no.  8  of  the  town  of  Collins,  Erie 
county,  and  each  of  them,  of  said  farm  of  i6o  acres,  the  property  of  the  appel- 
lant, as  conceded  in  the  appeal  herein,  are,  and  each  of  them  is,  invalid,  and  the 
said  trustees  of  each  of  said  districts  are  hereby  ordered  to  withdraw  their 
respective  tax  lists  and  warrants  and  correct  the  said  tax  list  so  far  as  the 
assessment  of  said  land  of  the  appellant  is  concerned,  in  accordance  with  my 
decision  herein. 

The  appeal  herein  is  sustained. 


3811 

In  the  matter  of  the  appeal  of  \\'illiam  Reid  and  others  v.  school  district  no.  10, 
town  of  Newtown,  county  of  Queens. 

Land  lying  in  one  body  and  owned  and  occupied  by  the  same  person,  but  lying  in  two  or 
more  school  districts,  can  be  wholly  taxed  for  school  purposes  in  the  district  in  which 
the  residence  of  the  owner  or  occupant  is,  only  when  assessed  as  one  parcel  on  the 
last  revised  assessment  roll  of  the  town.  If  the  parcels  in  the  respective  districts  are 
assessed  separately  by  the  town  assessors  then  each  district  can  tax  only  such  parcel 
as  lies  within  it. 

Decided  September  21,  1889 

Draper,  Superintendent 

It  appears  that  Thomas  Kelly  owns  a  hotel  and  i  acre  of  land  upon  one 
side  of  the  street  and  16  acres  of  land  upon  the  other  side  of  the- street,  which 
are  assessed  upon  the  town  assessment  books  in  separate  parcels.  One  parcel 
is  in  district  no.  10,  and  the  other  is  in  district  no.  4  of  the  town  of  Newtown. 
Heretofore  the  entire  property  has  been  assessed  for  school  purposes  in  district 
no.  10.  The  board  of  education  of  district  no.  4  contend  that  the  16  acres  lying 
in  their  district  should  be  assessed  therein,  and  this  appeal  is  brought  for  the 
purpose  of  determining  the  question. 

Inasmuch  as  these  two  parcels  of  land  are  assessed  as  separate  parcels 
upon  the  town  assessment  rolls,  the  amendment  of  1889  to  section  66  of  title  7 
of  the  Consolidated  School  Act  is  clearly  applicable  to  the  case.  It  is  unnecessary 
to  determine  the  question  whether,  in  consequence  of  the  laying  out  of  the  street 
referred  to,  there  was  no  contact  between  the  parcels  or  whether  the  two  parcels 
were  properly  assessable  to  school  district  no.  10  heretofore.     Under  the  amend- 


JUDICIAL  decisions:     assessments  75 

ment  referred  to,  each  parcel  is  now  clearly  assessable  in  the  district  in  which 
it  lies.     The  appellants  in  this  case  will,  therefore,  be  justified  in  including  the 
1 6  acre  parcel  in  their   future  assessments. 
The  appeal  is  sustained. 


4351 
In  the  matter  of  the  appeal  of  Oscar  Wheeler,  as  trustee  of  school  district  no.  9, 
town  of  Hornellsville,  Steuben  county,  v.  board  of  education  of  union  free 
school  district  no.  7,  town  and  city  of  Hornellsville,  Steuben  county. 

A  farm  consisting  of  385  acres,  situated  in  two  or  more  school  districts,  and  divided  or 
separated  into  three  separate  parcels  by  the  roadbed,  tracks  etc.,  of  three  difit'erent 
railroad  companies,  there  being  no  proof  that  the  owner  of  said  farm  is  the  owner  of 
the  fee  of  the  land  used  and  occupied  by  said  railroads,  said  farm  does  not  come  within 
the  exception  contained  in  section  63  of  article  7,  title  7,  of  the  Consolidated  School 
Law  of  1894,  relating  to  land  lying  in  one  body  and  occupied  by  the  same  person,  and 
assessed  as  one  lot  on  the  town  assessment  roll,  being  taxable  in  that  school  district 
for  school  purposes  in  which  the  owner  resides.  So  much  of  said  farm  as  lies  within 
said  two  or  more  school  districts  must  be  assessed  in  each  of  the  districts  respectively 
for  the  portion  situated  therein.  This  Department  has  uniformly  held  that  when  a 
farm  lies  in  different  districts,  but  is  separated  by  railroad  property,  it  can  not  be 
regarded  as  land  lying  in  one  body,  and  each  separate  part  must  be  assessed  in  the 
district  in  which  it  lies. 

Decided  April  4,  1895 

•  Alilo  N.  Acker,  attorney  for  appellant 
Dolson  &  Dolson,  attorneys  for  respondent 
Near  &  Rathbun,  attorneys  for  intervenor 

Crooker,  Superintendent 

On  November  12,  1894,  one  Charles  H.  Hartshorn,  a  resident  of  the  city 
of  Hornellsville,  Steuben  county,  was,  and  for  some  years  prior  thereto  had 
been,  the  owner,  subject  to  the  dower  right  therein  of  his  mother,  Cordelia 
Hartshorn  (which  dower  right  has  not  been  admeasured),  and  in  possession  of 
certain  real  estate,  commonly  known  as  the  Hartshorn  Stock  Farm,  in  the  town 
of  Hornellsville,  Steuben  county,  and  which  real  estate  was  situate  partly  in 
union  free  school  district  no.  7,  and  school  district  no.  9,  town  of  Hornellsville; 
that  the  aggregate  acreage  of  said  real  estate  is  about  385  acres ;  that  there  are 
farm  buildings  upon  said  real  estate,  the  most,  if  not  all,  of  which  are  located 
upon  that  part  situate  in  said  school  district  no.  9 ;  that  said  real  estate  has  been 
occupied  by  a  person  acting  either  as  the  agent  or  foreman,  or  the  tenant  of 
said  Hartshorn,  and  persons  employed  as  laborers  have  also  resided  thereon; 
that  said  real  estate  was  assessed  upon  the  last  town  assessment  roll  of  the 
town  of  Hornellsville  for  the  year  1894,  after  revision  by  the  assessors,  to  said 
Hartshorn  as  "  stock  farm,  385  acres,  $20,000 " ;  that  extending  across  said 
farm  or  real  estate  the  entire  distance  from  east  to  west  are  the  roadbed,  tracks 
etc.,  with  right  of  way,  of  two  railroad  companies,  namely,  New  York,  Lake 


7^  THE    UNIVERSITY    OF   THE   STATE    OF   NEW   YORK 

Erie  &  Western  Company  (formerly  the  Erie  R.  R.  Co.),  being  6  rods  wide, 
and  that  of  the  Central  New  York  and  Western  Railroad  Company,  being  4 
rods  wide,  which  said  roadbed,  tracks  etc.,  are  owned  by,  and  in  possession  and 
control  of,  and  operated  by,  said  corporations  respectively;  that  said  corpora- 
tions are  assessed  for  and  pay  taxes  upon  said  property  so  owned  and  operated 
by  them  respectively ;  that  the  roadbeds,  tracks  etc.,  of  said  railroads  are  parallel 
to  each  other,  those  of  the  N.  Y.,  L.  E.  &  W.  R.  R.  running  straight  across  said 
land  of  Hartshorn,  and  that  of  the  C.  N.  Y.  &  W.  R.  R.  at  or  near  the  boundary 
line  between  said  districts  9  and  7,  curving  to  the  southwest,  leaving  a  portion  of 
the  land  of  Hartshorn  lying  between  the  roadbed,  tracks  etc.,  of  each  of  said 
railroads ;  that  for  several  years  prior  to  1S94  all  of  said  real  estate  or  farm 
had  been  assessed  for  school  taxes  in  district  no.  9;  that  the  trustee  of  said 
district  no.  9  appeared  by  counsel  before  the  board  of  education  of  district  no.  7 
and  objected  to  said  board  assessing  any  portion  of  said  real  estate  or  farm  of 
said  Hartshorn  not  lying  within  the  bounds  of  said  district  upon  the  ground 
principally,  "  that  said  real  estate  or  farm  did  not  lie  in  one  body  within  the 
meaning  of  the  Consolidated  School  Law  of  this  State";  that  on  or  about 
November  12,  1894,  said  board  of  education  of  said  district  no.  7  assessed,  in 
the  tax  list  made  by  it,  the  whole  of  said  real  estate  or  farm  to  said  Hartshorn 
at  the  valuation  of  $20,000;  that  said  Hartshorn  refused  to  .pay  the  tax  assessed 
to  him  by  the  trustee  of  said  district  no.  9,  upon  the  ground  that  he  had  been 
assessed  for  said  real  estate  in  district  no.  7 ;  that  pursuant  to  a  resolution  adopted 
at  a  school  meeting,  held  in  said  district  no.  9,  on  October  8,  1894,  the  appellant 
as  trustee  of  said  district  appeals  from  the  said  tax  and  assessment  of  said  real 
estate  or  farm  to  said  Hartshorn  in  the  tax  list  and  assessment  made  by  the 
board  of  education  of  said  district  no.  7  on  or  about  November  12,  1894. 

An  answer  has  been  made  to  said  appeal  and  a  reply  to  said  answer.  The 
said  Hartshorn  has  been  permitted  to  file  proofs  herein  as  intervenor. 

The  papers  and  proofs  presented  herein  do  not  raise  any  question  of  fact, 
unless  it  may  be  relative  to  the  occupancy  of  said  real  estate  or  farm,  and  in 
the  view  I  take  the  occupancy  of  the  farm  is  not  material.    . 

In  my  opinion  the  said  real  estate  or  farm  of  said  Hartshorn  did  not,  at 
the  time  of  the  assessment  to  him  as  aforesaid  by  the  board  of  education  of 
said  district  no.  7,  lie  in  one  body,  within  the  meaning  of  section  63,  article  7, 
title  7,  of  the  ConsoHdated  School  Law  of  1894,  chapter  556  of  the  Laws  of 
1894,  and  the  decisions  of  this  Depart:iient,  and  hence  the  board  of  education 
of  said  district  no.  7,  in  making  said  tax  and  assessment,  acted  without  having 
jurisdiction. 

The  provisions  of  the  ConsoHdated  School  Law  of  1894  in  relation  to  the 
taxation  of  real  property  for  school  purposes  are  as  follows : 

By  section  63,  article  7,  title  7,  of  said  Consolidated  School  Law  it  is  enacted 
that  school  district  taxes  shall  be  apportioned  by  the  trustees  upon  all  real  estate 
within  the  boundaries  of  the  district  which  shall  not  be  by  law  exempt  from 
taxation,  except  as  hereinafter  provided,  and  such  property  shall  be  assessed 


JUDICIAL   DECISIONS  :      ASSESSMENTS  77 

to  the  person  or  persons,  or  corporations  owning'  or  possessing  the  same  at 
the  time  such  tax  list  shall  be  made  out ;  but  land  lying  in  one  body  and  occupied 
by  the  same  person,  either  as  owner  or  agent  for  the  same  principal,  or  as 
tenant  under  the  same  landlord,  if  assessed  as  one  lot  on  the  last  assessment  roll 
of  the  town  after  revision  by  the  assessors,  shall,  though  situated  partly  in  two 
or  more  school  districts,  be  taxable  in  that  one  of  them  in  which  such  occupant 
resides.  This  rule  shall  not  apply  to  land  owned  by  nonresidents  of  the  district, 
and  which  shall  not  be  occupied  by  any  agent,  servant  or  tenant  residing  in  the 
district. 

By  section  67,  article  7,  title  7,  of  said  law  it  is  enacted  that  any  person 
working  land  under  a  contract  for  a  share  of  the  produce  of  such  land,  shall 
be  deemed  the  possessor,  so  far  as  to  render  him  liable  to  taxation  therefor,  in 
the  district  where  such  land  is  situate,  and  any  person  in  possession  of  real 
property  under  a  contract  for  the  purchase  thereof  shall  be  liable  to  taxation 
therefor  in  the  district  where  such  real  property  is  situate. 

By  section  68,  article  7,  title  7,  of  said  law  it  is  enacted  that  every  person 
owning  or  holding  any  real  property  within  any  school  district,  who  shall  improve 
and  occupy  the  same  by  his  agent  or  servant,  shall,  in  respect  to  the  liability  of 
such  property  to  taxation,  be  considered  a  taxable  inhabitant  of  such  district, 
in  the  same  manner  as  if  he  actually  resided  therein. 

It  will  be  seen  that  real  property  should  be  taxed  in  the  district  in  which  it 
is  situate,  except  as  to  land  lying  in  one  body,  etc.,  but  situate  in  two  or  more 
districts,  as  stated  in  section  63.  In  order  for  any  person  to  avail  himself  of 
the  provisions  contained  in  such  exception,  or  for  any  board  of  trustees  to  have 
jurisdiction  and  power  to  tax  and  assess  land  in  accordance  therewith  four 
questions  are  to  be  determined,  namely,  first,  does  the  land  lie  in  one  body? 
second,  the  ownership,  third,  the  occupancy,  and,  fourth,  is  the  land  assessed 
as  one  lot  on  the  last  assessment  roll  of  the  town?  The  first  question  to  be 
determined  by  the  board  of  education  of  district  no.  7  in  November  1894,  and 
to  be  decided  by  me  in  this  appeal,  was  and  is,  Did  the  said  real  estate  or  farm 
of  said  Hartshorn  lie  in  one  body?  If  it  did  not,  that  ends  the  matter,  and  it 
was  not,  and  is  not,  material  to  inquire  as  to  its  ownership,  occupancy  or  assess- 
ment on  the  town  rolls,  as  its  several  parts  must  be  assessed  and  taxed  in  the 
district  in  which  they  respectively  lie. 

Land  lying  in  one  body  must  consist  or  be  in  a  collective  whole  or  totality  — 
there  must  be  an  actual  contact  or  touching  or  meeting  of  the  respective  parts  — 
it  must  be  contiguous,  adjoining.  Where,  however,  in  said  exception  in  section 
63,  two  parcels  in  the  possession  of  the  same  owner  are  separated  by  a  public 
highway  the  fee  of  which  he  owns,  subject  to  the  right  of  passage  in  the  public, 
this  is  not  to  be  regarded  as  preventing  their  contact. 

The  proofs  presented  herein  establish  the  fact  that  in  November  1894,  said 
real  estate  or  farm  of  said  Hartshorn,  consisting  of  385  acres  and  situated  partly 
in  school  district  no.  9,  and  partly  in  school  district  no.  7,  was  divided  or  sepa- 
rated, by  the  roadbed,  tracks  etc.,  and  property  of  the  N.  Y.,  L.  E.  &  W.  and 
C.  N.  Y.  &  W.  Railroad  Companies  into  three  separate  parcels,  namely,  one 


78 


THE    UNIVERSITY    OF   THE   STATE    OF   NEW   YORK 


parcel  situate  north  of  the  roadbed,  property  etc.,  of  the  N.  Y.,  L.  E.  &  W. 
Railroad  Company ;  one  parcel  situate  south  of  the  roadbed,  property  etc.,  of  the 
C.  N.  Y.  &  W.  Railroad  Company,  and  one  parcel  in  triangular  form  situate 
between  the  roadbeds,  property  etc.,  of  said  two  railroad  companies.  The  con- 
tention of  the  respondents,  the  board  of  education,  that  said  railroad  roadbeds, 
tracks  etc.,  are  highways  under  the  general  definition  of  highways  as  applied  to 
the  public  roads  of  the  State,  is  not  well  taken.  There  is  no  proof  that  the  said 
Hartshorn  owns  the  fee  of  said  land  used  and  occupied  by  said  railroads,  subject 
to  the  rights  of  the  corporations  of  the  user  thereof ;  and  it  is  shown  by  the  sworn 
statements  of  Hartshorn  that  his  land  was  taken  by  the  C.  N.  Y.  &  W.  Railroad 
Company  under  condemnation  proceedings,  and  he  has  been  paid  therefor.  The 
N.  Y.,  L.  E.  &  W.  Railroad  was  constructed  many  years  ago  through  the  farm 
or  real  estate  of  which  Hartshorn  is  now  the  owner,  and  admitting,  for  the 
purpose  of  argument  only,  that  said  Hartshorn  has  the  fee  of  its  roadbed  etc., 
through  his  said  farm,  it  is  not  material,  as  the  property  of  the  C.  N.  Y.  &  W. 
Railroad  Company  divides  and  separates  said  real  estate  or  farm  of  said  Harts- 
horn into  two  separate  parcels. 

This  Department  has  uniformly  held  that  in  the  numerous  cases  in  which 
land  lying  in  one  body,  etc.,  as  stated  in  said  section  63,  is  crossed  or  cut  through 
by  a  railroad,  the  land  of  the  railroad  company  being  taxable  property,  and 
coming  between  the  two  parcels  of  land,  divides  them  so  that  the  tracts  of  land 
on  each  side  of  the  railroad  will  not,  under  the  meaning  of  said  section  63,  be 
deemed  or  regarded  as  land  lying  in  one  body. 

Superintendent  Ruggles  in  appeal  no.  3232,  decided  October  5,  1883,  held 
that  when  a  farm  lies  in  different  districts,  but  is  separated  by  railroad  property, 
it  cannot  be  regarded  as  land  lying  in  one  body,  and  the  respective  parts  must 
be  assessed  in  the  district  in  which  they  lie. 

I  find  and  decide.  That  in  November  1894,  said  real  estate  or  farm  of  said 
Charles  H.  Hartshorn,  comprising  385  acres,  and  situate  in  two  school  districts, 
was  not,  within  the  meaning  of  said  section  63,  article  7,  title  7,  of  the  Consoli- 
dated School  Law  of  1894,  "land  lying  in  one  body";  that  in  November  1894, 
the  board  of  education  of  school  district  no.  7,  of  the  town  and  city  of  Hornells- 
ville,  had  no  jurisdiction  or  legal  authority  to  assess  and  tax  for  school  purposes 
the  said  real  estate  or  farm  consisting  of  385  acres  to  said  Charles  H.  Harts- 
horn, and  that  such  assessment  and  taxation  was  and  is  void;  that  the  trustee 
of  said  school  district  no.  9,  town  of  Hornellsville,  in  the  year  1894,  had  no 
jurisdiction  or  legal  authority  to  assess  and  tax  for  school  purposes  the  said 
real  estate  or  farm  consisting  of  385  acres  to  said  Charles  H.  Hartshorn,  and 
that  such  assessment  and  taxation  is  void;  that  the  respective  parts  or  portions 
of  said  real  estate  or  farm  of  said  Charles  H.  Hartshorn,  consisting  of  385 
acres,  situate  respectively  in  said  school  districts  no.  7  and  no.  9,  should  be 
assessed  and  taxed  for  school  purposes  by  the  trustees  of  said  districts  respec- 
tively, in  the  school  districts  in  which  said  parts  or  portions  respectively  lie. 

The  appeal  herein  is  sustained. 


JUDICIAL  decisions:    assessments  79 

It  is  ordered,  That  so  much  of  the  tax  Hst  and  assessment  made  by  the 
board  of  education  of  school  district  no.  7,  town  of  Hornellsville,  on  or  about 
Xovember  12,  1894,  as  assessed  and  taxed  said  Charles  H.  Hartshorn  for  a 
stock  farm  of  385  acres,  at  a  valuation  of  $20,000,  be,  and  the  same  hereby  is, 
vacated  and  set  aside. 

It  is  further  ordered.  That  so  much  of  the  tax  list  and  assessment  made 
by  Oscar  Wheeler  as  trustee  of  school  district  no.  9,  town  of  Hornellsville,  in 
1894,  as  assessed  and  taxed  said  Charles  H.  Hartshorn  for  a  stock  farm  of 
385  acres,  at  a  valuation  of  $20,000,  be,  and  the  same  hereby  is,  vacated  and  set 
aside. 

It  is  further  ordered.  That  the  board  of  education  of  said  school  district 
no.  7,  and  the  trustees  of  said  school  district  no.  9,  of  the  town  of  .Hornellsville, 
respectively,  be,  and  they  are,  hereby  ordered  and  directed  to  correct  their 
respective  tax  lists  and  assessments,  made  and  issued  in  the  year  1894,  in  rela- 
tion to  said  assessment  and  taxation  of  said  real  estate  or  farm  of  said  Charles 
H.  Hartshorn  of  385  acres,  in  conformity  with  the  foregoing  finding,  decision 
and  orders  made  by  me  herein. 


A  person  set  oflf  from  one  district  to  another,  by  an  order  that  does  not  take  effect  until 
three  months  after  its  issue,  will  be  liable  on  any  taxes  levied  in  the  district  from  whicli 
he  is  set  off,  prior  to  the  taking  effect  of  such  order. 

Decided  June  2,  1857 

V'an  Dyck,  Superintendent 

In  March  1857,  an  order  was  made,  by  the  school  commissioner  having  juris- 
diction, transferring  the  lands  of  the  appellant  and  others,  from  district  no.  i 
to  district  no.  2.  The  trustees  of  no.  i  having  withheld  their  consent,  this  order 
will  not  take  effect  till  the  expiration  of  three  months  from  the  ist  day  of  April 
1857,  when  notice  thereof  was  served.  While  the  alteration  was  inchoate,  the 
district  meeting  was  held,  against  the  proceedings  of  which  this  appeal  is  directed, 
and  a  tax  to  defray  the  expenses  of  changing  site  and  building  a  new  school- 
house  was  voted.  The  appellant  objects  that  the  effect  will  be  to  charge  him  with 
the  payment  of  a  tax  for  constructing  a  schoolhouse  from  which  he  receives  no 
benefit. 

Held,  That  this  was  a  proper  consideration  for  the  judgment  of  the  inhab- 
itants of  district  no.  i,  in  determining  whether  they  would  build  at  once  or  post- 
pone till  after  the  alteration  should  have  taken  effect.  The  appellant  continues 
an  inhabitant  of  the  district  for  all  purposes  until  the  ist  day  of  July.  If  the 
appellant  is  set  off  from  the  district  without  his  consent,  he  will  be  exempted 
from  paying  a  tax  from  building  in  no.  2,  for  four  years.  If  he  has  given  his 
consent,  he  is  responsible  for  all  the  consequences,  and  can  not  be  permitted  to 
trammel  the  action  of  either  district  for  the  purpose  of  avoiding  any  personal 
charge  or  inconvenience. 


8o 


THE   UNIVERSITY   OF  THE   STATE   OF   NEW   YORK 


3723 

In  the  matter  of  the  difference  between  school  district  no.  i,  Franklinville,  and 
school  district  no.  7,  Lyndon,  in  the  county  of  Cattaraugus. 

under  chapter  59,  Laws  of  1886,  a  person  whose  place  of  residence  is  divided  by  a  town 
line  may  elect  in  which  of  two  towns  he  will  pay  his  tax,  and  this  statute  is  held  to 
apply  to  school  district  taxes. 

Decided  November  14,  1888 

Draper,  Snpeyintcndent 

This  matter  comes  before  me  by  an  agreed  statement  of  facts  out  of  which 
has  arisen  a  question  as  to  the  proper  place  of  taxing  the  lands  of  one  Matthew 
Newman  for  school  purposes. 

It  appears  that  Air  NcAvman  is  the  owner  of  a  farm  which  lies  in  two  dis- 
tricts. He  occupies  the  land  and  works  it  all  as  one  farm  and  resides  in  a  house 
situate  thereon,  which  is  divided  by  the  line  which  divides  the  districts.  Air 
Newman  claims  to  be  a  resident  of  the  town  of  Frankhnville,  where  he  votes 
and  to  which  town  he  pays  taxes  on  the  land  in  question.  Under  chapter  59 
of  the  Laws  of  1886,  Mr  Newman,  in  a  case  of  this  kind,  would  have  a  right 
to  elect  in  which  of  the  two  towns  in  which  his  property  is  situate  he  would 
pay  taxes,  and  it  appears  from  the  papers  submitted  that  he  has  so  elected,  and 
wishes  to  pay  his  entire  tax  in  the  town  of  Franklinville. 

I  therefore  decide  that  school  district  no.  i  of  the  town  of  Franklinville, 
Cattaraugus  county,  is  entitled  to  assess  the  entire  farm  of  Matthew  Newman 
for  school  purposes. 


3538 

In  the  matter  of  the  appeal  of  J.  W.  Rood  v.  John  Latimer,  trustee  of  school 
district  no.  16,  town  of  Pomfret,  Chautauqua  county. 

Trustees,  in  assessing  railroad  property,  are  to  take  the  assessors'  valuation,  filed  pursuant 

to  chapter  694,  Laws  of  1S67. 
Decided  April  18,  1887 

Draper,  Superintendent 

This  is  an  appeal  by  a  taxpayer  in  district  no.  16,  town  of  Pomfret,  Chau- 
tauqua county,  N.  Y.,  against  John  Latimer,  sole  trustee  of  said  district. 

The  appellant  alleges  as  a  ground  for  appeal,  that  in  preparing  a  certain 
tax  list,  said  trustee  failed  to  include  all  the  property  within  the  district,  belong- 
ing to  a  certain  railroad  company,  and  all  of  certain  other  property  belonging  to 
a  certain  telegraph  company. 

It  appears  from  the  pleadings  of  the  appellant,  that  the  town  assessors 
apportioned  to  the  district,  the  railroad  and  telegraph  property  in  question,  pur- 
suant to  chapter  694,  Laws  of  1867,  as  amended,  and  filed  the  statement  thereof 
in  the  town  clerk's  office.  It  is  provided  by  said  act  that  all  taxes  against  said 
companies  shall  be  levied  and  assessed  upon  the  said  assessors'  valuation,  until 


JUDICIAL  decisions:     ASS'ESSMENTS  8i 

their  next  annual  assessment  or  apportionment.  This  it  appears  the  trustee  did ; 
consequently,  there  is  no  ground  for  this  appeal,  and  the  same,  therefore,  is 
dismissed. 


3946 

In  the  matter  of  the  appeal  of  David  Horton  v.  Philip  Antis,  as  trustee   of 

school  district  no.  15.  town  of  Greenville,  county  of  Greene. 

An  inhabitant  of  a  school  district,  whose  assessed  valuation  upon  propertj'-  by  the  town 
assessors  was  $2500,  was  assessed  upon  the  same  property  by  the  school  district  trustee 
for  school  purposes  upon  a  valuation  of  $5000,  without  receiving  notice  of  such  increase 
in  assessed  valuation.    Held,  illegal. 

Decided  December  30,  1890 

Draper,  Superintendent 

The  appellant,  a  taxable  inhabitant  of  school  district  no.  15,  town  of  Green- 
ville, county  of  Greene,  alleges  that  the  trustee  has  wrongfully  and  illegally 
increased  an  assessment  of  $2500  upon  the  property  as  it  appears  upon  the  town 
assessment  roll,  to  S5000,  without  giving  to  him  notice  thereof,  and  an  oppor- 
tunity to  show  that  the  increase  was  unwarranted. 

The  trustee  has  attached  a  warrant  dated  November  19,  1890,  to  the  tax  list, 
and  delivered  the  same  to  the  district  collector. 

No  answer  has  been  received,  and  the  irregularity  complained  of  is  admitted 
by  the  trustee  who  has  requested  and  been  given  permission  to  withdraw  and 
correct  the  tax  list. 

The  appeal  is  sustained,  and  the  trustee  is  directed  to  correct  his  tax  list, 
and  comply  with  the  provisions  of  law  relating  to  the  taxation  of  property  for 
school  purposes. 


4006 

In  the  matter  of  the  appeal  of  George  W.  ^lartin  v.  Eli  B.  Shelmandine,  trustee 
of  school  district  no.  6,  town  of  Blenheim,  county  of  Schoharie. 

Appeal  by  a  minister  of  the  gospel  from  the  action  of  a  school  trustee  in  refusing  to  allow 
an  exemption  of  $1500  upon  certain  property  in  the  school  district. 

The  statute  provides  for  an  exemption  to  ministers  of  the  gospel  of  the  amount  claimed 
from  the  value  of  the  property,  real  and  personal,  or  either,  if  the  value  thereof  ex- 
ceeds $1500. 

But  this  appeal  is  dismissed  for  the  reason  that  the  evidence  does  not  disclose  what  property 
the  appellant  may  be  possessed  of  in  the  district  and  elsewhere. 

Decided  September  17,  1891 

Draper,  Superintendent 

This  appeal  is  taken  from  the  action  of  the  trustee  of  school  district  no.  6 
of  the  town  of  Blenheim,  Schoharie  county,  in  refusing  to  allow  the  appellant 


82  THE    UNIVERSITY    OF   THE   STATE    OF   NEW    YORK 

an  exception  of  $1500  from  the  assessed  valuation  of  his  real  estate  lying  m 
the  above-mentioned  district,  which  he  claims  as  a  minister  of  the  gospel.  The  evi- 
dence is  that  upon  the  town  assessment  roll  the  exemption  claimed  by  the  appel- 
lant was  allowed  him,  but  that  the  trustee  in  preparing  the  district  tax  list,  dis- 
allowed the  exemption  and  so  advised  the  appellant,  basing  his  action  upon  the 
fact  that  the  property  assessed  was  not  occupied  by  the  appellant,  and  that  the 
appellant  resided  in  another  district.  The  appellant  appeared  before  the  trustee 
at  a  time  designated  by  that  officer,  and  made  statements  claiming  the  exemption, 
but  declined  to  make  a  statement  in  writing. 

It  is  conceded  by  the  respondent  that  the  appellant  is  a  minister  of  the 
gospel  and  is  pursuing  his  vocation  in  an  adjoining  district.  The  appellant  insists 
that  his  home  is  still  in  district  no.  6  of  the  town  of  Blenheim,  and  that  he  spends 
some  time  there  with  his  family,  and  that  the  property  is  in  charge  of  his  son 
and  managed  under  his  direction. 

There  is  some  conflict  in  the  evidence  as  to  the  exact  position  the  son  occupies 
as  the  possessor  of  the  farm,  but  if  it  is  a  fact  that  the  son  is  working  the  farm 
upon  shares,  he  would  be  liable  to  taxation  for  the  property,  but  that  question 
does  not  necessarily  arise  upon  the  consideration  of  this  appeal. 

Under  section  5  of  title  i  of  chapter  13  of  part  i  of  the  Revised  Statutes, 
the  appellant  would  be  entitled  to  have  deducted  from  the  value  of  his  property 
—  if  the  same  both  real  and  personal  or  either  of  them,  exceeded  in  value  the 
sum  of  $1500.  From  the  evidence  submitted,  I  am  unable  to  determine  what 
property,  both  real  and  personal,  the  appellant  is  possessed  of.  Whatever  it  may 
be,  he  is  entitled  to  but  one  exemption  of  $1500.  He  may  have  other  real  estate 
situated  elsewhere,  or  he  may  have  personal  property  of  a  sufficient  amount  or 
more,  which  would  cover  the  exemption  to  which  the  law  entitles  him.  TI.s 
courts  have  held  that  a  minister  of  the  gospel  is  entitled  to  this  exemption, 
whether  he  occupies  his  real  estate  or  not.  (See  People  ex  rel.  Mann  v.  Peterson, 
31  Hun  421.) 

It  follows,  therefore,  that  this  appeal  must  be  dismissed. 


3551 

In  the  matter  of  the  appeal  of  Myra  Kent  from  the  action  of  Marvin  Phillips, 
sole  trustee  of  school  district  no.  16,  town  of  Harmony,  county  of  Chau- 
tauqua, in  assessing  her  for  personal  property. 

A  tax  upon  personal  property  will  be  set  aside  when  it  appears  that  a  trustee  made  an 
original  assessment,  and  did  not  give  to  the  party  assessed  twenty  days  notice  of  such 
assessment  before  delivering  the  tax  list  to  the  collector. 

Decided  January  3,  1887 

F.  A.  Brightman,  Esq.,  attorney  for  appellant 
A.  C.  Packard,  Esq.,  attorney  for  respondent 


JUDICIAL  decisions:    assessments  83 

Draper,  Superintendent 

This  is  an  appeal  by  Myra  Kent,  a  resident  of  school  district  no.  16.  town 
of  Harmony,  Chautauqua  county,  N.  Y.,  from  the  action  of  the  trustee  of  said 
district  in  making  an  original  assessment  against  her  for  personal  property  in 
a  tax  list  delivered  to  the  collector  of  said  district  on  or  about  November  23, 
1886. 

The  appellant  alleges  as  grounds  of  appeal : 

1  That  she  was  not  assessed  for  personal  property  upon  the  last  assessment 
roll  of  the  town. 

2  That  she  has  no  personal  property  liable  to  assessment  or  taxation. 

3  That  although  the  assessment  of  personal  property  to  the  appellant,  by 
the  trustee,  was  an  original  assessment,  notice  thereof  was  not  given  to  her  iw.vA 
several  days  after  the  tax  list  containing  such  assessment  had  been  delivered  to 
the  collector. 

The  notice  served  is  annexed  to  appellant's  papers. 

The  trustee,  answering  the  appeal,  seeks  to  justify  his  assessment  of  appel- 
lant by  certain  allegations  relative  to  property  controlled  by  another,  apparently 
for  the  benefit  of  appellant,  and  seeks  to  convey  the  idea  that  it.  is  in  the  control 
of  some  person  as  guardian  or  trustee  of  the  appellant. 

From  the  allegations  of  the  answer,  it  is  not  at  all  clear  that  this  appellant 
has  any  property  liable  to  taxation.  The  appellant  unqualifiedly  denies  that  she 
has.  In  any  event,  the  trustee  has  neglected  to  proceed  according  to  the  statute, 
m  making  an  original  assessment  in  the  following  particulars : 

1  Twenty  days  notice  should  have  been  given  the  appellant  to  enable  her 
to  appear  and  show  cause  why  the  assessment  for  personal  property  should  not 
have  been  made.    The  notice  served,  gave  her  but  nineteen  days  notice. 

2  The  roll  containing  an  original  assessment  should  have  been  open  for 
inspection  for  twenty  days  and  notice  thereof  given ;  and  this  before  the  delivery 
thereof  to  the  collector. 

It  appears  the  roll  was  delivered  to  the  collector  three  days  earlier  than 
the  date  of  the  notice  given  to  the  appellant. 

I  shall  not  pass  upon  the  question  as  to  whether  the  appellant  is  liable  to 
taxation  upon  personal  property,  but  she  is  certainly  entitled  to  the  opportunity 
the  law  gives  her  to  examine  the  tax  list  and  present  her  objections  to  the 
assessment. 

I  sustain  the  appeal  and  set  aside  the  tax  on  personal  property  against  the 
appellant  and  direct  the  respondent  to  withdraw  and  correct  the  tax  list 
accordingly. 


84  THE   UNIVERSITY   OF   THE   STATE    OF   NEW   YORK 

3857 

In  the  matter  of  the  appeal  of  Henry  Ziengenfuss  v.  school  district  no.  2,  of 
the  town  of  Avoca,  county  of  Steuben. 

The  exemption  of  certain  property'  of  ministers  of  the  gospel  from  taxation  is  only  intended 
to  persons  who  are  acting  as  such  and  derive  their  support  from  such  employment. 

Trustees  must  follow  the  town  assessment  roll  except  in  special  cases,  when  an  original 
assessment  may  be  made,  but  only  after  giving  the  statutory  notice.  In  a  case  where 
the  town  assessors  granted  a  person  exemption  from  taxation  as  a  minister  of  the 
gospel,  and  the  school  trustees  had  given  no  notice  of  an  original  assessment,  but  had 
included  his  property  in  a  tax  list,  held,  that  it  must  be  stricken  out. 

Decided  February  17,  1S90 

Draper,  Superintendent 

Subdivisions  8  and  9,  title  i,  chapter  13,  of  the  Revised  Statutes,  provide 
that  the  real  estate  of  every  minister  of  the  gospel  or  priest  of  any  denomination, 
when  occupied  by  him,  and  not  exceeding  the  value  of  $1500,  shall  be  exempt 
from  taxation.  In  case  the  value  of  such  real  estate  exceeds  $1500,  then  only 
the  excess  is  to  be  taxed. 

The  appellant  in  this  case  claims  to  be  an  ordained  minister  of  a  sect  known 
as  "Advent  Christians."  He  is  not  serving  any  organized  church.  He  holds 
meetings  in  his  neighborhood  occasionally,  at  which  collections  are  taken  for  his 
benefit.  He  is  regularly  engaged  in  the  saddlery  business,  and  maintains  a  shop 
or  store  where  he  carries  on  such  business,  and  sells  articles  appertaining  thereto. 
He  owns  real  estate  in  which  he  resides  and  carries  on  his  business,  valued  by 
the  town  assessors  at  the  sum  of  $1600.  It  seems  to  be  the  fact  that  the  town 
assessment  rolls  in  1887  and  1888  contained  this  property  at  its  assessed  valua- 
tion, with  memoranda  to  the  effect  that  $1500  thereof  was  exempt  from  taxation. 
It  also  seems  to  be  the  fact  that  such  memoranda  were  placed  upon  the  rolls  in 
one  or  two  instances,  at  least,  only  after  the  payment  of  taxes  by  the  appellant, 
and  that  his  demand  for  the  return  to  him  of  such  taxes  as  had  been  levied  upon 
$1500  of  valuation,  had  in  each  case  been  complied  with.  But  the  school  trustees, 
in  making  out  a  tax  list  for  school  taxes  in  the  district,  have  assessed  him  upon 
the  valuation  of  $i6oo.  This  appeal  is  brought  in  order  to  avoid  tlie  taxation 
for  school  purposes  upon  the  sum  of  $1500. 

I  am  not  at  all  certain  that  the  appellant  is  in  circumstances  to  entitle  him 
to  the  exemption  named  in  the  statute.  It  seems  to  me  very  clear  that  he  depends 
for  a  livelihood  upon  the  saddler}-  business  more  than  upon  ministerial  service, 
and  it  is  very  doubtful  if  it  was  the  purpose  of  the  Legislature  to  extend  the 
exemption  to  such  a  case,  but  I  do  not  deem  it  necessar}^  to  determine  that  ques- 
tion in  this  connection.  It  is  the  policy  of  the  school  laws  to  require  trustees,  in 
making  out  a  tax  list,  to  follow  the  last  revised  assessment  rolls  of  the  town, 
except  in  special  cases  where  they  have  power  to  make  an  original  assessment, 
but  it  can  be  done  only  upon  notice  to  the  person  interested.  There  was  evidently 
no  such  notice  given  in  this  case.  In  the  absence  of  it,  I  think  the  trustees  are 
bound  to  follovv-  the  town  assessment  rolls.     In  any  case  of  a  character  similar 


JUDICIAL   DECISIONS  :      ASSESSMENTS  85 

to  the  one  under  consideration,  it  would  seem  to  be  the  wisest  and  safest  policy 
for  trustees  to  follow  such  rolls.  It  is  always  to  be  borne  in  mind  that  the  town 
assessment  rolls  are  prepared  by  officers  who  are  chosen  with  special  reference 
to  such  a  service,  and  who  must  be  presumed  to  be  better  informed  as  to  what 
circumstances  will  be  sufficient  ground  for  an  exemption  from  taxation,  within 
the  provisions  of  the  statute,  than  school  trustees  are  likely  to  be.  While  there 
was  evidently  some  doubt  in  the  minds  of  the  town  assessors  as  to  what  their 
duty  was  in  this  particular  case,  and  while  there  is  some  confusion  about  what 
they  actually  did,  and  the  precise  time  when  they  did  it,  it  still  remains  clear  that 
up  to  the  present  time  the  exemption  has  in  fact  been  granted  to  him  by  the  town 
authorities.  In  view  of  this  fact,  and  of  the  other  one  that  the  trustees  have 
never  given  him  legal  notice  of  an  original  assessment  by  them,  I  am  constrained 
to  sustain  his  appeal,  and  direct  that  in  the  tax  list  appealed  from,  they  grant  him 
the  same  exemption  which  the  town  authorities  have  extended  to  him. 


BOARD  OF  EDUCATION 


5202 


In  the  matter  of  the  appeal  of  Francis  W.  Borden  and  George  Deuel  from  the 
action  of  the  board  of  education  of  union  free  school  district  no.  5,  town 
of  Easton,  Wasliington  county. 

A  board  of  education  is  not  authorized  by  law  to  borrow  money  to  meet  the  general  ex- 
penses of  maintaining  a  school  except  as  provided  in  subdivision  ig,  section  15,  title  8, 
of  the  Consolidated  School  Law. 

The  affairs  of  a  school  district  should  be  managed  within  its  resources  and  a  board  of  educa- 
tion should  not  incur  a  liability  in  excess  of  appropriations  voted  by  the  district  or 
authorized  by  law. 

Decided  September  21,  1905 

Clarence  E.  Akin,  attorney  for  appellant 

Draper.  Commissioner 

This  appeal  is  brought  by  two  members  of  the  board  of  education  of  union 
free  school  district  no.  5,  Easton,  Washington  county,  to  compel  such  board  to 
issue  a  tax  list  to  raise  sufficient  funds  to  meet  the  indebtedness  of  the  district. 
No  answer  has  been  filed  in  this  appeal,  but  members  of  the  board  of  education 
who  have  voted  to  borrow  money  to  meet  outstanding  bills  have  consulted  this 
Department  on  the  questions  involved  herein  and  have  agreed  to  issue  a  tax  list 
and  raise  an  amount  sufficient  to  liquidate  the  district's  indebtedness.  It  is  quite 
probable  that  the  board  has  already  authorized  the  issuance  of  such  tax  list.  It 
is  necessary,  however,  to  take  some  action  in  this  appeal  in  order  to  clear  the 
records  of  this  Department. 

This  district  is  located  in  a  prosperous  farming  community.  It  does  not  even 
contain  a  small  village.  Several  of  the  surrounding  districts  have  contracted 
with  this  district  for  the  education  of  their  children.  The  pebple  of  this  district 
are  entitled  to  much  credit  for  their  efforts  to  maintain  a  school  of  advanced 
grade  under  such  adverse  circumstances.  It  appears  that  the  cost  of  maintain- 
ing the  school  about  three  years  ago  was  more  than  the  board  believed  advisable 
to  raise  by  tax  that  year.  The  board  therefore  borrowed  a  sum  of  money  to  aid 
in  meeting  the  cost  of  maintaining  the  school.  This  indebtedness  now  exceeds 
$600.  Subdivision  19  of  section  15  of  title  8  of  the  Consolidated  School  Law 
authorizes  a  board  of  education  to  borrow  money  in  anticipation  of  taxes  levied 
but  uncollected  for  the  then  current  year  and  to  issue  certificates  of  indebtedness 
therefor.  These  certificates  can  not  be  issued  for  a  longer  period  than  nine 
months  and  not  in  excess  of  the  amount  of  the  tax  levied.  This  is  the  only  pro- 
vision in  the  Consolidated  School  Law  authorizing  a  board  of  education  to  borrow 
money  to  meet  the  expense  of  maintenance  of  school.     The  money  borrowed  by 

[S6] 


JUDICIAL  decisions:     board  of  education  87 

this  board  was  not  borrowed  in  accordance  with  the  provision  of  law  above  stated 
and  was  therefore  without  legal  authority.  It  appears  that  some  of  the  trustees 
gave  personal  notes  to  meet  these  obligations.  The  spirit  shown  by  these  indi- 
viduals is  commendable,  but  the  transaction  is  not  based  upon  sound  business 
methods  or  wise  school  administration.  The  affairs  of  a  school  district  should  be 
managed  within  its  resources  and  a  board  of  education  should  not  incur  a  liability 
in  excess  of  appropriations  voted  by  the  district  or  authorized  by  law. 

The  necessary  funds  for  maintaining  a  school  should  be  obtained  by  levying 
a  tax  on  the  property  of  the  district  annually  or  as  such  funds  are  needed.  Carry- 
ing an  indebtedness  from  year  to  year  and  paying  interest  thereon  is  unwise  and 
can  not  be  permitted. 

The  appeal  herein  is  sustained. 

It  is  ordered,  That  the  board  of  education  of  union  free  school  district  no, 
5,  town  of  Easton,  Washington  county,  shall  within  30  days  from  the  date  hereof 
levy  a  tax  on  the  taxable  property  of  such  district  sufficient  to  meet  all  outstand- 
ing indebtedness  and  cause  the  same  to  be  collected  as  the  Consolidated  School 
Law  of  the  State  provides. 


5187 

In  the  matter  of  the  appeal  of  Janette  E.  Hutchins  and  Lillian  A.  Hutchins  from 
the  action  of  the  board  of  education  of  union  free  school  district  no.  i, 
town  of  Norfolk.  St  Lawrence  county. 

Ordinarily  this  Department  will  not  interfere  with  the  action  of  a  board  of  education  in 
referring  to  a  district  meeting  any  question  involving  the  interests  of  the  district.  On 
the  contrary  it  encourages  such  action. 

A  board  of  education,  however,  will  not  be  permitted  to  delay  the  execution  of  directions 
from  a  district  meeting,  or  to  thwart  the  expressed  wishes  of  a  majority  of  the  legal 
voters  of  a  district  without  good  cause,  by  calling  special  meetings  of  the  district  to 
pass  upon  questions  which  the  district  has  already  decided  three  times. 

The  action  of  a  special  meeting,  regular  in  every  particular,  in  designating  a  site  and 
authorizing  the  board  of  education  to  obtain  title  thereto  in  behalf  of  the  district 
creates  a  district  liability. 

An  incumbrance  upon  the  site  designated,  provided  it  may  be  removed,  does  not  furnish 
sufficient  ground  upon  which  the  district  may  refuse  to  complete  a  contract  of  purchase. 

Decided  May  25,  1905 

Hon.  Ledyard  P.  Hale,  attorney  for  appellants 
Fred.  J.  Flanagan,  attorney  for  respondents 

Draper,  Commissioner 

Union  free  school  district  no.  i,  town  of  Norfolk,  is  located  in  the  village 
of  Norfolk.  St  Lawrence  county.  It  was  formed  a  few  years  ago  by  the  con- 
solidation of  three  common  school  districts.  The  population  of  the  village  is 
increasing  and  the  school  accommodations  of  the  district  are  not  adequate  to 
its  needs.  In  December  1904,  the  district  made  an  appropriation  of  $14,300  for 
the  erection  of  a  new  building. 


SS  THE  UNIVERSITY    OF   THE   STATE    OF    NEW   YORK 

It  was  also  necessary  to  select  a  new  site.  A  special  meeting  of  the  district 
was  held  January  17,  1905,  for  tliat  purpose.  The  records  show  that  five  pieces 
of  property  were  voted  for  and  the  one  known  as  the  Hutchins  lot  received  a 
majority  of  i  over  all  five  and  a  majority  of  9  over  the  one  receiving  the  second 
largest  number  of  votes. 

After  the  Hutchins  site  had  received  a  majority  of  the  votes  cast  to  deter- 
mine which  site  should  be  chosen,  the  meeting  proceeded  to  vote  upon  a  resolu- 
tion to  appropriate  $1000  for  the  purchase  of  that  site  which  was  described  by 
metes  and  bounds  in  the  resolution.  Those  who  were  opposed  to  the  selection 
of  the  Hutchins  site  evidently  voted  against  this  resolution  but  it  was  carried  by 
a  majority  of  15.  This  meeting  therefore  practically  voted  twice  in  favor  of  the 
selection  of  the  Hutchins  lot  for  a  site. 

On  January  30,  1905,  the  board  of  education  directed  the  call  for  a  special 
meeting  of  the  district  to  be  held  February  24,  1905.  to  rescind  the  vote  at  the 
special  meeting  of  January  17,  1905,  by  which  the  Hutchins  site  was  adopted. 
The  records  do  not  show  that  any  of  the  residents  of  the  district  had  petitioned 
the  board  to  call  a  meeting  for  this  purpose.  The  resolution  offered  at  the  meet- 
ing of  February  24th  to  rescind  the  vote  at  the  meeting  of  January  17th,  by 
which  the  Hutchins  site  was  chosen,  was  lost  by  a  majority  of  27.  This  meeting 
was  well  attended  as  179  votes  were  cast.  The  refusal  of  this  meeting  to  adopt 
a  resolution  to  rescind  its  former  action  was  equivalent  to  a  vote  in  favor  of  the 
Hutchins  site.  The  district  therefore  practically  voted  three  times  in  favor  of 
the  Hutchins  site. 

At  a  meeting  of  the  board  of  education  held  ]Mardi  6,  1905,  James  Donnelly 
tendered  his  resignation  as  a  member  of  the  board  and  it  was  accepted.  At  a 
meeting  of  the  board  of  education  held  March  13th,  H.  G.  Atwater  was  elected 
to  fill  the  vacancy  caused  by  the  resignation  of  Mr  Donnelly.  At  this  meeting 
of  the  board  of  education,  Mr  Atwater,  the  member  just  appointed  to  fill  a 
vacancy,  offered  a  resolution  directing  the  call  of  a  special  meeting  to  rescind  the 
resolution  adopted  by  the  special  meeting  of  the  district  on  January  17,  1905,  by 
which  the  Hutchins  site  was  selected.  This  resolution  was  adopted  and  a  special 
meeting  called  for  April  5th. 

On  March  22d  this  appeal  was  filed  with  a  petition  for  a  stay  to  restrain  the 
board  of  education  from  holding  a  special  meeting  of  the  district  until  this  appeal 
could  be  determined.     Such  stay  was  issued  by  me  March  23,  1905. 

Section  10  of  title  8  of  the  Consolidated  School  Law  provides  that  a 
majority  of  the  voters  of  a  union  free  school  district  may  designate  a  site  for  the 
district.  Subdivision  6  of  section  15,  title  8  of  the  same  law  imposes  upon  the 
board  of  education  the  duty  "  to  purchase  a  site  .  .  .  for  the  district  as  desig- 
nated by  a  meeting  of  the  district."  When  the  voters  of  the  district  at  a  district 
meeting  have  designated  a  site  it  is  the  duty  of  the  board  of  education  to  purchase 
such  site  under  the  terms  directed  by  tlie  district.  It  was  the  duty  of  the  board 
of  education  of  this  district  to  purchase  the  Hutchins  site  as  directed  by  the  voters 
of  the  district  at  a  meeting  held  January  17,  1905. 


JUDICIAL  decisions:     hoard  of  education  89 

Two  answers  to  this  a]ypeal  have  been  submitted.  Thomas  F.  Mein  and 
Albert  B.  Crabb,  members  of  the  board  of  education,  concur  in  the  statement  set 
forth  by  appellants  in  their  moving  papers.  The  other  members  of  the  board  of 
education,  seven  in  number,  set  forth  three  reasons  for  failing  to  purchase  the 
Hutchins  site  and  for  calling  another  special  meeting  of  the  district.  The  grounds 
on  which  they  base  their  action  are : 

1  That  the  site  was  not  regularly  designated. 

2  That  the  Hutchins  site  is  not  a  suitable  one  for  the  erection  of  the  build- 
ing desired  in  this  district. 

3  That  appellants  are  not  able  to  give  good  title  to  the  property. 

The  board  of  education  is  not  the  proper  authority  to  determine  whether 
the  site  was  properly  designated  or  not.  The  records  show  that  the  methods  of 
procedure  in  relation  to  this  matter  were  generally  regular  and  in  good  form. 
It  was  w^ell  understood  throughout  the  district  that  the  meetings  were  to  be  held. 
The  meetings  were  orderly  and  well  attended.  The  merits  of  the  various  sites 
were  generally  discussed  for  several  wrecks  and  an  open  discussion  took  place  at 
the  meeting  of  January  17th.  The  meeting  appears  to  have  been  eminently  fair. 
If  any  of  the  proceedings,  from  the  issuance  of  the  call  of  the  meeting  to  its  close, 
v^rere  sufficiently  irregular  to  warrant  the  setting  aside  of  such  proceedings  the 
remedy  of  any  aggrieved  party  was  an  appeal  to  the  Commissioner  of  Education. 
Such  appeal  should  have  been  brought  within  30  days  from  the  date  on  which 
such  irregular  acts  occurred.  The  board  of  education  having  failed  to  avail 
itself  of  this  remedy  within  the  proper  time,  it  will  not  be  permitted  at  this  time 
to  interpose  a  mere  technicality  as  sufficient  ground  for  setting  aside  the  wishes 
of  a  majority  of  the  voters  of  the  district  clearly  and  properly  expressed  at  a 
legal  meeting.  The  records  of  the  board  of  education  show  that  such  board 
recognized  the  action  of  the  meeting  of  January  17th  as  proper  and  legal. 

The  notice  given  by  the  board  for  the  special  meeting  of  February  24th  states 
that  one  of  the  propositions  to  be  voted  upon  is  "  Shall  the  resolution  for  the 
selection  of  a  schoolhouse  site  and  for  the  raising  of  money  for  the  purchase  of 
the  same,  passed  at  the  last  special  meeting  of  said  union  free  school  district,  held 
January  17,  1905,  be  rescinded?  "  The  resolution  offered  by  Mr  Atwater  at  the 
meeting  of  the  board  on  March  13,  1905,  contains  the  following  proposition: 
"  Shall  the  resolution  for  the .  selection  of  a  schoolhouse  site  and  for  raising 
of  money  for  the  purchase  of  the  same,  passed  at  the  special  meeting  of  said  union 
free  school  district,  held  January  17,  1905,  be  rescinded?  "  The  board  of  educa- 
tion put  itself  on  record  twice  as  saying,  "'  Shall  the  resolution  for  the  selection 
of  a  schoolhouse  site  etc.  be  rescinded?  "  At  no  time  does  the  regularity  of  the 
proceedings  of  the  meeting  of  January  17th  appear  to  have  been  questioned  by 
the  board  of  education  until  the  appeal  was  brought.  In  view  of  the  previous 
action  of  the  board,  such  claim  does  not  appear  to  be  made  in  good  faith  now. 

The  board  also  claims  that  the  Hutchins  site  is  not  a  suitable  one;  that  it  is 
not  centrally  located;  that  it  is  not  sufficiently  level;  that  it  is  springy,  etc.  If 
these  claims  are  true  such  facts  were  in  the  possession  of  the  voters  of  the  district 
at  the  time  of  the  special  meeting  in  January  when  such  site  was  chosen.     The 


90  THE   UNIVERSITY    OF   THE   STATE    OF   NEW   YORK 

judgment  of  a  majority  of  the  voters  of  the  district  regularly  and  fairly  expressed 
at  a  district  meeting  must  be  accepted  in  lieu  of  the  opinion  of  a  majority  of  the 
members  of  the  board  of  education. 

The  respondents  claim  that  the  Hutchins  property  is  subject  to  a  mortgage 
that  does  not  become  due  until  January  i,  1906,  and  that  the  mortgagee  refuses 
to  discharge  such  mortgage  or  accept  the  amount  due  on  the  same  until  that  date 
and  that  appellants  are  thereby  unable  to  give  clear  title  to  such  property. 

Appellants  acknowledge  that  the  Hutchins  lot  is  subject  to  such  mortgage 
and  show  that  the  total  amount  which  will  be  due  on  such  mortgage  January  i, 
1906,  is  one  hundred  five  dollars  ($105).  Appellants  show  that  such  amount  in 
geld  coin  of  the  United  States  has  been  tendered  the  mortgagee  and  that  she 
refuses  to  accept  it.  Appellants  also  show  that  said  tender  has  been  deposited  in 
the  Norwood  State  Bank  to  the  credit  of  the  mortgagee  and  that  the  cashier  of 
said  bank  has  notified  the  mortgagee  of  the  deposit  of  such  tender.  The  appel- 
lants show  that  they  offered  to  put  up  a  bond  to  indemnify  the  district  or.  to  per- 
mit the  board  of  education  to  deduct  from  the  purchase  price  an  amount  suffi- 
cient to  satisfy  the  mortgage. 

The  existence  of  this  mortgage  was  not  sufficient  ground  for  the  board  of 
education  to  refuse  to  carry  into  effect  the  direction  of  the  district  meeting.  The 
existence  of  this  mortgage  appears  to  have  been  known  to  residents  of  the  dis- 
trict at  the  time  such  lot  was  designated  as  a  site.  It  appears  that  Mr  Flanagan, 
the  attorney  for  respondents,  drew  the  mortgage  and  that  his  law  partner,  Mr 
Atwater,  one  of  the  members  of  the  board  of  education  and  one  of  the  respond- 
ents, witnessed  its  execution. 

The  action  of  the  special  meeting  of  the  district  held  January  17,  1905,  was 
legal  and  also  binding  upon  the  district.  The  appellants  thereby  became  the 
vendors  of  the  real  estate  in  question  and  the  district  became  the  purchaser  of 
such  real  estate.  If  appellants  are  able  to  give  a  marketable  title  to  this  property 
the  purchaser,  the  district,  is  bound  to  accept  it.  The  only  question  to  determine, 
therefore,  is  whether  or  not  the  incumbrance  of  $105,  the  balance  of  an  outstand- 
ing mortgage  due  January  i,  1906,  is  sufficient  to  render  the  title  of  this  property 
unmarketable.  The  vendors  are  able  to  give  immediate  possession.  The  title  to 
the  property  in  question  is  not  doubtful.  It  is  simply  incumbered.  The  amount 
of  the  incumbrance  is  definitely  known  to  both  parties.  The  date  when  it  becomes 
due  is  fixed  and  known  to  both  parties  and  is  in  the  near  future.  In  a  court  of 
equity  the  appellants  could  undoubtedly  enforce  specific  performance  on  the  part 
of  the  purchaser.  The  accepted  rule  on  this  question  is :  "An  incumbrance  upon 
the  premises  so  long  as  it  may  be  removed  by  application  of  the  purchase  money 
or  where  the  vendor  being  solvent  offers  to  remove  it  or  may  be  compelled  to 
do  so,  furnishes  no  ground  upon  which  the  purchaser  may  refuse  to  complete  the 
contract  or  recover  damages  against  the  vendor."  (See  §  304,  Maupin  on 
Marketable  Title  to  Real  Estate;  96  Am.  Dec.  582;  Webster  v.  K.  T.  C.  Co.  145 
N.  Y.  281.) 

The  conclusion  must  be  reached  in  this  appeal  that  a  majority  of  the  board 
of  education  is  not  justified  in  delaying  an  acceptance  of  this  property.     There 


JUDICIAL  decisions:     board  of  education  91 

appears  to  have  been  the  usual  discussion  and  rivalry  in  this  district  incident  to 
the  designation  of  a  site.  A  determined  effort  was  made  by  certain  residents  of 
the  district  to  select  one  other  than  the  Hutchins  lot.  Mr  Atwater  appears  to 
have  been  prominently  identified  with  this  element.  He  was  present  at  the  Jan- 
uary meeting  and  spoke  against  the  selection  of  the  Hutchins  lot.  He  offered  to 
contribute  $100  toward  the  equipment  of  the  new  building  if  the  district  would 
select  the  Bemis  lot.  In  the  face  of  these  arguments  and  inducements  the  district 
meeting  voted  to  select  the  Hutchins  lot.  The  pleadings  do  not  show  that  such 
action  was  unwise.  The  voters  of  the  district  passed  upon  the  wisdom  of  this 
selection  three  times,  and  each  time  by  an  increased  majority.  It  is  not  shown 
that  any  of  the  residents  of  the  district  petitioned  for  a  further  opportunity  to 
express  their  wishes  upon  the  location  of  a  site  previous  to  the  last  call  for  a 
special  meeting  or  before  this  appeal  was  brought.  Ordinarily  this  Department 
will  not  interfere  with  the  action  of  a  board  of  education  in  referring  to  a  district 
meeting  any  question  involving  the  interests  of  the  district.  On  the  contrary  it 
encourages  such  action.  A  board  of  education,  however,  will  not  be  permitted  to 
delay  the  execution  of  directions  from  a  district  meeting  or  to  thwart  the 
expressed  wishes  of  a  majority  of  the  legal  voters  of  a  district  without  good 
cause  by  calling  special  meetings  of  the  district  to  pass  upon  questions  which  the 
district  has  already  decided  three  times. 

The  appeal  herein  is  sustained. 

It  is  ordered,  That  the  board  of  education  of  union  free  school  district  no.  i, 
town  of  Norfolk,  St  Lawrence  county,  shall  without  unnecessary  delay,  accept 
in  behalf  of  said  district  the  Hutchins  lot  as  a  schoolhouse  site  and  obtain  title 
thereto  as  the  law  provides.  In  performing  this  duty  the  said  board  of  education 
shall  exercise  the  usual  methods  of  prudent  men  to  protect  the  said  district  from 
any  loss  which  might  result  from  the  incumbrance  on  said  Hutchins  lot  as  appears 
herein,  and  said  board  of  education  shall  therefore  determine  whether  the  amount 
of  said  incumbrance  shall  be  deducted  from  the  purchase  price  of  said  lot, 
whether  the  vendors  shall  give  a  bond  of  indemnity  with  proper  sureties,  or 
whether  some  other  plan  shall  be  pursued  which  shall  afford  sufficient  and  proper 
protection  to  the  district  in  the  premises. 


5289 
In  the  matter  of  the  appeal  of  Corwin  J.  Thomas  and  others  from  the  action 
of   the   board   of   education    of   Pike   Seminary   union   free   school   district 
no.  8.  town  of  Pike,  county  of  Wyoming. 
The  Commissioner  of  Education  will  not  interfere  with  the  action  of  a  board  of  education 
whose    business    transactions    have    not    conformed    to    the    statutes    through    lack    of 
knowledge  of  the  provisions  of  such  statutes  when  it  is  shown  that  the  board  acted 
honestly  and  in  good  faith  and  when  such  board  gives  full  publicity  to  the  voters  of 
the  district  of   its  transactions  and  takes  prompt  action  to  correct  all  errors  as   soon 
as  such  board  receives  information  of  the  procedure  to  be  taken  under  the  circumstances. 
Decided  October  23,  1906 

G.  ^\^  Hardin^f,  attorney  for  appellant 


9^  THE    UNIVERSITY    OF   THE    STATE    OF    NEW    YORK 

Draper,  Couiinissioner 

It  is  alleged  in  this  appeal  that  the  annual  report  of  the  board  of  education 
is  not  sufficiently  exphcit  in  relation  to  the  finances  of  the  district  as  to  give  the 
taxpayers  of  the  district  a  proper  understanding  of  the  real  financial  status  of 
the  afifairs  of  the  district.  It  is  alleged  that  many  of  the  expenditures  of  the 
board  are  given  in  the  aggregate  amount  instead  of  itemized  form.  It  is  alleged 
that  the  tax  list  issued  soon  after  the  last  annual  meeting  does  not  contain  the 
heading  required  by  law.  It  is  also  asserted  that  the  annual  report  for  1905  was 
not  published  as  required  by  law.  It  is  further  alleged  that  the  board  of  educa- 
tion without  authority  borrowed  $1100  to  meet  current  expenses  of  the  school 
and  is  still  paying  interest  on  that  sum.  It  is  not  charged  or  imphed  in  the 
moving  papers  that  the  board  of  education  has  wasted  or  extravagantly  expended 
the  funds  of  the  district.  It  is  not  charged  or  implied  in  any  way  that  the  board 
of  education  has  been  guilty  of  any  intentional  wrongful  conduct.  In  general 
the  most  that  is  charged  is  that  the  method  of  procedure  has  been  irregular, 
that  the  board  has  exceeded  its  authority  and  that  information  desired  is  not 
obtainable. 

The  board  of  education  makes  a  straightforward  open  answer  and  explana- 
tion to  all  these  allegations.  The  board  acknowledges^  that  the  tax  list  did  not 
contain  the  heading  prescribed  by  law,  but  it  asserts  that  all  taxpayers  have  paid 
their  taxes  and  without  protest.  It  states  that  the  treasurer  prepared  the  tax 
list  and  used  an  old  form  of  heading  without  understanding  the  legal  require- 
ments. 

The  answer  of  the  board  shows  that  all  appellants  (except  Greene  who,  it 
is  charged,  is  not  a  legal  voter)  were  at  the  annual  meeting  of  August  7,  1906, 
when  its  report  was  read  and  that  such  report  was  approved  and  accepted  with- 
out a  dissenting  vote.  If  the  report  was  incorrect,  misleading  or  incomplete  it 
was  the  duty  of  the  appellants  to  object  at  that  time,  but  failing  to  raise  such 
objection  and  the  report  having  been  accepted  appellants  are  barred  from  object- 
ing now  unless  they  show  that  they  possess  information  now  in  relation  thereto 
which  was  not  known  then.     This  is  not  shown. 

This  school  district  was  only  organized  into  a  union  free  school  district  in 
1904.  Upon  the  organization  of  such  district  Pike  Seminary  was  transferred 
to  it.  The  board  asserts  that  during  this  transitory  period  the  board  of  educa- 
tion in  power  failed  to  make  definite  estimates  and  levy  sufficient  taxes  to  meet 
the  ordinar}^  running  expenses.  It  is  also  stated  that  the  board  of  education  in 
power  at  that  time  believed  that  the  interest  accruing  from  the  endowment 
fund  of  Pike  Seminary  which  would  become  an  asset  of  the  district  could  be 
legitimately  used  to  pay  the  deficiency  in  the  maintenance  fund  of  the  school 
district.  The  board  acknowledges  that  for  the  reasons  above  stated  it  borrowed 
in  April  and  May  1904,  the  sum  of  $1100  from  the  endowment  fund  in  question. 
There  was  no  secrecy  about  the  action  of  the  board  and  the  fact  that  such  loan 
had  been  made  was  generally  known  and  that  knowledge  of  all  facts  in  connec- 
tion therewith  have  been  known  to  appellants   for  two  years  or  more.     The 


JUDICIAL   DECISIONS  :       BOARD    OF   EDUCATION  93 

board  also  claims  that  it  acted  in  entire  good  faith  in  the  whole  transaction  and 
on  the  belief  that  it  had  full  legal  authority  to  do  so. 

The  board  in  its  answer  also  shows  that  it  has  called  a  special  meeting 
of  tlie  district  to  permit  the  voters  of  the  district  to  provide  means  and  methods 
of  liquidating  the  indebtedness  in  question.  It  appears  that  the  special  meeting 
will  be  required  to  authorize  the  issue  of  bonds  to  meet  this  indebtedness.  The 
attention  of  the  board  is  directed  to  the  provisions  of  sections  9  and  10  of  title 
8  of  the  Consolidated  School  Law  as  to  the  purposes  for  which  bonds  may  be 
issued.    The  district  has  not  authority  to  issue  bonds  for  this  particular  purpose. 

Respondents  admit  that  no  report  for  1905  was  published  as  the  board  was 
not  familiar  with  the  requirements  of  the  law  in  that  respect.  The  board  how- 
ever did  publish  its  report  for  1906  when  it  understood  the  law  governing  the 
same.  It  is  too  late  for  appellant  to  raise  that  question  now  as  15  months  have 
occurred  since  failure  to  publish  such  report.  Such  report  as  it  appears  on  the 
official  files  is  open  to  the  inspection  of  any  legal  voters  of  the  district. 

It  appears  that  the  Pike  Seminary  building  burned  in  December  1904.  and 
that  the  school  district  thereafter  erected  a  new  building  or  repaired  the  one 
injured  by  fire.  The  pleadings  are  not  clear  upon  this  point,  but  the  board 
makes  a  report  on  a  building  fund.  This  report  shows  in  receipts  an  item  under 
the  head  of  insurance  to  the  amount  of  more  than  $7000,  one  of  bonds  sold 
for  $3000  and  a  total  of  $10,598.32.  One  of  the  criticisms  on  that  report  is 
that  the  items  under  expenditure  are  not  given  in  detail.  The  report  shows  that 
$6548.68  were  paid  to  the  Silver  Springs  Manufacturing  Co.  This  report  does  not 
show  what  the  expenditure  was  for.  It  evidently  was  for  something  in  connection 
with  the  building.  It  is  not  shown  whether  the  building  was  erected  under  con- 
tract or  by  the  district.  It  was  not  practicable  to  publish  an  itemized  statement 
of  such  expenditure  or  to  report  it  in  full  in  detail  to  the  meeting.  If  such 
expenditure  was  under  contract  it  is  immaterial.  If  it  was  not  under  contract 
but  was  for  material,  labor  etc.  the  proper  course  would  be  to  appoint  an  audit- 
ing committee  to  go  over  all  accounts  Vv^ith  the  board  and  pass  upon  them. 
Other  items  in  this  report  may  be  treated  similarly. 

Appellants  allege  that  they  are  unable  to  get  full  information  on  these 
expenditures  but  respondents  claim  that  no  request  has  ever  been  made  for 
such  information  from  any  of  appellants  except  Mr  Smith.  They  claim  that 
the  secretary  and  treasurer  showed  Mr  Smith  all  exhibits  and  explained  all 
items  fully  to  him  and  that  he  expressed  himself  as  fully  satisfied  that  the 
aggregate  amounts  as  shown  in  the  report  were  fully  accounted  for  in  the 
books   and  vouchers   which   he   examined. 

The  relief  requested  by  appellants  is  an  order  from  me  directing  the  exam- 
ination of  all  papers  and  books  by  the  school  commissioner  of  the  district.  I 
do  not  think  such  action  necessary.  The  board  of  education  has  been  eminently 
fair  in  its  treatment  of  appellants  and  oflfers  them  full  opportunity  to  obtain  any 
information  desired  or  which  is  in  its  possession.  The  board  acknowledge  all 
irreo-ularities  which  exist  or  which  have  taken  place  and  have  corrected  the  same 


94  THE   UNIVERSITY    OF   THE   STATE    OF   NEW    YORK 

as  far  as  possible.  No  improper  motives  are  alleged  to  have  impelled  the  board 
in  its  action  in  any  of  these  matters.  Any  resident  of  the  district  has  full  access 
to  the  official  records  and  until  it  is  shown  that  the  board  is  unwilling  to  afford 
reasonable  access  to  such  records  assistance  should  not  be  requested  from  outside 
sources. 

The  appeal  is  dismissed. 


5142 

In  the  matter  of  the  appeal  of  Helen  Clark  v.  the  board  of  education  of  union 
free   school   district  no.    i,   town   of   Thompson,    SulHvan   county. 

The  legally  constituted  authorities  of  a  school  act  wholly  within  their  legal  rights  in  ex- 
ercising control  of  the  expressions  and  the  business  matters  of  a  publication  which  is 
held  out  to  represent  the  school.  Such  authorities  are  not  only  legally  warranted  in 
doing  it  but  they  are  legally  obligated  to  do  it.  A  publication  standing  for  a  high  school 
and  appealing  to  the  constituency  of  that  school  on  such  ground  is  not  a  private  or 
personal  affair,  but  a  public  affair  and  subject  to  public  authority. 

Decided  September  16,  1904 

Wilton  Bennett,  attorney  for  petitioner 

Draper,  Commissioner 

This  is  an  appeal  from  the  action  of  the  board  of  education  of  Monticello 
union  free  school  district  no.  i,  town  of  Thompson,  Sullivan  county,  in  sus- 
taining the  action  of  the  principal  of  the  union  free  school  in  suspending  from 
the  school  the  son  of  the  appellant. 

The  difficulty  arose  as  follows :  Several  pupils  in  the  school,  among  whom 
Matthew  J.  Clark  seems  to  have  been  an  energetic  and  leading  spirit,  began  the 
publication  of  a  school  paper  which  they  called  the  High  School  Mirror.  So  far 
as  I  can  learn  from  the  papers  presented,  this  publication  at  first  had  no  school 
organization  behind  it,  nor  was  it  fairly  representative  of  the  school.  There 
can  be  no  doubt,  however,  that  it  assumed  to  represent  the  school,  and  sub- 
scriptions and  advertisements  on  the  ground  that  it  was  the  paper  of  the  Mon- 
ticello High  School,  were  solicited  and  received.  It  does  not  appear  that  the 
school  authorities  at  first  either  aided  or  disapproved  of  the  enterprise.  In 
time  the  paper  attained  some  success  securing  considerable  patronage.  The 
statements  of  the  parties  lead  me  to  conclude  that  this  was  largely  diie  to  the 
energy  and  business  skill  of  Matthew  Clark.  With  success  came  responsibilities 
in  the  way  of  moneys,  obligations  and  editorial  policies,  which  involved  or  were 
sure  to  involve  the  school,  its  faculty  and  the  board  of  education.  In  view  of 
this  the  principal  proceeded  to  secure  as  responsible  an  organization  as  was  prac- 
ticable among  the  pupils  for  the  management  of  the  affairs  of  the  paper.  Such 
an  organization  was  effected,  went  into  operation  and  called  upon  Clark,  who 
was  the  business  manager,  to  make  an  accounting  and  submit  the  management 
of  the  paper  to  the  organization.     He  refused  to  do  this,  taking  the  ground  that 


JUDICIAL  decisions:     board  of  education  95 

the  publication  was  a  personal  affair  with  such  students  as  had  participated  and 
not  answerable  to  a  school  organization  or  to  the  school  authorities.  He  thus 
joined  the  issue  with  authority  and  in  time  was  suspended  from  school  privileges 
by  the  principal  who  was  sustained  by  the  board  of  education. 

It  seems  to  me  that  there  can  be  no  doubt  about  the  legally  constituted 
authorities  of  a  school  being  wholly  within  their  legal  rights  in  exercising  control 
of  the  expressions  and  the  business  matters  of  a  .publication  which  is  held  out 
to  represent  the  school.  Not  only  are  they  legally  warranted  in  doing  it  but  they 
are  legally  obligated  to  do  it.  Under  the  law  they  are  charged  with  the  duty 
of  protecting  the  good  name  of  the  school ;  of  keeping  the  organization  free 
from  whatever  may  discredit  it,  and  of  maintaining  such  a  state  of  disciphne 
among  pupils  as  will  insure  harmony  and  efit'ectiveness  of  procedure  and  accom- 
plish the  general  ends  for  which  the  school  is  maintained. 

The  highest  point  of  effectiveness  is  reached  when  this  general  principle  is 
commonly  assumed  and  the  largest  practicable  freedom  is  accorded  to  the  pupils ; 
that  is,  when  the  pupils  are  capable  of  exercising  the  largest  freedom  without 
rebelling  against  the  fact  that  in  the  last  resort  the  legal  and  responsible  gover- 
nors of  a  school  must  govern. 

There  would  be  some  pleasure  in  sustaining  this  energetic  young  manager, 
but  he  is  in  error.  His  error  lies  in  the  fact  that  he  does  not  see,  as  he  probably 
will  when  he  is  older,  that  a  publication  standing  for  the  Monticello  High  Schoo". 
and  appealing  to  the  constituency  of  that  school  on  that  ground  is  not  a  private 
or  personal  affair.  It  becomes  a  public  affair  and  so  subject  to  public  authority. 
The  principal  acted  lawfully  and  moderately,  firmly  and  wisely,  and  the  board  of 
education  was  correct  in  sustaining  him.  It  follows  that  the  appeal  must  be 
dismissed. 

Appeal  dismissed. 


5161 

In  the  matter  of  the  petition  for  the  removal  of  Christopher  H.  Stark  et  al.  as 
trustees  of  union  free  school  district  no.  2,  town  of  Highlands,  Orange 
county. 

When  a  board  of  education  fails  to  comply  with  the  direction  of  a  district  meeting  owing 
to  some  great  emergency  but  reports  fully  in  relation  thereto  to  the  next  district  meetmg 
and  the  meeting  acquiesces  in  the  judgment  of  such  board  by  adopting  its  report,  the 
board  can  not  be  regarded  as  having  acted  in  bad  faith,  or  as  not  having  been  open  and 
fair  in  its  dealings  to  the  district. 

It  is  legal  and  proper  for  a  board  of  education  to  expend  for  current  expenses  any  of  the 
usual  receipts  which  are  paid  into  the  treasury  of  a  district.  If  appropriations  voted 
at  a  district  meeting  for  contingent  expenses  are  insufficient  the  board  possesses  power 
to  levy  a  tax  for  the  necessary  amount  to  meet  the  expenditures  for  contingent  purposes. 

Certificates  of  indebtedness  may  be  issued  by  a  board  of  education  in  anticipation  of  taxes 
levied  but  uncollected.  Such  certificates  can  not  be  legally  issued  unless  such  taxes 
have  been  levied. 


9&  THE   UNIVERSITY    OF   THE   STATE    OF   NEW   YORK 

A  mere  allegation  by  a  layman  that  water-closets  are  in  an  unsanitary  condition  is  not  com- 
petent proof  when  a  board  of  education  and  a  district  meeting  decide  that  such  closets 
are  suitable  for  use  for  one  year.  This  allegation,  however,  is  sutlicient  to  warrant  an 
mvestigation  by  competent  authority  to  determine  the  condition  of  such  closets. 

Decided  January  4,  1905 

Robert  H.  Earnett.  attorney  for  petitioners 
C.  L.  Waring,  attorney  for  respondents 

Draper,  Commissioner 

The  petitioners  herein  allege  five  specific  acts  of  wilful  violation  of  law  or 
of  wilful  refusal  or  neglect  to  perform  oflicial  duties  as  trustees  on  which  they 
ask  this  Department  to  remove  from  ofiice  the  trustees  of  union  free  school 
district  no.  2,  town  of  Highlands,  constituting  a  board  of  education  of  such 
district. 

The  first  and  one  of  the  most  important  charges  made  against  these  trustees 
IS  their  failure  to  provide  new  water-closets.  The  board  of  education,  through 
Its  budget  presented  to  the  annual  meeting  in  1903,  requested  an  appro- 
priation of  $500  for  building  new  water-closets.  The  district  voted  an  appro- 
priation of  that  amount  for  such  purpose.  The  trustees  failed  to  erect  the  water- 
closets.  They  used  part  of  the  money  appropriated  for  these  closets  to  enlarge 
the  accommodations  of  the  primary  department.  The  budget  of  the  trustees 
for  1903  also  contained  an  item  of  $350  for  furnishing  additional  accommoda- 
tions for  the  primary  department  and  an  appropriation  for  that  amount  and 
purpose  was  voted.  The  respondents  set  forth  that  when  they  commenced  to 
equip  sufficient  additional  accommodations  for  the  primary  department  it  was 
found  impossible  to  do  so  on  the  appropriation  voted  and  they  therefore  used 
part  of  the  money  for  that  purpose  which  had  been  appropriated  for  water- 
closets.  The  respondents  claim  that  they  regarded  the  making  of  these  accommo- 
dations of  more  importance  to  the  district  than  the  building  of  the  water-closets 
and  especially  so  since  these  increased  accommodations  were  made  on  the  recom- 
mendation of  an  inspector  of  this  Department.  It  appears  that  the  board  of 
trustees  made  a  full  report  to  the  annual  meeting  of  the  district  on  their  action 
in  failing  to  erect  such  water-closets  and  in  using  part  of  the  appropriation 
therefor  for  increasing  the  primary  department  accommodations.  It  appears 
that  such  report  was  accepted  by  the  annual  meeting  and  the  acts  of  the  trustees 
in  the  matters  in  question  were  also  ratified  by  such  meeting.  The  district, 
therefore,  acquiesced  in  the  action  of  the  board  and  accepted  the  judgment 
exercised  by  the  board  as  having  been  in  accordance  with  the  wisest  course  to 
pursue  under  the  circumstances.  Under  these  conditions  the  board  can  not  be 
regarded  as  having  acted  in  bad  faith  or  as  not  having  been  open  and  fair  to 
the  district  in  dealing  with  the  question  of  closets  and  increased  accommodations 
for  the  primary  department. 

A  safer  and  wiser  course  for  the  board  to  have  pursued  under  such  cir- 
cumstances would  have  been  to  have  called  a  special  meeting  of  the  district  and 
permitted  such  meeting  to  have  decided  whether  additional  money  should  be 


JUDICIAL  decisions:     board  of  education  97 

appropriated  or  whether  that  appropriated  for  closets  should  be  used  for  other 
purposes. 

The  second  important  count  made  by  the  petitioners  is  the  expenditure  of 
money  in  excess  of  that  appropriated.  The  petitioners  include  in  their  moving 
papers  a  copy  of  the  report  of  the  board  of  education  to  the  annual  meeting  in 
1904.  This  report  shows  the  total  receipts  for  the  year  to  be  $16,904.03.  The 
report  also  shows  the  expenditures  including  "  balance  on  hand  "  to  be  $16,904.03 
and  the  appropriations  made  by  the  annual  meeting  of  1903  amounted  to  $13,694. 
The  expenditures  therefore  exceeded  the  appropriations  by  $3210.03.  The  other 
receipts  of  the  district  brought  the  total  amount  of  receipts  to  within  $700  of 
the  total  expenditures. 

In  preparing  its  budget  for  the  annual  meeting  of  1903  the  board  undoubtedly 
took  into  consideration  the  fact  that  there  would  be  receipts  from  various  sources 
which  could  be  legally  expended  for  many  purposes  and  therefore  made  their 
estimate  of  appropriations  to  be  voted  at  that  meeting  less  than  what  the  aggre- 
gate expenses  of  maintaining  the  school  system  would  be.  It  was  proper  that 
they  should  do  so.  It  would  undoubtedly  have  been  wiser  for  the  board  to  have 
stated  fully  all  sources  of  revenue  anticipated  for  the  year,  specifying  each  item. 
It  was  entirely  legal  and  proper  however  for  the  board  to  expend  for  the  current 
expenses  any  of  the  usual  receipts  which  are  generally  paid  into  the  treasury  of 
a  district.  If  the  appropriations  voted  at  the  district  meeting  for  teachers' 
salaries  or  for  contingent  expenses  were  insufficient  the  board  possessed  power 
under  section  20  of  title  8  of  the  Consolidated  School  Law  to  levy  a  tax  for  the 
necessary  amount  to  meet  the  expenditures  for  such  purposes.  It  is  not  even 
alleged  by  the  petitioners  that  these  expenditures  were  not  made  for  legitimate 
purposes.  The  itemized  report  of  the  board  accepted  at  the  annual  meeting 
shows  the  expenditures  to  have  been  proper  and  within  the  legal  power  of  the 
board.  The  amount  appropriated  for  teachers'  salaries  was  $6250.  The  actual 
amount  expended  was  $7738.65,  an  excess  over  the  appropriation  of  $1488.65. 
The  amount  appropriated  for  fuel  was  $500.  The  actual  amount  expended  was 
$717.40,  an  excess  of  $217.40.  It  is  unnecessary  to  go  into  the  details  of  all  of 
these  expenditures  as  all  others  appear  to  be  for  contingent  expenses  and  were 
within  the  legal  powers  of  the  board. 

It  is  also  alleged  that  the  board  exceeded  its  authority  by  issuing  a  trustee's 
note  for  $700.  The  respondents  state  in  their  answer  to  this  charge  that  such 
note  was  issued  by  them  under  authority  of  chapter  233,  Laws  of  1903.  This 
law  authorizes  a  board  of  education  to  issue  certificates  of  indebtedness.  Such 
certificates  are  to  be  issued  in  the  name  of  the  board  and  shall  be  signed  by  the 
president  and  clerk  thereof.  These  certificates  may  be  issued  in  anticipation  of 
taxes  levied  but  uncollected.  The  proceeds  of  this  note  amounted  to  $700  and 
were  used  to  meet  a  deficiency  in  the  expenses  of  the  district  for  the  payment 
of  which  no  provision  had  been  made.  The  law  did  not  confer  such  power  on 
the  board.  Not  having  the  available  funds  to  meet  the  expenses  of  the  district, 
the  board  should  have  levied  a  tax  to  meet  such  deficiency.  The  board  then 
would  have  possessed  power  to  issue  a  certificate  of  indebtedness. 


9^  THE   UNIVERSITY    OF  THE   STATE    OF   NEW   YORK 

It  is  also  charged  that  the  tax  list  and  warrant  were  not  filed  as  the  law 
requires  in  the  town  clerk's  ofiice.  It  appears  however  that  such  tax  list  and 
warrant  were  properly  filed  within  four  days  after  return  thereof  was  made  by 
the  collector  and  this  was  within  a  reasonable  time. 

It  is  also  charged  that  members  of  the  board  of  education  were  personally 
interested  in  contracts  for  the  district.  It  is  charged  that  one  Nelson,  a  former 
member  of  the  board  of  trustees  and  a  notary  public  and  justice  of  the  peace 
received  $7.50  for  acknowledging  affidavits  and  that  he  was  paid  $5  for  other 
purposes.  The  respondents  admit  that  these  payments  were  made  but  claim  that 
the  $5  was  for  traveling  expenses  to  consult  an  architect  and  that  said  Nelson 
went  to  consult  the  architect  at  the  direction  of  the  board.  The  charge  of  $7.50 
for  acknowledging  affidavits  was  an  improper  charge.  It  should  not  have  been 
audited  by  the  board  or  by  a  district  meeting.  The  clerk  of  the  district  is 
authorized  to  administer  oaths  in  all  matters  pertaining  to  the  school  aflfairs  of 
the  district.  He  received  a  salary  and  should  have  performed  this  duty  without 
additional  compensation. 

It  is  also  charged  that  the  clerk  of  the  district  was  interested  in  contracts. 
It  appears  that  he  performed  certain  work  in  the  nature  of  grading,  etc.,  but  the 
board  had  a  right  to  employ  him  for  this  purpose  as  a  clerk  of  the  board  is  not 
a  member  of  such  board  but  its  employee. 

In  connection  with  the  charge  of  wilful  failure  of  the  board  to  build  water- 
closets,  it  is  alleged  that  the  present  closets  are  in  an  unsanitary  condition. 
Competent  proof  is  not  offered  however  in  substantiation  of  this  charge.  No 
certificate  of  a  school  commissioner  or  of  a  health  officer  has  been  filed  on  this 
question.  A  mere  allegation  by  a  layman  that  closets  are  in  an  unsanitary  con- 
dition is  not  competent  proof  when  a  board  of  education  and  a  district  meeting 
decide  that  such  closets  are  suitable  for  use  for  one  year.  This  allegation,  how- 
ever, is  sufficient  to  warrant  an  investigation  by  competent  authority  to  deter- 
mine the  condition  of  such  closets.  This  Department's  inspector  of  school  build- 
ings will  therefore  be  authorized  to  make  such  investigation  without  delay.  If 
such  closets  are  found  to  be  in  an  unsanitary  condition  ^n  immediate  remedy 
will  be  applied. 

In  proceedings  of  this  kind  for  the  removal  of  trustees  this  Department  is 
governed  by  the  decisions  of  the  courts  of  the  state.  The  Commissioner  of  Edu- 
cation, under  section  13,  title  i  of  the  Consolidated  School  Law,  may  remove 
a  school  officer  who  has  been  guilty  of  any  wilful  violation  or  neglect  of  duty, 
etc.  The  courts  have  held  that  the  term  zvilful  as  used  in  this  connection  means 
"  intentional."  The  language  of  the  court  is  "  the  words  '  wilful  violation  of 
duty'  as  used  in  section  13,  title  i  of  the  Consolidated  School  Law,  as  applicable 
to  acts  for  which  members  of  a  board  of  education  may  be  removed  by  the  State 
Superintendent  [Commissioner  of  Education]  must  be  construed  to  mean  acts 
intentionally  done  with  a  wrongful  purpose."  See  63  Hun  389,  and  37  Appellate 
Division  Reports  44. 

The  petitioners  have  failed  in  establishing  by  a  preponderance  of  proof  that 
the  respondents  in  any  way  acted  intentionally  with  a  wrongful  purpose. 


JUDICIAL  decisions:     board  of  education  99 

In  my  opinion  the  respondents  have  shown  that  they  acted  in  entire  good 
faith  in  all  of  these  matters.  They  submitted  a  clear  and  complete  report  of 
all  their  official  acts  to  the  annual  meeting  of  the  district.  Such  meeting  accepted 
the  report  and  ratified  the  acts  of  such  trustees. 

The  petition  is  dismissed  and  the  prayer  of  the  petitioners  is  denied. 


5420 

In  the  matter  of  the  appeal  of  R.  J.  McDowell  and  Thomas  Henderson  from 
the  proceedings  of  annual  school  meeting  of  union  free  school  district  no.  3, 
Mooers,  Clinton  county. 

Notice  of  submission  of  question  of  increase  of  members  of  board  of  education  at 
annual  meeting.  A  notice  of  an  annual  meeting  held  in  a  union  free  school  district, 
whose  boundaries  are  not  coterminous  with  an  incorporated  village,  prepared  and  posted 
by  the  district  clerk,  which  contains  a  statement  that  a  proposition  will  be  submitted  at 
such  meeting  to  increase  the  number  of  the  members  of  the  board  of  education,  is  not 
illegal,  nullifying  the  vote  upon  such  proposition,  because  such  statement  was  included 
without  authority  from  the  board,  where  it  appears  (i)  that  the  board  wrongfully  refused 
to  include  such  statement  in  the  notice;  (2)  that  the  qualified  electors  had  ample  oppor- 
tunity to  discuss  the  question  of  increasing  the  number  of  members  of  the  board  before 
the  meeting;  and  (3)  the  result  of  the  vote  upon  such  question  showed  that  the  senti- 
ment in  the  district  was  decidedly  in  favor  of  the  increase. 

Decided  November  3,  1909 

David  H.  Agnew,  attorney  for  appellant 
C.  I.  Vert,  attorney  for  respondent 

Draper,  Commissioner 

The  petitioners  in  this  case,  Russell  J.  McDowell  and  Thomas  Henderson, 
are  two  of  the  three  members  of  the  board  of  education  of  union  free  school 
district  no.  3,  town  of  Mooers,  Clinton  county.  They  ask  that  the  proceedings 
of  the  annual  school  meeting  held  in  such  district  on  August  3,  1909  "  in  voting 
upon  the  proposition  to  increase  the  number  of  trustees  from  three  to  five  be 
vacated  and  set  aside  as  illegal  and  void,  upon  the  ground  that  the  board  of 
education  had  not  authorized  the  submission  of  said  proposition  to  said  annual 
meeting  in  the  manner  provided  by  section  227  of  the  Education  Law  of  this 
State."  They  also  ask  that  the  election  of  M.  B.  Stewart  and  W.  S.  Stevenson 
who  were  voted  for,  upon  the  adoption  of  the  proposition  above  referred  to. 
be  vacated  and  annulled.  All  the  questions  properly  considered  on  this  appeal 
depend  for  their  determination  upon  the  disposition  of  the  question  raised  as 
to  the  validity  of  the  submission  of  the  proposition  for  increasing  the 
number  of  members  of  the  board  of  education  of  this  district.  The  boundaries 
of  the  district  are  not  coterminous  with  those  of  the  village  of  Mooers, 
and  section  227  of  the  Education  Law  provides  the  procedure  for  the  change 
in  the  number  of  members  of  the  board  of  education  of  such  district.     Such 


•too  THE  UNIVERSITY   OF  THE   STATE   OF   NEW  YORK 

section  is  as  follows:  "At  any  annual  meeting  held  in  any  union  free  school 
district  whose  limits  do  not  correspond  with  those  of  any  incorporated  village 
or  city,  the  qualified  voters  may  determine  by  a  majority  vote  of  such  voters 
present  and  voting,  to  be  ascertained  by  taking  and  recording  the  ayes  and  noes, 
to  increase  or  diminish  the  number  of  members  of  the  board  of  education  of 
such  district.  If  such  board  shall  consist  of  less  than  nine  members  and  such 
meeting  shall  determine  to  increase  the  number,  such  meeting  shall  elect  such 
additional  number  so  determined  upon  and  shall  divide  such  number  into  three 
classes,  the  first  to  hold  office  one  year,  the  second  two  years,  and  the  third  three 
years.  If  such  meeting  shall  determine  to  diminish  the  number  of  such  members 
composing  such  board,  no  election  shall  be  held  in  such  district  to  fill  the  vacancies 
of  the  outgoing  members  thereof  until  the  number  of  members  shall  correspond  to 
the  number  which  such  meeting  shall  determine  to  compose  such  board.  No  board 
of  education  of  such  district  shall  consist  of  less  than  three  nor  more  than  nine 
members.  A^o  change  shall  be  made  in  the  number  of  trustees  of  any  such  school 
district  unless  notice  is  given  by  the  board  of  education  at  the  time  ana  m  the 
same  manner  that  notice  is  given  of  the  annual  school  meeting  that  a  vote  zvill 
be  taken  upon  the  question  of  changing  the  number  of  trustees  at  such  annual 
meeting." 

From  the  papers  in  the  case  it  appears  that  a  petition,  signed  by  twenty-nine 
taxpayers  of  the  district,  was  presented  to  the  board  of  education  requesting 
the  board  to  insert  in  its  call  for  the  annual  meeting  a  notice  to  the  effect  that 
a  vote  will  be  taken  at  such  meeting  to  increase  the  number  of  the  members  of  the 
board  from  three  to  five.  The  signers  of  the  petition  owned  about  one-third 
of  the  taxable  property  in  the  district.  They  were  evidently  representative  men, 
influential  citizens  and  interested  in  the  welfare  of  the  school.  This  petition 
was  considered  by  the  board  at  a  meeting  held  July  6,  1909,  and  a  motion  that 
such  petition  be  received  and  a  proper  notice  be  inserted  was  rejected.  The 
petitioners  McDowell  and  Henderson  voted  against  such  motion  and  the  respond- 
ent, Chauncey  H.  Humphrey,  voted  in  its  favor.  The  notice  of  the  annual  meet- 
ing was  prepared  and  posted  by  the  said  Humphrey,  who  wa^  clerk  of  the  board. 
He  included  in  such  notice  a  statement  in  the  following  form : 

"  Notice  is  also  hereby  given  that  there  will  be  submitted  for  vote  at  said 
meeting  the  question:  Shall  the  number  of  the  board  of  education,  or  trustees, 
be  increased  from  three  to  five  members." 

The  board  did  not  authorize  the  insertion  of  such  statement.  It  was  appar- 
ently inserted  by  Mr  Humphrey  on  his  own  initiative  in  his  capacity  as  clerk. 
A  resolution  was  submitted  at  the  annual  meeting  in  conformity  with  the  notice 
increasing  the  number  of  members  of  the  board  from  three  to  five.  The  peti- 
tioners filed  a  written  protest  against  a  vote  being  taken  on  such  resolution. 
The  resolution  was  nevertheless  voted  upon  and  carried  by  a  vote  of  109  to  7. 
After  the  adoption  of  such  resolution  the  meeting  proceeded  to  elect  two  addi- 
tional trustees. 

It  is  insisted  that  under  section  227  of  the  Education  Law,  above  quoted,  a 
board  of  education  is  clothed  with  the  exclusive  power  of  determinino-  at  what 


JUDICIAL  decisions:     board  of  education  ioi 

time  and  under  what  circumstances  the  district  shall  vote  to  increase  or  diminish 
the  number  of  its  members,  and  that  if  such  power  is  not  exercised  the  qualified 
electors  of  the  district  may  not  vote  upon  such  question.  Such  a  construction  of 
the  statute  would  nullify  the  evident  intent  of  the  statute.  The  section  referred 
to  was  derived  from  section  31  of  title  8  of  the  former  Consolidated  School 
Law,  as  amended  by  Laws  of  1903,  chapter  463.  Before  the  amendment  of 
1903  an  annual  meeting  could  vote  upon  the  question  of  a  change  in  the  number 
of  members  of  the  board  of  education  without  a  notice  having  been  given.  The 
object  of  amending  the  law  by  providing  for  notice  is  apparent.  The  Legisla- 
ture intended  that  the  district  should  be  informed  in  advance  of  any  proposed 
action  changing  the  membership  of  the  board,  so  that  tliey  might  know  how 
many  members  were  to  be  elected  at  the  annual  meeting.  It  was  not  the  intent 
of  ihe  statute  to  vest  the  board  with  the  power  of  preventing  action  by  the  district 
on  this  important  question.  The  statute  imposes  upon  the  board  the  ministerial 
duty  of  giving  notice  that  the  question  of  a  change  will  be  voted  upon  at  the 
annual  meeting.  It  is  a  positive  duty  to  be  performed  by  the  board  whenever 
any  considerable  number  of  persons  request  such  notice  to  be  given.  Such  duty 
will  be  compelled  upon  an  appeal  upon  proof  of  the  required  facts. 

In  this  case  it  clearly  appears  that  the  petitioners,  constituting  a  majority 
of  the  board  of  education,  arbitrarily  rejected  a  petition  of  twenty-nine  taxpayers 
representing  nearly  one-third  of  the  taxable  property  in  the  district,  requesting 
that  the  board  give  notice  that  the  annual  meeting  would  vote  upon  an  increase  in 
the  membership  of  the  board.  This  was  a  violation  of  duty  and  an  official  wrong 
upon  the  district.  They  should  have  acted  favorably  upon  such  petition  and 
directed  the  clerk  to  include  in  the  notice  of  the  annual  meeting  a  statement  that 
such  increase  w'ould  be  voted  upon.  The  clerk  of  the  board,  who  was  a  member 
thereof,  took  upon  himself  to  right  this  wrong,  by  including  the  proper  statement 
in  the  notice  of  the  annual  meeting.  Except  for  the  fact  that  by  so  doing  he 
was  performing  a  legal  duty  imposed  by  statute  upon  the  board  itself,  I  would 
not  uphold  his  action.  The  clerk  of  the  board  must  ordinarily  be  deemed  its 
servant ;  he  should  not,  under  usual  circumstances,  be  permitted  to  overthrow  its 
official  acts.  But  where  the  unauthorized  act  is  the  performance  of  a  duty 
clearly  imposed  upon  the  board,  which  such  board  had  wilfully  refused  to 
perform,  it  may  be  necessary  to  sustain  and  give  legal  force  to  such  act. 

The  electors  of  district  no.  3,  town  of  Mooers,  were  entitled  to  the  privilege 
of  voting  upon  this  question  at  its  annual  meeting.  It  could  not  be  voted  upon 
without  notice.  The  board  unlawfully  refused  to  give  the  notice;  the  clerk 
exceeded  the  powers  usually  conferred  upon  clerks,  in  incorporating  the  required 
statement  in  the  notice  of  the  annual  meeting.  If  the  board  is  sustained  in  its 
wilful  violation  of  duty  the  district  will  be  deprived  of  the  privilege  which  right- 
fully belongs  to  it,  of  controlling  the  number  of  the  members  of  its  board  of 
education.  If  the  clerk  is  upheld  in  disregarding  the  direction  of  the  board, 
and  in  giving  notice  of  the  submission  of  the  proposition  for  an  increase  in  the 
number  of  members  of  the  board,  the  privilege  of  controlling  such  number  will 
be  preserved  to  the  district. 


I02  THE   UNIVERSITY    OF  THE   STATE    OF   NEW   YORK 

The  clerk  should  be  sustained  in  giving  such  notice.  The  notice  must  be 
held  legal  and  binding  upon  the  board,  and  sufficient  under  the  statute  to  justify 
the  vote  taken  upon  the  proposition  at  the  annual  meeting.  Since  the  notice 
should  have  been  given  by  the  board  in  the  performance  of  its  legal  duty  in 
respect  thereto,  it  is  proper  to  consider  such  notice  as  having  been  given  by  the 
board.  To  hold  otherwise  would  permit  the  board  to  profit  by  its  wrongful 
acts. 

Another  reason  exists  for  sustaining  the  acts  of  the  annual  meeting  in  voting 
upon  this  proposition.  The  result  of  such  vote  shows  that  the  sentiment  of  the 
district,  after  actual  notice  and  full  discussion,  was  decidedly  in  favor  of  such 
proposition.  There  is  no  claim  made  that  there  was  any  lack  of  information 
about  it.  No  unfair  advantage  of  those  opposed  to  it  was  taken.  It  is  always 
the  desire  of  the  Department  to  uphold  the  deliberate,  and  certainly  the  decisive, 
determination  of  a  school  district  upon  such  a  question.  Thus  we  come  to  the 
question  as  to  whether  the  Department  should  overthrow  the  determination 
simply  because  of  a  technical  defect  in  the  method  of  giving  the  notice,  which  in 
no  wise  reaches  the  merits  of  the  case.  The  Department  would  not  do  that 
without  absolute  necessity  and  I  do  not  think  it  exists  in  this  case. 

I  must  therefore  conclude  that  the  proposition  to  increase  the  number  of 
members  of  the  board  of  education  of  this  district  was  properly  and  legally 
voted  upon  at  the  annual  meeting ;  that  such  proposition  was  duly  adopted ;  that 
the  acts  of  such  meeting  in  electing  M.  B.  Stewart  and  W.  S.  Stevenson  as 
members  of  such  board  were  legal  and  binding  upon  the  district;  and  that  the 
acts  of  a  majority  of  the  board  of  education  as  constituted  by  the  election  of  the 
said  Stewart  and  Stevenson  are  valid. 

A  question  was  raised  as  to  the  resignation  of  Russell  J.  McDowell  and  as 
to  whether  he  is  now  a  member  of  the  board.  Such  resignation  was  not  legally 
made  and  the  said  McDowell  continues  as  a  member  of  such  board. 

The  appeal  is  dismissed. 


4276 

In  the  matter  of  the  appeal  of  Edgar  T.  Boudy,  from  election  of  John  S.  Knight 
as  member  of  the  board  of  education  of  union  free  school  district  no.  6,  town 
of  North  Greenbush,  Rensselaer  county. 

In  union  free  school  districts  other  than  those  whose  limits  correspond  to  those  of  an  incor- 
porated village  or  city,  the  vote  upon  a  proposition  to  increase  or  diminish  the  number 
of  members  of  the  board  of  education  must  be  ascertained  by  taking  and  recording  the 
ayes  and  noes  of  the  qualified  voters  present  and  voting  upon  said  proposition,  and  such 
proposition  must  receive  a  majority  of  the  votes  so  taken  and  recorded.  Where  the 
resolution,  increasing  the  number  of  the  members  of  the  board  of  education,  was  not 
acted  upon  in  the  manner  hereinbefore  stated,  the  election  of  an  additional  member  of 
said  board  is  null  and  void.  Proceedings  to  increase  or  diminish  the  number  of  mem- 
bers of  a  board  of  education  can  only  be  had  and  taken  at  the  annual  meeting  of  said 
district. 

Decided  October  9,  1894 

Van  xA-lstyne  &  Hevenor,  attorneys  for  respondent 


JUDICIAL  DECISIONS :      BOARD   OF   EDUCATION  IO3 

Crooker,  Sitl^erintendent 

This  appeal  is  taken  from  the  election  of  John  S.  Knight  as  a  trustee  or 
member  of  the  board  of  education  of  union  free  school  district  no.  6,  town  of 
North  Greenbush,  Rensselaer  county,  at  the  adjourned  annual  meeting  of  said 
district  held  on  August  14,  1894. 

The  following  facts,  material  to  the  questions  arising  upon  this  appeal,  are 
established  by  the  papers  presented  upon  said  appeal : 

That  the  limits  of  said  school  district  do  correspond  to  those  of  an  incor- 
porated village;  that  on  the  first  Tuesday  of  August  1894,  the  board  of  education 
of  said  district  consisted  of  six  members ;  that  the  annual  meeting  of  said  school 
district  was  held  on  the  first  Tuesday  of  August  1894,  at  which  the  annual  report 
of  the  board  of  education  of  receipts  and  expenditures,  with  vouchers,  and  the 
amount  of  money  necessary  to  be  raised  for  the  new  school  year,  were  presented 
and  said  vouchers  were  referred  to  a  committee  of  five  to  examine  and  report 
at  an  adjourned  meeting,  and  said  meeting  was  adjourned  to  August  14,  1894, 
at  8  o'clock  p.  m.,  that  on  August  14,  1894,  said  meeting  convened  pursuant  to 
adjournment,  and  after  the  transaction  of  some  business,  a  motion  was  made  that 
the  number  of  members  of  the  board  of  education  of  said  union  free  school  dis- 
trict be  increased  to  seven;  a  motion  was  made  that  the  matter  be  laid  over  for 
one  week  and  said  motion  was  lost,  and  thereupon  the  chairman  of  the  meeting 
appointed  two  tellers,  and  the  chairman  of  the  meeting  put  said  motion  for 
increasing  the  members  of  said  board  of  education  to  seven,  stating  that  all  those 
who  were  in  favor  of  the  motion  should  raise  their  right  hands  and  remain  so 
until  counted  by  the  tellers,  which  was  done,  the  tellers  reporting  that  the  number 
of  ayes  was  30;  the  chairman  then  stated  that  all  opposed  to  the  motion  should 
raise  their  right  hands  and  ren^ain  so  until  counted  by  the  tellers,  which  was  done, 
the  tellers  reporting  that  the  number  of  nays  was  9;  and  the  motion  was  declared 
adopted ;  that  an  election  was  then  had  for  an  additional  trustee  or  member  of 
said  board  of  education,  by  ballot,  with  the  following  result :  50  ballots  were  cast, 
of  which  Joseph  Parks  received  5,  Daniel  Layden  8,  Wesley  O.  Howard  7, 
Edgar  Boudy  12,  and  John  S.  Knight  18,  whereupon  the  chairman  declared  John 
S.  Kniglit  as  such  trustee. 

Under  section  31,  article  5,  title  8  of  the  Consolidated  School  Law  of  1894, 
it  is  enacted,  that  at  any  annual  meeting  held  in  any  union  free  school  district 
whose  limits  do  not  correspond  to  those  of  any  incorporated  village  or  city,  the 
qualified  voters  may  determine,  by  a  majority  vote  of  such  voters  present  and 
voting,  to  be  ascertained  by  taking  and  recording  the  ayes  and  noes,  to  increase 
or  diminish  the  number  of  members  of  the  board  of  education  of  said  district.  If 
such  board  shall  consist  of  less  than  nine  members  and  such  meeting  shall  deter- 
mine to  increase  the  number,  such  meeting  shall  elect  such  additional  number  so 
determined  upon,  and  shall  divide  such  number  into  three  several  classes,  etc.,  etc. 

Said  union  free  school  district  no.  12,  North  Greenbush,  under  section  31, 
above  cited,  had  the  power  and  authority,  at  its  annual  meeting,  held  on  the  first 
Tuesday  of  August,  or  at  the  adjourned  annual  meeting  on  August  14th,  to  deter- 
mine by  a  majority  vote  of  the  qualified  voters  present  and  voting,  such  vote  to 


I04  THE   UNIVERSITY    OF  THE   STATE    OF   NEW   YORK 

be  ascertained  in  the  manner  prescribed  in  said  section,  namely,  by  taking  and 
recording  the  names  of  each  voter  voting  thereon  and  also  taking  and  recording 
the  aye  or  no  of  each  voter  so  voting  upon  said  question  opposite  to  his  or  her 
name,  and  if  said  meeting  should  so  determine  it  could  then  elect  the  additional 
member  of  said  board.  The  proofs  show  that  the  vote  of  the  meeting,  upon  the 
question  to  increase  the  number  of  members  of  said  board  to  seven,  was  not  taken 
and  ascertained  in  the  manner  provided  by  said  section  31,  but,  on  the  contrary, 
said  vote  was  taken  and  ascertained  by  the  uplifted  hand.  The  said  district  did 
not,  at  its  annual  meeting  in  1894,  duly  and  legally  determine  to  increase  the 
number  of  members  of  the  board  of  education  of  said  district,  and  the  action 
and  proceedings  had  and  taken  relative  to  such  increase  was  null  and  void;  that 
no  action  to  determine  said  increase  can  be  taken  by  said  district  until  its  next 
annual  meeting. 

The  said  district  not  having  legally  determined  to  increase  the  members  of 
the  board  of  education  to  seven,  it  follows  that  the  meeting  could  not  legally 
elect  an  additional  member  of  said  board  and  that  the  actions  and  proceedings 
of  said  meeting  relative  to  the  election  of  such  additional  trustee  were  null  and 
void. 

The  school  law  requires  that  a  person  to  be  legally  elected  to  a  school  dis- 
trict office  must  receive  a  majovity  of  the  votes  cast  for  said  office.  Admitting, 
for  the  purpose  of  argument  only,  that  at  the  annual  meeting  of  said  district  it 
was  duly  and  legally  determined  to  increase  the  members  of  the  board  of  educa- 
tion to  seven,  the  meeting  failed  to  elect  any  person  as  such  additional  member. 
The  proofs  show  that  the  whole  number  of  ballots  cast  for  such  additional  mem- 
ber was  50;  a  majority  of  50  is  26;  no  one  received  26  votes,  and  hence  no  one 
was  legally  elected  as  a  trustee  or  member  of  said  board  of  education. 

I  find  and  decide  that  the  qualilied  voters  of  union  free  school  district  no.  6, 
town  of  North  Greenbush,  at  the  adjourned  annual  meeting  held  therein  on 
August  14,  1894,  did  not  legally  determine  to  increase  the  number  of  members 
of  the  board  of  education  of  said  district. 

That  John  S.  Knight  was  not,  nor  was  any  one,  duly  and  legally  elected  at 
said  meeting  held  on  August  14,  1894,  as  a  trustee  of  said  district,  or  a  member 
of  the  board  of  education  of  said  district. 

That  the  qualified  voters  of  said  district  can  not  take  any  action  to  legally 
determine  to  increase  or  diminish  the  number  of  members  of  the  board  of  educa- 
tion of  said  district  until  the  next  annual  meeting  held  in  said  district. 

The  appeal  herein  is  sustained. 

It  is  ordered,  That  all  action  or  proceedings  had  and  taken  at  the  adjourned 
meeting,  held  on  August  14,  1894,  in  union  free  school  district  no.  6,  town  of 
North  Greenbush,  Rensselaer  county,  in  the  election  of  a  member  of  the  board 
of  education,  or  an  additional  member  of  the  board  of  education  of  said  district, 
be  and  the  same  are,  and  each  of  them  is,  hereby  vacated  and  set  aside. 


JUDICIAL  DECISIOXS:      BOARD   OF   EDUCATION  IO5 

5018 

In  the  matter  of  the  appeal  of  Joseph  Warringer  from  proceedings  of  annual 
meeting  held  August  5,  1902,  in  union  free  school  district  no.  3,  Red  Hook, 
Dutchess  county. 
Under  the  provisions  of  section  31,  article  5,  title  8  of  the  Consolidated  School  Law  of  1894, 
the  vote  taken  at  the  annual  meeting  of  a  union  free  school  district  to  increase  or 
diminish  the  number  of  members  of  the  board  of  education  of  such  district  must  be 
ascertained  by  taking  and  recording  the  ayes  and  noes  of  the  qualified  voters  present 
and  voting. 
Decided  September  23,  1902 

J.  ]Morschauser,  attorney  for  appellant 
Hackett  &  Williams,  attorneys  for  respondents 

Skinner,  Superinicndent 

This  is  an  appeal  from  the  proceedings  taken  at  the  annual  meeting  held 
August  5,  1902,  in  union  free  school  district  3,  Red  Hook,  Dutchess  county, 
relating  to  the  increase  of  the  number  of  members  of  the  board  of  education  of 
the  district  from  five  to  seven,  and  the  alleged  election  of  C.  A.  Pritchard  and 
Clarence  Ames  as  members  of  such  board  for  the  term  of  three  years;  and  of 
Peter  Rifenburgh  for  the  term  of  two  years;  and  of  Henry  B.  Coon  for  the  term 
of  one  year. 

The  appeal  herein  was  filed  in  this  Department  September  4,  1902,  with  due 
proof  of  service  of  copy  thereof  personally  on  C.  A.  Pritchard,  the  chairman  of 
the  annual  meeting,  and  a  member  of  the  board  of  education,  and  on  Frank 
Berkman,  a  member  of  the  board  of  education,  on  August  30,  1902  ;  and  upon 
Montgomery  Queen,  the  clerk  of  the  board  of  education  and  of  the  annual  meet- 
ing on  September  2,  1902. 

An  answer  has  been  filed  to  such  appeal  in  which  the  material  allegations 
contained  in  the  appeal  are  admitted.  Annexed  to  the  appeal  is  a  full  copy  of  the 
proceedings  had  and  taken  at  such  annual  meeting  as  recorded  by  the  clerk ;  and 
also  of  a  printed  copy  of  the  call  for  said  annual  meeting  and  of  the  annual  finan- 
cial report  of  the  board  of  education. 

It  appears  from  the  printed  copy  of  the  notice  of  the  annual  meeting, 
annexed  to  the  appeal  herein,  that  two  trustees  were  to  be  elected,  each  for  the 
term  of  three  years,  in  place  of  Watson  D.  Otis  and  C.  A.  Pritchard,  whose 
respective  terms  of  office  would  expire  on  August  5,  1902;  and  that  the  sum  of 
$3669  would  be  required  to  be  raised  for  school  purposes  for  the  school  year 
1902-3. 

It  further  appears  from  the  proofs  herein  that  on  August  5,  1902,  certain  of 
the  quahfied  voters  residing  in  union  free  school  district  no.  3,  Red  Hook,  Dutch- 
ess county,  assembled  in  the  school  building  at  7.30  p.  m.,  and  organized  by  the 
choice  of  C.  A.  Pritchard  as  chairman,  the  clerk  of  the  district,  Montgomery 
Queen,  acting  as  clerk;  that  the  annual  report  of  the  trustees  was  read  and  on 
motion  w^as  approved;  the  estimate  of  the  sum  deemed  necessary  for  the  board 


I06  THE   UNIVERSITY   OF  THE   STATE   OF   NEW   YORK 

of  education  for  the  support  of  the  schools  for  the  present  school  year  was  read 
by  items,  and  a  motion  was  adopted  that  it  be  voted  upon  collectively ;  Messrs  C. 
H.  Morgan  and  Walter  Scott  were  appointed  inspectors  of  election;  a  vote  was 
taken  by  ballot  upon  appropriating  the  sum  of  $3669  for  school  purposes,  and 
resulted  in  107  ballots  being  received,  of  which  52  were  for  the  appropriation 
and  54  were  against,  and  i  blank;  a  motion  was  adopted  referring  the  estimates 
back  to  the  trustees. 

It  further  appears  that  a  resolution  was  offered  by  F.  O.  Green,  and  duly 
seconded,  that  the  board  of  education  be  increased  in  number  from  five  members 
to  seven  members,  and  a  ballot  was  taken  upon  such  resolution,  which  resulted  in 
109  votes  being  cast,  of  which  56  were  for  and  53  against  such  resolution,  and 
thereupon  nominations  were  made  of  persons  for  members  of  said  board,  and  a 
ballot  was  taken.  When  the  ballot  was  closed  the  inspectors  of  election  reported 
that  the  whole  number  of  votes  cast  was  106,  of  which  Clarence  Ames  received 
51,  C.  A.  Pritchard,  56;  Peter  Rifenburgh.  60;  Harry  B.  Coon,  51;  James  H. 
Kidd,  42;  C.  H.  Champlin,  44;  Ferdinand  Egert,  46;  and  George  W.  Fingar,  45. 
The  following  persons  were  declared  elected  as  trustees :  C.  A.  Pritchard  and 
Clarence  Ames,  for  three  years;  Peter  Rifenburgh,  two  years;  and  Harry  B. 
Coon,  for  one  year.  Protests  were  made  by  Ferdinand  Egert  and  F.  O.  Green 
against  counting  the  ballots  for  members  of  the  board  of  education,  which  did  not 
divide  the  candidates  into  classes,  and  thereupon  the  meeting  adjourned  without 
day. 

It  is  also  in  proof  that  the  whole  number  of  votes  received  by  the  inspectors 
was  reported  as  106,  whereas  the  poll  list  kept  by  the  clerk  contained  the  names 
of  but  102  persons  as  having  voted,  and  no  action  was  taken  by  inspectors  to 
draw  out,  before  canvassing  the  ballots,  the  excess  of  the  number  on  said  poll 
list. 

It  is  clear  from  the  proofs  established  herein  that  all  the  proceedings  taken 
at  such  annual  school  meeting,  from  the  action  taken  in  referring  the  annual  bud- 
get back  to  the  board  of  education  down  to  action  on  the  motion  to  adjourn,  were 
not  in  accordance  with  the  provisions  of  the  school  law. 

Under  section  31,  article  5,  title  8  of  the  Consolidated  School  Law,  the  action 
of  the  meeting  to  increase  the  number  of  the  members  of  the  board  of  education 
from  five  to  seven  should  have  been  ascertained  by  taking  and  recording  the  ayes 
and  noes  of  the  voters  present  and  voting,  and  not  by  ballot. 

Not  having  legally  increased  the  number  of  members  of  the  board  of  educa- 
tion, the  meeting  could  only  elect  two  members  of  said  board  in  the  place  of  the 
two  members  whose  term  expired  on  August  5,  1902.  All  the  ballots  cast  for 
members  of  the  board  of  education  should  have  had  designated  thereon  the  term 
for  which  the  persons  named  were  to  hold  office. 

The  appeal  herein  is  sustained. 

It  is  ordered  that  all  proceedings  had  and  taken  at  the  annual  meeting  held 
August  5,  1902,  in  union  free  school  district  no.  3.  Red  Hook,  Dutchess  coimty, 
commencing  with  the  vote  taken  on  the  resolution  to  increase  the  number  of 


JUDICIAL  decisions:     board  of  education  107 

members  of  the  board  of  education  from  five  to  seven,  down  to  the  protest  made 
by  Ferdinand  Egert  and  F.  O.  Green,  be,  and  the  same  are,  and  each  of  them  is, 
hereby  vacated  and  set  aside. 

It  is  further  ordered  that  the  board  of  education  of  said  union  free  school 
district  no.  3,  Red  Hook,  without  unnecessan-  delay,  call  a  special  meeting  of  the 
inhabitants  of  said  district,  qualified  to  vote  at  school  meetings  therein,  in  the 
manner  prescribed  by  section  10,  article  2,  and  section  13,  article  3,  title  8  of  the 
Consolidated  School  Law,  for  the  purpose  of  electing  two  members  of  such 
board,  each  for  the  term  of  three  years,  in  place  of  said  Watson  D.  Otis  and  C.  A. 
Pritchard,  and  to  consider  and  act  upon  the  question  of  appropriating  a  sum  of 
money,  to  be  named  in  the  notice  of  such  meeting,  for  the  support  of  the  schools 
in  the  district  for  the  present  school  year,  and  authorize  the  levy  of  a  tax  for  the 
sum  so  voted. 


4896 

In  the  matter  of  the  appeal  of  John  Drummond  and  Jay  R.  Burleigh  from  pro- 
ceedings of  annual  meeting  held  on  August  7,  1900,  in  union  school  district 
no.  25,  \^erona,  Oneida  county. 

The  number  of  members  of  a  board  of  education  of  a  union  school  district,  under  the  Con- 
solidated School  Law  of  1894,  can  not  be  less  than  three  nor  more  than  nine.  A  board 
of  education  having  but  three  members  of  the  board  can  not  legally  reduce  or  diminish 
said  number.  In  union  school  districts  other  than  those  whose  limits  correspond  to 
those  of  an  incorporated  village  or  city  the  clerk  of  the  board  is  appointed  by  the  board 
of  education  and  such  clerk  shall  also  act  as  clerk  of  the  district. 

Decided  October  25,  1900 

Skinner,  Superintendent 

This  is  an  appeal  taken  from  the  proceedings  at  the  annual  meeting  held 
August  7,  1900,  in  union  school  district  no.  25,  V^erona,  Oneida  county. 

A  copy  of  such  proceedings  is  annexed  to  the  appeal.  No  answer  has  been 
made  to  the  appeal. 

It  appears  that  said  district  has  three  trustees,  and  the  term  of  office  of 
Frank  Tuttle,  one  of  said  trustees,  expired  at  the  time  of  such  annual  meeting; 
that  a  motion  was  adopted  at  such  meeting  that  the  district  have  but  one  trustee, 
and  no  person  was  elected  as  a  trustee  in  the  place  of  said  Tuttle ;  that  one  M.  L. 
\'an  Vechten  was  elected  district  clerk. 

Section  31,  article  5,  title  8  of  the  Consolidated  School  Law  of  1894,  provides 
the  method  by  which  the  trustees  of  any  union  school  district  whose  limits  do  not 
correspond  with  those  of  any  incorporated  village  or  city  may  be  increased  or 
diminished.  Said  section  also  provides  that  no  board  of  education  of  any  such 
school  district  shall  consist  of  less  than  three  nor  more  than  nine  members. 

As  the  number  of  members  of  the  board  of  education  of  union  school  district 
25,  Verona,  Oneida  county,  August  7,  1900,  consisted  of  but  three  members,  such 
meeting  did  not  have  the  legal  authoritv  to  diminish  the  number. 


I08  THE   UNIVERSITY    OF   THE   STATE    OF   NEW   YORK 

Section  7,  article  i,  title  8  of  the  Consolidated  School  Law  of  1894,  as 
amended  by  section  i,  chapter  466  of  the  Laws  of  1897,  in  every  union  school 
district  other  than  those  whose  limits  correspond  to  those  of  an  incorporated  vil- 
lage or  city,  gives  the  power  to  the  board  of  education  of  the  district  to  appoint 
one  of  their  number,  or  any  qualified  voter  in  said  district  other  than  a  teacher 
employed  in  said  district,  as  clerk  of  the  board  of  education  of  such  district. 
Such  clerk  shall  also  act  as  clerk  of  such  district,  and  shall  perform  all  the  clerical 
and  other  duties  pertaining  to  his  office,  and  for  his  services  he  shall  be  entitled 
to  receive  such  compensation  as  shall  be  fixed  at  an  annual  meeting  of  the  quali- 
fied voters  of  such  district ;  that  in  case  no  provision  is  made  at  an  annual  meet- 
ing of  the  inhabitants  for  the  compensation  of  a  clerk,  then  and  in  that  case  the 
board  of  education  shall  have  power  to  fix  the  same. 

I  decide  ( i )  that  the  action  taken  at  the  annual  meeting  held  August  7,  1900, 
in  union  school  district  25,  Verona,  Oneida  county,  relative  to  the  diminishing  of 
the  number  of  members  of  the  board  of  education  of  such  district  from  three  to 
one,  was  without  authority  of  law  and  void;  (2)  that  the  action  taken  at  such 
annual  meeting  in  electing  M.  L,  Van  Vechten,  as  clerk  of  such  district  was  with- 
out authority  of  law  and  void. 

The  appeal  herein  is  sustained. 

It  is  ordered  that  all  proceedings  taken  at  such  annual  meeting  in  said  dis- 
trict, in  relation  to  the  diminishing  the  number  of  members  of  the  board  of  edu- 
cation of  such  district  from  three  to  one,  and  in  the  election  of  a  clerk  of  said 
district,  be,  and  the  same  are,  and  each  of  them  is,  hereby  vacated  and  set  aside. 

It  is  further  ordered  that  the  members  of  the  board  of  education  of  said 
union  school  district  25,  Verona,  Oneida  county,  without  unnecessary  delay,  call 
a  special  meeting  of  the  inhabitants  of  such  district,  qualified  to  vote  at  school 
meetings  therein,  for  the  purpose  of  electing  a  trustee  of  said  district  for  the 
term  of  three  years  from  the  first  Tuesday  of  August  1900,  to  succeed  Frank 
Tuttle,  whose  term  of  office  as  a  trustee  expired  at  the  time  of  the  annual  meet- 
ing held  therein  on  August  7,  1900.  That  notice  of  such  special  meeting  be  given 
in  the  manner  prescribed  in  section  10,  of  article  2,  title  8,  and  section  13,  article 
3,  title  8  of  the  Consolidated  School  Law  of  1894. 


4404 

In  the  matter  of  the  appeal  of  Adolph  Bausch  and  others,  from  proceedings  of 
board  of  education  of  union  free  school  district  no.  22,  town  of  Oyster  Bay, 
Queens  county,  in  the  election  of  William  Smith    as  a  member  of  said  board. 

One  of  the  members  of  a  board  of  education  of  a  union  free  school  district,  which  board 
consisted  of  nine  members,  resigned,  and  his  resignation  was  duly  accepted  by  the  board. 
At  a  meeting  held  to  fill  the  vacancy  created  by  such  resignation  eight  members  of  the 
board  were  present;  that  several  ballots  were  had  for  member  of  the  board  without 
resulting  in  any  election,  when  a  recess  was  taken.     When  the  meeting  was  called  to 


JUDICIAL   DECISIONS  :       BOARD   OF   EDUCATION  lOQ 

order  after  such  recess,  only  four  members  of  the  board  were  present;  that  a  ballot  was 
then  taken  to  fill  such  vacancj';  whole  number  of  votes  being  four,  of  which  one  Smith 
received  three,  and  Merritt  one,  and  thereupon  said  Smith  was  declared  by  the  chair- 
man of  said  board  elected  as  a  member  thereof.  On  appeal ;  held,  that  said  election 
was  illegal  and  void,  there  being  no  quorum  of  the  board  present.  Also,  held,  that  it 
being  shown  that  the  members  of  said  board  can  not  elect  any  person  to  fill  said 
vacancy,  that  a  special  meeting  of  the  voters  of  the  school  district  be  called  for  the 
purpose  of  filling  said  vacancy. 
Decided  November  i6,  1895 

Skinner,  Superintendent 

In  the  above-entitled  matter  Adolph  Bausch,  Thomas  J.  Talbot,  William 
Denton  and  Joseph  H.  Doud,  four  of  the  members  of  the  board  of  education  of 
union  free  school  district  no.  22,  town  of  Oyster  Bay,  Queens  county,  appeal 
from  the  proceedings  and  action  of  Amos  G.  Sullivan,  George  H.  Fuechsel, 
Philip  Ketcham  and  Peter  V.  Ketcham,  the  other  four  members  of  said  board, 
had  and  taken  on  October  18,  1895,  in  the  alleged  election  of  one  William  Smith 
as  a  member  of  said  board. 

Amos  G.  Sullivan,  George  H.  Fuechsel  and  Peter  V.  Ketcham,  three  of  the 
members  of  said  board,  and  said  William  Smith,  alleged  to  have  been  elected  a 
member  of  said  board,  join  in  an  answer  to  said  appeal.  Said  answer  has  annexed 
thereto  an  affidavit  of  Philip  Ketcham,  a  member  of  said  board,  in  which  he 
alleges  that  no  copy  of  the  appeal  herein  had  been  served  upon  him. 

The  appeal  has  annexed  thereto  copies  of  the  record  of  proceedings  of  said 
board,  held  on  October  18  and  23,  1895,  and  to  the  answer  are  annexed  copies 
of  the  records  of  proceedings  of  said  board  on  October  i  and  15,  1895. 

The  following  facts  are  established : 

That  prior  to  October  i,  1895,  the  board  of  education  of  said  union  free 
school  district  consisted  of  nine  members,  to  wit:  John  P.  Heyen,  Amos  G. 
Sullivan,  Peter  V.  Ketcham,  Philip  Ketcham,  George  H.  Fuechsel,  Adolph 
Bausch,  Thomas  J.  Talbot,  William  Denton  and  Joseph  H.  Doud;  that  at  a 
regular  meeting  of  said  board,  held  on  October  i,  1895.  said  John  P.  Heyen  pre- 
sented, in  writing,  his  resignation  as  a  member  of  said  board,  which  was  duly 
accepted,  and  that  by  said  resignation  and  the  acceptance  thereof,  a  vacancy 
occurred  in  said  board,  which  said  board  had  the  legal  power  to  fill ;  that  a  discus- 
sion was  held  relative  to  filling  such  vacancy,  and  the  matter  was  laid  over  until 
October  15,  1895,  to  which  date  said  board  adjourned  its  meeting;  that  at  said 
adjourned  meeting  on  October  15,  1895,  a  quorum  of  the  members  not  being 
present  (only  four  members  being  present)  no  meeting  was  held;  that  a  special 
meeting  of  said  board  was  held  on  October  18,  1895,  at  which  all  of  the  eight 
members  of  said  board  were  present,  and  a  Mr  Merritt  and  a  Mr  Smith  were 
each  nominated  as  candidates  to  fill  the  vacancy  existing  in  said  board;  that  five 
ballots  for  a  member  of  said  board  were  taken,  each  resulting  in  four  votes  for 
ISIerritt  and  four  votes  for  Smith;  that  a  recess  of  five  minutes  was  then  taken, 
and  the  chairman,  after  waiting  about  ten  minutes,  called  the  meeting  to  order, 
but  only  four  members  of  the  board  were  present,  the  other  four  members  of 


no  THE   UNIVERSITY    OF  THE   STATE    OF    NEW   YORK 

the  board  (the  appellants  herein)  having  left  said  meeting;  that  a  ballot  was  then 
taken  for  member  of  said  board  to  fill  such  vacancy  and  four  votes  were  cast  of 
which  William  Smith  received  three  and  J.  C.  Merritt  one,  and  thereupon  said 
William  Smith  was,  by  the  chairman,  declared  elected  as  a  member  of  said  board. 

It  is  clear  that  after  the  recess  taken  at  said  meeting  of  said  board  on  said 
October  i8,  1895,  there  being  no  quorum  of  the  board  present,  the  only  business 
that  the  four  members  then  present  could  legally  do  was  to  adjourn;  and  that  the 
election  of  William  Smith,  as  a  member  of  said  board,  a  quorum  of  the  members 
of  said  board,  namely,  five  members,  not  being  present,  was  illegal  and  void. 

Boards  of  education  of  union  free  school  districts  are  severally  created 
bodies  corporate.  Section  7,  article  i,  title  8  of  the  Consolidated  School  Law 
of  1894,  Bassett  v.  Fish  et  al.,  75  N.  Y.  30. 

The  corporation  so  created  takes  not  only  the  powers  given  expressly  by  the 
statutes,  but  such  other  powers  as  are  necessary  to  its  life  and  well  being,  and 
which  such  entities  have  at  common  law  or  by  other  statutes;  it  must  act  also, 
and  can  act  only  in  the  mode  and  by  the  means  appropriate  to  a  corporation. 
Bassett  v.  Fish  et  al.,  75  N.  Y.  303. 

By  the  general  corporation  law  of  this  State,  chapter  687,  Laws  of  1S92, 
section  29,  it  is  enacted  that  "Unless  otherwise  provided  by  law  a  majority  of 
the  board  of  directors  of  a  corporation  at  a  meeting  duly  assembled,  shall  be 
necessary  to  constitute  a  quorum  for  the  transaction  of  business,  and  the  act  of 
a  majority  of  the  directors  present  at  a  meeting  at  which  a  quorum  is  present 
shall  be  the  act  of  the  board  of  directors." 

The  Consolidated  School  Law  does  not  state  how  many  members  of  a  board 
of  education  of  a  union  free  school  district  shall  constitute  a  quorum  for  the 
transaction  of  business ;  but  at  common  law,  and  by  statute  (general  corporation 
law  cited)  a  majority  of  the  members  of  said  board,  respectively,  shall  be  neces- 
sary to  constitute  a  quorum  of  any  such  board  for  the  transaction  of  business. 

The  four  respondents  herein,  by  their  action  in  attempting  to  fill  the  vacancy 
in  said  board,  seem  to  have  assumed  that  there  having  been  a  quorum  of  said 
board  present  on  October  i8th  up  to  the  time  of  the  recess,  that  such  quorum 
continued  after  the  recess  and  after  the  appellants  hefein,  the  other  four 
members  of  the  board,  had  left  the  meeting.  This  theory  is  not  sound.  To  law- 
fully transact  business  a  majority  of  the  members  of  the  board  must  be  present 
at  any  meeting  thereof,  duly  assembled,  and  continue  to  be  present  until  such 
meeting  adjourns  to  constitute  a  quorum;  otherwise  a  majority,  present  when 
th.e  session  commenced,  might  be  reduced  by  the  members  leaving  the  meeting, 
until  no  one  remained  except  the  chairman  and  clerk  who,  under  the  contention 
of  the  respondents  herein,  could  transact  any  business  of  the  board.  Merely  to 
state  such  a  contention  is  sufficient  to  show  its  absurdity. 

It  appears  from  a  copy  of  the  minutes  of  the  meeting  of  the  said  board, 
held  on  October  23,  1895,  that  the  said  William  Smith  who,  it  is  claimed  by 
respondents,  was  elected  a  member  of  said  board,  was  present  and  acted,  and 
that  a  vote  to  approve  the  minutes  of  said  meeting  of  October  18,  1895,  against 


JUDICIAL  decisions:     board  of  education  III 

the  protest  of  the  appellants  herein,  was  declared  carried  by  the  votes  of  the  four 
respondents  herein  and  the  vote  of  said  Smith.  It  is  clear  that  as  said  Smith 
was  not  legally  elected  a  member  of  said  board  he  had  no  legal  authority  to  act 
as  such  member  at  said  meeting,  or  to  vote  upon  questions  arising  at  said  meeting ; 
that  any  and  all  actions  or  proceedings  had  and  taken,  or  motions  or  resolutions 
adopted,  at  said  meeting,  by  the  vote  of  said  Smith  are,  and  each  of  them  is,  void. 

As  it  is  apparent  that  the  present  members  of  said  board  of  education  can  not 
fill  the  vacancy  existing  in  said  board  it  becomes  my  duty,  under  the  provisions 
of  subdivision  12,  of  section  15,  article  4,  title  8  of  the  Consolidated  School  Law 
of  1894,  to  order  a  special  election  to  be  held  in  said  union  free  school  district  for 
the  purpose  of  filling  such  vacancy. 

The  appeal  herein  is  sustained. 

It  is  ordered.  That  all  proceedings  had  and  taken  at  the  meeting  of  the  board 
of  education  of  union  free  school  district  no.  22,  town  of  Oyster  Bay,  Queens 
county,  held  on  October  18,  1895,  after  the  recess  and  after  Messrs  Bausch, 
Talbot.  Denton  and  Doud,  members  of  said  board  had  left  said  meeting,  relative 
to  the  election  of  a  member  of  said  board  to  fill  a  vacancy  therein,  and  especially 
the  ballot  then  had  and  taken  to  fill  said  vacancy,  be,  and  the  same  are,  and  each 
of  them  is,  hereby  vacated  and  set  aside  as  illegal  and  void. 

It  is  further  ordered,  That  all  proceedings  had  and  taken  at  the  meeting  of 
said  board,  held  on  October  23,  1895,  recognizing  in  any  manner  whatsoever,  one 
William  Smith  as  a  member  of  said  board,  be.  and  the  same  are,  and  each  of  them 
is.  hereby  vacated  and  set  aside  as  illegal  and  void. 

It  is  further  ordered.  That  said  board  of  education,  with  all  reasonable 
despatch,  call  a  special  meeting  of  the  inhabitants  of  said  union  free  school  dis- 
trict no.  22,  town  of  Oyster  Bay,  Queens  county,  qualified  to  vote  at  school  meet- 
ings therein,  for  the  purpose  of  electing  a  member  of  said  board  of  education 
to  fill  the  vacancy  existing  in  said  board  by  reason  of  the  resignation  of  John 
P.  Hey  en  as  a  member  of  said  board. 


4128 

In  the  matter  of  the  appeal  of  Alatthew  Lannon,  jr,  v.  the  board  of  education 
of  school  district  no.  5.  town  of  North  Hempstead,  Queens  county. 

Vacating  office  of  trustee.  A  member  of  a  board  of  education  temporarily  absent  from 
the  district  but  not  having  removed  therefrom  did  not  cease  to  be  a  resident  and  in- 
habitant of  the  district  and  the  action  of  the  board  in  declaring  the  office  vacated  was 
illegal  and  void. 

Decided  October  2(i,  1892 

Crooker,  Superintendent 

This  appeal  is  taken  from  the  action  and  proceedings  of  a  special  meeting 
of  the  board  of  education  of  school  district  no.  5,  town  of  North  Hempstead, 
Queens  county,  held  on  August  30,  1892,  declaring  the  office  of  the  appellant 


112  THE   UXIVERSITY   OF   THE   STATE   OF   NEW   YORK 

as  a  member  thereof  vacant,  and  from  the  action  and  proceedings  of  said  board, 
at  a  special  meeting  thereof,  held  on  September  lo,  1892,  in  electing  one  Timothy 
J.  Bird  as  a  member  thereof  to  fill  the  vacancy  so  as  aforesaid  declared  to  exist 
in  said  board  on  August  30,  1892. 

No  answer  to  said  appeal  has  been  filed  in  this  Department,  and  the  facts 
alleged  in  said  appeal  are  deemed  admitted. 

The  following  facts  are  established: 

That  the  appellant  is  a  resident  of  Port  Washington  in  school  district  no.  5, 
town  of  North  Hempstead,  county  of  Queens;  that  the  annual  meeting  for  the 
election  of  trustees  of  said  district  was  duly  held  on  August  3,  1892,  and  the 
appellant  was  duly  elected  a  trustee  of  said  district  for  the  term  of  three  years ; 
that  on  the  evening  of  August  16,  1892,  the  board  of  education  met  at  Port 
Washington  and  perfected  its  organization  for  the  ensuing  school  year  by  the 
election  of  Warren  S.  Weeks  as  president  and  Theodore  F.  Morgan  secretary, 
Messrs  Weeks,  Morgan,  Adelbert  Jones,  Edward  F.  Allen  and  the  appellant 
being  present;  that  a  resolution  was  adopted  at  said  meeting  that  the  meetings 
of  said  board  should  be  held  on  the  last  Monday  in  each  and  every  month  of 
the  school  year,  and  that  the  first  regular  meeting  of  said  board  under  said  reso- 
lution should  be  held  on  the  last  Monday  in  September  1892 ;  that  on  or  about 
August  19,  1892,  the  appellant  went  to  the  town  of  Jamaica  in  Queens  county, 
to  temporarily  assume  the  management  of  the  business  interests  of  one  Pettit 
in  conducting  a  hotel ;  that  engagement  was  merely  temporary  in  its  nature  and 
was  so  understood  by  the  parties  concerned,  and  that  neither  then  nor  at  any 
other  time  did  the  appellant  ever  relinquish  his  actual  residence  in  said  school 
district  no.  5  of  the  town  of  North  Hempstead;  nor  did  he  then,  or  at  any  other 
time,  ever  have  or  express  any  intention  to  reside  elsewhere ;  nor  did  he  remove, 
or  attempt  to  remove,  any  of  his  personal  effects  or  property  from  said  school 
district,  or  engage  or  contract  in  any  way  for  any  place  or  residence  either  in 
the  town  of  Jamaica  or  elsewhere. 

That  the  by-laws  of  said  board  of  education  require  that  when  a  special 
meeting  of  the  said  board  is  called,  each  member  thereof  shall  be  duly  and  per- 
sonally notified  or  in  such  other  manner  as  shall  give  to  hinif  due  notice  of  said 
special  meeting;  that,  as  the  appellant  has  been  informed  and  verily  believes,  a 
special  meeting  of  said  board  was  held  at  Port  Washington  on  the  evening  of 
August  30,  1892,  during  the  period  of  the  temporary  absence  of  the  appellant 
as  aforesaid,  at  which  meeting  a  resolution  was  adopted  declaring  the  office  of 
the  appellant  as  such  trustee  vacant  by  reason  of  his  said  absence ;  that  no  notice 
of  such  special  meeting  so  held  on  August  30,  1892,  was  ever  received  by  the  appel- 
lant ;  that  as  the  appellant  is  informed  and  verily  believes,  a  second  special  meet- 
ing of  said  board  was  held  on  September  10,  1892,  at  Port  Washington,  and  that 
one  Timothy  J.  Bird  was  chosen  as  a  trustee  of  said  district  until  the  annual 
election  of  trustees  on  the  Wednesday  succeeding  the  first  Tuesday  of  August 
1893,  to  fill  the  vacancy  declared  to  exist  at  said  special  meeting  of  August  30, 
1892,  by  reason  of  the  absence  of  the  appellant;  that  on  September  14,  1892,  the 


JUDICIAL  decisions:     board  of  education  113 

appellant  returned  to  his  home  in  Port  Washington  in  said  school  district, 
and  then  became  apprised  of  the  facts  in  relation  to  said  special  meetings  of 
said  board  of  education  and  the  proceedings  thereof  as  hereinbefore  stated; 
that  the  appellant  appeared  at  the  regular  meeting  of  said  board  of  education 
held  pursuant  to  the  resolution  before  stated  on  Monday  evening,  September  26, 
1892,  at  Port  Washington,  and  attempted  to  exercise  his  right  as  a  trustee  of 
said  school  district  and  a  member  of  said  board,  but  the  same  was  denied  him, 
and  he  was  denied  any  voice  in  the  deliberations  of  said  board,  on  the  ground 
that  he  had  relinquished  his  right  of  residence,  and  that  his  office  having  been 
declared  vacant,  the  board  of  education,  in  the  exercise  of  its  powers,  had 
elected  or  chosen  another  as  trustee  until  the  next  annual  election  of  officers. 
Against  all  of  which  the  appellant  duly  protested,  and  thereupon  brought  this 
appeal. 

Under  the  school  laws,  trustees  of  school  districts  are  chosen  by  the  quali- 
fied voters  in  the  respective  districts  and  not  by  boards  of  trustees  or  education. 
Such  boards  of  trustees  or  education  have  the  power  to  fill  any  vacancy  which 
may  happen  in  any  of  said  boards  by  reason  of  the  death,  resignation,  removal 
or  refusal  to  serve  of  any  member  or  ofticer  of  said  board. 

The  appellant  was  duly  elected  a  trustee  of  his  district;  he  met  with  his 
associates  at  the  organization  of  the  board  on  x\ugust  16,  1892,  when  a  resolu- 
tion was  adopted  that  the  regular  meetings  of  the  board  should  be  held  on  the 
last  Monday  of  each  and  every  month  of  the  school  year,  and  the  first  of  such 
regular  meetings  should  be  held  on  the  last  Monday  of  September  1892;  that 
on  August  19th  he  went  to  Jamaica,  in  the  same  county  as  Port  Washington, 
his  residence,  to  be  absent  temporarily  in  the  transaction  of  certain  busmess. 
On  August  30th,  eleven  days  after  he  left  his  home,  a  special  meeting  was 
called  and  his  office  of  trustee  was  declared  vacant  by  reason  of  his  absence; 
and  on  September  loth,  at  another  special  meeting,  a  person  was  elected  trustee 
to  fill  such  alleged  vacancy.  On  September  14th  he  returned  to  his  home  and 
was  then  first  apprised  of  the  action  of  the  board,  and  on  attending  on  Sep- 
tember 26th,  at  the  first  regular  meeting  of  the  board  after  his  election,  was 
refused  to  be  allowed  to  exercise  his  right  as  such  trustee. 

This  appeal  does  not  present  a  similar  state  of  facts  to  those  stated  in  the 
decision  of  Superintendent  Young,  page  764,  Code  of  1887,  nor  to  those  stated 
in  the  decision  of  Superintendent  Gilmour,  page  787-88,  Code  of  1887. 

It  is  apparent  that  the  board  of  education  of  said  district  acted  with  undue 
haste  and  without  the  sanction  of  law.  The  appellant  did  not  cease  to  be  a  resi- 
dent and  inhabitant  of  said  district.  He  did  not  remove  from  said  district,  and 
the  action  of  the  said  board  of  education  in  declaring  the  office  of  the  appellant 
as  trustee  of  said  district  vacant,  and  in  the  election  of  a  person  to  fill  such 
vacancy  exceeded  their  powers  and  authority,  and  said  acts  were,  and  each  of 
them  was,  illegal  and  void. 

The  appeal  herein  is  sustained. 


n4  THE   UNIVERSITY   OF   THE   STATE   OF    NEW   YORK 

It  is  ordered : 

That  so  much  of  the  proceedings  and  actions  of  said  board  of  trustees  or 
education  of  district  no.  5,  town  of  North  Hempstead,  Queens  county,  at  the 
special  meeting  held  on  August  30,  1892,  as  declared  that  the  office  of  trustee, 
held  by  the  appellant  herein,  was  vacant;  and  so  much  of  the  proceedings  and 
action  of  said  board  at  the  special  meeting  held  on  September  10,  1892,  in  the 
election  of  one  Timothy  J.  Bird  as  a  trustee  of  said  district  to  fill  the  vacancy 
declared  to  exist  by  its  action  on  said  August  30,  1892,  be,  and  each  of  them  is, 
hereby  vacated  and  set  aside. 

It  is  further  ordered: 

That  said  board  of  trustees  or  education  of  said  district  receive  at  all  the 
meetings  of  said  board  the  said  Matthew  Lannon,  jr,  as  a  trustee  of  said  district 
holding  his  office  as  such  trustee  for  the  term  of  three  years  from  the  Wed- 
nesday succeeding  the  first  Tuesday  of  August  1892,  for  which  he  was  duly 
elected,  with  the  right  of  exercising  all  the  powers  and  duties  possessed  by  him 
by  virtue  of  said  office  of  trustee. 


4749 

In  the  matter  of  the  appeal  of  George  Harris  from  proceedings  of  a  special 
meeting  held  January  7,  1899,  in  union  school  district  no.  i,  Poughkeepsie, 
Dutchess  county,  in  the  election  of  a  member  of  the  board  of  trustees  of 
such  district. 

The  board  of  education  of  every  union  school  district  has  the  power,  and  it  is  its  duty, 
to  fill  any  vacancy  which  may  occur  in  such  board  by  reason  of  the  death,  resignation, 
removal  from  office  or  from  the  school  district,  or  refusal  to  serve,  of  any  member  or 
officer  of  said  board.  Said  board  can  not  legally  call  a  special  meeting  of  the  inhabitants 
of  the  district  to  fill  a  vacancy  existing  in  such  board.  The  State  Superintendent  of 
Public  Instruction  may  order  a  special  election  to  fill  a  vacancy  existing  in  any  board  of 
education  of  a  union  school  district,  and  when  such  special  election  is  ordered  by  him, 
the  vacancy  shall  not  be  filled  otherwise.  If  the  board  fails  to  fill  such  vacancy  for 
a  period  of  30  days  the  same  may  be  filled  by  the  school  commissioner  having  juris- 
diction. 

Decided  February  24,  1899 

Skinner,  Superintendent 

This  is  an  appeal  from  the  proceedings  of  a  special  meeting,  held  January 
7,  1899,  i"  union  school  district  i,  Poughkeepsie,  Dutchess  county,  in  the  election 
of  a  member  of  the  board  of  trustees  in  such  district. 

The  appeal  herein  is  not  full  and  definite  in  its  statement  of  facts,  but  it 
appears  that  a  vacancy  was  created  in  the  board  of  trustees  of  said  district  by 
the  death  of  one  of  the  members  of  such  board.  The  ground  alleged  by  the 
appellant  upon  which  his  appeal  is  taken,  in  substance,  is  that  such  vacancy 
could  not  be  legally  filled  at  a  school  district  meeting,  unless  so  directed  by  the 
State  Superintendent  of  Public  Instruction. 


JUDICIAL  decisions:     eoard  of  education  11:5 

Trustee  Jones  has  answered  the  appeal,  and  to  such  answer  the  api^ellani 
has  made  a  reply.  A  copy  of  the  call  for  the  special  meeting,  held  January  7, 
1899,  with  proof  of  the  manner  of  the  service  of  such  notice,  and  a  copy  of  the 
proceedings  of  such  special  meeting,  have  been  filed  with  me. 

It  appears  that  school  district  i,  Poughkeepsie,  Dutchess  county,  is  a 
union  school  district,  with  a  board  consisting  of  three  trustees,  namely,  Josejih 
Jones,  John  F.  Eagan  and  John  Corrigan ;  that  at  some  time  prior  to  December 
28.  1898,  said  Trustee  Corrigan  died,  thereby  creating  a  vacancy  in  said  board 
of  trustees ;  that  Jones  and  Eagan,  the  two  remaining  trustees  of  such  board, 
could  not  agree  upon  any  person  to  fill  such  vacancy ;  that  said  Jones  and  Eagan 
interpreted  the  law  as  quoted  to  them  in  a  letter  from  the  State  Superintendent 
of  Public  Instruction,  that  they  had  the  legal  authority  to  call  a  special  meeting 
of  the  inhabitants  of  said  district,  qualified  to  vote  at  school  meetings  therein, 
to  elect  a  trustee  to  fill  such  vacancy,  when  it  was  impossible  for  them  to 
elect  a  trustee ;  that  a  notice,  of  which  the  following  is  a  copy,  namely,  "  Notice. 
There  will  be  a  special  election  held  in  the  schoolhouse  of  union  school  district 
I,  Po'keepsie,  Saturday,  Jan.  7,  1899,  7.30  p.  m.,  to  fill  the  vacancy  in  the  board 
of  education  By  order  of  trustees.  ]\Iichael  Lyons,  clerk.  Dated  December  28, 
1898,"  was  posted  in  six  conspicuous  places  in  the  district,  ten  days  preceding 
January  7,  1899;  that  on  January  7,  1899,  i"  pursuance  of  said  notice  certain  of 
the  inhabitants  of  such  district  assembled  at  the  schoolhouse,  Trustee  Jones 
acting  as  chairman  and  Trustee  Eagan  as  clerk,  and  the  call  for  the  meeting 
was  read;  that  the  appellant  George  Harris  and  Alfred  Brower  were  nominated 
for  trustee  to  fill  the  vacancy  created  by  the  death  of  Mr  Corrigan  and  ballot 
was  taken  which  resulted  in  121  votes  being  cast  of  which  Brower  received  70 
and  Harris  51  ;  that  said  Brower  has,  since  said  meeting,  been  acting  as  a  trustee 
of  the  district  in  the  place  of  Corrigan,  deceased. 

Assuming,  for  the  purpose  of  argument  only,  that  Trustee  Jones  and 
Trustee  Eagan  had  the  legal  authority  to  call  a  special  meeting  of  the  qualified 
voters  of  such  district  to  elect  a  trustee  to  fill  the  vacancy  existing  in  the  board 
of  trustees  of  the  district,  the  notice  given  was  defective  in  form,  and  said  notice 
was  not  served  in  the  manner  required  by  title  8  of  the  Consolidated  School 
Law  of  1894,  and  hence  said  special  meeting  of  January  7,  1899,  was  not  duly 
and  legally  called  and  held,  and  the  proceedings  taken  thereat  are  illegal  and 
void. 

Section  13,  article  3,  title  8  of  the  Consolidated  School  Law  of  1894  pro- 
vides that  in  union  school  districts  other  than  those  whose  limits  correspond  to 
those  of  any  incorporated  village  or  city  the  boards  of  education  shall  have 
power  to  call  special  meetings  of  the  inhabitants  of  their  respective  districts 
whenever  they  shall  deem  it  necessary  and  proper,  in  the  manner  prescribed 
in  section  10  of  said  title. 

Section  10  of  said  tide  8  provides  that  notices  of  meetings  of  the  qualified 
voters  of  such  districts  shall  be  published  once  in  each  week  for  the  four  weeks 
preceding  such  district  meetings,  in  two  newspapers  if  there  shall  be  two,  or  in 


Il6  THE   UXIVERSITV   OF   THE   STATE   OF   NEW   YORK 

one  newspaper  if  there  shall  be  but  one,  published  in  such  district.  But  if  no 
newspaper  shall  then  be  published  therein,  "  the  said  notice  shall  be  posted  in 
at  least  twenty  of  the  most  public  places  in  said  district  twenty  days  before  the 
time  of  the  meeting." 

It  is  clear  that  Trustee  Jones  and  Trustee  Eagan  had  no  legal  authority  to 
call  a  special  meeting  of  the  qualified  voters  of  such  district  to  supply  the  vacancy 
in  the  board  of  trustees  caused  by  the  death  of  Corrigan. 

•  Subdivision  12  of  section  15,  article  4,  title  8  of  the  Consolidated  School 
Law  of  1894  provides  that  the  board  of  education  of  every  union  school  district 
has  the  power,  and  it  shall  be  its  duty,  "  to  fill  any  vacancy  which  may  occur 
in  said  board  by  reason  of  the  death  ...  of  any  member  or  officer  of  said 
board ;  and  the  person  so  appointed  in  the  place  of  any  such  member  of  the 
board  shall  hold  his  ofifice  until  the  next  election  of  trustees  as  by  this  act  pro- 
vided. In  case  of  the  failure  of  such  board  to  fill  such  vacancy,  and  in  case  no 
special  election  is  ordered  for  filling  the  same  for  a  period  of  30  days,  the  same 
may  be  filled  by  the  school  commissioner  having  jurisdiction.  The  Superintendent 
of  Public  Instruction  may  order  a  special  election  to  be  held  in  any  district  for 
the  purpose  of  filling  such  vacancy,  and  when  such  special  election  is  ordered  the 
vacancy  shall  not  be  filled  otherwise." 

The  foregoing  provision  of  law  is  perfectly  plain.  If  a  vacancy  occurs  in 
the  board  of  trustees  of  a  union  school  district  such  vacancy  shall  be  filled  by 
the  remaining  members  of  the  board  of  trustees.  If  for  any  reason  such  remain- 
ing members  can  not,  or  do  not,  fill  such  vacancy,  for  a  period  of  30  days  after 
the  vacancy  occurs,  the  school  commissioner  of  the  commissioner  district  in 
which  the  school  district  is  situated,  has  the  power  to  fill  the  vacancy,  unless  a 
a  special  election  is  ordered.  The  only  person  zvho  has  auihority  to  order  a 
special  election  is  the  State  Superintendent  of  Public  Instruction,  zvho,  for  rea- 
sons satisfactory  to  him,  can  order  a  special  election. 

No  special  election  has  been  ordered  by  me  in  said  district  to  fill  the 
vacancy  in  the  board  of  trustees  of  the  district,  caused  by  the  death  of  ]\Ir 
Corrigan. 

I  decide: 

That  as  the  special  meeting  held  in  said  school  district  January  7,  1899,  was 
not  ordered  by  me,  such  meeting  was  illegal  and  void ;  that  Alfred  Brower  was 
not  legally  elected  a  member  of  the  board  of  trustees  of  said  district  to  fill  the 
\'acancy  in  such  board  caused  by  the  death  of  John  Corrigan ;  that  such  special 
meeting  was  neither  legally  called  nor  held,  and  the  proceedings  taken  thereat 
were  illegal  and  void  and  must  be  set  aside. 

The  appeal  herein  is  sustained. 

It  is  ordered: 

That  the  proceedings  taken  at  said  alleged  special  meeting,  held  January  7, 
1899,  ^"  union  school  district  i,  Poughkeepsie,  Dutchess  county,  and  especially 
in  the  alleged  election  of  Alfred  Brower  as  a  trustee  of  said  district,  be,  and  the 
same  are,  hereby  vacated  and  set  aside. 


•JUDICIAL  decisions:     eoard  of  education  117 

4343 
In  til e  matter  of  the  appeal  of  William  Keutgen  v.  Nicholas  J.  Macklin,  as  presi- 
dent of  board  of  education  of  union  free  school  district  no.  2,  Aliddletown 
and  Southfield,  Richmond  county. 
When  a  vacancy  occurs  in  a  board  of  education  of  a  union  free  school  district,  such  board 
has  power,  under  the  school  law,  to  fill  such  vacancy,  and  the  person  appointed  shall 
hold  office  until  the  next  annual  meeting  of  the  district.     A  board  of  education  con- 
sisting of  nine  members,  a  quorum  of  the  board  being  present,  namely,  five  members,  a 
person  elected  to  fill  the  vacancy  receiving  a  majority  of  the  votes  of  those  present  is 
duly  elected  to  fill  such  vacancy. 
Decided  March  19,  1895 

John  Widdecombe,  attorney  for  respondent 

Crooker,  Superintendent 

This  appeal  is,  in  fact,  an  appeal  from  the  election  of  one  Thomas  J. 
Flannigan  as  a  member  of  the  board  of  education  of  union  free  school  district 
no.  2,  Middletown  and  Southfield,  Richmond  county,  as,  although  the  appellant 
alleges  various  acts  of  the  board  and  its  president  to  be  irregular  and  contrary 
to  the  by-laws  of  said  board,  he  asks  that  the  election  of  Mr  Flannigan,  as  a  mem- 
ber of  said  board,  be  set  aside  as  illegal.  Both  said  Macklin  and  Flannigan  have 
filed  an  answer  to  the  appeal. 

It  appears  that  by  the  action  of  the  school  meeting  by  which  said  union  free 
school  was  established  the  board  of  education  thereof  was  to  consist  of  nine  mem- 
bers and  nine  persons  were  duly  elected  to  constitute  said  board;. that  prior  to 
January  25.  1895,  one  P.  Albin  Warth  was  a  member  thereof,  but  said  Warth  duly 
resigned  as  such  member,  which  resignation  was  duly  accepted  by  said  board  on 
January  25,  1895,  ^^^^  thereupon  there  became  a  vacancy  in  said  board;  that  at 
an  adjourned  regular  meeting  of  said  board,  held  on  February  6,  1895,  at  which 
there  were  present  seven  of  the  eight  members  of  said  board,  after  the  trans- 
action of  various  matters,  Mr  Cole  moved  that  the  board  then  proceed  to  the 
election  of  a  trustee,  and  the  appellant  herein  moved  as  a  substitute  that  it  be 
laid  over  until  the  next  meeting,  whereupon  the  substitute  was  lost  and  the  motion 
of  Mr  Cole  adopted;  on  motion  by  the  appellant  a  recess  for  ten  minutes  to  con- 
sider candidates  was  carried ;  that  upon  the  expiration  of  said  recess  the  presi- 
dent ordered  a  vote  to  be  taken  for  the  election  of  a  trustee;  that  Mr  Robinson, 
a  member  of  the  board,  during  the  recess,  was  excused,  and  Mr  Corey,  also  a 
member  of  the  board,  left  the  meeting ;  that  a  vote  was  taken  for  trustee  which 
resulted  in  four  votes  for  Thomas  J.  Flannigan  and  one  for  Mr  Barry;  that  two 
other  votes  were  taken  with  a  like  result;  that  appellant  herein  asked  to  be 
excused,  and  the  president  of  the  board  refused  to  excuse  him  upon  the  ground 
that  it  would  break  the  quorum ;  that  Mr  Cole  moved  for  another  ballot  for  trus- 
tee which  was  taken  and  resulted  as  hereinbefore  stated;  that  Mr  Cole  raised  a 
point  of  order  demanding  the  president  of  the  board  to  declare  Mr  Flannigan 
elected  as  trustee  on  the  ground  that  Mr  Corey,  not  being  excused,  must  be 
recorded  as  present,  and  thereupon  claimed  that  Mr  Flannigan  received  a  majority 


IlS  THE   UNIVERSITY    OF   THE    STATE    OF    NEW    YORK 

vote;  that  the  appellant  herein  thereupon  left  the  meeting  and  the  president 
reserved  his  decision  and  there  being  no  quorum,  ordered  an  adjournment 
of  the  meeting  until  February  3,  1895,  at  8  p.  m. ;  that  on  February  3,  1895, 
a  quorum  of  the  board  not  being  present,  the  meeting  of  the  board  was 
adjourned  to  February  12,  1895,  and  on  February  12,  1895,  there  being  no 
quorum  of  the  members  present  the  meeting  of  the  board  was  adjourned 
to  February  16,  1895;  that  on  February  16,  1895,  an  adjourned  meeting  of 
said  board  w^as  held,  a  quorum  being  present,  at  which  the  president  of  the 
board  stated  he  had  looked  up  the  question  of  the  point  of  order  raised  by 
Mr  Cole,  at  a  former  meeting,  requesting  the  president  to  declare  Mr  Flannigan 
elected  a  trustee,  and  he  had  come  to  the  conclusion  that  the  point  was  well  taken, 
and  thereupon  declared  Mr  Flannigan  legally  elected  a  trustee  of  said  district, 
and  directed  the  clerk  to  enter  his  name  on  the  roll,  and  to  notify  Mr  Flannigan 
of  his  election  and  to  give  to  him  notices  of  all  future  meetings  of  the  board. 

Boards  of  education  of  union  free  school  districts  are  severally  created  bodies 
corporate  (section  7,  article  i,  title  8  of  the  Consolidated  School  Law  of  1894; 
Bassett  &  Fish  et  al.  75  N.  Y.  303). 

The  corporation  so  created  takes,  not  only  the  powers  given  expressly  by 
the  statutes,  but  such  other  powers  as  are  necessary  to  its  life  and  well-being, 
and  which  such  entities  have  at  common  law  or  by  other  statutes ;  it  must  act  also, 
and  can  act  only  in  the  mode  and  by  the  means  appropriate  to  a  corporation 
(Bassett  &  Fish  et  al.  75  N.  Y.  303). 

Such  boards  of  education  have  power,  and  it  shall  be  their  duty,  to  fill  any 
vacancy  which  may  occur  in  any  such  board  by  reason  of  the  death,  resignation, 
removal  from  office  or  from  the  school  district,  or  refusal  to  serve,  of  any 
member  or  officer  of  such  board  (sub.  12,  sec.  15,  art.  4,  title  8,  Consolidated 
School  Law  of  1894). 

The  Consolidated  School  Law  does  not  prescribe  how  many  members  of  a 
board  of  education  shall  constitute  a  quorum  for  the  transaction  of  business. 

At  common  law  the  rule  was  well  settled,  that  in  select  governing  bodies  of 
a  definite  number,  invested  with  functions  of  a  public  nature,  a  majority  of  a 
quorum,  though  less  than  a  majority  of  the  whole  body,  may  legally  act. 

Mr  Dane  in  his  abridgment  states  that,  "  If  the  body  consists  of  twelve 
common  councilmen,  seven  is  the  least  number  that  can  constitute  a  valid  meet- 
ing, though  four  of  the  seven  may  act."  In  Dillon  on  Municipal  Corporations  it 
is  stated,  "  So  if  a  board  of  village  trustees  consist  of  five  members  and  all,  or 
four,  are  present,  two  can  do  no  valid  act ;  if  three  only  were  present  they  would 
constitute  a  quorum,  then  the  votes  of  two,  being  a  majority  of  the  quorum,  would 
be  valid,  and  certainly  so  when  the  three  are  all  competent  to  act." 

Section  10,  article  3  of  the  Constitution  of  this  State  enacts  that  "A  majority 
of  each  house  shall  constitute  a  quorum  to  do  business."  Under  said  clause  it  is 
competent  for  either  house  to  do  any  business  by  a  bare  majority  of  a  quorum, 
except  in  particular  cases,  such  as  the  enactment  of  laws  where  a  larger  vote  is 
expressly  required  by  restrictive  words  elsewhere  in  such  constitution.     In  the 


JUDICIAL  decisions:     board  of  education  119 

general  corporation  law,  chapter  6S7  of  the  Laws  of  1892,  section  29,  it  is  enacted 
that  "  Unless  otherwise  provided  by  law,  a  majority  of  the  board  of  directors  of 
a  corporation  at  a  meeting,  duly  assembled,  shall  be  necessary  to  constitute  a 
quorum  for  the  transaction  of  business,  and  the  act  of  a  majority  of  the  directors 
present  at  a  meeting  at  v.hich  a  quorum  is  present  shall  be  the  act  of  the  board  of 
directors." 

Superintendent  Ruggles  in  appeal  3314,  decided  on  March  3,  1884,  held  that 
the  appellant  therein,  who  was  elected  a  member  of  a  board  of  education  by  vote 
which  was  less  than  a  majority  of  the  board,  though  it  was  a  majority  of  the 
members  present,  a  quorum  being  in  attendance,  was  legally  elected. 

Boards  of  education  have  power  to  adopt  such  by-laws  and  rules  for  their 
government  as  shall  seem  proper  in  the  discharge  of  the  duties  required  under 
the  provisions  of  the  school  law. 

It  is  not  necessary,  in  disposing  of  this  appeal,  to  decide  as  to  whether  or 
not  the  by-laws  adopted  by  said  board  are  valid  or  not.  The  appellant  herein 
contends  that  the  by-laws,  article  2,  which  provides  that  when  only  a  quorum  of 
the  board  is  present  at  any  meeting  a  unanimous  vote  shall  be  necessary  to  decide 
a  question  other  than  that  of  adjournment,  requires  a  unanimous  vote  to  fill  a 
vacancy  in  said  board,  is  not  tenable. 

The  appellant  contends  that  after  the  first  vote  to  fill  the  vacancy  in  said 
board  the  president  should  have  declared  Mr  Flannigan  elected  and  not  allowed 
the  other  ballots  to  be  taken.  The  appellant  seems  to  hold  the  opinion  that  the 
declaration  by  the  president  of  the  election  of  Flannigan  was  necessary  to  make 
such  election  valid.  In  this  he  is  in  error.  At  a  school  district  meeting  or  board 
of  education  when  an  election  is  had  for  an  officer,  it  is  not  the  declaration  of  a 
chairman,  but  the  fact  that  a  person  received  a  majority  of  the  legal  votes  cast, 
which  constitutes  an  election.  One  ballot  or  vote  was  all  that  was  necessary  to 
be  taken  at  said  meeting  of  said  board  of  education  held  on  February  6,  1895, 
to  elect  a  member  of  said  board  to  fill  the  vacancy  existing  therein. 

I  find  and  decide,  That  Thomas  J.  Flannigan  was,  on  February  6,  1895,  at 
a  duly  held  meeting  of  the  board  of  education  of  union  free  school  district  no.  2, 
Middletown  and  Southfield,  Richmond  county,  duly  and  legally  elected  a  member 
of  said  board  of  education  to  fill  the  vacancy  then  existing  in  said  board  by  reason 
of  the  resignation  of  P.  Alvin  Warth,  which  resignation  had  theretofore  been 
duly  made  to  and  accepted  by,  said  board. 

Appeal  dismissed. 


3314 

Power  of  board  to  appoint  member  thereof  fully  discussed. 
Decided  March  3,  1884 

Ruggles,  Superintendent 

The  vote  by  which  the  appellant  claims  to  have  been  appointed  a  member 
of  the  board  of  education,  was  less  than  a  majority  of  the  board,  though  it  was 
-a  majority  of  the  members  present,  a  quorum  being  in  attendance. 


I20  THE   UXIVERSITY    OF   THE    5TATE    OF    NEW   YORK 

Was  it  competent  for  a  bare  majority  of  a  quorum  present  to  make  a  valid 
appointment  ? 

The  special  statute  under  which  this  school  district  was  organized,  provides 
that  said  district  "  shall  under  the  direction  of  the  board  of  education,  which 
board  shall  consist  of  four  members,  three  or  more  of  whom  shall  constitute  a 
quorum  for  the  transaction  of  business." 

At  common  law  the  rule  seems  to  have  been  well  settled,  that  in  select  gov- 
erning bodies  of  a  definite  munber,  invested  with  functions  of  a  public  nature,  a 
majority  of  a  quorum,  though  less  than  a  majority  of  the  whole  body,  may 
legally  act. 

yir  Dane  thus  illustrates  the  rule :  "  If  the  body  consists  of  twelve  common 
councilmen,  seven  is  the  least  number  that  can  constitute  a  valid  meeting,  though 
four  of  the  seven  may  act."  5  Dane  Abr.  150.  The  rule  is  further  illustrated  in 
Dillon  on  ^Municipal  Corporations  (§  279,  3d  ed.),  as  follows:  "  So  if  a  board  of 
village  trustees  consists  of  fife  uiembers,  and  all,  or  four,  are  present,  two  can 
do  no  valid  act;  if  three  only  were  present  they  would  constitute  a  quorum,  then 
the  votes  of  two,  being  a  majority  of  the  cjuorum,  would  be  valid;  certainly  so 
when  the  three  are  all  competent  to  act."  This  rule  of  the  common  law  has  been 
made  the  statutory  rule  in  this  State  in  reference  to  corporations  (2  Rev.  Stat., 
I53i»  §  6,  7th  ed.).  I  am  inclined  to  think,  however,  that  this  statute,  although 
its  v/ords  are  general,  applies  only  to  private  corporations.  On  the  other  hand, 
we  have  a  general  statute  relating  to  the  exercise  of  powers  confided  by  law  to 
three  or  more  persons,  or  officers  which  requires  the  concurrence  of  a  majority 
of  the  whole  number  in  the  valid  exercise  of  such  powers  (i  Rev.  Stat.,  2458, 
§  27).  It  might  be  urged  with  some  force  that  the  last  statute  governs  the  case 
in  hand,  but  for  the  fact  that  chapter  81  of  the  Laws  of  1848,  in  respect  to  this 
particular  board  of  education,  expressly  makes  three  members  a  quorum.  In  the 
use  of  this  v/ord,  I  think  the  Legislature  intended  to  invest  in  three  members, 
present  at  a  duly  convened  meeting  of  the  board,  the  ordinary  common  law 
powers  of  a  quorum,  especially  in  the  absence  of  any  instructive  words. 

The  Constitution  of  this  State,  article  3,  section  10,  in.  defining  the  powers 
of  the  Legislature,  making  similar  use  of  the  word,  provides  that  "  a  majority 
of  each  house  shall  constitute  a  quorum  to  do  business.  Under  this  clause  it  is 
competent  for  either  house  to  do  any  business  by  a  bare  majority  of  a  quorum, 
except  in  particular  cases  where  a  larger  vote  is  expressly  required  by  restrictive 
words  elsewhere  in  the  Constitution  "  (Cooley  on  Constitutional  Limitations,  141). 
It  follows  that  the  vote  of  the  appellant  was  sufficient  to  constitute  a  valid 
appointment.  In  this  view  of  the  case  it  is  not  necessary  to  pass  upon  the  ques- 
tion, whether  under  the  circumstances,  Mr  Marvel,  the  nonvoting  member  of  the 
quorum,  by  reason  of  his  silence,  is  to  be  deemed  to  have  assented  to,  and  as  a 
matter  of  law  voted  for  the  appointment  of  the  appellant. 

The  statute  confers  upon  the  board  power  to  fill  any  vacancy  which  may 
happen  in  said  board  by  reason  of  the  death,  removal  or  refusal  to  serve  of  any 
member  or  officer  of  said  board.     It  provides  for  no  commission,  oath,  bond  or 


JUDICIAL   decisions:       board   of   education  121 

other  formality,  subsequent  to  the  vote  and  the  official  announcement  of  the  result 
by  the  presiding  officer,  in  order  to  perfect  the  appointment  and  invest  the 
appointee  with  the  office.  The  appointment  was  complete  when  the  vote  was 
taken  and  officially  announced  by  the  presiding  officer.  The  entry  in  the  minutes 
is  but  evidence  of  the  exercise  of  the  power. 

Was  it  competent  for  the  board  to  subsequently  reconsider  this  action 
and  make  a  valid  appointment  of  another  person,  Mr  Murray  not  having  been 
removed  nor  in  any  way  vacated  the  office  ?  I  think  such  action  was  beyond  the 
power  conferred  upon  the  board.  When  the  statutory  authority  was  once  exer- 
cised, the  power  of  the  board  in  the  matter  was  exhausted.  The  general  rule 
of  law  applicable  to  the  case,  is  concisely  stated  by  Reynolds  C,  in  People  ex 
rel.  Hotchkiss  v.  Supervisors,  65  X.  Y.  227.  "  The  cases  are  very  numerous  and 
the  principle  perfectly  well  stated  that  when  power  to  do  a  certain  act  is  con- 
ferred upon  a  public  officer,  or  board  of  officers,  and  when  action  has  once  been 
had  under  the  power  it  is  final  and  may  not  be  repeated,  reversed  or  annulled 
by  the  same  officer  or  body." 

The  People  ex  rcl.  Moshcr  v.  Stowell.  9  Abb.  X.  C,  is  a  case  in  point  in 
affirmance  of  this  rule.  The  common  council  of  Elmira  appointed  Mosher  as 
chamberlain.  Subsequently  a  resolution  was  adopted  by  the  council  purporting 
to  rescind  the  appointment  and  to  appoint  Stowell.  The  court  held  Mosher 
entitled  to  the  office.  The  court.  Smith,  J.,  says :  "  When  the  common  council 
adopted  the  resolution  appointing  the  relator,  its  action  in  respect  to  the  choice 
of  chamberlain  was  complete.  It  had  no  authority  to  rescind  such  action,  the 
appointment  being  for  a  definite  term,  especially  after  the  relator  had  signified 
his  acceptance  of  the  office  by  taking  and  filing  the  oath."  To  the  same  effect  is 
Sank  V.  Philadelphia,  8  Phila.  117.  Appellant  declared  legally  appointed  a 
member  of  the  board. 


4584 

In  the  matter  of  the  appeal  of  William  H.  Flewwellin  and  Isaac  G.  Braman  v. 
James  B.  McLeese  and  John  H.  McKeever. 

In  the  petition  of  two  members  of  the  board  of  education  of  the  city  of  Watervliet,  Albany 
countj',  for  the  removal  of  the  other  two  members  of  such  board  for  violation  and 
neglect  of  duty  and  in  not  obeying  the  decisions  of  the  State  Superintendent  of  Public 
Instruction  and  for  failure  to  open  the  schools  of  such  city. 

Held,  that  the  common  school  system  of  the  State  is  a  State  and  not  a  local  system;  that 
the  power  delegated  by  the  Legislature  to  the  local  school  authorities  of  such  city 
through  its  charter  is  to  enforce,  not  to  nullify,  the  mandate  of  the  Constitution  re- 
quiring the  Legislature  to  provide  for  the  maintenance  and  support  of  a  system  of  free 
common  schools  wherein  all  the  children  of  the  State  may  be  educated;  that  no  com- 
munity in  the  State  can  close  its  schools  and  refuse  compliance  with  the  provisions 
of  the  organic  law;  that  the  entire  public  school  system  of  the  State  is  under  the 
supervision  and  management  of  the  State  Superintendent  of  Public  Instruction,  to  the 
end  that  the  constitutional  requirement  be  complied  with  and  the  legislation  accompany- 
ing it  made  effective;  that  if  the  school  authorities  fail  to  perform  their  duty  in  opening 


122  THE   UNIVERSITY    OF   THE   STATE   OF    NEW   YORK 

the  schools  the  State  Superintendent  will  not  hesitate  to  exercise  the  power  of  opening 
such  schools ;  that  the  board  of  education  of  such  city  is  ordered  and  directed  to  pro- 
vide the  necessary  equipment  of  qualified  teachers,  janitors  and  necessary  employees, 
and  to  open  the  common  schools  of  that  city  to  the  pupils  residing  therein,  on  or  before 
the  4th  day  of  October  1897. 
Decided  September  27,  1897 

Skinner,  Superintendent 

This  is  a  petition  presented  by  the  above-named  appellants  praying  for  the 
removal  from  office  of  the  respondents  herein,  and  also  that  the  appellants  be 
directed  by  the  State  Superintendent  of  Public  Instruction  to  open  the  schools 
in  the  city  of  \\'atervliet  at  once  with  a  full  corps  of  teachers,  janitors  and  other 
employees. 

The  parties  to  the  above-entitled  proceedings  constitute  the  entire  board 
of  education  of  the  city  of  Watervliet  and  their  office  is  created  and  their  powers 
and  duties  are  defined  by  chapter  905  of  the  Laws  of  1896. 

The  relief  asked  for  is  based  upon  the  allegation  that  the  schools  of  said 
city  remain  closed,  although  the  date  upon  which  they  usually  open,  and  the  date 
publicly  announced  by  the  board  of  education  as  that  upon  which  they  would 
open,  has  long  since  passed,  it  being  claimed  by  the  appellants  that  the  respondents 
herein  refuse  to  unite  with  them  in  the  selection  of  proper  teachers  and  other 
employees,  and  by  reason  of  said  refusal  the  board  of  education  in  said  city  is 
in  a  hopeless  deadlock.  It  is  also  claimed  by  the  appellants  that  the  respondents 
herein  persist  against  their  protest,  in  the  continued  leasing,  beyond  the  period 
of  temporary  emergency  contemplated  by  the  statute,  of  the  building  situated 
at  the  corner  of  Fifth  avenue  and  Seventh  street  in  said  city,  in  violation  of  the 
decision  of  the  State  Superintendent  in  appeal  cases  nos.  4516  and  4546. 

The  respondents,  by  their  answer,  deny  any  intention  upon  their  part  to 
violate  the  spirit  or  letter  of  the  decisions  referred  to,  and  allege  that  the  schools 
in  said  city  remain  closed  because  of  the  refusal  of  the  appellants  herein  to  unite 
with  them  in  the  employment  of  qualified  teachers  and  necessary  employees  for 
the  opening  and  continuation  of  said  schools. 

Passing  over  the  details  of  the  unfortunate  controversy  as  set  forth  in  the 
pleadings  herein,  tz^'o  facts  stand  admitted: 

I  The  school  authorities  of  the  flourishing  city  of  Watervliet  all  admit  there 
is  and  for  a  long  time  has  been  a  lack  of  sufficient  school  accommodations  in  said 
city  and  that  an  additional  school  building  is  needed.  Such  need  is  admitted  by 
all  parties,  is  urgent,  and  has  continued  for  a  long  time.  No  reason  why  the 
needed  school  building  can  not  be  supplied  exists,  or,  at  least,  none  is  alleged,  and 
yet  no  steps  have  been  taken  to  supply  the  urgent  demand  for  additional  school 
facilities,  and  the  board  of  education  are  still  dickering  with  the  owners  of  private 
property  in  an  attempt  to  rent  buildings  or  portions  of  private  buildings  in  which 
to  conduct  a  public  school.  As  was  shown  in  the  former  appeals,  to  which  refer- 
ence is  herein  made,  few  localities  in  the  State  are  more  fortunately  situated  or 
better  able  to  provide  for  the  public  ownership  of  all  property  used  for  school 


JUDICIAL  decisions:     board  of  education  123 

purposes.  Yet  no  effort  whatever  seems  to  have  been  made  to  provide  sufficient 
school  facilities  except  an  effort  to  continue  the  system  of  leasing  private  prop- 
erty against  the  policy  of  the  State  as  clearly  contemplated  by  the  Consolidated 
School  Law. 

2  The  entire  schools  of  the  city  are  closed  and  parents,  anxious  for  the 
education  of  their  children  and  fortunate  enough  to  be  able  to  send  them  else- 
where, are  doing  so.  Those  less  fortunately  situated  are  roaming  the  streets  of 
the  city. 

I  shall  not  attempt,  in  these  proceedings,  to  fix  the  blame  for  these  unfor- 
tunate and  utmecessary  conditions.  Each  is,  in  itself,  disgraceful;  both  should 
be  remedied  at  once. 

The  most  efficient  remedy,  however,  in  my  judgment,  does  not  at  this  time 
consist  in  removing  from  office  any  members  of  the  board  of  education. 

The  schools  in  the  city  of  Watervliet  are,  by  the  charter  of  that  city,  under 
the  local  management  of  a  board  of  education  created  in  its  personnel  by  the 
selection  of  members  of  the  two  leading  political  parties  in  equal  numbers,  with 
the  avowed  purpose  of  making  them  bipartisan.  Whatever  may  have  been  the 
operation  elsewhere  of  this  eft'ort  of  modern  legislation  to  keep  politics  out  of 
the  schools  by  this  method  of  bipartisan  boards,  the  direct  result  in  this  city  has 
been  to  inject  politics  into  the  school  to  the  extent  that  every  other  consideration 
has  been  lost  sight  of  —  even  the  school  itself.  It  is  earnestly  hoped  that  at  an 
early  day  some  legislation  may  be  enacted  that  will  render  the  present  conditions 
impossible. 

In  the  meantime,  however,  I  am  of  the  opinion  that  a  remedy  for  the  present 
imfortimate  condition  of  aft'airs  in  this  city  exists. 

The  schools  iif  the  city  of  Watervliet  are  not  local  institutions  in  the  sense 
that  the  citizens  of  the  State  at  large  have  no  interest  therein,  or  the  State  authori- 
ties no  control  thereof.  The  Constitution  of  the  State  in  article  9  thereof  pro- 
vides as  follows : 

"  The  Legislature  shall  provide  for  the  maintenance  and  support  of  a  system 
of  free  common  schools  wherein  all  the  children  of  this  State  may  be  educated." 

This  constitutional  requirement  has  been  fulfilled  by  the  Legislature  of  the 
State.  It  has  provided,  by  general  taxation,  a  fund  exceeding  four  millions  of 
dollars  for  the  support  of  a  State  system  of  free  common  schools,  of  which 
amount  the  city  of  Watervliet  receives  from  the  State  treasury  the  sum  of  nearly 
six  thousand  dollars.  But  all  the  children  of  the  State  can  not  be  educated 
therein  for  the  reason  that  those  residing  in  the  city  of  Watervliet  are  waiting 
upon  the  pleasure  of  the  board  of  education  of  that  city  while  they  are  engaged 
in  determining  and  agreeing  upon  how  many  of  the  necessary  teachers  to  be 
employed  shall  belong  to  either  political  party  or  of  what  religious  denomination 
tbey  shall  be  devotees,  before  necessary  school  buildings  shall  be  supplied. 

Not  only  does  the  State  meet  this  requirement  of  the  Constitution  by  provid- 
ing this  large  fund  for  school  purposes  to  be  raised  by  general  taxation,  but  it 
has  provided  for  a  State  Superintendent  of  Public  Instruction  to  enforce  the 
constitutional  mandate  and  its  accompanying  legislation. 


124  THE   UNIVERSITY    OF   THE   STATE    OF    NEW   YORK 

The  Consolidated  School  Law  of  the  State  places  the  supervisors  of  the  entire 
common  school  system  of  the  State  under  his  control.  He  is  charged  with  the 
duty  of  apportioning  the  public  funds,  and  may  withhold  the  whole  or  any  part 
thereof  from  any  district  or  city  under  certain  conditions.  He  "  must  give  to 
local  school  authorities  such  information  and  instructions  as  he  shall  deem  con- 
ducive to  the  proper  organization  and  government  of  the  common  schools,  and 
the  due  execution  of  their  duties  by  school  officers."  "Any  person  conceiving 
himself  aggrieved  in  consequence  of  any  decision  made  by  any  school  officer 
concerning  any  matter  under  the  Consolidated  School  Law,  or  any  other  act  per- 
taining to  the  common  schools,  may  appeal  to  him,  and  he  is  authorized  and 
empowered  to  make  all  orders  which  may,  in  his  judgment,  be  proper  or  necessary 
to  give  effect  to  his  decisions." 

The  entire  public  common  school  system  is  thus  under  his  supenasion  and 
management  to  the  end  that  the  constitutional  requirement  shall  be  complied 
with  and  its  accompanying  legislation  made  effective. 

Even  the  charter  of  the  city  of  Watervliet  recognizes  this  power  of  the 
State  Superintendent  over  all  the  common  schools  of  the  State  providing  in  sub- 
division lo  of  section  12  of  title  5  therein  that  "  the  board  of  education  in  said 
city  shall  have,  to  the  exclusion  of  all  boards  and  officers,  except  the  State  Super- 
intendent of  Public  Instruction  of  this  State,  the  entire  supervision  and  manage- 
ment of  the  schools  of  said  city." 

No  community  in  the  State  can  close  its  schools  and  refuse  compliance  with 
this  provision  of  the  organic  law. 

The  common  school  system  of  the  State  is  a  State  and  not  a  local  system. 
The  citizens  of  the  most  remote  section  of  the  State  have  an  interest  in  the  schools 
of  this  city.  They  assist  in  maintaining  them  and  they  have*a  direct  interest  in 
their  efficiency.  The  power  delegated  by  the  Legislature  to  the  local  school 
authorities  of  Watervliet  through  its  charter  is  to  enforce,  not  to  nullify  the 
mandate  of  the  constitution. 

This  charter  so  far  as  it  relates  to  the  common  schools  therein  must  be  read 
and  interpreted  in  connection  with  the  general  school  law  of  the  State.  It  is 
supplemental  only  to  that.  If  the  local  school  authorities  refuse  to  comply  with 
the  provisions  of  these  statutes  they  must  be  compelled  te  do  so  by  the  courts. 
If  they  refuse  and  are  not  compelled  to  do  so,  ample  authority  is  by  the  general 
school  law  vested  in  the  State  Superintendent  to  open  the  schools  of  said  city. 

I  shall  not  hesitate  to  exercise  this  power  if  the  school  authorities  of  that 
city  persist  in  their  neglect  and  refusal  to  perform  the  duties  of  their  office. 

Without,  therefore,  passing  at  present  upon  the  question  as  to  which  of  the 
parties  to  this  appeal  is  censurable  for  the  condition  of  school  affairs  now 
existing  in  that  city,  I  hereby  order  and  direct  the  board  of  education  of  the 
city  of  Watervliet  to  provide  the  necessary  equipment  of  qualified  teachers, 
janitors  and  necessary  employees,  and  to  open  the  common  schools  of  that  city 
to  the  pupils  residing  therein  on  or  before  the  4th  day  of  October  i8p/. 


JUDICIAL  decisions:     board  of  education  125 

The  board  of  education  of  the  city  of  Watervliet,  having  wilfully  refused  to 
comply  with  the  foregoing  decision  and  order  of  September  27,  1897,  the  State 
Superintendent  of  Public  Instruction,  on  October  4,  1897,  made  the  following 
order: 

In  the  matter  of  the  opening  of  the  schools  in  the  city  of  Watervliet  by  the 
State  Superintendent  of  Public  Instruction. 

Having  made  and  entered  on  the  27th  day  of  September  1897,  an  order 
directing  the  board  of  education  in  the  city  of  Watervliet  to  employ  sufficient 
qualified  teachers,  janitors  and  employees,  and  having  directed  them  to  open 
the  public  schools  for  the  city  of  Watervliet  on  or  before  the  4th  day  of  October 
1897;  and  said  board  of  education  having  wilfully  refused  to  comply  with  the 
terms  of  said  order  and  direction,  and  said  schools  in  said  city  yet  remaining 
closed  and  no  teachers,  janitors,  or  other  necessary  employees  having  been 
employed  or  appointed  by  said  board,  now,  therefore,  I  do  hereby  order  and 
direct  Mr  A.  M.  Wright  to  proceed  to  the  city  of  Watervliet  and  organize  the 
school  system  of  said  city  as  temporary  superintendent  of  schools  with  the 
following  corps  of  qualified  teachers  and  the  persons  herein  designated  as 
janitors  and  librarian,  each  of  whom  is  herein  temporarily  appointed  to  the 
position  and  at  the  annual  compensation  designated  opposite  each  respective 
name,  in  this  order,  namely : 

Frank  D.  McGowan,  librarian,  $150  per  year;  Charles  E.  Trowbridge, 
truant  officer,  $400  per  year;  Michael  F.  Wood,  truant  officer,  $400  per  year; 
Mary  F.  Fitzgerald,  drawing  teacher,  $480  per  year;  Sarah  E.  Forsyth,  prin- 
cipal, $600  per  year;  Jane  Kennedy,  assistant.  $480  per  year;  Rose  Mary 
McClare,  teacher,  $432  per  year;  Harriet  A.  Lacy,  teacher,  $432  per  year; 
Susie  A.  Nugent,  teacher,  $432  per  year;  Chyllean  P.  Luther,  teacher,  $432  per 
year;  Henrietta  R.  Lyons,  teacher,  $432  per  year;  Mary  Dillon,  janitress,  $325 
per  year ;  Ellen  J.  Le  Maire,  principal,  $600  per  year ;  E.  Jennie  Morey,  assistant, 
$480  per  year;  Mattie  Mooney,  teacher,  $432  per  year;  Anna  Von  Lehman, 
teacher,  $432  per  year;  Mary  F.  Taylor,  teacher,  $432  per  year;  Alice  Crummy, 
teacher,  $432  per  year;  Samuel  Van  Vranken,  janitor,  $325  per  year;  Elizabeth 
R.  Rogan,  principal,  $600  per  year ;  Carrie  Pratt,  teacher,  $432  per  year ;  Thomas 

E.  Shaughnessy,  janitor,  $125  per  year;  Julia  Cullen,  principal,  $600  per  year; 
Mary  Healey,  assistant,  $480  per  year;  Agnes  Storen,  teacher,  $432  per  year; 
Teresa  HilHs,  teaclier,  $432  per  year;  Nellie  A.  Boyle,  teacher,  $432  per  year; 
S.  Eugenia  C.  Buck,  teacher,  $432  per  year;  Middey  Seeney,  janitor,  $325  per 
year;  Maggie  B.  Costello,  principal,  $600  per  year;  Nettie  Smith,  assistant,  $480 
per  year ;  Jane  G.  Fleming,  teacher,  $432  per  year ;  ^lary  K.  Hennessy,  teacher, 
$432  per  year;  Mary  A.  Walsh,  teacher,  $432  per  year;  Wm.  P.  O'Brien,  janitor, 
$325  per  year;  Mary  C.  Occumpaugh,  assistant,  $480  per  year;  Charles  Bell, 
janitor,  $100  per  year;  Jennie  A.  Van  Hoesen,  assistant,  $480  per  year;  Charles 

F.  Dabney,  janitor,  $100  per  year;  George  Hunter,  janitor  of  office,  $50  per 
year. 


126  THE   UNIVERSITY    OF   THE   STATE    OF    NEW   YORK 

Said  teachers  holding  proper  certificates  and  being  otherwise  qualified  for 
the  positions  to  which  they  are  herein  assigned  and  appointed,  and  having  been 
heretofore  employed  in  the  schools  of  said  city  by  the  local  school  authorities 
thereof  with  one  exception,  said  appointments  are  to  continue  until  the  local 
school  authorities  of  said  city  shall  designate  qualified  teachers  as  their  successors. 

I  do  also  further  order  and  direct  the  board  of  education  of  said  city  to 
immediately  open  the  school  buildings  and  the  necessary  rooms,  desks  and  closets 
therein  to  the  above-named  teachers  and  place  at  their  disposal  the  usual  and 
proper  furniture  and  supplies,  including  fuel  and  school  apparatus ;  and  as 
often  as  at  the  end  of  each  calendar  month  during  the  continuation  of  the 
services  of  each  teacher,  janitor  and  the  librarian  herein  designated  to  audit 
and  pay  to  each  thereof  an  equal  one-eighth  part  of  the  annual  compensation 
herein  designated  to  be  paid  to  each. 

In  witness  whereof,  I  have  hereunto  affixed  my  hand  and  official  seal  at  the 
[l.  s.]     Capitol  in  the  city  of  Albany,  N.  Y.,  this  4th  day  of  October  1897. 

Charles  R.  Skinner 

State  Superintendent 


4487 

In  the  matter  of  the  appeal  of  Archibald  Fulton  and  Frederick  W.  Hulsebus 
from  proceedings  of  annual  school  meeting  held  August  4,  1896,  in  unio!i 
free  school  district  no.  6,  town  of  Northfield,  Richmond  county. 

In  union  free  school  districts  other  than  those  whose  limits  correspond  with  those  of  any 
incorporated  village  or  citj',  at  the  annual  school  meeting  therein  the  vote  to  make 
appropriation  for  school  purposes  and  to  levy  taxes  therefor,  must  be  taken  by  ballot 
or  ascertained  by  taking  and  recording  the  ayes  and  noes  of  the  qualified  voters  attend- 
ing and  voting  at  such  meeting.  Where  at  any  such  meeting  the  clerk  is  instructed  by 
a  viva  voce  vote  to  vote  for  or  against  any  such  appropriation,  such  proceedings  were 
not  in  accordance  with  the  provisions  of  the  school  law;  that  a  vote  to  increase  or 
diminish  the  number  of  members  of  the  board  of  education  of  any  such  union  free 
school  district,  taken  viva  voce,  directing  the  clerk  to  cast  a  ballot  for  such  increase  or 
diminution,  is  not  in  accordance  with  the  provisions  of  the  school  law.  Where  the  board 
of  education  consists  of  three  members,  and  an  increase  of  the  number  of  members 
thereof  to  five  was  not  made  legally,  the  election  of  five  trustees  at  such  meeting,  was 
illegal  and  void. 

Decided  October  14,  1896 

George  Sheridan,  jr.  attorney  for  appellants 
Lot  C.  Alston,  attorney  for  respondents 

Skinner,  Superintendent 

This  appeal  is  brought  by  the  appellants  as  qualified  voters  of  union  free 
school  district  no.  6,  town  of  Northfield,  Richmond  county,  in  the  above-entitled 
matter,  as  alleged  by  them  in  their  appeal,  "  from  the  several  actions  in  the 
annual  meeting  of  the  said  union  free  school  district  no.  6,  held  at  the  school- 
house,  August  4,  1896."  Said  appeal  contains  the  following  specific  actions  of 
said  meeting  appealed  from : 


JUDICIAL  decisions:     board  of  education  127 

1  From  the  action  of  said  meeting  purporting  to  increase  the  number  of 
members  of  the  board  of  education  to  five. 

2  From  the  action  of  said  meeting  in  the  pretended  election  of  the  following 
named  persons  as  members  of  the  board  of  education  of  said  union  free  school 
district,  and  for  the  term  of  time  set  opposite  the  name  of  each,  as  follows: 
William  H.  Prall  three  years,  E.  C.  Sheridan  three  years,  W.  J.  Scott  two  years, 
C.  H.  Ingalls  two  years,  J.  W.  Wortz  one  year. 

3  From  the  action  of  said  meeting  in  voting  the  items  of  the  budgets  sub- 
mitted by  the  trustees  to  the  meeting  for  appropriations  necessary  to  conduct  the 
school  in  the  district  during  the  school  year  of  1896-97. 

Annexed  to  the  appeal  is  what  purports  to  be  a  copy  of  the  records  of  the 
action  and  proceedings  of  said  annual  meeting  as  kept  and  recorded  by  Arthur 
W.  Deas,  as  clerk  of  the  said  school  district  and  of  said  meeting. 

An  answer  to  the  appeal  has  been  made  by  Messrs  Wortz,  Ingalls,  Scott, 
Sheridan  and  PraU  as  qualified  voters  of  said  district. 

The  respondents  in  their  answer  do  not  controvert  the  statements  as  to  the 
action  and  proceedings  had  and  taken  at  such  annual  meeting  as  stated  in  the 
appeal,  and  in  the  aforesaid  copy  of  the  records  of  the  meeting  annexed  to  the 
appeal,  relative  to  the  proposition  to  increase  the  members  of  the  board  of 
education  to  five,  the  assumed  election  of  the  five  persons  as  members  of  said 
board,  and  in  appropriating  money  and  authorizing  the  levy  of  taxes  for  the 
same ;  or  in  other  words,  the  respondents  herein  admit  that  the  vote  upon  the 
motion  or  proposition  presented  at  said  annual  meeting  to  increase  the  number 
of  members  of  the  board  of  education  from  three  to  five,  and  the  determina- 
tion of  the  qualified  voters  present  and  voting  thereon,  was  not  ascertained  by 
taking  and  recording  the  ayes  and  noes,  that  is,  by  taking  and  recording  the 
name  of  each  person  who  voted  thereon  and  setting  opposite  to  each  whether 
he  or  she  voted  aye  or  no :  that  the  respondents  admit  that  a  ballot  was  taken 
at  said  meeting  for  five  persons  as  members  of  the  board  of  education  of  said 
district  and  that  Messrs  Prall,  Sheridan,  Scott,  Ingalls  and  Wortz  received  a 
maiority  of  the  votes  cast  upon  such  ballot;  that  the  action  and  proceedings  of 
said  meeting  in  the  voting  of  the  items  of  appropriations  and  the  levy  of  taxes 
therefor  did  not  comply  with  the  provisions  of  the  school  law. 

The  contention  of  the  respondents  seems  to  be : 

1  That  although  the  appropriations  were  not  voted  by  ballot  or  by  taking 
and  recording  the  ayes  and  noes,  they  do  not  see  what  good  purpose  will  be 
served  or  how  the  district  will  be  benefited  by  having  the  appropriations  set 
aside,  or  what  good  motive  prompted  the  appeal  from  this  vote. 

2  That  the  action  of  the  district  meeting  in  increasing  the  number  of 
trustees  from  three  to  five  was  a  substantial  compliance  with  the  law. 

3  That  the  action  of  the  meeting  increasing  the  number  of  members  of  the 
board  of  education  from  three  to  five,  having  been  a  substantial  compliance 
with  the  law,  and  five  members  of  said  board  having  been  voted  for  by  ballot,  they 
were  legally  elected  as  members  of  said  board.     The  respondents  further  con- 


128  THE   UXIVERSITY    OF   TPIE    STATE   OF    NEW   YORK 

tend  that,  as  the  appeal  herein  was  not  brought  within  thirty  days  after  the 
proceedings  were  had  from  which  the  appeal  is  taken,  it  was  not  brought  in 
time,  nor  taken  in  good  faith,  but  only  for  the  purpose  of  annoying  the  persons 
claiming  to  have  been  elected  as  trustees,  and  gratifying  the  spite  and  malice  of 
a  defeated  candidate  and  his  principal  supporters. 

In  answer  to  the  first  contention  above  stated,  I  would  state  that  in  section 
lo,  article  2,  title  8  of  the  Consolidated  School  Law  of  1894,  and  its  amend- 
ments, relative  to  union  free  school  districts  other  than  those  whose  limits 
correspond  to  an  incorporated  village  or  city,  it  is  enacted,  that  on  all  proposi- 
tions arising  at  said  meetings  involving  the  expenditure  of  money,  or  authorizing 
the  levy  of  a  tax  or  taxes  in  one  sum  or  by  instalments,  the  vote  thereon  shall 
be  by  ballot,  or  ascertained  by  taking  and  recording  the  ayes  and  noes  of  such 
qualified  Aoters  attending  and  voting  at  such  meetings.  .  .  .  And  whenever 
a  tax  for  any  of  the  objects  hereinbefore  specified  shall  be  legally  voted,  the 
board  of  education  shall  make  out  their  tax  list,  etc.  In  section  18,  article  4. 
title  8  of  said  Consolidated  School  Law  it  is  enacted  that  it  shall  be  the  duty 
of  the  board,  at  the  annual  meeting  of  the  district,  besides  any  other  report  or 
statement  required  by  law,  to  present  a  detailed  statement  in  writing  of  the 
amount  of  money  which  will  be  required  for  the  ensuing  school  year  for  school 
purposes,  exclusive  of  the  public  moneys,  specifying  the  several  purposes  for 
which  it  will  be  required,  and  the  amount  for  each,  etc.  In  section  19,  same 
article  and  title,  it  is  enacted  that  after  the  presentation  of  such  statement,  the 
question  shall  be  taken  upon  voting  the  necessary  taxes  to  meet  the  estimated 
expenditures,  and  when  demanded  by  any  voter  present,  the  question  shall  be 
taken  upon  each  item  separately,  and  the  inhabitants  may  increase  the  amount 
of  any  estimated  expenditure,  or  reduce  the  same,  except  for  teachers'  wages 
and  the  ordinar}'  contingent  expenses  of  the  school  or  schools.  At  said  annual 
school  meeting  the  trustees  presented  a  detailed  statement  in  writing  of  the 
moneys  recjuired  for  the  ensuing  year  for  school  purposes.  The  school  law  there 
required  that  the  qualified  voters  present  who  wished  to  vote  upon  making 
appropriations  and  authorizing  the  levy  of  a  tax  for  said  sums  should  either  by 
their  ballots,  or  having  their  wishes  ascertained  by  taking  and  recording  the 
name  of  each  qualified  voter  present  who  desired  to  vote,  and  whose  vote  was 
received,  and  setting  opposite  the  name  of  each  person  who  voted,  whether 
he  or  she  voted  aye  or  no.  If,  on  the  presentation  of  such  statement,  no  voter 
present  demanded  that  the  question  should  be  taken  on  each  item  separately, 
the  vote  could  be  taken  in  the  manner  above  stated  upon  the  aggregate  amount 
contained  in  said  statement  as  needed  for  such  school  purposes. 

Prior  to  chapter  500  of  the  Laws  of  1893  becoming  a  law,  there  was  no 
provision  of  the  school  law  designating  the  manner  of  voting  upon  propositions 
arising  at  school  meetings  involving  the  expenditure  of  money,  or  authorizing 
the  levy  of  a  tax  or  taxes,  and  the  vote  thereon  was  usually  taken  viva  voce.  A 
multiplicity  of  appeals  was  taken  from  the  action  of  school  meetings  in  voting 
such  taxes,  or  from  the  tax  list  issued  by  the  school  authorities  on  the  ground 


JUDICIAL  decisions:     board  of  education  129 

that  unqualified  persons  voted,  there  being  no  opportunity  afforded  on  viva  voce 
to  challenge  a  vote,  or  to  ascertain  whether  the  persons  voting  were  qualified 
voters  or  not.  In  addition,  numerous  suits  were  brought  in  the  courts  against 
collectors  in  enforcing  such  taxes. 

It  is  clear  that  the  action  of  said  annual  school  meeting  on  voting  the  appro- 
priation and  authorizing  the  levy  of  a  tax  therefor  was  not  in  accordance  with 
the  school  law,  and  not  being  legally  voted,  the  board  of  education  of  the  district 
did  not  have  legal  authority  to  make  out  a  tax  list.  The  "  good  purposes  " 
served  by  the  appeal  herein,  in  having  the  action  of  said  meeting  relating  to 
such  appropriations  and  the  levy  of  the  tax  set  aside,  will  enable  the  qualified 
voters  of  the  district  to  vote  such  appropriations  and  tax  in  the  manner  directed 
by  the  school  law,  and  prevent  the  issuing  of  an  illegal  tax  list,  and  the  appeals 
therefrom  by  taxpayers  to  this  Department,  and  suits  against  the  collector  in 
enforcing  such  illegal  tax  list. 

The  contention  of  the  respondents  herein  that  th.e  action  of  the  said  meet- 
ing, increasing  the  number  of  trustees  from  three  to  five,  was  a  substantial  com- 
pliance with  the  law,  is  not  well  taken.  Prior  to  the  passage  of  chapter  482, 
Laws  of  1875,  the  power  to  increase  or  diminish  the  number  of  members  of  the 
board  of  education  of  any  union  free  school  district,  fixed  at  the  meeting  estab- 
lishing such  district,  did  not  exist.  In  subdivision  28,  section  i,  chapter  482, 
Laws  of  1875,  it  was,  among  other  things,  enacted  that  boards  of  supervisors 
in  this  State  were  empowered  to  authorize  boards  of  education  in  any  union 
free  school  district  to  increase  or  diminish  the  number  of  members  of  said 
boards.  This  provision  of  law  remained  in  force  until  the  passage  of  chapter 
686  of  the  Laws  of  1892,  when  the  power  so  as  aforesaid  given  to  boards  of 
supervisors,  was  taken  away,  and  until  the  Consolidated  School  Law  of  1894, 
chapter  556  of  the  Laws  of  1894  went  into  effect,  namely,  on  June  30,  1894, 
there  was  no  provision  of  law  which  permitted  the  qualified  voters  of  a  union 
free  school  district,  or  a  board  of  education  thereof,  or  any  one,  to  increase  or 
diminish  the  number  of  members  of  any  board  of  education  of  any  union  free 
school  district. 

In  section  31,  article  5,  title  8  of  the  Consolidated  School  Law  of  1894, 
which  became  a  law  on  June  30,  1894,  it  was  enacted  that  at  any  annual  meet- 
ing held  in  any  union  free  school  district  whose  limits  do  not  correspond  to 
those  of  any  incorporated  village  or  city,  the  qualified  voters  may  determine  by 
a  majority  vote  of  such  voters  present  and  voting,  to  be  ascertained  by  taking 
and  recording  the  ayes  and  noes,  to  increase  or  diminish  the  number  of  members 
of  the  board  of  education  of  such  district.  If  such  board  shall  consist  of  less 
than  nine  members,  and  such  meeting  shall  determine  to  increase  the  number, 
such  meeting  shall  elect  such  additional  number  so  determined  upon,  and  shall 
divide  such  number  into  three  several  classes,  the  first  to  hold  office  for  one 
year,  the  second  two  years,  and  the  third  three  years. 

The  power  of  the  qualified  voters  of  union  free  school  district  no.  6,  North- 
field,  to  increase  the  number  of  members  of  its  board  of  education  from  three, 

5 


130  THE   UNIVERSITY    OF   THE    STATE    OF    NEW    YORK 

as  fixed  by  the  meeting  that  established  such  union  free  school,  to  five,  is  given 
by  the  provisions  of  law  above  cited,  and  must  be  exercised  pursuant  to  such 
provisions. 

What  do  such  provisions  require?  They  require,  first,  that  the  action  of 
the  voters  of  the  district  shall  be  taken  at  an  annual  school  meeting  of  the 
district ;  second,  that  the  motion  or  proposition  increasing  said  number  to  five 
shall  be  determined  by  a  majority  of  such  voters  present  and  voting,  and  such 
majority  shall  be  ascertained  by  taking  and  recording  the  ayes  and  noes  of  such 
voters,  that  is,  taking  and  recording  the  name  of  each  person  voting  and  setting 
opposite  to  the  name  of  each  such  person  whether  such  person  votes  aye  or  no ; 
third,  having  determined  to  increase  the  number  of  members  of  said  board  by 
the  addition  of  two,  to  elect  such  members  by  ballot,  and  then  divide  the  said 
two  into  classes,  one  to  hold  one  year,  and  one  two  years. 

What  did  the  said  annual  meeting  do,  relative  to  the  proposition  to  increase 
the  membership  of  the  board  of  education  of  the  district?  Air  Aliddlebrook 
ofifered  a  motion  that  the  board  of  trustees  be,  and  they  are  hereby  increased 
in  number  from  three  to  five.  Mr  S.  F.  Rawson  seconded  the  motion,  and 
suggested  that  the  clerk  be  authorized  and  directed  to  cast  one  ballot  in  favor 
of  increasing  the  board  of  trustees  to  five  members;  the  motion  was  then  altered 
to  mclude  the  suggestion,  and  the  meeting  unanimously  voted  (by  a  viva  voce 
vote  or  by  acclamation)  in  favor  of  it.  The  clerk,  Mr  A.  W.  Deas,  then  cast 
one  ballot  in  favor  of  increasing  the  board  of  trustees  to  five  members,  and  the 
chairman  announced  one  ballot  in  favor  of  the  motion  and  none  in  the  negative, 
and  then  declared  the  board  of  trustees  increased  to  five  members.  No  election 
of  said  two  additional  members  followed,  nor  were  such  two  members  divided 
into  classes,  the  one  to  serve  one,  and  the  other  two  years. 

The  only  act  done  by  the  said  meeting  that  was  in  compliance  with  the 
provisions  of  the  statute  was  in  the  motion  or  proposition  to  increase  the  number 
of  members  of  said  board,  and  instead  of  proceeding  to  vote  upon  the  motion 
as  the  statute  required,  they  proceeded  in  the  manner  above  stated,  that  is,  by 
the  casting  of  one  ballot  by  the  clerk  of  the  meeting. 

The  respondents  in  their  answer,  and  their  counsel  in  his  brief,  allege  that 
this  matter  of  the  increase  of  the  number  of  members  of  the  board  of  education 
had  been  under  discussion  in  the  district  for  a  long  time  and  everybody  agreed 
to  it ;  that  it  was  not  sprung  on  the  meeting  suddenly  and  rushed  through  with- 
out giving  a  chance  for  the  opposition  that  it  was  generally  believed  that  both 
of  the  appellants  favored  and  voted  for  it;  that  the  appellants  participated  in 
a  caucus  on  the  nomination  of  five  trustees,  one  of  them  being  on  the  ticket  so 
nominated;  that  the  vote  authorizing  the  secretary  to  cast  a  ballot  for  such 
increase  was  unanimous. 

Assuming  all  such  allegations  to  be  true,  the  facts  alleged  are  no  answer  or 
defense  to  the  facts  herein  established,  that  said  meeting  did  not  express  its 
desire  to  make  such  change  and  increase  in  the  manner  required  by  the  statute, 
and  not  having  done  so,  its  action  in  that  regard  was  illegal. 


JUDICIAL   DECISION'S  :       BOARD    OF    EDUCATION  I3I 

It  is  clear  that  said  action  of  said  meeting  on  the  proposition  to  increase 
the  number  of  members  of  the  board  of  education  was  not  a  substantial  com- 
pliance with  the  law. 

In  my  decision  in  appeal  no.  4465,  on  September  14,  1896,  which  appeal  was 
taken  from  the  action  of  the  annual  school  meeting  held  in  union  free  school 
district  no.  3,  town  of  Castleton,  Richmond  county,  in  attempting  to  increase 
the  number  of  members  of  the  board  of  education,  where  the  vote  thereon  was 
taken  by  acclamation,  I  held  that  such  action  was  illegal  and  void,  for  the  reason 
that  such  vote  was  not  taken  in  the  manner  prescribed  by  the  school  law.  As 
in  the  action  of  the  meeting,  from  which  the  appeal  herein  is  taken,  in  its 
attempt  to  increase  the  number  of  members  of  the  board  of  education  the  vote 
was  not  taken  in  the  manner  prescribed  by  the  school  law,  I  follow  the  decision 
in  no.  4465  and  hold  that  such  action  was  illegal  and  void.  The  difference  in 
the  manner  in  which  the  vote  was  taken  in  district  no.  3,  Castleton,  and  district 
no.  6,  Northfield,  does  not  change  the  fact  that  in  neither  of  said  districts  was 
such  vote  taken  as  prescribed  by  the  school  law. 

The  contention  of  the  respondents  herein,  that  the  action  of  this  meeting 
increasing  the  number  of  members  of  the  board  of  education  from  three  to  five, 
having  been  a  substantial  compliance  with  the  school  law,  and  five  members  of 
said  board  having  been  voted  for  at  said  meeting  by  ballot,  they  were  legally 
elected  as  members  of  said  board,  is  not  well  taken. 

I  hold  that  the  increase  of  the  number  of  members  of  the  board  of  education 
was  not  legally  made,  and  therefore  the  meeting  could  not  legally  elect  five 
members  of  said  board,  as  said  board  at  the  time  the  said  meeting  was  held  and 
the  vote  taken,  consisted  of  but  three  members. 

It  is  clear  that  said  annual  meeting  could  legally  elect  but  three  trustees  of 
the  board  of  education,  namely :  One  for  the  full  term  of  three  years  in  place  of 
C.  H.  Ingalls,  whose  term  expired  on  the  first  Tuesday  of  August  1896;  one  to 
fill  the  unexpired  term  of  Charles  H.  Vail,  and  one  to  fill  the  unexpired  term  of 
George  H.  Janneman,  each  of  whom  was,  on  July  8,  1896,  removed  by  me  from 
office  as  trustee  or  member  of  said  board.  It  does  not  appear  clearly  when  the 
terms  of  said  \^ail  and  Janneman  respectively  would  expire.  The  ballot  should 
have  had  stated  thereon  the  name  of  one  person  and  that  one  for  the  full  term, 
and  also  the  names  of  two  other  persons  to  fill  the  unexpired  terms  of  Vail  and 
Janneman,  and  the  terms  respectively  for  which  such  persons  were  to  serve. 

It  is  claimed  the  meeting  elected  two  trustees  for  three  years,  two  trustees 
fo-f  two  years,  and  one  trustee  for  one  year.  It  is  impossible  to  say  or  decide 
which  of  the  two  elected  for  three  years,  if  either,  was  elected  in  place  of  Ingalls, 
whose  term  expired  on  the  day  of  the  meeting,  or  which  two  of  the  other  three 
were  elected  to  fill  the  unexpired  term  of  Vail  and  Janneman.  The  five  per- 
sons claimed  to  have  been  elected  for  the  term  of  time  respectively,  as  stated  in 
the  minutes  of  the  meeting,  were  not  legally  elected  as  such,  even  assuming  that 
the  increase  of  the  members  of  said  board  was  legally  adopted.  If  the  members 
of  the  board  had  been  increased  to  five  it  was  the  duty  of  the  meeting  to  elect 


132  THE   UNIVERSITY    OF   THE   STATE    OF   NEW   YORK 

one  for  a  full  term  of  three  years  and  two  to  fill,  respectively,  the  unexpired 
terms  of  Vail  and  Janneman,  and  the  additional  two  divided  into  two  classes, 
one  for  one  year,  and  one  for  two  years.  Assuming  that  the  unexpired  terms 
of  Vail  and  Janneman  were  one  and  two  years,  the  meeting  could  have  legally 
elected  one  trustee  for  a  full  term  of  three  years;  two  trustees,  one  for  one 
year  and  one  for  two  years  to  fill  such  unexpired  terms;  and  two  additional 
trustees,  one  for  one  and  one  for  two  years. 

It  is  clear  that  the  five  persons  claimed  to  have  been  elected  trustees  of 
the  district  at  the  annual  meeting  are  not,  nor  is  any  one  of  them,  de  jure  trus- 
tees or  a  trustee  of  the  district.  Whether  such  persons  are,  or  any  of  them  is, 
de  facto  trustees  or  trustee,  in  or  of  said  district,  it  is  not  necessary  for  me  to 
decide  herein. 

As  to  the  contention  of  the  respondents  herein,  that  the  appeal  herein  was 
not  brought  within  thirty  days  from  the  date  of  the  annual  meeting,  and  should, 
therefore,  be  dismissed,  I  would  state  that  title  14  of  the  Consolidated  School 
Law  of  1894,  relating  to  appeals  to  the  State  Superintendent,  does  not  prescribe 
the  time  within  which  such  appeals  must  be  brought,  but  gives  to  him  the  power 
to  regulate  the  practice  therein.  Pursuant  to  such  power  said  Superintendent  has 
established  his  rules  regulating  the  practice  in  such  appeals,  and  in  rule  3  it  is 
provided  that  the  original  appeal  and  all  papers  be  annexed  thereto,  with  proof 
of  service  of  copies  as  required  by  rules  3  and  4,  must  be  sent  to  the  Department 
of  Public  Instruction  within  thirty  days  after  the  making  of  the  decision  or  the 
performance  of  the  act  complained  of,  or  within  that  time  after  the  knowledge 
of  the  cause  of  complaint  came  to  the  appellant,  or  some  satisfactory  excuse  must 
be  rendered  for  the  delay. 

The  State  Superintendent  has  the  power  to  extend  the  time  in  which  an 
appeal  may  be  brought,  to  alter,  modify  or  change  the  rule  made  by  him  relating 
to  the  time  in  which  such  appeal  may  be  brought  or  to  receive,  entertain  and  decide 
an  appeal  brought  after  the  thirty  days,  provided  an  excuse,  satisfactory  to 
him,  is  given  for  the  delay.  The  appellants  herein,  in  the  affidavit  of  verification 
to  this  appeal,  state  that  the  first  knowledge  that  they  had  that  the  acts  complained 
of  by  them  were  illegal  was  upon  reading  a  copy  of  my  decision  in  the  ''  New 
Brighton  school  appeal"  (decision  no.  4465),  relative  to  acts  similar  to  those 
herein  appealed  from,  decided  September  14,  1896.  The  reason  given  by  the 
appellants  for  the  delay  being  satisfactory  to  me,  I  received  said  appeal.  I  was 
also  satisfied  that  by  entertaining  the  appeal  and  deciding  upon  the  legality  of 
the  acts  appealed  from,  the  school  district  would  be  saved  from  appeals  taken 
from  the  acts  of  the  persons  claiming  to  be  the  trustees  of  the  district. 

The  appellants  herein  while  appealing  from  the  several  actions  of  said 
annual  meeting,  do  not  appeal  specifically  from  the  election  of  Arthur  W.  Deas 
as  clerk  of  the  district.  The  action  of  the -meeting  in  the  election  of  a  clerk  of 
the  district,  appears  to  be  as  follows:  Mr  Arthur  W.  Deas  was  nominated  for 
clerk  of  the  district  and  there  being  no  further  nominations,  on  motion  the  meet- 
ing unanimously  voted  that  the  chairman  be  authorized  and  directed  to  cast  one 


JUDICIAL  decisions:     board  of  education  133 

ballot  in  favor  of  Mr  Deas ;  this  being  done  the  tellers  announced  one  ballot  cast 
in  favor  of  ]\Ir  Deas  and  none  in  the  negative. 

This  Department  has  held,  since  the  school  law  has  required  that  school 
district  officers  shall  be  elected  by  ballot,  except  in  a  few  instances  in  which  it 
has  been  indisputably  established  that  all  the  voters  present  desired  the  election 
of  a  person  nominated  for  a  district  office,  and  no  voter  asked  that  a  ballot  be 
taken,  that  to  comply  with  the  provisions  of  said  law  the  polls  should  be  open, 
and  the  vote  of  every  person  present  qualified  to  vote  who  desired  to  vote, 
received  (see  decision  no.  4375)  ;  that  the  delegation  of  power  to  one  person  by 
a  vote  taken  by  acclamation  or  viva  voce,  to  cast  a  vote  for  a  district  officer  is 
not  a  compliance  with  the  provisions  of  the  school  law  relative  to  the  election  of 
district  officers. 

The  appeal  herein  alleges  that  no  inspectors  of  election  at  said  annual  meet- 
ing were  appointed  or  elected,  and  none  of  the  members  of  the  board  of  education 
although  present,  acted  as  said  inspectors.  Under  the  school  law  the  annual 
meeting  of  a  union  free  school  district  should  organize  by  the  election  or  appoint- 
ment of  a  chairman,  and  the  clerk  of  the  district,  if  present,  should  act  as  clerk 
of  the  meeting;  but  if  the  clerk  is  absent  a  clerk  of  the  meeting  should  be  elected 
or  appointed;  two  inspectors  of  election  should  also  be  elected  or  appointed. 
The  members  of  the  board  of  education  do  not  act  as  inspectors  of  election 
except  at  the  election  of  members  of  the  board  and  the  clerk  of  the  district,  held 
in  districts  where  the  number  of  children  is  over  three  hundred  and  such  election 
is  held  on  the  Wednesday  next  following  the  day  designated  by  law  for  holding 
the  annual  meeting  of  the  district.  It  appears  that  at  said  annual  meeting  a  chair- 
man was  elected,  and  that  Clerk  Deas  was  elected  clerk ;  that  certain  proceedings 
were  taken,  including  the  nominations  for  trustees,  when  the  chairman  appointed 
two  inspectors  of  election  or  tellers  and  two  watchers.  There  was  no  necessity 
for  electing  a  clerk,  the  clerk  of  the  district  being  present  at  the  meeting;  the 
inspectors  of  election  should  have  been  appointed  as  soon  as  the  meeting  was 
organized,  and  the  school  law  does  not  recognize  any  school  officers  of  a  school 
meeting  as  "  watchers." 

I  decide:  First.  That  the  action  and  proceedings  of  said  annual  meeting 
relative  to  appropriating  money  and  authorizing,  the  levy  of  a  tax  or  taxes  for 
the  items  contained  in  the  statement  of  the  board  of  education  required  for 
school  purposes,  or  for  the  appropriation  of  money  to  pay  any  other  item  pre- 
sented to  the  meeting  and  authorizing  a  tax  to  pay  the  same,  were,  and  each  of 
them-  was,  illegal  and  void. 

Second.  That  the  action  and  proceedings  of  said  annual  meeting  relating  to, 
and  upon  the  motion  or  proposition  to  increase  the  number  of  the  members  of 
the  board  of  education  of  said  district  were,  and  each  of  them  was,  illegal  and 
void;  that  the  five  persons  voted  for  and  declared  by  the  chairman  of  said  meet- 
ing to  have  been  elected  as  such  members  were  not,  nor  was  any  one  of  them, 
legally  elected,  nor  was  any  person  at  such  meeting  legally  elected  a  member  of 
the  board  of  trustees  or  board  of  education  of  said  district. 


134  THE  UNIVERSITY    OF   THE   STATE    OF    XEW    YORK 

So  much  of  the  appeal  herein  as  is  specifically  taken  from  the  action  and 
proceedings  of  said  annual  meeting  in  appropriating  money  and  authorizing  the 
levy  of  a  tax  or  taxes,  and  increasing  the  number  of  the  members  of  the  board 
of  education  of  said  district  from  three  to  five,  and  in  the  election  of  five  members 
of  the  board  of  education  of  said  district  or  any  member  of  said  board,  is 
sustained. 

It  is  ordered,  That  all  actions  and  proceedings  had  and  taken  at  the  annual 
school  meeting  held  on  August  4.  1896,  in  union  free  school  district  no.  6,  town  of 
Northfield,  Richmond  county,  relative  to  the  following  matters,  namely:  Appro- 
priating money  and  authorizing  the  levy  of  a  tax  or  taxes  for  the  support  of 
the  schools  of  said  district  for  the  school  year  commencing  August  i,  1S96,  as 
contained  in  the  statement  of  the  board  of  education  of  said  district,  presented 
to  and  read  at  said  annual  meeting,  or  any  other  appropriation  made  or  authoriz- 
ing the  levy  of  a  tax  to  pay  the  same ;  all  actions  and  proceedings  had  and  taken 
upon  the  motion  or  proposition  to  increase  the  number  of  members  of  the  board 
of  education  of  said  district  from  three  members  to  five;  all  actions  and  proceed- 
ings had  and  taken  in  the  election  or  alleged  election  of  J.  W.  Wortz,  C.  H. 
Ingalls,  W.  J.  Scott,  E.  C.  Sheridan  and  W.  H.  Prall,  or  any  one  of  them,  as  trus- 
tees or  members  of  the  board  of  education  of  said  district,  be,  and  the  same  are, 
and  each  and  all  of  said  actions  and  proceedings  of  said  annual  meeting  herein- 
before specified,  is  and  are,  hereby  vacated  and  set  aside  as  illegal  and  void. 

It  is  further  ordered.  That  Arthur  W.  Deas,  an  inhabitant  in,  and  qualified 
voter  of,  said  union  free  school  district  no.  6,  town  of  Northfield,  Richmond 
county,  without  unnecessary  delay,  call  a  special  meeting  of  the  inhabitants  of 
said  district,  qualified  to  vote  at  school  meetings  in  said  district,  for  the  purpose 
of  acting  upon  the  statement  presented  by  the  board  of  education  of  said  district 
to  the  said  annual  meeting  of  said  district  held  on  August  4,  1896,  of  the  sum  or 
sums  required  to  be  raised  by  a  tax  or  taxes  for  the  support  of  the  schools  of 
said  district  for  the  school  year  commencing  August  i,  1896,  and  also  to  elect 
three  trustees  or  members  of  the  board  of  education  of  said  district,  namely : 
One  trustee  for  the  full  term  of  three  years  in  the  place  of  C.  H.  Ingalls,  whose 
term  of  oifice  as  trustee  expired  on  August  4,  1896;  and  one  trustee  to  fill  the 
unexpired  term  for  which  Charles  H.  Vail  was  elected,  and  one  trustee  to  fill  the 
unexpired  term  for  which  George  H.  Janneman  was  elected,  to  the  end  that  said 
board  of  trustees  or  board  of  education  of  said  district  shall  consist  of  three 
members. 

That  notice  of  such  special  meeting  be  given  by  said  Arthur  W.  Deas  in  the 
manner  prescribed  for  giving  notice  of  meetings  by  boards  of  education  of  union 
free  school  districts  as  contained  in  section  10,  article  2,  title  8  of  the  Consolidated 
School  Law  of  1894,  and  the  amendments  thereof. 


BRANCH  SCHOOLS 

4164^ 

In  the  matter  of  the  appeal  of  William  S.  Barber  v.  Stephen  M.  Pratt,  trustee, 
school  district  no.  2,  town  of  Bolton,  Warren  county. 

Whenever,  in  any  remote  locality  of  the  district,  a  number  of  scholars,  sufficient  to  make  a 
respectable  school,  are  debarred,  from  the  fact  of  such  remoteness,  from  attendmg 
school,  the  establishment  of  a  temporary  branch  school  will  be  directed. 

Decided  February  28,  1893 

Crooker,  Superintendent 

This  is  an  appeal  from  the  action  and  decision  of  the  respondent  as  trustee 
of  school  district  no.  2,  town  of  Bolton,  Warren  county,  in  refusing  to  establish 
a  temporary  or  branch  school  in  the  part  of  said  school  district  known  as  the 
"  Robinson  neighborhood."' 

It  appears  from  the  papers  filed  herein  that  there  are  about  123  children  of 
school  age  residing  in  said  district ;  that  the  district  schoolhouse  has  two  rooms, 
each  of  which  is  capable  of  holding  about  48  pupils ;  that  there  are  about  26  chil- 
dren of  school  age  residing  in  that  part  of  said  district  known  as  the  "  Robinson 
neighborhood";  that  about  17  of  such  children  are  compelled  to  go  about  2^ 
miles  over  steep  hilly  roads  to  attend  the  school  in  the  schoolhouse  of  said  dis- 
trict; that  said  roads  are  badly  drifted  in  winter  season,  and  that  it  is  difficult  in 
inclement  weather  for  such  pupils  to  attend  the  school  at  said  schoolhouse;  that 
the  assessed  valuation  of  said  district  is  about  $218,000;  that  there  was  a  tem- 
porary branch  school  conducted  last  year  in  said  neighborhood  for  a  period  of 
ten  weeks  at  a  cost  of  eighty-five  dollars;  that  a  suitable  room  or  building  for 
such  temporary  branch  school  can  be  hired  for  a  reasonable  sum,  and  the  expense 
of  procuring  necessary  furniture,  etc.,  for  said  school  will  be  small. 

The  school  commissioner  of  the  commissioner  district  in  which  said  school 
district  is  situate,  is  of  the  opinion  that  as  the  school  in  the  district  is  a  graded 
school  with  two  teachers,  to  take  away  one  of  said  teachers  or  to  take  from  the 
school  a  portion  from  each  department  to  establish  the  branch  school  would  not 
be  for  the  best  interests  of  the  pupils.  It  appears,  however,  from  the  certificate 
of  said  teachers  that  the  entire  attendance  in  one  of  said  departments,  of  pupils 
from  the  Robinson  neighborhood,  for  the  present  school  year  and  between  Sep- 
tember and  December  1892,  aggregated  but  59  days,  and  that  in  the  higher  depart- 
ment there  has  been  no  attendance  of  pupils  from  said  neighborhood  since  the 
beginning  of  the  school  year.  Should  a  branch  school  be  established  the  trustee 
should  employ  a  teacher  for  the  same,  and  not  transfer  either  of  the  teachers 
now  employed. 

It  appears  from  the  papers  filed  herein  that  at  some  time  during  the  progress 
of  this  appeal,  an  agreement  was  arrived  at  between  the  appellant  and  respondent, 

.     [135] 


136  THE   UNIVERSITY    OF   THE   STATE   OF   NEW   YORK 

by  which  the  respondent  was  to  estabhsh  such  branch  school,  but  from  a  reason, 
which  does  not  clearly  appear,  the  respondent  declined  to  do  so. 

By  section  50  of  title  7  of  the  Consolidation  School  Act  of  1864,  power  is 
given  to  the  trustees  of  school  districts,  whenever  it  shall  be  necessary  for  the 
due  accommodation  of  the  children  of  the  district,  to  hire  temporarily,  any  room 
or  rooms  for  the  keeping  of  school  therein,  and  any  expenditure  made  or  liability 
incurred  in  pursuance  of  said  section  shall  be  a  charge  upon  the  district.  This 
Department  has  the  power,  upon  appeal,  to  review  the  decision  of  trustees  either 
in  establishing  or  refusing  to  establish  a  temporary  branch  school  in  any  district. 
This  Department  has  held  that  whenever,  in  any  remote  locality  of  the  district,  a 
number  of  scholars  sufficient  to  make  a  respectable  school  are  debarred,  from  the 
fact  of  such  remoteness,  from  attending  school,  the  establishment  of  a  temporary 
branch  school  will  be  directed.  It  seems  clear  to  me  from  the  fact  of  the  number 
of  children  residing  in  said  Robinson  neighborhood ;  their  distance  from  the  pre's- 
ent  schoolhouse ;  the  difficulty  in  an  inclement  season  of  reaching  such  school- 
house;  and  the  assessed  valuation  of  the  district  that  a  temporary  branch  school 
should  be  maintained,  as  asked  for  by  the  appellant. 

The  appeal  herein  is  sustained. 

It  is  ordered,  That  the  trustee  of  school  district  no.  2,  town  of  Bolton,  War- 
ren county,  be,  and  he  hereby  is,  directed  to  forthwith  employ  a  competent  quali- 
fied teacher,  and  hire  a  schoolroom  and  establish  a  temporary  branch  school  in 
that  part  of  said  school  district  known  as  the  "  Robinson  neighborhood,"  and 
that  such  temporary  branch  school  be  maintained  by  him  for  a  period  of  not  less 
than  12  weeks  during  the  present  school  year. 


Discretion  of  a  trustee  in  establishing  branch  school  overruled. 
Decided  March  31,   1859 

\'an  Dyck,  Superintendent 

On  an  appeal  from  the  action  of  the  sole  trustee  in  sustaining  two  schools 
in  the  district,  as  public  schools,  and  alike  entitled  to  share  in  the  public  money 
appropriated  to  said  district,  the  following  facts  appear:  That  the  district  is 
about  3  miles  in  extent  from  north  to  south,  and  that  the  schoolhouse  is  situated 
near  the  center.  It  further  appears  that  most  of  the  children  reside  in  the  north- 
ern part  of  the  district,  while  the  population  or  voters  of  the  district,  interested  in 
keeping  the  school  at  the  center,  are  in  the  majority.  The  residents  of  the  north 
part  of  the  district,  unable  to  secure  a  change  of  site,  have  maintained,  during 
some  portion  of  the  year,  for  some  time  past,  a  school  in  their  vicinity,  and  have 
received  toward  its  support  a  portion  of  the  public  money.  At  the  last  annual 
meeting,  it  was  voted  that  the  school  be  kept  in  the  "  brick  schoolhouse,"  near 
the  center  of  the  district;  but  the  trustee  also  employed  a  teacher  to  teach  the 
school  in  the  north  part  of  the  district,  and  from  this  proceeding  the  present 
appeal  is  brought. 


JUDICIAL  decisions:     branch  schools  137 

The  size  of  the  district,  the  number  of  pupils,  the  condition  of  the  district 
schoolhouse,  are  nowhere  urged  as  conditions  giving  rise  to  this  proceeding.  I 
can  not  find,  in  the  conditions  presented,  a  necessity  for  the  establishment  of  two 
schools  in  that  district.  The  trustee  himself  concedes  that  there  is  no  necessity 
for  two  schools  in  the  district,  except  that  created  by  feeling  in  the  north,  of 
opposition  to  the  central  school.  If  this  feeling  is  sufficiently  strong  to  cause 
them  to  sustain  a  private  school,  there  is  no  help  for  it ;  but  there  is  no  sufficient 
reason,  to  my  mind,  for  fostering  and  cherishing  this  spirit  of  opposition,  by  help- 
ing to  support  the  school  by  making  it  a  public  charge. 

It  is  my  opinion,  therefore,  that  the  trustee  has  acted  without  due  discretion, 
and  his  action  in  the  matter  is  hereby  disapproved. 


4341 

In  the  matter  of  the  appeal  of  Mordecai  Casson  v.  William  C.  Casson,  trustee, 
school  district  no.  4,  town  of  Tuscarora,  Steuben  county. 

Where  it  appears  that  a  branch  school  is  necessary  for  the  due  accommodation  of  children 
living  in  that  portion  of  the  district  remote  from  the  schoolhouse  of  the  district,  and 
that  said  district  is  abundantly  able  financially  to  sustain  such  branch  school  without 
being  burdensome,  it  is  the  duty  of  the  trustee  or  trustees  of  said  district  to  establish 
such  branch  school. 

Decided  March  15,  1S95 

Crooker,  Superintendent 

This  appeal  is  from  the  order  or  decision  of  the  trustee  of  school  district  no. 
4,  town  of  Tuscarora,  Steuben  county,  to  hire  a  teacher  and  continue  to  maintain 
a  branch  school  in  said  district.  An  answer  by  the  trustee  of  said  district  to  the 
appeal  herein  has  been  received.  The  principal  reason  given  in  answer  for  not 
continuing  the  branch  school  is  because  two-thirds  of  the  inhabitants  of  the  dis- 
trict are  opposed  to  it. 

It  appears  from  the  papers  that  said  school  district  has  real  and  personal 
property  of  the  aggregate  assessed  valuation  of  about  $44,250;  that  the  whole 
number  of  children  of  school  age  residing  in  said  district  is  about  36,  of  which 
about  22  attended  the  winter  term ;  that  10  scholars  residing  in  the  northeast  part 
of  said  district  attended  the  branch  school  held  in  the  locality,  commencing 
November  5,  1894;  that  the  children  living  in  that  part  of  said  school  district  in 
which  said  branch  school  has  been  maintained,  are  required  to  travel  to  reach  the 
schoolhouse  in  said  district  2  miles  at  least,  and  upon  roads  impassable  portions 
of  the  time  in  winter. 

It  also  appears  that  early  in  the  present  school  year  the  appellant  herein  and 
School  Commissioner  Harrison  visited  the  respondent  herein,  and  the  appellant 
requested  said  respondent  as  trustee  of  said  district  to  establish  a  branch  school 
in  that  part  of  said  district,  in  which  appellant  resided;  that  the  appellant  stated 
to  the  respondent  that  he  and  others  residing  in  that  part  of  said  district  would 


138  THE   UXINERSITY   OF   THE   STATE    OF   NEW   YORK 

build  a  suitable  building  in  said  locality  for  a  schoolhouse  upon  condition  that 
the  respondent  would  hire  a  teacher  and  maintain  a  school  in  such  locality  for 
;^2  weeks  during  the  present  school  year;  that  said  Commissioner  Harrison  recom- 
mended that  said  branch  school  be  established ;  that  the  respondent  consented  and 
agreed  to  establish  such  branch  school  upon  the  condition  then  and  there  stated; 
that  thereupon  the  appellant  herein  and  others  residing  in  his  vicinity  erected  a 
building  16  by  24  and  13  feet  high  —  balloon  frame  —  sheathed,  papered  and 
sided  on  the  outside,  and  ceiled  inside  —  painted  outside  and  varnished  inside, 
and  furnished  the  same  with  Paragon  (chair)  seats,  table  for  teacher,  blackboard, 
stove  etc.,  at  an  aggregate  cost  of  $300;  that  the  respondent  employed  a  qualified 
teacher  for  16  weeks  and  on  November  5,  1894,  established  and  opened  a  branch 
school  in  said  building;  that  such  branch  school  was  maintained  for  65  days 
exclusive  of  holidays,  and  the  teacher's  roll  shows  10  scholars  with  620  days' 
attendance,  averaging  9  13-33;  that  respondent  refused  to  employ  a  qualified 
teacher  and  to  continue  and  maintain  a  branch  school  in  said  locality  and  build- 
ing. The  respondent  alleges  in  his  answer  to  the  appeal  herein  that  he  agreed  to 
hire  a  teacher  for  said  branch  school  for  32  weeks  with  the  understanding  that 
the  school  district  would  receive  $100  additional  public  money  to  help  pay 
teacher's  wages. 

Under  the  provisions  of  section  6,  title  2  of  the  Consolidated  School  Law, 
said  school  district  is  entitled  to  distributive  portion  or  district  quota  of  $100  for 
each  qualified  teacher  or  successive  qualified  teachers  who  shall  have  taught  a 
school  in  said  district  for  160  days  of  school,  inclusive  of  legal  holidays  that  may 
occur  during  a  term  of  school  and  exclusive  of  Saturdays,  during  the  school  year 
commencing  August  i,  1894,  and  ending  July  31,  1895.  Should  a  qualified 
teacher  or  successive  qualified  teachers,  during  the  present  school  year,  teach  a 
school  in  said  branch  school  for  a  period  of  160  days,  inclusive  of  legal  holidays 
that  may  occur  during  the  term  of  school  and  exclusive  of  said  Saturdays,  said 
district  will  be  entitled  to  have  and  receive  in  the  next  apportionment  the  sum 
of  $100. 

Under  the  provisions  of  section  50,  article  6,  title  7  of  the  Consolidated 
School  Law  of  1894,  it  is  the  duty  of  the  trustee  or  trustees  of  every  school  dis- 
trict, and  they  shall  have  the  power,  whenever  it  shall  be  necessary  for  the  due 
accommodation  of  the  children  of  the  district,  by  reason  of  any  considerable 
number  of  said  children  residing  in  portions  of  said  district  remote  from  the 
schoolhouse  in  said  district,  thereby  rendering  it  difficult  for  them  in  inclement 
weather  and  winter  to  attend  school  at  such  schoolhouse,  etc.,  etc.,  to  establish 
temporary  or  branch  school  or  schools  in  such  place  or  places  in  said  district  as 
shall  best  accommodate  such  children,  and  hire  room  or  rooms,  etc.,  etc. ;  and 
any  expenditure  made  or  liability  incurred  shall  be  a  charge  upon  said  district. 

By  the  above  provisions  of  the  school  law  it  is  mandatory  upon  the  trustees 
to  establish  the  temporary  or  branch  school,  and  the  qualified  voters  of  the  dis- 
trict have  no  power  in  the  matter. 

It  is  clear,  under  the  facts  established,  that  a  branch  school  is  necessary  for 
the  due  accommodation  of  the  children  living  in  the  northeast  portion  of  said 


JUDICIAL  decisions:     branxh  schools  139 

district.  Relying  upon  the  promise  of  the  respondent  a  comfortable  building 
has  been  erected  and  furnished  for  said  school  without  cost  to  the  district,  and 
there  can  not  be,  aside  from  teachers'  wages,  but  a  small  expense  to  the  district 
to  maintain  said  school,  and  it  appears  that  the  district  is  abundantly  able 
financially  to  sustain  such  branch  school  without  its  being  a  burden.  If  the 
school  is  not  continued  the  district  will  not  be  entitled  to  any  part  of  the  teacher's 
quota  of  $100  from  the  public  money. 

The  appeal  herein  is  sustained. 

It  is  ordered,  That  the  trustee  of  school  district  no.  4,  town  of  Tuscarora, 
Steuben  county,  forthwith  employ  a  qualified  teacher  to  teach  in  said  branch 
school,  and  open,  continue  and  maintain  said  branch  school  for  a  period  during 
the  remainder  of  the  present  school  year,  that,  together  with  the  number  of  days 
during  the  present  school  year  that  said  school  has  been  maintained,  the  said 
branch  school  shall  have  been  maintained  and  taught  by  a  qualified  teacher  or 
successive  qualified  teachers  for  at  least  160  days  of  school,  inclusive  of  legal 
holidays  that  may  occur  during  the  term  of  school,  and  exclusive  of  Saturdays. 


5178 

In  the  matter  of  the  appeal  of  Jennie  W.  IMowell  v.  William  R.   Sliter,  sole 
trustee  of  school  district  no.  9,  town  of  Hardenburg,  Ulster  county. 

When  a  district  has  maintained  a  branch  school  for  two  j-ears  and  at  the  close  of  that 
period  conditions  in  the  section  where  such  school  has  been  held  are  the  same  as  they 
were  during  the  period  such  branch  school  was  conducted,  it  is  proper  and  legal  for 
the  retiring  trustee  to  make  the  same  provision  for  the  continuance  of  such  school 
during  the  ensuing  year  as  he  may  under  the  law  make  for  the  continuance  of  the 
regular  school  of  the  district. 

A  teacher  acts  entirely  within  her  legal  rights  in  closing  school  until  fuel  is  provided  so  that 
the  schoolroom  can  be  placed  in  a  safe  and  comfortable  condition  for  school  purposes. 

Decided  February  10,  1905 

Draper,   Coinmissioner 

On  July  28,  1904,  Joseph  E.  Scudder,  trustee  of  school  district  no.  9,  town 
of  Hardenburg,  county  of  Ulster,  entered  into  a  contract  with  Jennie  W.  Mowell, 
the  appellant  herein,  under  the  terms  of  which  it  was  agreed  that  she  should 
teach  the  branch  school  of  said  district  for  a  period  of  32  weeks  from  Septem- 
ber 12,  1904,  at  a  salary  of  $10  per  week.  The  term  of  office  of  Trustee  Scudder 
expired  at  the  annual  meeting  August  2,  1904,  or  five  days  after  such  contract 
was  made.  At  the  annual  meeting  William  R.  Sliter,  respondent  herein,  was 
elected  trustee.  The  annual  meeting  also  voted  not  to  maintain  a  branch  school. 
On  September  12,  1904,  the  date  fixed  in  the  contract  between  Trustee  Scudder 
and  Miss  Mowell  for  the  opening  of  the  branch  school,  Trustee  Sliter  appeared 
at  the  schoolhouse  in  which  such  branch  school  had  been  conducted  and  forbade 
Miss  Mowell  to  open  such  school,  and  informed  her  that  he  would  not  pay  her 
if  she  did  open  it  and  teach  therein.     Miss  Mowell,  however,  opened  the  school 


140  THE    UNIVERSITY    OE   THE    STATE    OF    NEW    YORK 

and  has  been  teaching  there  since,  and  the  respondent  as  trustee  has  refused  to 
pay  the  salary  agreed  upon  by  tlie  contract  executed  by  his  predecessor,  ]\Ir 
Scudder.  The  contention  of  the  respondent  is  that  such  branch  school  .was 
unnecessary  and  that  Trustee  Scudder  did  not  possess  legal  power  to  determine 
that  a  branch  school  should  be  maintained  in  the  district  during  the  year  follow- 
ing the  expiration  of  his  term  of  office  as  trustee. 

It  appears  that  the  section  of  the  district  in  which  this  branch  school  is 
maintained  was  formerly  a  separate  school  district;  that  such  district  was  dis- 
solved and  annexed  to  the  district  of  which  it  now  forms  a  part. 

In  respondent's  answer  reference  is  made  to  an  appeal  decided  by  this 
Department  in  1902,  refusing  to  direct  the  trustee  of  this  district  to  establish  a 
branch  school  for  that  section  of  the  district  in  which  the  present  branch  school 
is  operated.  The  contention  of  respondent  is  that  by  such  decision  this  Depart- 
ment held  that  a  branch  school  should  not  be  established  at  this  point  and  that 
such  decision  was  final  and  binding  upon  the  district,  and  that  to  maintain  such 
branch  school  would  be  a  direct  violation  of  that  decision.  An  examination  of 
that  decision  does  not  sustain  respondent's  contention.  The  pleadings  in  that 
appeal  shows  that  a  petition  for  such  branch  school  was  filed  with  the  trustee 
January  28,  1902.  On  January  30,  1902,  the  trustee  gave  the  petitioners  a  written 
answer  refusing  to  establish  the  school.  February  2^,  1902,  an  appeal  from  the 
refusal  of  the  trustee  to  establish  such  school  was  filed  at  this  Department.  The 
pleadings  in  such  appeal  were  not  completed  until  May  20,  1902.  It  was  then 
near  the  end  of  the  school  year.  This  Department  dismissed  the  appeal  on  that 
ground  and  on  the  further  ground  that  the  old  schoolhouse  did  not  appear  to  be 
in  a  fit  condition  for  use ;  that  it  could  not  be  repaired  in  time  to  open  school  that 
year,  and  that  a  suitable  room  for  school  purposes  could  not  be  obtained.  In 
dismissing  such  appeal  this  Department  suggested  that  the  whole  question  be 
taken  up  at  the  annual  meeting  and  some  solution  reached.  This  Department 
did  not  undertake  to  pass  upon  the  necessity  of  establishing  such  school,  nor  is 
such  question  properly  before  this  Department  now  for  determination.  It  is 
not  improper  to  add,  however,  that  in  the  appeal  of  1902,  it  was  shown  that 
the  children  in  this  section  of  the  district  in  question,  known  as  Tray  Valley, 
were  about  two  miles  from  the  schoolhouse  by  a  patli  across  the  fields  or  woods 
and  that  by  the  regular  highway  the  distance  was  much  greater. 

The  pleadings  in  the  appeal  now  under  consideration  show  that  a  branch 
school  was  maintained  for  this  section  of  the  district  in  1902-3  and  also  in 
1903-4.  It  is  also  shown  that  such  school  has  been  held  in  the  old  schoolhouse 
of  the  dissolved  district. 

Only  two  questions  are  to  be  determined  in  this  appeal.  These  are :  Did 
the  trustee,  Joseph  E.  Scudder,  possess  the  legal  right  to  hire  a  teacher  for  this 
branch  school  on  July  28,  1904,  for  the  ensuiiig  year?  If  he  possessed  that  right, 
did  Miss  Mowell  perform  the  service  required  under  her  contract? 

Subdivision  9  of  section  47  of  title  7  of  the  Consolidated  School  Law  pro- 
vides that  it  shall  be  the  duty  of  the  trustee  "  to  employ  all  teachers  in  tlie  dis- 


JUDICIAL  decisions:     braxcii  schools  141 

trict  school  or  schools  .  .  .  and  to  designate  the  number  of  teachers  to  be 
employed;  to  determine  the  rate  of  compensation  to  be  paid  to  each  teacher, 
etc."  The  power  to  employ  teachers  and  to  determine  the  number  of  teachers, 
rests  solely  with  a  trustee  and  that  officer  in  the  exercise  of  such  duty  is  not 
subject  in  any  way  whatever  to  the  action  of  a  district  meeting.  This  same 
section  of  the  law  also  authorizes  a  trustee  to  contract  with  a  teacher  for  one 
year  in  advance.  Section  50  of  the  same  title  of  the  Consolidated  School  Law 
also  cor.fers  on  trustees  the  power  to  establish  branch  schools.  The  provision 
of  law  on  this  point  is  as  follows :  "  Whenever  it  shall  be  necessary  for  the  due 
accommodation  of  the  children  of  the  district,  by  reason  of  any  considerable 
number  of  said  children  residing  in  portions  of  said  district  remote  from  the 
schoolhouse  in  said  district,  thereby  rendering  it  difficult  for  them  in  inclement 
weather  and  in  winter  to  attend  school  at  such  schoolhouse,  or  by  reason  of  the 
room  or  rooms  in  said  schoolhouse  being  overcrowded,  or  for  any  other  sufficient 
reason  the  due  accommodation  of  such  children  can  not  be  made  in  said  school- 
house,  they  shall  establish  temporary  or  branch  school  or  schools  in  such  place 
or  places  in  said  district  as  shall  best  accomodate  such  children,  and  hire  any 
room  or  rooms  for  keeping  said  temporary  or  branch  school  or  schools,  and  fit 
up  and  furnish  said  room  or  rooms  in  a  suitable  manner  for  conducting  such 
school  or  schools  therein.  Any  expenditure  made  or  liability  incurred  in  pur- 
suance of  this  section  shall  be  a  charge  upon  the  district."  This  Department  has 
uniformly  held  that  whenever  any  of  the  above  conditions  exists  it  is  not  only 
within  the  power  of  the  trustee  to  establish  a  branch  school,  but  it  is  his  duty  to 
establish  one.  A  district  meeting  can  not  limit  or  interfere  with  the  power  or 
duty  of  a  trustee  on  this  question.  When  a  district  has  maintained  a  branch 
school  for  two  years  and  at  the  close  of  that  period,  conditions  in  the  section 
where  such  school  has  been  held  are  the  same  as  they  were  during  the  period 
such  branch  school  was  conducted,  it  is  proper  and  legal  for  the  retiring  trustee 
to  make  the  same  provision  for  the  continuance  of  such  school  during  the  ensuing 
year  as  he  may  under  the  law  make  for  the  continuance  of  the  regular  school 
of  the  district.  Of  course  a  trustee  can  not  provide  for  a  branch  school  unless 
a  necessity  exists  for  the  establishment  of  one.  If  a  trustee  exceeds  his  power 
in  this  respect  the  same  relief  may  be  granted  that  is  provided  for  in  any  other 
case  in  which  a  trustee  exceeds  his  power.  The  party  attacking  the  action  of  a 
trustee  in  establishing  such  school  must  show  conclusively  that  a  necessity  for 
its  establishment  did  not  exist.  The  respondent  in  this  appeal  has  failed  on  this 
point. 

In  view  of  the  provisions  of  law,  above  cited,  and  of  the  circumstances  in 
this  particular  case,  I  am  of  the  opinion  that  Trustee  Scudder  acted  strictly 
within  his  legal  rights  in  employing  two  teachers  for  this  district  for  the  current 
year  and  that  the  contract  with  Miss  Mowell,  as  teacher  of  the  branch  school, 
was  legal,  and  binding  upon  the  district. 

It  appears  that  Miss  IMowell  reported  at  the  schoolhouse  in  the  district 
where  the  branch  school  had  been  held  for  two  years.     The  respondent  claims 


142  THE   UNIVERSITY    OF   THE   STATE    OF    NEW    YORK 

that  she  should  have  reported  to  him  and  not  at  the  school  building.  Her  contract 
specifically  stated  that  she  was  to  teach  the  branch  school  and  she  properly 
reported  at  the  building  where  such  school  had  been  conducted.  The  trustee 
expected  her  to  report  at  such  building  as  he  went  there  himself  to  meet  her 
and  to  prevent  her  from  opening  the  school. 

The  respondent  also  contends  that  this  appeal  should  be  dismissed  on  the 
ground  that  a  question  of  damages  is  involved  and  he  cites  several  decisions  of 
this  Department  in  which  it  has  been  held  that  a  question  of  damages  is  one  to 
be  determined  by  the  courts  and  not  by  this  Department.  I  am  familiar  with 
these  decisions  and  know  that  such  has  been  the  uniform  ruling  of  this  Depart- 
ment on  appeals  involving  the  assessment  of  damages.  This  appeal,  however, 
does  not.  involve  that  question.  This  is  an  appeal  to  enforce  the  payment  of 
salary  for  services  performed.  It  is  not  an  appeal  for  an  adjudgment  of  dam- 
ages for  breach  of  contract.  The  cases  cited  by  the  respondent  on  this  point 
relate  to  those  where  teachers  had  made  legal  contracts,  but  had  been  prevented 
by  trustees  from  performing  the  services  required  under  such  contracts.  The 
appellant  in  this  appeal  not  only  made  a  legal  contract  but  entered  upon  the 
performance  of  her  part  of  such  contract  and  is  still  rendering  service  in  the 
performance  of  such  contract.  It  is  a  case  which  should  not  go  to  the  courts 
but  which  should  be  heard  before  the  Commissioner  of  Education. 

The  respondent  also  claims  that  if  the  contract  was  legally  made  and  bind- 
ing upon  the  district  it  was  invalidated  by  the  acts  of  Aliss  Mowell  in  November 
by  closmg  school  two  or  three  days  without  his  permission.  Appellant  states, 
and  it  is  not  denied  by  the  respondent,  that  she  asked  him  for  the  privilege  of 
closing  school  on  these  days  and  he  replied  that  he  did  not  care  what  she  did. 
He  therefore  gave  her  discretionary  power  in  deciding  on  the  wisdom  of  closing 
school  on  those  days.  The  appellant  also  states,  and  this  is  not  denied  by 
respondent,  that  on  the  days  school  was  thus  closed  there  was  no  fuel  at  the 
schoolhouse  and  that  she  was  compelled  to  close  school.  This  was  proper  cause 
for  closing  school.  The  teacher  acted  entirely  within  her  legal  rights  in  closing 
school  until  fuel  was  provided  so  that  the  schoolroom  could  be  placed  in  a  safe 
and  comfortable  condition  for  school  purposes. 

Respondent  also  alleges  that  Trustee  Scudder  had  a  pecuniary  interest  in  the 
contract  with  Aliss  Mowell.  He  alleges  that  when  Scudder  wrote  ]\Iiss  Mowell 
about  contracting  for  this  school  he  also  wrote  her  that  he  would  board  her  at 
$2.50  per  week.  There  was  nothing  improper  in  this.  Teachers  usually  desire 
to  know  what  board  will  cost  in  a  community  before  contracting  to  teach  therein. 
It  is  not  shown  that  Scudder  imposed  the  condition  that  ]Miss  Mowell  should 
agree  to  board  with  him  if  he  contracted  with  her  to  teach.  It  is  not  shown 
that  she  was  not  at  liberty  to  make  such  arrangements  as  she  might  desire  in 
relation  to  the  question  of  board.  The  respondent  has  failed  to  sustain  this 
allegation. 

It  is  clearly  shown  that  appellant  made  a  legal  contract  for  32  weeks  from 
September  12,  1904,  at  a  compensation  of  Sio  per  week,  payable  at  the  end  of 


juiHciAL  decisions:     branch  schools  143 

each  30  days,  and  that  she  has  in  good  faith  performed  all  the  obligations  by 
which  she  was  bound  under  such  contract.  The  contract  was  binding  upon  the 
district  and  the  appellant  must  be  sustained  in  her  claim  and  must  be  paid  for 
her  services. 

The  appeal  herein  is  sustained. 

It  is  ordered,  That  William  R.  Sliter,  trustee  of  school  district  no.  9,  town 
of  Hardenburg,  county  of  Ulster,  pay  the  said  Jennie  W.  Mowell  any  and  all 
salary  now  due  to  her  for  services  as  teacher  of  the  branch  school  of  said  district, 
under  the  said  contract  executed  July  28,  1904,  and  that  after  paying  her  the 
amount  now  due  he  shall  also  pay  her  any  and  all  salary  as  the  same  shall  become 
due  and  payable  under  the  terms  of  the  said  contract. 

It  is  further  ordered.  That  if  there  are  not  funds  of  the  district  available 
for  the  purpose  of  paying  such  salary  of  Jennie  W.  Mowell  or  any  part  of  it, 
the  said  Trustee  Sliter  shall  raise  by  tax  on  the  taxable  property  of  the  district 
as  the  Consolidated  School  Law  provides,  any  and  all  moneys  necessary  to  pay 
such  salary. 


5402 

In  the  matter  of  the  appeal  of  Frank  Sherman  for  a  branch  school  in  district 
no.  I,  town  of  Caroga,  Fulton  county. 

Establishment  of  branch  school.  A  trustee  may  establish  a  branch  school  whenever  the 
conditions  prescribed  by  the  Education  Law,  section  196,  subdivision  5,  are  found  to 
exist  without  regard  to  the  previous  act  of  a  district  meeting.  His  determination  as  to 
the  establishment  of  such  school  will  not  be  disturbed  on  appeal  unless  it  be  shown  by 
a  fair  preponderance  of  evidence  that  the  prescribed  conditions  do  actually  exist. 

Number  of  children  to  be  accommodated.  Unless  a  considerable  number  of  children  are 
to  be  accommodated  by  a  branch  school  it  should  not  be  established,  notwithstanding 
the  remoteness  of  their  residence  and  the  hardships  to  be  endured  by  them  in  reaching 
the  main  schoolhouse.  A  branch  schoolhouse  should  not  be  established  to  accommo- 
date the  three  children  of  a  single  taxpayer. 

Decided  March  4,  1909 


Dudley  &  Dennison,  attorneys  for  appellant 
N.  H.  Anibal,  attorney  for  respondent 


Draper,  Commissioner 

The  petitioner  herein  complains  of  the  action  of  Burtelle  Foster,  trustee  of 
school  district  no.  i  of  the  town  of  Caroga,  county  of  Fulton,  in  refusing  to 
establish  a  branch  school  in  such  district.  It  appears  from  the  affidavits  sub- 
mitted that  Frank  Sherman,  the  petitioner,  resides  about  4  miles  from  the  school- 
house  in  such  district.  There  is  some  conflict  in  the  pleadings  and  affidavits  as  to 
the  character  of  the  road  between  the  home  of  the  petitioner  and  the  schoolhouse. 
It  is  apparently  an  Adirondack  road,  comparatively  little  traveled,  and  2  or  3 
miles  of  it  through  the  forests.  In  an  ordinary  Adirondack  winter,  a  journey 
over  it  twice  a  day  for  a  distance  of  4  miles  would  tax  the  endurance  of  children 


144  THE   UNIVERSITY    OF   THE   STATE   OF    NEW   YORK 

of  7,  II  and  12  years,  the  ages  of  the  children  of  the  petitioner.  In  any  event, 
there  does  not  seem  to  be  much  question  about  the  remoteness  of  the  petitioner's 
location  from  the  schoolhouse  in  his  district.  If  this  were  the  only  question 
involved  a  decision  might  well  be  rendered  in  his  favor. 

This  case  must  be  decided,  however,  with  a  view  of  carrying  out  the  purpose 
and  intent  of  the  law  applicable  thereto.  By  subdivision  5  of  section  196  of  the 
Education  Law  of  1909  (former  Consolidated  School  Law,  title  7,  section  50) 
the  trustee  is  clothed  with  full  discretionary  power  to  establish  a  branch  school 
"  whenever  it  shall  be  necessary  for  the  due  accommodation  of  the  children  of  the 
district,  by  reason  of  any  considerable  number  of  said  children  residing  in  por- 
tions of  said  district  remote  from  the  schoolhouse  in  said  district."  This  power 
may  be  exercised  by  him  whenever  the  conditions  prescribed  are  found  to  exist, 
without  regard  to  the  previous  act  of  a  district  meeting.  It  is  for  the  trustee  to 
determine  in  the  first  instance  whether  such  conditions  exist.  His  determination 
is  subject  to  review  upon  an  appeal  brought  to  the  Commissioner  of  Education, 
but  unless  it  be  shown  by  a  fair  preponderance  of  evidence  that  the  prescribed 
conditions  do  actually  exist,  and  that  he  nevertheless  refuses  to  establish  a  branch 
school  his  determination  will  not  be  disturbed.  The  petitioner  has  three  children, 
all  of  compulsory  school  age.  At  the  time  the  petition  was  filed  another  family 
resided  in  the  same  portion  of  the  district  with  two  children  of  less  than  8  years 
of  age.  The  father  runs  a  summer  hotel  which  is  open  from  spring  until  fall; 
the  remainder  of  the  time  the  family  is  not  in  the  district.  The  petitioner  in 
effect  asks,  therefore,  for  a  branch  school  for  the  sole  accommodation  of  his  own 
three  children.  The  number  of  such  children  can  not  be  said  to  be  "  consider- 
able," within  the  m.eaning  of  the  statute.  It  was  not  the  purpose  of  the  law  to 
require  a  branch  school  with  a  separate  teacher  for  so  few  children,  especially 
when  they  all  belong  to  the  same  family.  Unless  a  considerable  number  of  chil- 
dren are  to  be  accommodated  by  the  school  it  should  not  be  established  notwith- 
standing the  remoteness  of  the  children  and  the  hardships  to  be  endured  by  them 
in  reaching  the  main  schoolhouse.  The  children  of  the  petitioner  are  entitled  to 
the  benefits  of  the  school  in  the  district,  but  the  trustee  may  not  be  compelled  to 
take  the  school  to  their  door.  There  is  also  a  parental  obligation  resting  upon  the 
petitioner  to  give  his  children  educational  advantages.  He  should  not  be  per- 
mitted to  shift  this  burden  upon  his  neighbors.  If  his  business  takes  him  into  a 
remote  district  and  his  family  goes  with  him,  his  children  must  either  suffer  the 
hardship  of  attending  a  school  located  a  long  distance  from  their  home,  or  must 
be  given  equivalent  instruction  at  home.  When  other  families  go  into  the  same 
remote  district  where  the  petitioner  now  resides  so  that  a  considerable  number  of 
children  would  be  accommodated  by  the  establishment  of  a  branch  school,  then 
the  trustee  may  reasonably  be  required  to  establish  such  school.  It  is  not  neces- 
sary for  a  determination  of  this  appeal  to  decide  what  number  would  be  a  "  con- 
siderable number,"  within  the  meaning  of  the  statute.  Neither  three  nor  five  is 
sufficient. 

The  petition  herein  is  dismissed. 


JUDICIAL  decisions:     jbraxch  schools  145 

5405 

In  the  matter  of  the  appeal  of  Anthony  Swint  from  an  order  of  the  trustees  of 
school  district  no.  11,  town  of  Guilderland,  county  of  Albany. 

Pupils  to  attend  branch  school;  duties  of  trustees.  Where  a  branch  school  is  established 
as  provided  by  law,  the  trustees  may  set  off  a  certain  part  of  the  district  and  insist  that 
the  pupils  residing  therein  shall  attend  such  school.  The  trustees  should  reasonably 
exercise  such  power  with  a  view  of  carrying  out  the  evident  purpose,  that  is,  the  ac- 
commodation of  those  pupils  who  reside  in  portions  of  the  district  remote  from  the 
main  schoolhouse.  It  is  not  reasonable  to  compel  pupils  to  attend  a  branch  school  where 
it  appears  that  they  reside  at  a  place  more  conveniently  accessible  to  the  main  school- 
house. 

Decided  May  3,  1909 

Stern  &  Hirschfeld,  attorneys  for  appellant 

Draper,  Commissioner 

The  appellant  appeals  from  an  order  given  by  the  trustees  of  school  district 
no.  II,  town  of  Guilderland,  county  of  Albany,  directing  the  appellant  to  send  his 
children  to  the  branch  school  instead  of  the  main  school  in  such  district.  The 
petitioner  alleges  that  he  has  three  sons  of  the  ages  of  8,  14  and  16,  and  one 
daughter  of  the  age  of  11.  The  branch  school  is  on  the  other  side  of  the  Western 
turnpike  from  the  residence  of  the  appellant  and  is  apparently  in  an  almost  oppo- 
site part  of  the  district.  The  road  leading  to  such  branch  school  from  the  resi- 
dence of  the  appellant  runs  through  the  sand  plain,  sometimes  through  woods, 
and  is  at  all  times  of  the  year  a  difficult  road  to  travel,  either  on  foot  or  in  vehi- 
cles. The  distance  between  the  appellant's  residence  and  the  branch  school  is 
about  2  miles,  and  that  between  such  residence  and  the  main  school  is  about  1-/3 
miles.  The  main  school  is  upon  the  Western  turnpike,  about  four--fifths  of  a  mile 
from  the  point  of  connection  with  the  road  leading  to  the  residence  of  the  appel- 
lant. The  appellant  lives  about  four-fifths  of  a  mile  from  this  point.  The  West- 
em  turnpike  is  a  main  road  leading  into  the  city  of  Albany.  It  is  frequently 
traveled  and  the  appellant's  business  requires  him  to  go  over  this  road  nearly 
every  day. 

From  the  facts  stated  it  clearly  appears  that  the  attendance  of  appellant's 
children  at  the  branch  school,  as  directed  by  the  trustees,  is  much  more  difficult 
than  such  attendance  at  the  main  school.  Trustees  may  establish  branch  schools 
(i)  for  the  accommodation  of  children  residing  in  portions  of  the  district  remote 
from  the  schoolhouse  therein;  (2)  where  the  room  or  rooms  in  such  schoolhouse 
are  overcrowded,  or  (3)  where  for  any  other  sufficient  reason  the  due  accom- 
modation of  the  children  of  the  district  can  not  be  made  in  such  schoolhouse. 
The  branch  school  in  this  district  was  established  for  the  first  purpose  above 
specified.  There  was  a  considerable  number  of  children  to  be  accommodated  by 
such  school  all  residing  within  a  reasonable  distance  therefrom.  From  evidence 
on  file  in  this  Department  it  appears  that  there  are  24  pupils  registered  as  attend- 
ing such  school  which  is  all  that  can  be  accommodated  therein. 


146  THE   UNIVERSITY    OF   THE   STATE    OF   NEW   YORK 

Where  a  branch  school  is  estabhshed  as  provided  by  law,  the  trustees  may 
set  off  a  certain  part  of  the  district  and  insist  that  the  pupils  residing  therein  shall 
attend  such  schools.  This  discretionary  power  necessarily  coexists  with  the 
power  to  establish  the  school.  But  it  should  be  reasonably  exercised  with  a  view 
of  carrying  out  the  evident  purpose  of  the  law,  that  is,  the  accommodation  of 
those  pupils  who  reside  in  portions  of  the  district  remote  from  the  main  school- 
house.  It  would  not  be  a  reasonable  exercise  of  this  power  to  compel  pupils  to 
attend  a  branch  school  where  it  appeared  that  they  resided  at  a  place  more  con- 
veniently accessible  to  the  main  schoolhouse.  This  is  especially  so  where  both 
schoolhouses  are  overcrowded,  as  appears  in  this  case. 

The  children  of  the  appellant  and  the  other  pupils  residing  in  his  immediate 
neighborhood  should  be  permitted  to  attend  the  main  schoolhouse. 

If  such  schoolhouse  is  inadequate  to  suitably  accommodate  all  these  children, 
it  is  the  duty  of  the  district  to  increase  its  size  or  to  erect  a  new  schoolhouse  so 
as  to  afford  reasonable  school  facilities.  The  qualified  electors  of  the  district 
should  be  given  an  opportunity  to  determine  which  of  these  courses  should  be  fol- 
lowed and  the  trustees  should  immediately  call  a  special  meeting  for  such  purpose. 

The  order  of  the  trustees  directing  the  children  of  the  appellant  to  attend 
the  branch  school  is  unreasonable  and  should  be  set  aside.  I  am  informed  that 
there  are  other  children  in  the  immediate  neighborhood  of  the  appellant  who  also 
have  been  directed  to  attend  the  branch  school.  The  principles  declared  in  this 
decision  would  apply  to  them,  but  the  action  of  the  trustees  in  respect  to  them  not 
being  at  issue  in  this  appeal  I  can  not  at  this  time  make  any  formal  order  as  to 
which  school  such  pupils  should  attend.  It  is  suggested,  however,  that  the  trus- 
tees treat  such  pupils  as  though  they  were  within  the  scope  of  this  appeal,  and 
permit  them  to  attend  at  the  main  schoolhouse. 

The  appeal  is  sustained. 

It  is  hereby  ordered.  That  the  notice  or  order  of  the  trustees  of  school  dis- 
trict no,  II,  town  of  Guilderland,  county  of  Albany,  directing  the  children  of 
Anthony  Swint  to  attend  at  the  branch  school  and  not  at  the  main  schoolhouse 
in  such  district  be  set  aside,  and  that  the  said  trustees  permit  the  children  of  the 
said  Swint  to  attend  the  main  schoolhouse  in  such  district. 


BUILDING  COMMITTEE 

3621 
In  the  matter  of  the  appeal  of  Henry  C.  Almy  and  others  v.  E.  O.  Rogers,  as 

trustee  of  district  no.  11,  town  of  Wirt,  county  of  Allegany,  and  others. 
The  district  meeting  appointed  a  building  committee.     Held  that  it  could  act  only  m  an 

advisory  capacity. 
The  trustee  is  the  officer  invested  by  law  with  the  sole  authority  to  carry  out  the  directions 

of  a  district  meeting. 
Persons  named  as  a  building  committee,  who  are  not  trustees,  may  be  employed  in  their 

line  of  business  by  the  trustees  to  do  work  for  the  district,  unless  otherwise  directed 

by  the  district. 
Decided  July  19,  1887 

Draper,  Superintendent 

This  proceeding  is  an  appeal  by  residents  and  taxpayers  of  school  district 
no.  II,  town  of  Wirt,  Allegany  county,  from  the  action  of  the  trustee  of  said  dis- 
trict, and  a  building  committee  composed  of  the  said  trustee  and  two  other  resi- 
dents of  the  district.  The  appellants  aver  that  at  a  school  district  meeting,  held 
September  21,  1886,  it  was  decided  to  repair  the  schoolhouse,  laying  a  new  iloor 
and  ceiling  the  room,  among  other  matters.  A  building  committee  was  selected. 
It  is  claimed  by  the  appellants  that  the  meeting  decided  to  use  basswood  for  the 
ceiling,  and  to  lay  the  new  floor  over  the  old  one,  and  that  the  minutes  of  the 
meeting,  as  recorded  by  the  clerk,  are  incorrect  in  that  it  does  not  appear  therein 
that  basswood  was  to  be  used  for  ceiling  and  the  floor  laid  as  above  stated.  It  is 
further  alleged  that  the  job  was  not  let  to  the  lowest  bidder,  and  that  proposals 
were  not  asked  for;  that  the  work  was  done  by  the  members  of  the  building  com- 
mittee, except  the  trustee,  and  that  it  has  not  been  done  in  a  good  and  workman- 
like manner,  and  is  defective,  and  that  unseasoned  wood  has  been  used. 

The  respondents,  the  trustee,  district  clerk,  collector  and  the  so-called  buildmg 
committee,  in  answer  to  the  appeal,  allege  that  the  meeting  did  not  give  any 
directions  as  to  how  the  work  should  have  been  let  or  executed,  or  as  to  what 
material  should  be  used ;  that  Messrs  Hand  and  Case,  of  the  building  committee, 
were  carpenters,  and  did  the  job  by  day's  work  by  the  trustee's  direction,  and  as 
they  understood  the  meeting  to  desire ;  that  the  material  used  was  well  seasoned 
and  first-class  material,  carefully  selected;  that  they  used  narrow  hemlock  for 
the  ceiling,  and  maple  for  flooring;  that  the  old  floor  was  so  uneven  that  a 
new  floor  could  not  be  properly  laid  over  it,  and  that  the  old  floor  was,  therefore, 
removed  to  make  place  for  the  new. 

They  produce  the  affidavits  of  carpenters,  builders  and  others  who  state  that 
the  work  is  properly  done  and  the  material  used  is  suitable  and  proper. 

[147] 


148  THE   UNIVERSITY    OF   THE    STATE    OF    NEW    YORK 

Upon  the  application  of  the  appellants,  an  order  was  granted,  staying  all  pro- 
ceedings for  the  enforcement  of  the  tax  list  and  warrant  for  the  collection  of  the 
moneys  needed  to  pay  the  expenses  of  this  improvement  pending  this  appeal. 

Other  questions  concerning  the  tax  list  have  been  raised  by  subsequent 
pleadings,  which  I  do  not  consider  it  necessary  or  proper  to  consider  on  this 
appeal,  but  shall  confine  myself  to  the  issues  raised  by  the  original  pleadings. 

The  evidence  is  very  voluminous  and  conflicting.  After  careful  reading  I 
find  the  facts  to  be : 

1  That  the  district  meeting  authorized  the  repairs  which  have  been  made  to 
the  schoolhouse. 

2  The  minutes,  so  far  as  directing  what  should  be  done,  are  correct. 

3  Messrs  Hand  and  Case  were  appointed  to  act  with  the  trustees  as  a  build- 
ing committee. 

4  The  work  has  been  properly  and  reasonably  done ;  the  schoolhouse  has 
been  measurably  impro^•ed. 

5  The  district  has  been  benefited  by  the  work  and  should  pay  for  the  same. 
Finding  the  facts  as  above,  I  hold: 

The  appointment  of  a  building  committee  can  not  be  sustained  and  is  a 
nullity.  The  meeting  has  power  to  direct  repairs,  but  the  law  invests  the  trustee 
with  the  sole  power  to  carry  out  those  directions.  The  building  committee  having 
no  legal  existence,  its  members,  Messrs  Hand  and  Case,  could  legally,  and  being 
competent  workmen,  properly  enter  into  a  contract  with  the  trustee  to  do  this 
work. 

The  appeal  is  overruled  and  the  stay  heretofore  granted  therein  vacated. 


The  trustees  can  not  be  interfered  with  by  any  building  committee  appointed  by  the  district. 
Decided  August  20,  1868 

\\'eaver.  Superintendent 

The  decisions  of  the  courts  and  the  Department  have  been  that  no  power  is 
given  to  the  inhabitants  to  invest  a  building  committee  with  authority  to  contract 
for  building  a  schoolhouse  or  to  do  any  other  act  binding  upon  the  trustees,  with- 
out their  assent.     (6  Howard's  Pr.  R.  437;  Code  Pub.  Inst.  [ed.  1868]   139.) 

The  trustees  are  the  authorized  agents  for  carrying  out  the  instructions  of 
the  district  in  respect  to  building,  and  in  paying  therefor,  and  they  can  not  be 
superseded  by  any  other  set  of  men  appointed  by  the  district. 

In  this  case,  I  am  of  the  opinion  that  the  trustees  had  authority  to  go  on  and 
complete  the  schoolhouse  according  to  the  plan  adopted,  and  to  levy  taxes  for  the 
expense  thereof  without  reference  to  any  action  on  the  part  of  the  building  com- 
mittee [in  assuming  to  audit  the  accounts  pertaining  to  said  building]. 


JUDICIAL   DECISION'S:       BUILDING    COMMITTEE  I49 

5227 

In  the  matter  of  the  appeal  of  WilHam  C.  Smith  from  the  action  of  the  annual 
meeting  of  school  district  no.  2,  town  of  Minden,  Montgomery  county. 

An  annual  meeting  may  accept  repairs  made  by  a  building  committee  if  such  repairs  were 

authorized  and  the  cost  of  the  same  is  not  exorbitant. 
The  action  of  the  meeting  in  auditing  bills  for  repairs  will  not  be  set  aside  on  the  sole  ground 

that  such  repairs  were  supervised  by  a  building  committee  instead  of  the  trustee. 
Decided  December  5,  1905 

George  C.  Butler,  attorney  for  appellant 
H.  V.  Borst,  attorney  for  respondent 

Draper,  Commission-cr 

During  the  month  of  May  1905,  a  special  meeting  was  held  in  school  district 
no.  2,  Minden,  Montgomery  county,  to  decide  whether  a  new  schoolhouse  should 
be  erected  or  the  old  building  repaired.  It  appears  that  the  meeting  decided  by 
nearly  a  unanimous  vote  to  repair  the  old  building.  The  meeting  also  instructed 
the  chairman  to  appoint  a  building  committee  of  three.  The  chairman  of  the 
meeting  appointed  as  such  committee  Charles  Bellinger,  Charles  Smith  and 
Emmett  Klock,  all  of  whom  were  residents  and  taxpayers  of  the  district.  This 
committee  employed  mechanics  and  made  such  repairs  as  were  authorized  and 
deemed  necessary.  Bills  for  such  repairs  amounting  to  $113.74  were  presented 
by  the  building  committee  to  the  annual  meeting  of  the  district  held  on  August 
1,  1905.  The  annual  meeting  audited  these  bills  and  authorized  the  trustee  to 
raise  a  tax  on  the  property  of  the  district  sufficient  to  pay  the  same. 

The  Consolidated  School  Law  does  not  authorize  the  appointment  of  a  build- 
ing committee.  Subdivision  5  of  section  47,  title  7  of  the  Consolidated  School 
Law  expressly  imposes  upon  trustees  the  duty  of  making  repairs  to  school  build- 
ings. Since  the  law  makes  this  work  the  duty  of  the  trustee  a  district  meeting 
has  not  the  power  to  delegate  to  a  building  committee  such  w^ork.  A  buildmg 
committee  therefore  has  no  legal  standing  and  if  one  is  appointed  it  can  act  in  an 
advisory  capacity  only.  The  trustee  was  the  proper  person  to  employ  mechanics, 
purchase  materials  and  supplies  and  to  supervise  the  construction  work. 

The  necessity  of  the  repairs  which  were  made  are  admitted  and  appellant 
even  alleges  that  they  are  insufficient  and  that  the  school  accommodations  are 
inadequate.  It  was  Avithin  the  power  of  the  annual  meeting  to  accept  the  repairs 
made  by  the  building  committee.  It  is  not  shown  by  the  appellant  that  the  cost 
of  the  repairs  is  excessive.  The  sole  ground  on  which  he  contends  the  expendi- 
ture illegal  is  that  such  repairs  were  made  under  the  supervision  of  a  building 
committee  instead  of  the  trustee. 

The  remedy  of  appellant  or  any  other  aggrieved  party  from  the  action  of  the 
special  meeting  in  appointing  a  building  committee  or  from  the  action  of  such 
committee  in  assuming  to  take  charge  of  repairs  which  it  was  not  legally  author- 
ized to  make  was  an  appeal  to  the  Commissioner  of  Education  immediately  after 
the  special  meeting  or  whenever  the  committee  commenced  to  make  the  repairs. 


150  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

The  Commissioner  of  Education  had  full  power  to  issue  any  orders  necessary  to 
restrain  such  committee  from  proceeding  with  such  repairs  while  an  appeal  could 
be  determined.  The  trustee  should  haA'e  proceeded  to  make  any  repairs  authorized 
at  the  special  meeting  and  he  failed  in  the  performance  of  his  duties  in  permitting 
the  building  committee  to  make  such  repairs. 
The  appeal  herein  is  dismissed. 


3301 

A  district  meeting  can  not  delegate  to  a  building  committee  the  power  to  appoint  a  member 
of  such  committee  to  carry  out  the  wishes  of  the  district,  in  case  the  committee  can  not 
agree. 

Decided  January  15,  1884 

Ruggles,  Superintendent 

Among  other  proceedings  of  the  special  meeting  appealed  from  is  the  adop- 
tion of  the  following  resolution :  "  That  a  committee  of  two  be  associated  with 
the  trustees  as  a  building  committee,  with  full  power  to  repair  said  schoolhouse 
as  in  their  judgment  will  best  meet  the  wants  and  wishes  of  the  district,  with 
instructions,  that  if  they  can  not  agree  to  act  together,  they  shall  choose  one  of 
their  number  to  so  act. 

The  adoption  of  this  resolution  at  said  meeting,  for  the  appointment  of  a 
building  committee  with  full  power  to  repair  said  schoolhouse,  will  be  sustained 
only  so  far  as  such  committee  acts  in  an  advisory  capacity  with  the  trustee;  the 
latter  portion  of  the  resolution,  which  instructs  the  committee  that  if  they  can 
not  agree  to  act  together  they  shall  choose  one  of  their  number  to  carry  out  the 
wishes  of  the  district,  is  invalid.  The  trustee  is  the  agent  of  the  district  accredited 
by  the  law  for  this  purpose. 

The  instruction  contained  in  said  resolution,  to  which  reference  has  been 
made,  is  hereby  set  aside. 


CONTRACT    SYSTEM 

5219 

In  the  matter  of  the  petition  of  Henry  Nulty  that  provision  be  made  for  the 
transportation  of  his  child  from  his  home  in  school  district  no.  7  of  the 
town  of  Easton  to  district  no.  5  of  said  town. 

The  moral  and  legal  obligation  rests  upon  every  parent  to  give  his  child  the  advantages 
of  the  school  facilities  afforded  by  our  system  of  public  education.  He  should  do  this 
even  at  great  inconvenience  and  expense  if  necessary.  He  should  not  expect  remunera- 
tion nor  should  it  be  given  for  such  trouble  as  may  reasonably  be  expected  of  a  parent 
to  enable  his  children  to  attend  school. 

To  vote  compensation  to  a  parent  from  the  public  funds  for  taking  his  child  to  and  from 
school  was  not  intended  under  the  contract  law. 

Payment  to  a  parent  for  conveying  his  children  to  school  comes  dangerously  near  being  an 
improper  consideration  to  influence  his  vote  in  favor  of  the  contract  system  when  it 
might  be  more  desirable  to  maintain  a  home  school. 

The  intent  of  the  law  in  providing  transportation  is  that  it  should  be  regular  and  daily; 
that  individual  parents  should  not  derive  pecuniary  advantage  from  it;  and  that  nothing 
should  be  left  to  parental  convenience  or  caprice. 

The  general  rule  should  be  that  one  person  of  proper  character,  furnishing  suitable  ac- 
commodations, should  be  regularly  employed  and  the  contract  for  transportation  should 
be  awarded,  after  opportunity  for  competition,  to  the  most  reliable  party  who  will 
furnish  the  best  transportation  at  the  lowest  cost  to  the  district. 

Decided  October  31,  1905 

William  E.  Bennett,  attorney  for  respondent 

Draper,  Coiiiuiissioncr 

The  appellant  herein  is  a  resident  of  common  school  district  no.  7>  town  of 
Easton,  ^^^ashington  county.  He  has  a  son  who  will  be  7  years  of  age  November 
23,  1905-  For  several  years  this  district  has  contracted  with  school  district  no.  5, 
Easton,  Washington  county,  under  the  provisions  of  title  15  of  the  Consolidated 
School  Law  for  the  education  of  its  children.  The  distance  from  the  home  of 
appellant  to  the  schoolhouse  in  district  no.  5,  Easton,  is  4}^  miles.  The  7  year 
old  son  of  appellant  must  therefore  travel  9  miles  daily  in  order  to  regularly 
attend  school  under  the  contract  between  these  two  districts. 

At  the  annual  meeting  of  school  district  no.  7,  Easton,  in  August  1904,  a 
resolution  was  adopted  authorizing  the  trustee  to  contract  for  the  education  of 
the  children  of  that  district  in  "  district  no.  5,  Easton,  or  some  other  district  in 
the  town  of  Easton."  The  trustee  of  district  no.  7  was  therefore  given  discre- 
tionary powers  as  to  the  district  in  the  town  of  Easton  with  which  he  should 
contract.  It  appears  that  he  made  a  contract  with  district  no.  5,  Easton.  At 
the  annual  meetirig  of  district  no.  7  in  August  1905  a  motion  was  adopted  pro- 
viding that  the  resolution  of  the  annual  meeting  of  1904,  authorizing  the  trustee 

[151] 


152  THE   UNIVERSITY    OF   THE    STATE    OF    NEW    YORK 

to  contract,  should  hold  good  for  the  ensuing  year.  The  resolution  of  1904  was 
also  read  by  the  clerk.  The  trustee  for  the  current  year  therefore  had  the  power 
to  contract  with  district  no.  5,  Easton,  or  with  any  other  district  in  the  town  of 
Easton.  No  one  knew  for  a  certainty  at  the  time  of  the  annual  meeting  of  1905 
with  what  district  the  trustee  would  make  a  contract  for  the  ensuing  year.  That 
was  to  be  determined  later  by  the  trustee.  He  made  such  contract  in  due  time 
with  district  no.  5,  Easton. 

The  annual  meeting  of  1905  also  adopted  a  motion  providing  that  $10  for 
each  child  attending  school  under  the  contract  system  should  be  paid  to  the  parent 
or  guardian  of  such  child  for  its  transportation  for  the  entire  year.  It  was  also 
provided  that  if  a  child  did  not  attend  school  the  full  year  the  allowance  made  for 
its  transportation  should  be  in  proportion  to  the  time  such  child  did  attend. 

The  attorney  for  respondent  asks  that  the  appeal  be  dismissed  on  several 
grounds.  These  grounds  are  all  technical  and  are  not  supported  by  substantial 
reasons.  He  contends  that  the  proceeding  is  not  an  appeal  but  a  petition.  In  this 
he  is  wrong.  Appellant  does  state  in  the  title  of  the  proceedings  that  he  peti- 
tions for  provision  for  transportation  for  his  child,  but  in  his  notice  of  appeal 
to  the  Commissioner  of  Education  it  is  specifically  stated :  "  The  petitioner  and 
appellant  hereby  appeals  to  you  etc."  The  entire  proceeding  is  in  the  nature  of 
an  appeal  as  defined  by  law  and  must  be  considered  as  such. 

It  is  also  claimed  that  the  appeal  should  be  from  the  action  of  the  annual 
meeting  and  not  from  the  action  of  the  trustee,  and  that  such  appeal  was  not 
brought  within  the  30  days  limit  fixed  by  the  rules.  The  grievance  of  appellant 
does  not  date  from  the  action  of  the  annual  meeting.  Appellant  did  not  know 
what  transportation  would  be  necessary  for  his  child  until  he  knew  with  what 
district  a  contract  had  been  made.  It  is  undisputed  that  the  trustee  had  authority 
under  the  resolution  of  the  annual  meeting  to  contract  with  any  district  in  the 
town  of  Easton.  Appellant  could  not  therefore  know  of  the  sufficiency  of  the 
transportation  authorized  by  the  annual  meeting  until  he  knew  with  what  district 
a  contract  had  been  made  and  where  his  child  would  be  required  to  attend  school. 
It  is  not  shown  in  the  pleadings  that  more  than  30  days  occurred  between  the 
date  on  which  knowledge  of  such  contract  having  been  made  came  to  appellant 
and  the  date  on  which  the  appeal  was  filed.  The  trustee  is,  under  the  law,  the 
proper  person  to  provide  for  transportation  when  it  is  authorized  and  the  appeal 
might  therefore  be  properly  taken  from  the  action  of  the  trustee  or  of  the  annual 
meeting.  We  must  therefore  hold  that  the  appeal  is  properly  before  this  Depart- 
ment and  must  be  considered  on  its  merits. 

The  law  authorizing  the  contract  system  provides  that  all  contracts  must  be 
approved  by  the  Commissioner  of  Education.  This  Department  has  refused  to 
approve  such  contracts  whenever  the  distance  from  the  homes  of  any  of  the  chil- 
dren to  the  schoolhouse  at  which  they  are  required  to  attend  school  thereunder 
is  too  great  for  them  to  walk  to  and  from  school  daily  unless  proper  provision  is 
made  for  their  conveyance. 

Section  19,  title  7  of  the  Consolidated  School  Law  as  amended  by  Laws  of 
1905,  chapter  175,  authorizes  a  district  to  levy  a  tax  to  provide  transportation  for 


JUDICIAL  decisions:     contract  system  153 

any  or  all  children  to  the  school  which  they  must  attend  under  a  contract.  It  also 
provides  that  any  portion  of  the  public  money  apportioned  a  district  may  be  used 
in  payment  of  such  transportation.  Under  this  section  the  district  meeting  is  to 
authorize  the  trustee  to  provide  transportation  and  to  vote  a  tax  to  raise  neces- 
sary funds  and  the  trustees  of  the  district  must  then  contract  for  the  conveyance 
of  the  children. 

Attorney  for  respondent  is  wrong  in  his  contention  that  trustees  must  con- 
tract in  accordance  with  rules  provided  by  the  district  meeting.  The  district 
meeting  simply  authorizes  the  contract  for  transportation  and  it  is  then  the  duty 
of  trustees  to  make  such  contracts  and  to  prescribe  rules  to  govern  the  conveyance 
of  children. 

The  pleadings  show  that  it  has  been  the  custom  in  this  district  for  several 
years  to  allow  the  parents  of  children  attending  school  under  contract  the  sum  of 
Sio  for  each  child.  This  custom  appears  quite  common  in  districts  operating 
under  the  contract  system.  It  is  one  to  be  severely  condemned.  The  moral  and 
legal  obligation  rests  upon  every  parent  to  give  his  child  the  advantages  of  the 
school  facilities  afforded  by  our  system  of  public  education.  He  should  do  this 
even  at  great  inconvenience  and  expense  if  necessary.  He  should  not  expect  remu- 
neration nor  should  it  be  given  for  such  trouble  as  may  reasonably  be  expected 
of  a  parent  to  enable  his  children  to  attend  school.  It  is  difficult  to  understand 
on  what  mathematical  basis  a  computation  is  derived  by  which  it  is  determined 
that  a  parent  is  entitled  to  $10  for  getting  his  children  to  and  from  school  daily 
for  one  year.  In  most  cases  the  parent  is  to  no  additional  effort  or  trouble  what- 
ever. The  $10  is  so  much  gain.  When  this  course  is  pursued  and  transportation 
is  not  provided  but  should  be,  the  plan  operates  as  a  hardship  upon  the  child. 
This  method  of  providing  transportation  is  therefore  demoralizing  if  not  corrupt- 
ing. It  has  no  authority  of  law.  Proper  and  comfortable  transportation  can 
usually  be  provided  for  all  the  children  in  a  district  for  the  amount  paid  the 
several  parents  by  employing  one  suitable  person.  Transportation  is  not  to  be 
provided  unless  it  is  necessary.  Whenever  it  is  necessary  it  must  be  provided. 
When  it  is  provided  it  must  be  comfortable  and  suitable  and  of  such  character  as 
to  warrant  the  belief  of  parents  that  no  harm  will  result  therefrom  to  their  chil- 
dren. It  is  necessary  to  provide  proper  transportation  in  this  district  and  par- 
ticularly for  the  Nulty  boy  if  the  contract  with  district  no.  5,  Easton,  is  to  stand 
approved.  Such  transportation  has  not  been  provided.  Respondent  claims  that 
one  Pierce,  a  neighbor  of  appellant,  has  offered  to  permit  appellant's  son  to  ride 
to  school  wnth  his  son.  The  age  of  Pierce's  son  is  not  given  and  we  are  unable  to 
determine  whether  or  not  he  is  a  proper  person  to  be  charged  with  the  respon- 
sibility of  taking  the  7  year  old  son  of  appellant  to  and  from  school  daily. 

The  action  taken  by  the  annual  meeting  in  relation  to  the  transportation  of 
children  was  not  such  as  the  law  contemplates  in  such  cases.  The  district  meeting 
should  have  authorized  the  trustee  to  provide  transportation  in  necessary  cases 
and  should  have  voted  a  tax  for  such  sum  as  was  necessary  to  meet  the  expenses 
of  such  transportation. 


154  THE   UNIVERSITY    OF   THE   STATE    OF    NEW    YORK 

To  vote  compensation  to  a  parent  from  the  public  funds  for  taking  liis  child 
to  and  from  school  was  not  intended  under  the  contract  law.  Payment  to  a 
parent  for  conveying  his  children  to  school  comes  dangerously  near  being  an 
improper  consideration  to  influence  his  vote  in  favor  of  the  contract  system 
when  it  might  be  more  desirable  to  maintain  a  home  school.  A,  school  district 
should  maintain  a  home  school  unless  it  clearly  appears  that  the  district  is  too 
weak  financially  and  numerically  to  do  so.  Even  then  it  should  be  clearly  shown 
that  the  educational  facilities  of  the  district  will  be  improved  by  contracting  and 
that  it  may  be  done  without  imposing  undue  hardships  upon  the  children  required 
to  attend  school  under  such  contract.  Beyond  that  the  intent  of  the  law  in  pro- 
viding for  transportation  was  that  it  should  be  regular  and  daily ;  that  individual 
parents  should  not  derive  pecuniary  advantage  from  it ;  and  that  nothing  should 
be  left  to  parental  convenience  or  caprice.  The  general  rule  should  be  that  one 
person  of  proper  character,  furnishing  suitable  accommodations,  should  be  regu- 
larly employed,  and  the  contract  for  transportation  should  be  awarded,  after 
opportunity  for  competition,  to  the  most  reliable  party  who  will  furnish  the  best 
transportation  at  the  lowest  cost  to  the  district. 

School  districts  which  are  unwilling  to  provide  suitable  transportation  must 
not  operate  under  the  contract  system  but  must  maintain  a  home  school.  The 
propriety  of  requiring  a  child  7  years  of  age  to  travel  9  miles  daily  to  attend 
school  must  be  seriously  questioned.  Unless  substantial  reasons  are  given  for 
contracting  in  a  district  having  such  cases  the  wisdom  of  maintaining  a  home 
school  is  apparent. 

The  respondent  claims  that  the  Nulty  boy  is  only  7  years  of  age  and  not 
under  the  provisions  of  the  compulsory  education  law  and  the  district  should 
not,  therefore,  be  required  to  provide  transportation  for  him.  This  statement 
should  not  be  passed  unnoticed.  The  law  fixes  the  school  age  between  5  and  21 
years.  .A.11  persons  between  these  ages  are  entitled  by  law  to  attend  the  school 
in  the  district  in  which  they  reside.  When  a  district  contracts  for  the  education 
of  its  children  it  is  regarded  as  maintaining  a  home  school.  This  boy  is  therefore 
entitled  to  all  the  privileges  in  the  school  of  district  no.  5,  Easton,  that  he  would 
be  entitled  to  in  his  home  school  were  one  maintained  in  the  district. 

The  appeal  herein  is  sustained. 

It  is  ordered.  That  George  W.  \^an  Buren,  trustee  of  school  district  no.  7, 
Easton,  Washington  county,  sliall  within  five  days  from  the  date  hereof,  issue 
a  call  for  a  special  meeting  of  said  district  by  giving  notice  thereof  as  provided 
in  sections  2  and  6,  title  7  of  the  Consolidated  School  Law  for  the  purpose  of 
authorizing  the  trustee  to  provide  necessary  transportation  for  the  children  of 
said  district  who  are  required  to  attend  school  in  district  no.  5,  Easton,  by  virtue 
of  a  contract  made  by  said  trustee  with  said  district  no.  5,  Easton,  on  August  i, 
1905,  and  also  to  vote  the  necessary  appropriation  therefor. 

It  is  also  ordered,  That  if  the  special  meeting  of  said  district  no.  7,  Easton, 
\A'ashington  county,  authorized  herein,  shall  fail  or  refuse  to  authorize  the  trustee 
to  provide  such  necessary  transportation  and  to  make  the  necessary  appropria- 


JUDICIAL  decisions:     contract  system  155 

tion  therefor,  the  said  Trustee  Van  Buren  shall  immediately  report  the  same  to 
me  and  shall  thereupon  immediately  open  a  home  school  in  said  district  no.  7, 
Easton,  as  provided  by  the  Consolidated  School  Law. 


5241 

In  the  matter  of  the  appeal  of  W.  F.  Dening  from  the  proceedings  of  school 
district  no.  13,  town  of  Champion,  county  of  Jetterson. 

The  settled  policy  in  relation  to  the  contract  system  is  that  districts  which  contract  must 
provide  proper  and  suitable  transportation  for  children  who  live  so  far  from  the  school- 
house  which  they  must  attend  as  to  be  unable  to  walk  to  and  from  school  daily. 

Decided  February  21,  1906 

W.  B.  Van  Allen,  attorney  for  appellant 

Draper,  Commissioner 

The  annual  meeting  of  this  district  aiuhorized  the  adoption  of  the  contract 
system  instead  of  maintaining  a  home  school.  No  provision  was  made  for  the 
transportation  of  pupils.  The  trustee  made  a  contract  with  the  West  Carthage 
district.  The  appellant  herein  lives  2  miles  from  the  schoolhouse  of  the  West 
Carthage  district.  He  has  two  daughters,  one  14  years  of  age  and  the  other  12 
years  of  age.  These  children  are  delicate  and  each  is  afflicted  with  hernia.  The 
older  of  these  girls  has  been  compelled  to  wear  a  truss  although  she  does  not  at 
the  present  time.  The  younger  girl  has  for  some  time  and  does  now  wear  a 
truss.  Because  of  their  delicate  constitutions  and  of  their  affliction  they  are 
physically  unable  to  walk  from  their  home  to  the  West  Carthage  schoolhouse  each 
morning  and  return  at  night.  This  would  necessitate  their  traveling  4  miles  each 
day  in  order  to  attend  school.    There  is  no  dispute  in  this  appeal  as  to  these  facts. 

The  contention  of  respondent  is  that  the  district  has  ofifered  to  pay  appellant 
a  reasonable  sum  for  conveying  his  children,  but  has  not  been  able  to  agree  with 
appellant  on  the  amount  which  should  be  paid.  Respondent  further  contends  that 
appellant  should  convey  his  children  to  school  himself  if  they  are  unable  to  walk. 
In  each  of  these  contentions  respondent  is  wrong.  In  appeal  no.  5219,  decided 
by  me  October  31,  1905,  I  held  as  follows: 

To  vote  compensation  to  a  parent  from  the  public  funds  for  taking  his  child 
to  and  from  school  was  not  intended  under  the  contract  law. 

Payment  to  a  parent  for  conveying  his  children  to  school  comes  dangerously 
near  being  an  improper  consideration  to  influence  his  vote  in  favor  of  the  contract 
system  when  it  might  be  more  desirable  to  maintain  a  home  school. 

The  intent  of  the  law  in  providing  transportation  is  that  it  should  be  regular 
and  daily ;  that  individual  parents  should  not  derive  pecuniary  advantage  from  it ; 
and  that  nothing  should  be  left  to  parental  convenience  or  caprice. 

The  general  rule  should  be  that  one  person  of  proper  character,  furnishing 
suitable  accommodations,  should  be  regularly  employed  and  the  contract  for 
transportation  should  be  awarded,  after  opportunity  for  competition,  to  the  most 
reliable  partv  who  will  furnish  the  best  transportation  at  the  lowest  cost  to  the 
district. 


156  THE   UNIVERSITY    OF   THE    STATE    OF    NEW    YORK 

The  settled  policy  in  relation  to  the  contract  system  is  that  districts  which 
contract  must  provide  proper  and  suitable  transportation  for  children  who  live 
so  far  from  the  schoolhouse  which  they  must  attend  as  to  be  unable  to  walk  to 
and  from  school  daily.  In  this  case  I  must  hold  that  transportation  is  necessary 
and  that  the  trustee  should  provide  it  for  the  remainder  of  the  current  school 
year. 

The  appeal  herein  is  sustained. 

It  is  ordered,  That  Orrin  Phillips,  trustee  of  said  school  district  no.  13, 
town  of  Champion,  Jefferson  county,  be,  and  he  hereby  is,  ordered  to  provide 
proper  and  suitable  transportation  for  the  two  children  of  W.  F.  Dening  from 
their  home  to  and  from  the  West  Carthage  schoolhouse,  for  the  remainder  of 
the  current  school  year. 


5427 

In  the  matter  of  the  appeal  of  D.  B.  Abrams  et  al.  from  the  action  of  special 
meeting-  of  school  district  no.  14,  Johnstown,  Fulton  county,  in  refusing  to 
make  a  contract  with  the  board  of  education  of  Gloversville. 

Action  of  district  meeting  in  refusing  to  contract  will  not  be  disturbed,  (Education 
Law,  1909,  §  600)  The  statute  (Education  Law,  1909,  §  600)  clearly  intends  that  the 
voters  of  a  district  shall  determine  whether  contracts  shall  be  made  with  other  districts 
for  the  instruction  of  pupils,  or  such  pupils  be  instructed  in  the  home  school.  If  the 
voters  have  had  a  fair  opportunity  to  express  their  views  as  to  this  question  the  Com- 
missioner of  education  will  not  intervene  on  an  appeal  to  overthrow  the  will  of  a 
majority. 

Policy  of  Department  in  favor  of  maintenance  of  home  school.  It  has  been  the  policy 
of  the  Department  to  encourage  the  maintenance  of  home  schools;  the  Commissioner 
of  Education  has  refused  to  approve  contracts  for  the  instruction  of  pupils  out  of  the 
district  where  it  is  apparent  that  the  best  educational  interests  of  the  district  would  not 
be  thereby  promoted.  It  would  not  accord  with  this  policy  to  compel  a  district  to  con- 
tract for  the  instruction  of  all  or  part  of  its  pupils  against  the  will  of  a  majority  of  the 
legal  voters  of  the  district,  fairly  expressed  at  a  legal  meeting. 

Decided  December  16,  1909 


William  A.  Macdonald,  attorney  for  appellants 
Wood  &  Hader,  attorneys  for  respondents 


Draper,  Commissioner 

This  appeal  is  brought  by  D.  B.  Abrams  and  others  from  the  action  of  a 
special  meeting  held  in  district  no.  14  of  the  town  of  Johnstown,  county  of 
Fulton,  on  the  24th  day  of  August  1909,  in  refusing  to  make  a  contract  with  the 
board  of  education  of  the  city  of  Gloversville  for  the  instruction  of  a  portion  of 
the  pupils  residing  in  said  district  no.  14.  The  appellants  and  respondents 
appeared  by  counsel  and  made  oral  arguments  in  support  of  their  contentions. 
It  appears  that  the  appellants  reside  in  that  portion  of  district  no.  14  lying  near 
the  boundary  line  of  the  city  of  Gloversville,  and  it  is  probably  true  that  their 
children  mav  attend  the  schools  in  that  city  with  less  inconvenience  than  the 


JUDICIAL  decisions:     contract  system  157 

school  in  their  own  district.  Contracts  were  made  by  such  district  with  the  city 
during  the  years  1906,  1907  and  1908.  A  resolution  to  continue  this  arrange- 
ment was  submitted  at  the  annual  meeting  and  voted  down.  The  trustee  called  a 
special  meeting  for  the  purpose  of  reconsidering  the  question,  and  it  was  again 
voted  not  to  contract.  It  is  thus  apparent  that  a  fair  chance  was  given  to  all  the 
qualified  voters  of  the  district  to  vote  upon  the  question.  No  claim  of  unfairness 
in  the  vote  is  made  by  the  appellants.  They  base  their  prayer  for  relief  upon  the 
hardships  imposed  upon  their  children  by  compelling  them  to  attend  the  district 
school  which  is  located  from  a  mile  and  a  half  to  two  miles  from  where  they 
live,  and  to  reach  which  they  are  required  to  travel  over  a  road  which  is  exceed- 
ingly difficult  during  the  winter  months.  There  is  not  much  question  as  to  these 
facts.  They  are  entitled  to  careful  consideration  on  this  appeal.  But  there  is 
a  question  of  law  and  policy  involved  which  impedes  the  granting  of  the  desired 
relief. 

Section  600  of  the  Education  Law  provides  for  the  instruction  of  all  or 
a  part  of  the  pupils  of  a  district  under  a  contract  with  another  district,  or  a  city, 
when  such  district  shall  empower  the  trustee  or  board  of  education  to  make  such 
contract  "by  a  vote  of  a  majority  of  the  qualified  voters  present  and  voting 
thereon."  Unless  such  contract  is  authorized  the  district  must  provide  for  all 
its  pupils  in  its  own  school.  The  statute  clearly  intends  that  the  voters  of  the 
district  shall  determine  whether  contracts  shall  be  made  with  other  districts  or 
the  pupils  be  instructed  in  the  home  school,  ^^'hen  opportunity  has  been  afforded 
such  voters  to  fairly  express  their  views  as  to  this  question,  and  it  is  decided 
that  the  pupils  should  be  instructed  in  the  home  school,  the  Commissioner  of 
Education  should  not  intervene  on  an  appeal  to  overthrow  the  will  of  the  majority. 
It  has  been  the  policy  of  the  Department  to  encourage  the  maintenance  of  home 
schools,  and  in  the  exercise  of  his  power  under  the  statute,  the  Commissioner  of 
Education  has  refused  to  approve  contracts  for  the  instruction  of  pupils  out  of 
the  district,  where  it  was  apparent  that  the  best  educational  interests  of  the  dis- 
trict would  not  be  thereby  promoted.  It  would  not  accord  with  this  policy  to 
compel  a  district  to  contract  for  the  instruction  of  all  or  part  of  its  pupils  agamst 
the  will  of  a  majority  of  the  legal  voters  of  the  district,  fairly  expressed  at  two 
meetings  when  the  question  was  submitted.  The  appeal  must  therefore  be 
dismissed. 

The  peculiar  circumstances  of  this  case  seem  to  demand  that  some  relief 
be  afforded  the  appellants.  Their  children  ought  not  to  be  required  to  walk 
from  their  homes  to  the  school  and  back  each  day  during  the  winter  months. 
Although  the  appellants  have  not  asked  for  such  relief,  it  seems  proper  to 
suggest  that  the  trustee  make  provision  for  conveying  the  pupils  residing  in  the 
part  of  district  no.  14,  in  which  the  appellants  reside,  and  that  such  pupils  be 
required  to  meet  the  conveyance  furnished  by  the  trustee  at  some  conveniently 
accessible  point.  This  conveyance  should  be  provided  during  the  wdnter  months 
and  until  May  i.  1910. 

It  is  also  suggested  that  the  school  commissioner  of  the  district  be  asked  to 
consider  the  advisability  of  adjusting  the  boundaries  of  this  and  neighboring 


158  THE   UNIVERSITY    OF   THE   STATE.  OF   NEW   YORK 

districts  with  a  view  of  establishing  a  single  district  along  the  boundary  line 
of  the  city  of  Gloversville,  the  residents  of  which  district  would  be  best  served 
by  a  contract  made  with  the  city  for  the  instruction  of  its  pupils.  It  would  seem 
that  a  new  district  might  be  thus  established  without  material  injury  to  the  dis- 
tricts from  which  its  territory  is  taken.  If  such  a  district  is  formed  the  appel- 
lants should  be  placed  in  the  new  district,  and  they  would  therefore  probably 
receive  the  privilege  of  attendance  in  the  city  schools. 
The  anneal  herein  is  dismissed. 


4499 

In  the  matter  of  the  appeal  of  R.  H.  Palmer  and  others  v.  Oscar  H.  Farrington 
and  James  S.  Sloan,  trustees,  school  district  no.  9,  town  of  Montgomery, 
Orange  county. 

Where  at  a  school  district  meeting  the  vote  upon  a  motion  or  resolution,  empowering  the 
trustee  of  the  district  to  enter  into  a  written  contract  with  the  board  of  education  of  an 
adjoining  union  free  school  district  whereby  all  the  children  of  the  district  may  be 
entitled  to  be  taught  in  the  public  schools  of  such  adjoining  union  free  school  district, 
is  not  taken  by  ballot  nor  by  taking  and  recording  the  ayes  and  noes  of  the  qualified 
voters  present  and  voting,  such  motion  or  resolution  was  not  legally  adopted,  and  the 
trustee  or  trustees  of  the  district  were  not  duly  and  legally  empowered  to  make  such 
contract. 

Decided  October  26,   1896 

E.  B.  Walker,  attorney  for  respondents 

Skinner,  Superintendent 

The  appellants  in  the  above-entitled  matter  appeal  from  the  refusal  of  the 
respondents  herein,  as  trustees  of  school  district  no.  9,  town  of  Montgomery, 
Orange  county,  to  contract  with  the  Walden  High  School,  whereby  all  the  chil- 
dren of  said  school  district  may  be  entitled  to  be  taught  in  said  W'alden  High 
School  for  a  period  of  not  less  than  160  days  in  the  school  year  of  1896-97, 
pursuant  to  a  resolution  empowering  said  trustees  to  make  such  contract  for  a 
sum  of  money  not  exceeding  $275.  adopted  at  the  annual  school  meeting  held  in 
said  district  on  August  4,  1896,  as  alleged  by  the  appellants  herein  in  said  appeal. 

The  respondents  herein  have  answered  the  appeal,  and  ask  that  the  appeal 
be  dismissed  upon  various  grounds  alleged  therein,  and  deny  each  and  every 
allegation  contained  in  the  appeal.  The  respondents  allege  that  the  vote  on  the 
motion  or  resolution  set  forth  in  said  appeal  was  not  by  ballot  or  ascertained  by 
taking  and  recording  the  ayes  and  noes  of  the  qualified  voters  attending  and 
voting  at  such  district  meeting ;  nor  did  such  motion  or  resolution  receive  the 
vote  of  a  majority  of  the  qualified  voters  of  said  district ;  that  at  said  meeting 
a  vote  as  required  by  law  was  demanded  but  such  demand  was  refused  and 
ignored. 


JUDICIAL  decisions:     contract  system  159 

The  records  of  the  proceeding's  of  the  school  meeting  as  recorded  by  the 
clerk  of  the  district,  relative  to  said  motion  or  resolution,  are  as  follows :  "  Reso- 
lution offered  and  seconded,  that  the  trustees  of  school  district  no.  9  be  required 
to  enter  into  a  contract  with  the  board  of  education  of  Walden  High  School  to 
teach  the  children  of  this  district  for  ensuing  year  at  a  cost  not  to  exceed 
$275.     Carried." 

That  there  is  nothing  in  said  records  to  show  how  the  vote  upon  said  resolu- 
tion was  ascertained,  or  the  manner  of  voting  thereon. 

The  appellants  in  their  reply  to  the  answer  herein,  concede  that  the  vote 
upon  said  resolution  was  not  by  ballot  nor  by  taking  and  recording  the  ayes  and 
noes. 

In  section  14,  article  4,  title  15  of  the  Consolidated  School  Law  of  1894, 
as  amended  by  section  18,  chapter  264  of  the  Laws  of  1896,  it  is  enacted  that 
"  whenever  any  school  district  adjoining  a  city  or  village,  or  adjoining  any  union 
free  school  district  by  a  vote  of  a  majority  of  the  qualified  voters  of  such  district, 
shall  empower  the  trustees  thereof,  the  said  trustees  shall  enter  into  a  written 
contract  with  the  board  of  education  of  such  city,  village  or  union  free  school 
district,  whereby  all  the  children  of  such  district  may  be  entitled  to  be  taught  in 
the  public  schools  of  such  city,  village  or  union  free  school  district  for  a  period  of 
not  less  than  one  hundred  and  sixty  days  in  any  school  year,  upon  filing  a  copy 
of  such  contract,  duly  certified  by  the  trustees  of  such  school  district,  and  by 
the  secretary  of  the  board  of  education  of  such  city,  village  or  union  free  school 
district  in  the  office  of  the  State  Superintendent  of  Public  Listruction." 

Subdivision  18  of  section  14,  article  t,  title  7  of  the  Consolidated  School 
Law  of  1894,  enacts  that  "  in  all  propositions  arising  at  said  district  meetings, 
involving  the  expenditure  of  money,  or  authorizing  the  levy  of  a  tax  or  taxes, 
the  vote  thereon  shall  be  by  ballot  or  ascertained  by  taking  and  recording  the 
ayes  and  noes  of  such  qualified  voters  attending  and  voting  at  such  district 
meetings." 

The  respondents  herein,  as  trustees  of  school  district  no.  9,  were  not 
required  to  enter  into  a  contract  under  the  provisions  of  section  14,  article  4. 
title  15,  above  quoted,  unless  said  school  district  by  a  vote  of  a  majority  of  the 
qualified  voters  of  said  district  should  empower  them  to  do  so.  The  motion  or 
resolution  empowering  or  requiring  said  trustees  to  enter  into  said  contract, 
being  a  proposition  arising  at  said  school  meeting  involving  the  expenditure  of 
money,  the  vote  thereon  should  have  been  taken  by  ballot  or  ascertained,  by 
taking  and  recording  the  ayes  and  noes  of  such  qualified  voters  attending  and 
voting  at  such  meeting. 

I  decide  that  said  resolution  requiring  said  trustees  to  enter  into  a  contract 
with  the  board  of  education  of  Walden  High  School  to  teach  the  children  of 
said  district  for  the  ensuing  school  year  at  a  cost  not  to  exceed  $275,  was  not 
legally  adopted,  and  that  said  trustees  of  said  district  have  not.  by  a  vote  of  a 
majority  of  the  qualified  voters  of  such  district,  been  empowered  to  make  said 
contract. 

The  appeal  herein  is  dismissed. 


l6o  THE    UNIVERSITY    OF   THE   STATE    OF    NEW   YORK 

5220 

In  the  matter  of  the  appeal  of  Cornelius  Tellier  and  others  from  the  action  of 
the  annual  meeting  and  the  trustee  of  school  district  no.  8,  towns  of  Pal- 
myra and  Marion,  Wayne  county. 
The  law  authorizing  a  trustee  to  contract  for  the  education  of  the  children  of  a  district 

requires  a  majority  vote  of  those  present  and  voting  and  not  a  majority  of  all  the  voters 

of  the  district. 
Money  raised  by  tax  authorized  at  an  annual  meeting  "  for  school  expenses  for  the  coming 

year  "  may  legally  be  used  to  meet  any  expenses  incurred  by  the   district  when  such 

district  has  adopted  the  contract  system. 
Decided  October  31,  1905 

Charles  ATcLouth,  attorney  for  appellants 
Joseph  Gilbert,  attorney  for  respondents 

Draper,  Commissioner 

Notice  was  given  as  required  by  law  of  the  annual  meeting  for  school  dis- 
trict no.  8,  towns  of  Palmyra  and  Marion,  Wayne  county,  to  be  held  August  i, 
1905.  The  meeting  was  regularly  held  but  was  attended  by  only  eight  voters 
residing  in  the  district.  The  meeting  adopted  a  motion  empowering  the  trustee 
to  contract  for  the  education  of  its  children  with  the  Marion  union  free  school 
district.  Under  such  instructions  the  trustee  entered  into  a  contract  with  the 
board  of  education  of  the  Marion  district  and  forwarded  such  contract  to  this 
Department  September  i,  1905,  for  approval.  The  contract  was  in  proper  form 
but  did  not  show  what  provision  had  been  made  for  the  conveyance  of  pupils  or 
whether  it  was  necessary  to  make  such  provision.  The  trustee  was  requested  to 
supply  information  to  this  Department  on  that  point.  On  September  7,  1905, 
he  gave  full  information  on  that  point  showing  that  provision  had  been  made 
for  proper  transportation.  He  was  promptly  advised  on  receipt  of  such  informa- 
tion that  the  contract  would  be  approved.  Appellant  and  nine  other  legal  voters 
and  taxpayers  of  the  district  appeal  from  the  action  of  the  annual  meeting  in 
authorizing  such  contract  and  from  the  action  of  the  trustee  in  making  the 
contract.  Attorney  for  appellant  claims  that  under  the  law  creating  the  contract 
system  a  district  meeting  can  not  authorize  a  trustee  to  make  such  contract  except 
by  a  majority  vote  of  all  the  legal  voters  of  the  district.  The  law  does  not  con- 
tain such  provision.  Section  14,  title  15  of  the  Consolidated  School  Law,  as 
amended  by  the  Laws  of  1904,  chapter  322,  specifically  provides  that  a  "  majority 
of  the  qualified  voters  present  and  voting  thereon  "  may  empower  a  trustee  to 
make  such  contract.  The  vote  authorizing  the  trustee  to  make  the  contract  in 
question  was  a  majority  of  those  present  and  voting. 

The  second  contention  of  the  attorney  for  appellant  is  that  the  vote  was 
not  taken  by  ballot  or  by  taking  and  recording  the  ayes  and  noes.  He  claims 
that  a  vote  empowering  the  trustee  to  make  a  contract  for  this  purpose  involves 
an  expenditure  of  district  funds  which  necessitates  the  levying  of  a  tax  and 
that  the  vote  must  be  taken  by  one  of  the  two  methods  above  stated.     Under 


JUDICIAL  decisions:     contract  system  i6i 

the  Consolidated  School  Law,  on  a  proposition  involving  an  expenditure  of 
money  or  authorizing  the  levying  of  a  tax,  the  vote  must  be  by  one  of  these 
methods.  The  official  record  of  the  proceedings  of  this  meeting  shows  that  an 
appropriation  of  $170  ''  for  school  expenses  for  the  coming  year"  was  made. 
The  vote  on  this  proposition  was  had  by  ballot  as  the  law  directs.  The  law 
also  provides  that  a  district  which  contracts  for  the  education  of  its  children 
shall  be  regarded  as  maintaining  a  home  school.  Public  money  is  apportioned 
such  district  upon  this  basis.  Any  expense,  therefore,  incurred  in  providing 
for  the  education  of  children  under  the  contract  system  must  be  regarded  as  the 
equivalent  of  an  expense  to  maintain  a  home  school.  The  $170  voted  at  the 
annual  meeting  "  for  school  expenses  for  the  coming  year  "  is  therefore  available 
to  meet  any  expenses  incurred  under  the  contract  system.  The  law  specitically 
provides  that  funds  apportioned  to  a  district  operating  under  the  contract  system 
may  be  used  to  pay  the  tuition  under  such  contract  and  also  the  transportation 
of  pupils.  As  the  funds  needed  to  meet  the  expense  of  this  contract  have  been 
provided  as  the  law  directs  it  is  not  necessary  that  the  vote  authorizing  the 
trustee  to  contract  shall  be  taken  in  the  manner  by  which  a  vote  to  appropriate 
funds  shall  be  taken. 

It  appears  clear  that  the  annual  meeting  was  regularly  and  legally  held  and 
that  such  meeting  regularly  and  legally  empowered  the  trustee  to  contract  with 
the  Marion  union  school  district.  Under  such  instruction  the  trustee  has  made 
a  contract  for  the  education  of  the  children  of  district  no.  8  in  the  Marion  union 
school  district  and  he  has  also  made  a  contract  for  the  transportation  of  the 
children.  The  contract  with  the  Marion  union  school  district  has  been  filed  at 
this  office,  has  met  the  requirements  for  such  contracts  and  has  been  approved. 
The  trustee  appears  to  have  acted  in  a  candid  open  manner  in  the  whole  pro- 
ceeding. He  has  acted  clearly  within  his  legal  rights  and  duties.  His  action 
in  making  the  two  contracts  in  question  has  undoubtedly  created  a  district  liabil- 
ity which  must  not  be  overlooked  in  a  determination  of  this  appeal. 

Appellants  raise  one  point  which  demands  careful  consideration.  They 
show  that  only  eight  of  the  legal  voters  were  present  at  the  annual  meeting.  It 
appears  that  the  district  has  never  before  contracted  but  has  always  maintained 
a  home  school.  It  does  not  appear  that  it  was  generally  known  that  the  question 
of  contracting  would  come  up  at  the  annual  meeting.  If  the  pleadings  showed 
that  any  unusual  hardship  would  result  from  the  contract  system,  I  should  feel 
inclined  to  order  a  special  meeting  of  the  district  and  submit  the  question  of 
contracting  to  that  meeting  for  consideration. 

It  appears,  however,  that  the  Marion  school  is  a  large  graded  school  in 
the  village  of  Marion  and  maintains  school  for  40  weeks  during  the  year.  The 
school  facilities  are  greatly  superior  to  those  of  district  no.  8.  It  also  appears 
that  district  no.  8  extends  into  the  village  of  Marion  and  to  within  one-quarter  of 
a  mile  of  its  schoolhouse.  Many  of  the  children  in  district  no.  8  hve  nearer 
to  the  schoolhouse  in  the  village  of  Marion  than  to  the  schoolhouse  in  their 
own  district.  Several  of  the  children  residing  in  district  no.  8  always  attend 
6 


l62  THE   UNIVERSITY   OF   THE   STATE   OF   NEW   YORK 

school  in  the  Marion  district  and  many  would  do  so  this  year  even  if  the  con- 
tract in  question  had  not  been  made.  None  of  the  children  residing  in  district 
no.  8  will  be  required  to  travel  an  unreasonable  distance  with  suitable  conveyance 
provided.  It  does  not  appear  that  the  children  of  district  no.  8  will  be  subjected 
to  any  greater  exposure  or  hardship  in  attending  school  in  the  village  of  Marion 
with  transportation  provided  than  they  will  be  to  attend  school  in  their  own 
district  without  transportation.  In  view  of  these  reasons  and  the  district  liability 
existing  under  the  contracts  made  by  Trustee  Smith,  I  think  it  is  for  the  best 
interests  of  all  concerned  to  refuse  to  interfere  with  the  action  regularly  taken 
by  the  annual  meeting. 

The  appeal  herein  is  dismissed. 


4926 

In  the  matter  of  the  appeal  of  Abram  C.  Rowland  and  Herbert  Oles  v.  Clark 
J.  Beers,  as  trustee  of  school  district  no.  17,  Walton,  Delaware  county. 

Under  section  14  of  article  4,  title  15  of  the  Consolidated  School  Law  of  1894,  as  amended 
by  said  section  i,  chapter  294,  Laws  of  1897,  it  is  enacted  that  whenever  any  school 
district,  by  a  vote  of  a  majority  of  the  qualified  voters  present  and  voting  thereon,  shall 
empower  the  trustees  thereof,  such  trustees  shall  enter  into  a  written  contract  with  the 
trustees  or  board  of  education  consenting  thereto  of  any  other  district,  village  or  city, 
whereby  all  the  children  of  school  age  of  such  school  district  may  be  entitled  to  be 
taught  in  the  public  schools  of  such  city,  village  or  school  district  for  a  period  of  not 
less  than  160  days  in  any  school  year.  This  Department  rules  that  when  such  contract 
shall  be  executed,  and  the  price  fixed  in  the  contract  for  tuition  is  less  than  the  $100 
district  quota  which  the  district  will  receive  from  the  State,  that  the  trustee  may  use 
the  excess  for  the  purpose  of  conveying  such  children  to  and  from  the  school  where 
they  are  taught,  under  such  regulations  as  he  may  establish. 

Decided  January  31,  1901 

Marvin  &  Hanford,  attorneys  for  appellants 
Neish  &  More,  attorneys  for  respondent 

Skinner,  Superintendent 

This  is  an  appeal  from  the  proceedings  taken  at  a  special  meeting  held 
September  6,  1900,  in  school  district  17,  Walton,  Delaware  county,  empowering 
the  trustee  of  the  district  to  enter  into  a  written  contract  with  the  trustees  of 
school  district  6,  town  and  county  aforesaid,  whereby  all  the  children  of  such 
district  17  may  be  entitled  to  be  taught  in  the  public  school  of  such  district  6 
for  not  less  than  160  days  during  the  school  year  of  1900-1 ;  and  from  the 
refusal  of  the  trustee  of  school  district  17  to  furnish  a  conveyance  for  the 
children  of  the  appellants  respectively  to  and  from  their  homes  to  the  school 
in  district  6. 

Trustee  Beers  of  district  17  has  answered  the  appeal,  and  to  such  answer  the 
appellants  have  made  reply. 


JUDICIAL  decisions:     contract  system  163 

In  section  14  of  article  4,  title  15  of  the  Consolidated  School  Law  of  1894, 
as  said  section  was  amended  by  section  i  of  chapter  294,  Laws  of  1897,  it  is 
enacted  that  whenever  any  school  district,  by  a  vote  of  a  majority  .of  the  qualified 
voters  present  and  voting  thereon  shall  empower  the  trustees  thereof,  the  said 
trustees  shall  enter  into  a  written  contract  with  the  trustees  or  board  of  educa- 
tion consenting  thereto,  of  any  other  district,  village  or  city,  whereby  all  the 
children  of  such  district  may  be  entitled  to  be  taught  in  the  public  schools  of  such 
city,  village  or  school  district  for  a  period  of  not  less  than  160  days  in  the 
school  year;  that  upon  the  filing  of  a  copy  of  such  contract,  duly  certified  by 
the  trustees  of  such  school  districts,  in  the  office  of  the  State  Superintendent 
of  Public  Instruction,  such  district  shall  be  deemed  to  have  employed  a  compe- 
tent teacher  for  such  period,  and  shall  be  entitled  to  receive  one  distributive 
district  quota  for  the  school  year. 

The  object  of  said  section  14  and  the  amendments  thereof,  is  to  permit 
school  districts,  weak  financially  or  in  total  resident  school  population  or  both, 
to  maintain  their  district  organizations  without  maintaining  a  school  therein, 
and  to  have  all  the  children  of  school  age  taught  in  the  school  of  an  adjoining 
district  or  districts  for  at  least  160  days  in  the  school  year,  and  thereby,  to  receive 
from  the  State  a  district  quota  of  $100. 

This  Department  has  held  that  where  a  contract  is  made  whereby  all  the 
children  of  school  age  residing  in  the  district  may  be  taught  for  at  least  160  days 
in  the  school  year  in  the  school  of  some  other  district,  the  trustee  has  the  legal 
authority  to  use  the  excess  of  the  $100  quota,  after  paying  for  the  tuition  of 
such  children,  under  the  contract,  for  the  purpose  of  conveying  such  children 
to  and  from  the  school  where  they  are  taught,  under  such  regulations  as  he  may 
establish. 

It  is  established  by  the  pleadings  herein  that  a  special  meeting  was  duly 
held  on  or  about  September  5,  1900,  in  school  district  17,  Walton,  Delaware 
county,  for  the  purpose  of  deciding  whether  the  children  in  such  district  should 
be  taught  in  an  adjoining  district  for  the  present  school  year;  that  the  appellants 
herein  were  duly  notified  of  such  special  meeting,  but  neither  of  them  attended 
such  meeting ;  that  a  motion  was  made  at  such  meeting  as  follows :  "  Shall  the 
children  of  school  district  17,  Walton,  be  taught  in  adjoining  district?,"  and 
was  voted  on  by  ballot  and  adopted  unanimously ;  that  a  motion  was  then  made. 
"  Shall  the  trustee  of  district  17  be  authorized  to  contract  with  other  districts 
for  teaching  the  children  of  district  17?  "  and  was  voted  on  by  ballot  and  unani- 
mously adopted;  that  September  13,  1900,  Trustee  Beers  entered  into  a  contract 
with  Trustee  Halbert  of  school  district  6,  Walton,  whereby  all  the  children  of 
school  age  residing  in  school  district  17,  Walton,  may  be  entitled  to  be  taught  in 
the  school  of  said  district  6  for  a  period  of  not  less  than  160  days  in  the  school 
year  commencing  August  i,  1900,  at  and  for  the  sum  of  $2.50  for  each  child ;  that 
such  contract  was  made  in  duplicate  and  one  part  thereof,  as  appears  from  the 
records  of  this  Department,  has  been  filed  therein  and  duly  approved. 


164  THE  UNIVERSITY   OF   THE   STATE   OF   NEW  YORK 

It  further  appears  that  Trustee  Beers,  after  consulting  with  the  residents 
of  district  17,  having  children  of  school  age,  as  to  the  conveyance  of  such  children 
to  the  school  in  district  6,  September  15,  1900,  entered  into  a  written  contract  with 
one  Samuel  L.  Halbert,  a  resident  of  district  6,  whereby  said  Halbert  agreed 
to  convey  all  the  children  of  school  age,  residing  in  said  district  17,  from  the 
schoolhouse  therein,  to  and  from  the  schoolhouse  in  district  6,  for  and  during 
each  school  day  for  the  present  school  year  for  the  sum  of  $125 ;  that  said  Halbert 
commenced  conveying  such  children  under  such  contract  on  or  about  October  i, 
1900,  and  has  so  conveyed  them  each  school  day  since  that  date;  that  the  dis- 
tance between  the  schoolhouse  in  said  district  17  and  6  is  about  3^4  miles;  that 
the  time  occupied  in  making  the  trip  in  the  morning  from  the  schoolhouse  in 
district  17  to  the  schoolhouse  in  district  6  is  from  30  to  45  minutes,  and  in 
returning  in  the  afternoon  from  40  to  60  minutes,  according  to  the  condition 
of  the  roads;  that  said  Halbert  uses  a  light  spring  wagon  in  pleasant  weather, 
and  a  covered  conveyance  in  stormy  weather  and  such  conveyances  upon  all 
trips  are  amply  provided  with  robes  and  blankets. 

It  appears  that  the  appellants  are  the  only  residents  of  district  17  v/ho 
object  to  the  conveyance  of  the  children  therein  from  the  schoolhouse  in  the 
district,  such  appellants  contending  that  such  children  should  be  conveyed  from 
their  homes  to  and  from  the  school  in  district  6 ;  tliat  the  appellant,  Oles,  resides 
about  iYj  miles  from  the  schoolhouse  in  district  17,  and  the  appellant  Howland 
resides  about  100  rods  nearer  the  said  schoolhouse  than  the  appellant  Oles ;  that 
the  children  of  the  appellants  are  not  required  to  walk  a  greater  distance  to 
attend  the  school  in  district  6  than  they  would  if  a  school  was  maintained  in  the 
schoolhouse  in  district  17;  that  at  the  time  of  the  special  meeting  in  September 
in  district  17  there  were  13  children  of  school  age  residing  therein,  3  of  whom 
were  then,  and  still  are,  attending  the  school  in  district  15;  that  since  said 
special  meeting  4  children  have  been  added  to  district  17,  but  their  parents  are 
claimed  to  be  transient  residents;  that  not  more  than  12  children  from  district 
17  will  attend  the  school  in  district  6  at  an  aggregate  cost  to  the  district  17,  for 
tuition  for  the  present  school  year,  of  $30. 

The  records  of  this  Department  show  that  the  average  attendance  of  pupils 
at  the  school  in  district  17  for  the  school  year  of  1899-1900  was  but  5;  that  the 
assessed  valuation  of  property  subject  to  taxation  therein  was  $8075,  and  the 
amount  raised  by  taxation  to  support  the  school  was  $102.88;  that  the  school 
in  district  6  had  an  average  attendance  of  46  pupils,  with  two  teachers,  and  an 
assessed  valuation  of  $112,148;  that  said  district  possesses  a  new  and  commodious 
schoolhouse,  with  a  better  school  than  that  heretofore  maintained  in  district  17. 
From  the  facts  established  herein  it  is  clear  that  the  children  residing  in 
school  district  17  are  now  provided  with  better  school  facilities  at  a  much  less 
expense  than  if  a  school  had  been  maintained  in  such  district,  and  can  attend 
the  school  in  district  6  without  being  required  to  walk  any  greater  distance  than 
they  would  be  required  if  a  school  was  maintained  in  the  schoolhouse  in 
district  17. 

The  appeal  herein  is  dismissed. 


JUDICIAL  decisions:     contract  system  165 

4505 

In  the  matter  of  the  petition  of  Manly  S.  Dodge,  for  the  removal  from  office  of 
Jerome  L.  Westbrook,  as  trustee  of  school  district  no.  8,  town  of  Van  Etten, 
Chemung  count}'. 
Where  at  a  school  meeting  a  trustee  of  a  school  district  is  empowered  to  contract  with  the 
board   of    education    of    an   adjoining   free    school    district,    for   the    education    of    the 
children  of  school  age  of  the  district,  by  a  motion  or  resolution  duly  and  legally  adopted, 
and  such  trustee  refuses  or  neglects  to  make  a  contract,  he  is  guilty  of  a  wilful  violation 
or  neglect  of  duty  as  such  trustee,  and  is  removed  from  office. 
Decided  October  31,  1896 

Skinner,  Superintendent 

The  petitioner  in  the  above-entitled  matter  asks  for  the  removal  of  Jerome 
L.  Westbrook  as  trustee  of  school  district  no.  8,  town  of  Van  Etten,  Chemung 
county,  alleging  that  said  Westbrook  has  been  guilty  of  a  wilful  violation  and 
neglect  of  duty  as  such  trustee.  An  answer  to  said  petition  has  been  made  by 
said  Westbrook. 

The  following  facts  are  established: 

That  the  petitioner  herein  is,  and  has  been  since  August  4,  1896,  a  qualified 
voter  in  said  school  district,  and  that  said  Westbrook  is  the  trustee  of  said 
school  district  and  has  been  such  trustee  since  August  4,  1896;  that  on  August 
18,  1896,  the  petitioner  herein  delivered  to  and  left  with  the  said  Westbrook 
as  such  trustee  a  petition  signed  by  a  majority  of  the  taxable  inhabitants  and 
voters  of  said  district,  requesting  said  trustee  to  call  a  special  meeting  of  said  dis- 
trict for  the  purpose  of  considering  the  advisability  of  said  district  contracting 
with  the  adjoining  union  free  school  district  no.  i,  of  the  towns  of  Van  Etten  and 
Spencer,  for  the  education  therein  during  the  present  school  year  of  the  children 
of  school  age  in  said  district  no.  8,  under  the  provisions  of  the  school  law ;  that 
on  August  27,  1896,  said  Westbrook,  as  said  trustee,  called  a  special  meeting  of 
said  district  to  be  held  on  September  3,  1896,  at  7.30  p.  m.,  for  the  purpose  of 
considering  the  advisability  of  making  such  contract  as  aforesaid  and  to  pro- 
vide means  for  the  transportation  of  said  children  to  and  from  said  school,  if 
such  contract  should  be  deemed  advisable;  that  said  special  school  meeting  of 
said  district  as  called  by  said  Westbrook,  was  held  on  September  3,  1896,  and 
a  resolution  offered  for  consideration  at  said  meeting  by  the  petitioner  herein, 
that  the  trustee  be  directed,  instructed  and  empowered  to  contract  with  the 
proper  authorities  of  the  Van  Etten  union  free  school  district  for  the  education 
of  the  children  of  school  age  in  said  district  no.  8  during  the  present  school  year, 
and  that  said  trustee  be  further  directed,  instructed  and  empowered  to  hire  or 
otherwise  secure  transportation  of  the  children  to  and  from  said  union  free 
school,  and  which  resolution  was  put  to  a  vote,  which  vote  was  by  ballot,  and 
adopted;  that  the  said  Trustee  Westbrook  has  not  entered  into  any  written 
contract  with  the  board  of  education  of  union  free  school  district  no.  i,  towns 
of  Van  Etten  and  Spencer,  as  he  was  directed  and  empowered  to  do  by  the  vote 


l66  THE  UNIVERSITY   OF   THE   STATE   OF   NEW   YORK 

of  said  special  school  meeting  of  said  district  no.  8,  held  on  September  3,  1896. 
The  respondent  herein  has  failed  to  give  any  valid  reason  for  neglecting  and 
refusing  to  enter  into  said  contract. 

It  further  appears  herein  that,  after  said  petition  requesting  him  to  call  a 
special  meeting  was  presented  to  said  Westbrook,  on  August  12,  1896,  he  refused 
to  call  said  meeting  until  a  letter  from  this  Department  was  shown  to  him,  in 
which  it  was  stated  that  when  a  respectable  number  of  the  voters  of  a  district 
present  a  petition  to  the  trustee  to  call  a  special  meeting  of  the  district  for  a 
proper  purpose,  it  is  the  duty  of  such  trustee  to  call  said  meeting.  It  further 
appears,  as  bearing  upon  the  question  as  to  whether  said  Westbrook  was  acting 
in  good  faith,  and  to  carry  out  the  wishes  of  the  district,  that  after  the  petition 
was  presented  to  him  to  call  said  special  meeting,  and  before  he  called  said  meet- 
mg,  he  entered  into  a  contract  with  a  Miss  Bennett  to  teach  the  school  in  said  dis- 
trict for  a  period  of  16  weeks,  said  school  to  commence  on  September  14,  1896. 

It  also  appears  that  at  the  time  of  filing  the  petition  herein.  Miss  Bennett 
was  teaching  the  school,  and  that  but  one  pupil  attended.  In  and  by  section  14, 
article  4,  title  15,  of  the  Consolidated  School  Law  of  1894,  as  amended  by  sec- 
tion 18,  chapter  264,  of  the  Laws  of  1896,  it  is  enacted  that  "  whenever  any 
school  district  adjoining  a  city  or  village,  or  adjoining  any  union  free  school 
district,  by  a  vote  of  a  majority  of  the  qualified  voters  of  such  district,  shall 
empower  the  trustees  thereof,  the  said  trustees  shall  enter  into  a  written  contract 
with  the  board  of  education  of  such  city,  village  or  union  free  school  district, 
whereby  all  the  children  of  such  district  may  be  entitled  to  be  taught  in  the 
public  schools  of  such  city,  village  or  union  free  school  district  for  a  period 
of  not  less  than  160  days  in  any  school  year,  upon  filing  a  copy  of  such  contract, 
dul3^  certified  by  the  trustees  of  such  city,  village  or  union  free  school  district  in 
the  office  of  the  State  Superintendent  of  Public  Instruction." 

When  any  such  school  district  shall,  by  a  vote  of  a  majority  of  the  qualified 
voters  thereof,  empower  the  trustees  thereof,  it  is  mandatory  upon  such  trustees 
to  enter  into  said  contract. 

I  decide  that  school  district  no.  8,  town  of  Van  Etten,  by  a  vote  of  a 
majority  of  the  qualified  voters  of  said  district,  at  the  special  meeting  held 
therein  on  September  3,  1896,  duly  empowered  the  said  Jerome  L.  Westbrook, 
trustee  of  said  district,  to  enter  into  a  written  contract  with  the  board  of  educa- 
tion of  union  free  school  district  no.  i,  towns  of  A'an  Etten  and  Spencer,  whereby 
all  the  children  of  such  district  no.  8  may  be  entitled  to  be  taught  in  the  public 
schools  of  such  union  free  school  district  no.  i  for  a  period  of  not  less  than  160 
days  in  the  school  year  of  1896-97;  that  it  was  mandatory  on  the  part  of  said 
Westbrook  to  enter  into  said  contract;  that  he  has  neglected  and  refused  to 
enter  into  said  contract,  and  that  he,  said  Westbrook,  as  said  trustee,  is  guilty  of  a 
wilful  violation  and  neglect  of  duty,  under  the  provisions  of  the  school  law.  In 
section  13,  of  title  i,  of  the  Consolidated  School  Law,  it  is  enacted  that  "when- 
ever it  shall  be  proven  to  the  satisfaction  of  the  State  Superintendent  of  Public 
Instruction,  that  any  school  officer  has  been  guilty  of  any  wilful  violation  or 


JUDICIAL    DECISIOXS :      CONTRACT    SYSTEM  167 

neglect  of  duty,  the  said  Superintendent  may,  by  an  order  under  his  hand  and 
seal,  which  shall  be  recorded  in  his  office,  remove  such  school  officer." 

The  petition  herein  is  sustained. 

Whereas,  it  having  been  proved  to  my  satisfaction  that  Jerome  L.  West- 
brook,  trustee  of  school  district  no.  8,  town  of  Van  Etten,  Chemung  county,  has 
been  guilty  of  wilful  violation  and  neglect  of  duty  as  such  trustee,  under  the 
Consolidated  School  Law,  I  do  hereby  remove  said  Jerome  L.  Westbrook  from 
office  as  trustee  of  said  school  district  no.  8,  town  of  Van  Etten,  Chemung 
county. 


5388 

In  the  matter  of  the  appeal  of  Fred  H.  Cross  and  Thomas  Seymour  from  the 
act  or  decision  of  the  voters  of  district  no.  6,  town  of  DeKalb,  St  Lawrence 
county,  N.  Y.,  at  a  special  meeting  held  on  Tuesday  afternoon,  February  18, 
1908,  at  three  o'clock  and  from  each  and  every  part  thereof  and  from  all 
acts  and  proceedings  had  in  pursuance  thereto. 

In  districts  operating  under  the  contract  system  parents  must  be  reasonable  in  their  demands 
for  transportation  of  their  children  and  must  accept  service  which  insures  their  children 
safe,  comfortable  and  prompt  passage  to  and  from  school.  While  trustees  are 
required  to  provide  suitable  transportation  for  children  they  are  justified  in  resisting 
unreasonable  demands  based  upon  personal  feelings. 

Decided  May  23,  190S 

George  A.  Adams,  attorney  for  appellants 
Abbott  &  Dolan,  attorneys  for  respondent 

Draper,  Commissioner 

This  proceeding  grows  out  of  the  action  of  school  district  no.  6,  town  of 
DeKalb,  St  Lawrence  county,  in  voting  to  adopt  the  contract  system  instead  of 
maintaining  a  home  school.  This  is  the  third  proceeding  which  has  been  before 
this  Department  during  the  past  year  as  a  result  of  this  controversy. 

At  a  special  meeting  of  the  district  held  on  the  loth  day  of  September  1907 
the  district  authorized  the  trustees  to  contract  for  the  education  of  its  children 
pursuant  to  the  provisions  of  article  4,  title  15  of  the  Consolidated  School  Law. 
It  appears  that  one  of  the  children  residing  in  district  no.  6,  DeKalb,  could  attend 
school  in  district  no.  4,  DeKalb  more  conveniently  than  in  any  other  district  and 
that  the  rest  of  the  children  residing  in  district  no.  6  could  attend  school  more 
conveniently  in  district  no.  17,  DeKalb.  The  trustee  therefore  contracted  with 
these  two  districts.  No  provision  was  made  at  this  special  meeting  for  the  trans- 
portation of  these  children.  The  child  attending  in  district  no.  4  was  9  years  of 
age  and  had  only  i  mile  to  walk  to  attend  school.  It  did  not  appear  to  be  neces- 
sary to  provide  transportation  for  such  child.  It  appears  from  the  contract  filed 
at  this  Department  that  four  children  were  to  attend  in  district  no.  17.  Three  of 
these  were  children  of  appellant  Cross  and  one  of  appellant  Seymour.    The  ages 


l6S  THE   UNIVERSITY   OF  THE   STATE   OF   NEW   YORK 

of  the  Cross  children  were  14,  8  and  6  years,  and  the  age  of  the  Seymour  child 
was  7  years.  The  distance  which  these  children  were  required  to  travel  was 
about  ij4  miles.  Owing  to  the  tender  ages  of  part  of  these  children,  the  distance 
they  were  required  to  travel  and  the  general  condition  of  the  roads,  transporta- 
tion was  deemed  necessary. 

The  trustee  did  contract  for  such  transportation.  In  a  former  appeal  this 
Department  held  that  the  provisions  of  such  contract  were  defective  and  too 
indehnite.  In  deciding  such  appeal  I  directed  the  trustee  to  call  a  special  meeting 
to  consider  the  question  of  transportation  and  also  directed  that  the  district  should 
provide  suitable,  daily  transportation  or  open  and  maintain  a  home  school. 

Pursuant  to  this  order  a  special  meeting  was  held  but  was  not  conducted  as 
the  law  directs.  The  facts  were  presented  to  this  Department  and  under  advice 
from  the  Chief  of  the  Law  Division  the  trustee  called  another  special  meeting  for 
Februar}'  18,  1908.  It  is  from  the  action  of  such  meeting  that  tliis  proceeding  is 
brought. 

Two  questions  are  raised  in  this  appeal : 

T  It  appears  that  the  vote  at  the  special  meeting  authorizing  the  trustee  to 
provide  transportation  v.as  carried  by  13  to  11.  It  is  alleged  by  appellants  that 
live  persons  voted  in  favor  of  such  proposition  who  were  not  qualified  voters  at 
that  district  meeting.  The  burden  of  proof  on  this  question  is  upon  appellants. 
They  must  show  affirmatively  by  a  preponderance  of  evidence  that  at  least  two 
of  these  persons  were  not  qualified  to  vote  at  such  meeting  and  that  they  voted 
on  the  affirmative  side  of  such  question.  The  evidence  submitted  is  insufficient 
to  sustain  such  proposition.  It  appears  that  the  district  attorney  is  conducting 
an  investigation  of  this  alleged  illegal  voting  and  that  the  whole  question  will  be 
presented  to  the  grand  jury  in  June.  It  would  be  unwise  to  delay  a  determina- 
tion of  this  proceeding  until  the  evidence  submitted  on  this  question  is  before 
the  court  and  available  for  use  in  this  case.  This  proceeding  should  be  determined 
before  the  close  of  school  in  district  no.  17. 

2  It  is  claimed  that  Thomas  Golden,  the  person  who  contracted  to  convey 
the  children  to  and  from  school  is  not  a  suitable  person  to  perform  such  work 
and  that  he  did  not  supply  proper  conveyances,  blankets  etc.  This  is  the  only 
question  raised  which  on  the  record  is  entitled  to  serious  consideration.  It  is 
not  claimed  that  Golden  is  a  man  of  moral  dehnquencies.  It  is  not  alleged  that 
he  is  addicted  to  tlie  use  of  intoxicating  drinks  or  that  his  conduct  toward  any 
of  the  pupils  was  ever  improper.  It  is  claimed  that  on  a  certain  occasion  at  the 
home  of  appellant  Cross,  Golden  hfted  the  young  son  of  appellant  by  the  ears  and 
that  the  child  has  been  afraid  of  Golden  since  then.  It  is  also  claimed  that  on 
one  occasion  when  Golden  was  not  conveying  the  children  to  school  under  con- 
tract he  overtook  the  children  on  tlieir  way  to  school  and  asked  them  to  ride. 
After  the  children  were  in  his  conveyance  it  is  claimed  he  ran  his  horses  and 
frightened  the  children.  It  is  shown,  however,  that  since  these  occurrences 
appellant  Cross  has  sent  his  children  to  the  home  of  Golden  and  allowed  them  to 
remain  there  over  night  to  enable  said  appellant  and  his  wife  to  spend  their  even- 


JUDICIAL    DECISIONS  :       CONTRACT    SYSTEM  169 

ing  away  from  home  or  at  places  of  entertainment.  Evidence  is  introduced  to 
the  effect  that  he  drove  a  spirited  team  of  young  horses  and  that  he  often  drove 
his  horses  on  a  fast  trot  and  sometimes  one  horse  on  a  gallop.  The  evidence  upon 
this  point  seems  to  be  exaggerated  but  even  at  that  it  is  unimportant.  It  does 
not  establish  that  Golden  is  a  bad  man  or  a  man  who  should  not  be  trusted  with 
such  care  of  children  as  is  required  of  a  person  who  conveys  them  to  and  from 
school.  It  does  not  establish  that  he  is  an  incompetent  driver  or  unable  to  prop- 
erly manage  a  team  of  horses.  It  is  not  shown  that  this  team  ever  became 
unmanageable  or  that  Golden  was  ever  unable  to  manage  any  horse  or  team  which 
he  was  driving.  It  must  therefore  be  held  that  it  is  not  established  that  Golden 
is  an  unfit  person  to  convey  children  to  and  from  school. 

But  one  question  therefore  remains  to  be  determined  and  that  is,  did  Golden 
supply  a  suitable  conveyance,  properly  equipped  to  convey  these  children  to  and 
from  school  ?  The  horses,  wagon,  sleigh,  blankets  —  the  whole  outfit  —  should 
have  been  such  as  to  provide  a  safe  and  reasonably  comfortable  passage  for  the 
children  and  to  protect  them  from  undue  exposure  during  cold  and  stormy 
weather.  If  he  did  not  supply  such  equipment  or  if  appellants  were  dissatisfied 
with  the  services  rendered  by  the  contractor,  the  facts  should  have  been  reported 
to  the  trustee  and  it  then  became  the  duty  of  that  officer  to  require  the  contractor 
to  provide  suitable  conveyance  and  render  proper  service.  Appellants  were 
required  to  be  reasonable  in  their  demands  and  to  accept  sendee  which  insured 
their  children  safe,  comfortable  and  prompt  passage  in  going  the  i^^  miles  which 
they  were  required  to  travel  to  attend  school.  \\'hile  the  trustee  was  required 
to  provide  suitable  transportation  for  these  children  he  was  justified  in  resisting 
unreasonable  demands  based  upon  personal  feelings.  When  a  majorit}-  of  the 
voters  of  a  district  have  adopted  the  contract  system  it  is  the  duty  of  parents 
having  children  to  send  to  school  to  cordially  cooperate  with  the  trustee  and  the 
part}'  providing  transportation  in  every  reasonable  effort  to  afford  the  children 
safe  and  comfortable  conveyance. 

In  this  case  appellants  were  not  willing  to  cooperate  with  the  trustee  or  con- 
tractor Golden.  Appellants  Avere  opposed  to  the  district  contracting  for  the  edu- 
cation of  their  children.  They  desired  a  home  school  maintained.  They  had 
determined  not  to  accept  the  service  provided  by  the  trustee.  Their  principal 
effort  has  been  directed  toward  vacating  the  action  of  the  district  meeting  in 
authorizing  the  contract  system,  upon  technical  grounds. 

After  the  contract  with  Golden  was  authorized  at  the  Februar)^  meeting 
Golden  drove  to  the  home  of  Cross  to  take  the  children  to  school.  Cross  refused 
to  let  the  children  go.  Cross  claims  that  the  sleigh  provided  by  Golden  was  not 
a  suitable  one.  The  evidence  is  to  the  effect  that  the  sleigh  was  a  light  pair  of 
bobs  and  one  mechanic  swears  that  there  is  no  better  pair  of  sleighs  in  the  town. 
The  principal  objection  raised  by  Cross  to  the  sleigh  is  that  the  seats  did  not  con- 
tain ''  laz}^-backs."  I  think  the  evidence  establishes  that  the  conveyance  provided 
by  Golden  was  a  proper  one  and  should  have  been  acceptable  to  appellants.  It 
mav  also  be  said  that  the  action  of  this  Department  in  directing  the  district  to 


170  THE   UKIVERSITY    OF   THE   STATE   OF   NEW   YORK 

provide  transportation  was  extremely  liberal.     The  distance  which  the  children 
were  required  to  travel  to  reach  the  schoolhouse  in  no.  17  was  only  i^  miles. 
There  are  thousands  of  children  throughout  the  rural  districts  who  are  required 
to  walk  much  longer  distances  to  attend  school. 
This  appeal  must  therefore  be  dismissed. 


5368 

In  the  matter  of  the  appeal  of  Fred  H.  Cross  and  Thomas  Seymour  from  the 
act  or  decision  of  the  voters  of  school  district  no.  6,  De  Kalb,  at  a  special 
meeting  held  September  10,  1907. 
Trustees  are  not  required  to  contract  for  160  days.     Contracts  may  be  made  for  a  shorter 

period  of  time  and  school  may  be  maintained  in  the  district  for  a  portion  of  the  year. 

If  the  period  of  time  covered  by  the  contract  combined  with  the  period  of  time  the 

home  school  is  maintained  equals  160  days  the  requirements  of  the  law  are  satisfied. 
If  a  district  desires  to  operate  under  the  contract  system  instead  of  maintaining  a  home 

school  it  must  provide  suitable  transportation   for  children  of   tender  years  who  are 

required  to  travel  long  distances  to  attend  schooL 
Decided  December  23,  1907 

Hale  &  Adams,  attorneys  for  appellants 
Abbott  &  Dolan,  attorneys  for  respondents 

Draper,  Commissioner 

School  district  no.  6,  De  Kalb,  at  a  special  meeting  held  on  the  loth  day  of 
September  1907,  authorized  its  trustee  to  contract  for  the  education  of  the  chil- 
dren in  the  district  instead  of  maintaining  a  home  school.  The  trustee  thereafter 
entered  into  contracts  by  which  part  of  the  children  of  such  district  were  to 
receive  instruction  in  no.  17,.  De  Kalb,  and  part  in  no.  4,  De  Kalb.  Copies  of 
these  contracts  were  duly  filed  in  this  Department. 

Appellants  were  opposed  to  the  contract  system  and  desired  to  maintain  a 
home  school.  They  bring  this  proceeding  to  vacate  the  action  of  such  special 
meeting  in  authorizing  the  trustee  to  contract  with  other  districts.  The  grounds 
in  substance  upon  which  the  proceeding  is  based  are : 

1  That  two  persons  voting  at  such  special  meeting  were  not  legal  voters  and 
that  the  proposition  to  contract  was  carried  by  a  majority  of  one  vote  only. 

2  That  the  term  of  school  provided  in  school  district  no.  17,  and  after  the  date 
on  which  the  contract  was  executed  does  not  cover  160  days  and  the  trustee  of 
no.  6  could  not  contract  for  a  less  period  of  time  than  160  days. 

3  That  the  transportation  of  pupils  provided  by  the  trustee  is  insufficient  and 
unauthorized. 

Sufficient  proof  is  not  found  upon  the  record  to  sustain  the  first  contention. 
To  vacate  the  action  of  the  meeting  upon  the  ground  that  the  proposition  was 
carried  by  illegal  votes  it  must  affirmatively  be  shown  that  sufficient  illegal  votes 
were  cast  in  favor  of  the  proposition  to  have  carried  such  proposition.     If  the 


JUDICIAL    DECISIONS  :       CONTRACT    SYSTEM  I7I 

evidence  submitted  should  be  regarded  sufficient  to  hold  that  the  two  voters  in 
question  were  not  legally  qualified  to  vote  at  such  meeting  it  would  also  be  neces- 
sary to  show  affirmatively  that  such  persons  voted  in  favor  of  the  proposition  to 
contract.     Such  fact  is  not  established  by  the  record. 

The  trustee  is  not  required  under  the  law  to  contract  for  i6o  days.  He 
might  contract  for  a  shorter  period  of  time  and  maintain  school  for  a  portion 
of  time  in  the  district.  If  the  period  of  time  covered  by  the  contract  combined 
with  the  period  of  time  a  home  school  is  maintained  should  equal  i6o  days  the 
requirements  of  the  law  would  be  satisfied.  The  fact  is  however  that  the  contract 
provides  that  the  children  of  school  district  no.  6  shall  receive  instruction  in 
district  no.  17  for  160  days.  District  no.  17  is  therefore  obligated  to  maintain 
school  for  the  children  of  no.  6  for  the  full  period  of  160  days. 

It  must  therefore  be  held  that  the  contracts  in  question  were  duly  authorized 
and  that  they  have  been  legally  and  properly  executed. 

There  is  however  one  question  presented  by  appellants  which  should  receive 
careful  consideration.  The  appellants  are  within  their  legal  rights  in  insisting 
that  suitable  transportation  shall  be  provided  their  children.  The  distance  from 
the  homes  of  appellants  to  the  schoolhouse  in  no.  17  is  about  i^  miles  and  much 
greater  than  the  distance  from  their  homes  to  the  schoolhouse  in  their  home 
district.     One  of  the  appellant's  children  is  only  6  years  of  age. 

The  State  will  pay  a  contracting  district  a  sum  equal  to  the  amount  paid  for 
tuition  and  transportation  of  pupils,  but  not  to  exceed  the  amount  of  the  district 
quota  to  which  such  district  would  be  entitled  provided  it  maintained  a  home 
school.  This  district  has  an  assessed  valuation  of  $23,231  and  might  therefore 
receive  a  district  quota  of  $175.  The  contracts  filed  show  that  respondent  has 
agreed  to  pay  $32  for  the  instruction  of  the  children  of  the  district.  It  also 
appears  that  the  trustee  has  contracted  to  pay  $135  for  the  partial  transportation 
which  has  been  provided.  The  entire  cost  of  the  transportation  and  tuition  is 
therefore  paid  by  the  State  and  the  expense  of  operating  the  school  in  this  dis- 
trict under  the  contract  system  is  no  cost  to  the  taxpayers  of  the  district. 

It  will  not  therefore  operate  as  an  injustice  or  hardship  upon  this  district  if 
the  district  is  required  to  levy  a  tax  in  order  to  raise  funds  to  provide  proper 
transportation  for  its  children.  If  a  district  desires  to  operate  under  the  con- 
tract system  instead  of  maintaining  a  home  school  it  must  provide  suitable  trans- 
portation for  children  of  tender  years  who  are  required  to  travel  long  distances 
to  attend  school.  I  held  in  decision  no.  5219  that  such  transportation  should  be 
regular  and  daily  and  that  as  a  general  rule  one  person  of  proper  character,  fur- 
nishing suitable  accommodations,  should  be  regularly  employed  and  the  contract 
should  be  awarded,  after  opportunity  for  competition,  to  the  most  reliable  party 
who  will  furnish  the  best  transportation  at  the  lowest  cost  to  the  district. 

It  appears  from  the  pleadings  in  this  case  that  the  party  to  whom  the  con- 

.  tract  was  awarded  to  convey  these  children  to  and  from  school  is  a  proper  person 

to  perform  such  work  and  that  he  has  suitable  accommodations  therefor.    It  does 

appear  however  that  the  contract  does  not  require  daily  conveyance  of  children. 


1/2  THE   UXIVERSITY   OF   THE   STATE   OF    NEW   YORK 

The  children  are  to  be  conveyed  "  on  such  days  as  the  weather  is  extremely  cold 
and  the  roads  are  impassable  by  reason  of  the  elements  or  at  any  time  that  any 
reasonable  person  might  say  it  was  unreasonable  that  children  of  tender  age  should 
walk." 

This  provision  of  such  contract  is  defective.  It  is  too  indefinite  and  leaves 
the  question  of  the  necessity  of  transportation  open  to  disagreement.  A  contract  in 
such  form  is  likely  to  breed  dissatisfaction  and  contention.  A  parent  might  deem 
transportation  necessaiy  on  a  certain  morning  and  request  his  children  to  wait  for 
the  conveyance.  The  party  to  convey  the  children  might  deem  transportation 
unnecessary  on  that  morning.  Under  such  conditions  children  would  be  likely  to 
get  to  school  late  and  might  not  get  to  school  at  all.  Contracts  containing  such 
conditions  can  not  therefore  be  approved. 

The  trustee  of  district  no.  6  De  Kalb,  must  therefore  provide  transportation 
daily  for  these  children  or  must  open  and  maintain  a  school  in  such  district.  If 
the  trustee  had  not  been  authorized  to  provide  transportation  he  should  call  a 
special  meeting  of  the  district  at  once  for  the  purpose  of  obtaining  such  authori- 
zation. Should  the  district  fail  to  authorize  such  transportation  it  is  the  clear 
duty  of  the  trustee  under  the  consolidated  school  law  to  open  the  school  in  the 
district  as  soon  as  he  is  able  to  make  suitable  arrangements  therefor. 

So  much  of  the  appeal  herein  as  relates  to  the  insufficiency  of  the  transpor- 
tation furnished  by  the  trustee  is  sustained. 

It  is  ordered,  That  Alelvin  A.  Fletcher,  trustee  of  school  district  no.  6,  town 
of  De  Kalb,  shall  immediately  take  such  action  as  may  be  necessary  to  provide 
suitable  transportation  on  each  school  day  that  school  is  in  session  in  school 
district  no.  17,  De  Kalb,  for  the  children  of  district  no.  6,  De  Kalb,  who  are 
required  to  attend  school  in  said  district  no.  17,  De  Kalb,  and  that  if  such  trans- 
portation is  not  provided  on  or  before  January  10,  1908.  the  said  Melvin  A. 
Fletcher  shall  open  and  maintain  a  school  in  district  no.  6,  De  Kalb. 


5375 

In  the  matter  of  the  appeal  of  Jacob  B.  liildreth  v.  Daniel  Ryant,  sole  trustee  of 

school  district  no.  11,  towns  of  Van  Etten  and  Spencer. 
When  better  facilities  can  be  afforded  by  contracting  with  two  or  more  districts  instead  of 

contracting  with  one  district  such  policy  should  be  pursued.     The  law  encourages  such 

policy  by  specifically  authorizing  it. 
Decided  January  27,  1908 

Moreland  &  Thurston,  attorneys  for  appellant 
Cornelius  O.  Seabring,  attorney  for  respondent 

Draper,  Commissioner 

The  annual  meeting  of  school  district  no.  11,  towns  of  Van  Etten  and  Spencer, 
authorized  its  trustee  to  contract  for  the  education  of  its  children  instead  of 
maintaining  a  home  school.     Pursuant  to  such  authorization  respondent  Ryant 


JUDICIAL  decisions:     contract  system  173 

contracted  with  school  district  no.  i,  Van  Etten.  Appellant  is  a  resident  and 
taxpayer  in  school  district  no.  11.  He  has  children  of  school  age  attending  school. 
He  resides  3^  miles  from  the  schoolhouse  of  district  no.  i.  His  children  are 
therefore  required  to  travel  7  miles  daily  in  order  to  attend  school.  His  children 
are  within  the  compulsory  school  ages  and  must  attend  school.  The  distance 
from  appellant's  residence  to  the  schoolhouse  in  district  no.  16,  Van  Etten  is 
only  iy2  miles.  If  appellant's  children  could  attend  school  in  district  no.  16  they 
would  be  required  to  travel  only  3  miles  each  day  to  attend  school,  instead  of  7 
miles.  Appellant  has  been  desirous  of  having  a  contract  made  with  district  no. 
16  so  that  his  children  could  attend  the  school  in  that  district.  The  trustee  refused 
to  make  such  contract  on  the  ground  that  the  annual  meeting  instructed  him  to 
contract  with  no.  i.  The  question  received  much  attention  through  correspond- 
ence with  the  Eaw  Division  of  this  Department  and  also  from  the  school  com- 
missioner of  Chemung  county.  A  special  meeting  of  the  district  was  held  about 
November  19,  1907  to  vote  upon  authorizing  a  contract  with  no.  16  and  such 
proposition  was  defeated.  It  is  claimed  by  respondent  that  district  no.  i  is  a 
graded  school  and  affords  better  school  facilities  than  district  no.  16,  but  this  is 
not  sufficient  ground  under  all  the  circumstances  to  justify  the  majority  of  the 
voters  of  the  district,  no.  11,  to  refuse  to  authorize  a  contract  for  appellant's 
children  and  other  children  residing  near  appellant  with  district  no.  16.  If  a 
district  does  not  desire  to  maintain  a  home  school  but  in  lieu  thereof  wishes  to 
operate  under  the  contract  system,  it  is  incumbent  upon  such  district  to  provide 
the  best  school  facilities  possible  for  all  the  children  of  the  district.  If  better 
facilities  could  be  afforded  by  contracting  with  two  or  more  districts  instead  of 
contracting  with  one  district  such  policy  should  be  pursued.  The  law  encourages 
such  policy  by  specifically  authorizing  it.  If  appellant  and  the  other  parents  resid- 
ing in  his  section  of  the  district  preferred  to  send  their  children  to  no.  16  and  were 
willing  to  accept  the  school  facilities  afforded  by  such  district,  instead  of  sending 
them  to  the  village  school  in  no.  i,  because  it  would  relieve  their  children  from 
traveling  4  additional  miles  each  day  in  order  to  attend  school,  it  was  the  duty 
of  district  no.  11  to  authorize  the  trustee  to  contract  with  district  no.  16. 

I  shall  not  vacate  the  action  authorizing  a  contract  with  no.  i  nor  shall  I 
set  aside  such  contract.  A  portion  of  the  children  residing- in  no.  ii  can  attend 
the  school  in  no.  i  more  conveniently  than  in  any  other  district.  It  also  appears 
to  be  the  desire  of  their  parents  that  they  shall  attend  such  school.  It  is  unneces- 
sary therefore  to  disturb  such  contract.  The  only  action  necessary  in  this  pro- 
ceeding is  such  as  will  give  the  children  residing  in  the  section  of  district  no.  11 
in  which  appellant  resides  school  privileges  which  are  reasonably  accessible  and 
satisfactory  to  their  parents.  This  can  be  done  by  the  district  authorizing 
respondent  R}'ant  to  contract  for  the  education  of  such  children  in  district  no. 
16.  If  the  district  refuses  to  authorize  such  contract  the  trustee  of  district  no. 
1 1  must  open  a  home  school  in  such  district. 

The  appeal  herein  is  sustained. 


174  THE   UNIVERSITY    OF   THE   STATE   OF    NEW   YORK    . 

It  is  ordered,  That  the  trustee  of  district  no.  ii,  towns  of  Van  Etten  and 
Spencer,  Chemung  county,  call  a  special  meeting  of  the  legal  voters  of  the  dis- 
trict to  authorize  a  contract  with  school  district  no.  i6,  Van  Etten,  for  the  educa- 
tion of  the  children  residing  in  said  district  no.  ii  whose  parents  desire  them  to 
attend  school  in  district  no.  i6. 

It  is  also  ordered.  That  if  such  special  meeting  shall  refuse  or  fail  to  author- 
ize the  trustee  of  district  no.  ii.  Van  Etten  and  Spencer,  to  make  such  contract 
with  district  no.  i6.  Van  Etten,  the  said  trustee  of  district  no.  ii,  Van  Etten  and 
Spencer,  shall  thereupon  employ  a  teacher  and  open  and  maintain  a  school  in 
said  district  no.  ii,  Van  Etten  and  Spencer. 


ELECTIONS 

5218 

In  the  matter  of  the  election  of  a  member  of  the  board  of  education  of  union  free 
school  district  no.  6,  town  of  Mohawk,  Montgomery  county. 

The  claim  of  right  or  title  to  the  office  of  trustee  will  not  be  sustained  when  the  very  right 
itself  rests  upon  either  fraud,  corruption,  negligence,  imposition  or  wrong. 

An  election  resulting  from  sharp  practice  and  in  unfairness  and  injustice  and  not  reflecting 
or  representing  the  popular  expression  of  those  entitled  to  be  heard,  will  be  set  aside 
and  a  new  election  ordered. 

The  accepted  doctrine  of  popular  elections  is  that  the  great  body  of  the  voters  shall  have 
notice  in  fact  of  the  election.  It  is  not  necessary  that  the  formal  notice  of  an  election 
required  by  the  law  shall  be  given  or  shall  be  brought  to  the  attention  of  each  voter, 
but  did  knowledge  of  the  fact  that  such  election  was  set  to  be  held  at  a  fixed  time 
become  known  to  the  great  body  of  the  voters? 

The  paramount  question  in  a  proceeding  to  determine  the  title  to  the  office  of  trustee  is. 
Did  the  voters  generally  have  an  opportunity  to  legally  express  their  choice  for  such 
trustee?  The  right  of  any  individual  to  the  office  of  trustee  is  subordinate  to  this 
great  right  of  the  legal  voters. 

Decided  October  30,  1905 

George  M.  Albot,  attorney  for  appellant 
J.  S.  Sitterly,  attorney  for  respondents 

Draper,  Commissioner 

This  is  an  appeal  to  determine  the  right  or  title  to  the  office  of  trustee  in 
school  district  no.  6,  town  of  Mohawk,  ^Montgomery  county.  This  is  a  union  free 
school  district  whose  boundaries  do  not  coincide  with  the  boundaries  of  an  incor- 
porated village  or  city.  The  incorporated  village  of  Fonda  is  located  within  the 
school  district.  At  present  less  than  300  children  of  school  age  reside  within  the 
school  district.  Since  187S  the  annual  meeting  of  this  district  has  been  held  on 
Tuesday  evening  as  required  by  law  and  the  election  of  trustees  on  the  afternoon 
of  the  following  day.  On  July  3,  1905,  the  board  of  education  issued  the  follow- 
ing notice : 

ANNUAL    SCHOOL    MEETING 

The  annual  school  meeting  of  Fonda  high  school  district  no.  6,  town  of 
Mohawk,  will  be  held  in  the  school  building  on  Tuesday  evening,  August  i,  1905, 
at  7.30  o'clock. 

The  annual  election  of  one  member  of  the  board  of  education  for  three 
years  will  be  held  in  the  high  school  building  on  Wednesday,  August  2d,  from  12 
o'clock  noon  until  4  p.  m. 

Harry  H.  Dockstader 
George  L.  Davis 
John  E.  Cook 
Dated,  Fonda,  July  5,  ipoj  Board  of  Education 

[175] 


176  THE   UXIVERSITV    OF   THE   STATE    OF    NEW   YORK 

This  notice  was  published  for  four  consecutive  weeks  in  the  Fonda  Democrat 
and  posted  in  several  public  places  within  the  district.  The  annual  meeting  held 
on  the  evening  of  August  ist  transacted  the  usual  routine  business  which  gen- 
erally comes  before  such  meetings,  passed  a  resolution  to  change  the  time  of 
election  of  trustees  from  the  afternoon  of  the  Wednesday  following  the  annual 
meeting  to  the  time  of  the  annual  meeting,  and  then  proceeded  to  the  election  of 
a  trustee  for  the  ensuing  three  years.  Several  of  those  present  protested  against 
the  passage  of  such  resolution  and  of  the  election  of  a  trustee  at  that  time,  claim- 
ing that  the  election  was  illegal  and  that  such  election  should  be  held  on  the  fol- 
lowing afternoon  in  accordance  with  the  official  notice  given  by  the  board  of 
education. 

The  district  meeting  proceeded,  however,  to  the  election  of  a  trustee.  It 
appears  that  64  votes  were  cast  of  which  number  Bernard  Conlan,  appellant 
herein,  received  61  and  was  thereupon  declared  elected  trustee  by  the  chairman. 
It  also  appears  that  those  who  protested  against  the  election  of  a  trustee  at  that 
meeting  refrained  from  voting. 

It  has  been  the  custom  in  this  district  for  many  years  to  hold  a  caucus  imme- 
diately after  the  adjournment  of  the  annual  meeting  to  nominate  a  candidate  for 
trustee  to  be  voted  for  on  the  following  afternoon.  In  accordance  with  that  cus- 
tom those  present  at  the  annual  meeting  who  believed  the  election  should  be  held 
on  Wednesday  and  who  had  refrained  from  participating  in  the  election  of  Tues- 
day evening,  held  a  caucus  after  the  adjournment  of  the  annual  meeting  and 
nominated  Harry  H.  Dockstader  for  trustee.  The  board  of  education  conducted 
an  election  on  the  following  afternoon  in  accordance  with  the  provisions  of  sec- 
tion 14,  title  8  of  the  Consolidated  School  Law.  At  such  election  143  votes  were 
cast,  all  of  which  were  for  the  said  Harry  H.  Dockstader  and  he  was  thereupon 
declared  elected. 

On  August  2d  the  board  of  education  held  a  meeting  and  organized  by  elect- 
ing the  said  Harry  H.  Dockstader  the  president  of  said  board.  This  meeting  of 
the  board  of  education  was  clearly  illegal,  as  section  13,  title  8  of  the  Consolidated 
School  Law  provides  that  the  annual  meeting  of  the  board  of  education  shall  be 
held  on  the  first  Tuesday  following  the  annual  meeting.  The  proper  time  to  hold 
such  meeting  was  Tuesday,  August  8,  1905,  and  on  that  date  the  board  of  educa- 
tion held  its  annual  meeting  and  recognized  the  said  Harry  H.  Dockstader  as  the 
regularly  elected  trustee.  The  board  of  education  also  again  elected  the  said 
Dockstader  as  its  president.  The  board  of  education  also  refused  to  recognize 
the  appellant,  Conlan,  as  the  legally  elected  trustee  of  the  district. 

The  present  Consolidated  School  Law  went  into  effect  June  30,  1894.  Pre- 
vious to  that  date  the  election  of  trustees  in  all  school  districts  having  more  than 
300  children  of  school  age  and  whose  boundaries  did  not  coincide  with  those  of 
an  incorporated  village  or  city  was  held  under  the  provisions  of  chapter  24S 
of  the  Laws  of  1878,  except  certain  districts  organized  under  special  acts  or 
especially  exempted  from  the  provisions  of  said  chapter  24S.  That  law  provided 
that  the  election  of  trustees  in  districts  of  this  class  should  be  held  on  the  second 


JUDICIAL  decisions:     elections  177 

Wednesday  of  October  between  the  hours  of  10  o'clock  in  the  morning  and  4 
o'clock  in  the  afternoon.  Subsequently  the  date  of  annual  meetings  in  school 
districts  was  changed  by  the  Legislature  to  the  last  Tuesday  in  August  and  later 
to  the  first  Tuesday  in  August,  and  the  date  of  election  of  trustees  in  districts  of 
this  class  was  accordingly  changed  to  the  Wednesday  following  the  last  Tuesday 
in  Augi-ist  and  later  to  the  Wednesday  following  the  first  Tuesday  in  August.  So 
it  always  occurred  from  1878  to  1894  that  the  annual  meeting  was  held  on  Tues- 
day evening  and  the  annual  election  of  trustees  on  the  next  day  or  Wednesday. 
In  1878  the  hours  of  such  election  were  changed  so  that  thereafter  the  election 
was  held  between  the  hours  of  12  m.  and  4  o'clock  in  the  afternoon. 

Chapter  556  of  the  Laws  of  1894,  the  Consolidated  School  Law,  repealed 
chapter  248,  Laws  of   1878,  and  also  repealed  the  chapter  fixing  the  date  of 
annual  meetings.    Since  the  enactment  of  the  Consolidated  School  Law  in  1894  it 
has  been  necessar}'  for  all  school  districts  to  hold  their  annual  meetings  and  to 
elect  their  trustees  at  the  time  fixed  and  in  accordance  with  the  provisions  of  said 
Consolidated  School  Law.     Section  13  of  title  8  of  that  law  provides  that  the 
annual  meeting  of  all  union  free  school  districts  whose  boundaries  do  not  corre- 
spond to  those  of  an  incorporated  village  or  city  shall  be  held  on  the  first  Tuesday 
of  August.    Section  5  of  title  8  provides  that  the  election  of  trustees  in  union  free 
school  districts  whose  boundaries  are  not  the  same  as  those  of  an  incorporated 
village  or  city  shall  be  held  at  the  annual  meeting.    However,  section  14  of  title  8 
provides  that  in  union  free  school  districts  in  which  the  number  of  children  of 
school  age  exceeds  300  and  whose  boundaries  are  not  coincident  with  those  of 
an  incorporated  village  or  city,  the  election  of  trustees  may  be  held  on  the  Wednes- 
day next  following  the  date  of  the  annual  meeting.     This  section  provides  that 
districts  desiring  to  hold  the  election  of  trustees  on  Wednesday  may  so  determine 
by  a  majority  vote  to  be  ascertained  by  taking  and  recording  the  ayes  and  noes. 
This  vote  may  be  taken  at  an  annual  or  a  special  meeting  called  for  that  purpose. 
District  no.  6,  IMohawk,  held  its  election  of  trustees  from  1878  to  1894  on 
the  Wednesday  following  the  date  of  the  annual  meeting.     The  presumption 
is  that  during  that  period  of  time  the  number  of  children  of  school  age  residing 
in  the  district  exceeded  300.     This  district  is  also  a  union  free  school  district 
whose  boundaries  do  not  coincide  with  those  of  an  incorporated  village  or  city. 
The  pleadings  do  not  show  whether  at  the  time  of  the  annual  meeting  in  1894 
the  number  of  children  of  school  age  residing  in  the  district  exceeded  300.     If 
the  number  of  such  children  did  exceed  300  this  district  in  common  with  all 
other  districts  of  its  class  possessed  the  authority  to  decide  to  hold  the  election 
of  trustees  on  Wednesday  afternoon  instead  of  Tuesday  evening.     But  it  was 
necessary  for  this  district  in  1894,  or  any  other  district  of  its  class,  if  it  desired  to 
continue  to  hold  its  election  of  trustees  on  the  afternoon  following  the  annual 
meeting,  to  so  decide  by  a  majority  vote  as  above  stated  at  either  the  annual  meet- 
ing or  at  a  special  meeting. 

The  records  do  not  show  that  a  vote  was  ever  taken  upon  such  proposition 
in  this  district.    The  board  of  education  gave  notice  as  required  by  law  in  1S94 


lyS  THE   UNIVERSITY   OF   THE   STATE   OF   NEW   YORK 

that  the  annual  meeting  of  the  district  would  be  held  on  Tuesday  night  and  the 
election  on  Wednesday  afternoon.  The  annual  meeting  was  held  and  transacted 
the  business  which  usually  devolves  upon  such  meetings.  It  then  adjourned 
and  immediately  thereafter  those  in  attendance  upon  such  meeting  held  a 
caucus  and  nominated  a  trustee  to  be  voted  for  on  the  following  day.  On  that 
day  the  election  was  held.  No  objection  was  raised  by  any  resident  of  the  district 
to  this  proceeding.  Each  year  from  1894  down  to  the  year  1905  the  annual  meet- 
ing has  adjourned,  a  caucus  to  nominate  a  trustee  has  immediately  thereafter 
been  held,  and  on  the  following  afternoon  the  election  of  trustees  has  taken 
place.  It  is  contended  by  the  attorney  for  respondents  that  the  action  of  the 
annual  meeting  in  1894  in  adjourning  without  considering  in  any  way  the  elec- 
tion of  a  trustee;  the  action  of  those  in  attendance  upon  the  annual  meeting 
immediately  after  its  adjournment  in  holding  a  caucus  and  nominating  a  trustee; 
the  action  of  the  legal  voters  in  holding  an  election  on  the  following  day  and  a 
repetition  of  these  various  steps  each  year  thereafter,  was  a  substantial  compli- 
ance with  the  requirements  of  section  14  of  title  8  of  the  Consolidated  School 
Law.  Since  1894  it  has  been  necessary  for  this  district,  or  any  other  district 
of  its  class,  to  show  two  essential  things  in  order  to  legally  hold  its  elections  on 
the  Wednesday  immediately  following  the  annual  meeting,  namely,  that  the 
district  contained  more  than  300  children  of  school  age  and  that  the  district  had 
determined  by  a  majority  vote  as  the  law  directs  to  hold  the  election  on  Wednes- 
day. It  does  not  appear  to  my  satisfaction  that  these  conditions  have  been  met 
as  the  law  contemplates  they  should  be. 

If  the  election  of  Wednesday  was  irregular  or  illegal,  was  the  election  of 
Tuesday  night  regular  and  legal  ?  The  attorney  for  appellant  contends  that  the 
pleadings  do  not  raise  the  question  of  regularity  of  the  election  on  Tuesday  night. 
He  contends  that  the  only  questions  before  this  Department  for  determination 
are  the  regularity  of  the  Wednesday  election  and  the  regularity  of  the  action 
of  the  board  of  education  in  recognizing  said  Dockstader  as  the  legally  elected 
trustee  of  the  district,  and  that  this  Department  has  not  jurisdiction  on  the 
pleadings  to  determine  the  regularity  of  the  Tuesday  election.  This  contention  is 
unsound.  The  appellant  entitles  this  proceeding:  "  In  the  matter  of  the  election 
of  a  member  of  the  board  of  education  of  union  free  school  district  no.  6,  town 
of  Mohawk,  Montgomery  county."  He  states  in  his  moving  papers  that  he 
appeals  "  from  all  proceedings  and  determinations  of  said  board  at  said  last 
named  meeting  whereby  this  appellant  was  denied  the  right  and  privilege  of 
sitting  as  a  member  and  participating  in  the  proceedings  of  said  board  as  a  law- 
fully elected  member  thereof."  In  the  concluding  paragraph  of  the  moving 
papers  the  relief  requested  by  appellant  is  "  that  the  appellant  be  adjudged  the 
duly  and  lawfully  elected  trustee  or  member  of  said  board  of  education  for  the 
tei-m  of  three  years  commencing  August  i,  1905."  He  also  files  with  his  moving 
papers  a  copy  of  the  proceedings  of  the  annual  meeting  held  on  Tuesday  night 
and  makes  the  same  a  part  of  his  pleadings.  The  appellant  therefore  directly 
raises  the  question  of  the  regularity  of  the  Tuesday  election.  He  can  not  ask 
this   Department  to   adjudge  him   the   legally   elected   trustee   without   squarely 


JUDICIAL  decisions:     elections  179 

submitting  for  determination  the  regularity  in  every  particular  of  his  election. 
He  contends  that  respondents  do  not  question  the  regularity  of  the  Tuesday  elec- 
tion and  that  in  fact  they  admit  it.  In  this  he  is  wrong.  Respondents  admit  the 
proceedings  taken  at  each  meeting  but  they  specifically  deny  that  appellant  was 
legally  elected  or  that  any  of  his  lawful  rights  were  violated.  They  set  up  the 
official  notice  given  by  the  board  of  education  to  the  effect  that  the  election  of 
trustee  would  be  held  on  Wednesday,  they  show  that  this  had  been  the  custom  of 
the  district  for  twenty-seven  consecutive  years,  and  they  show  that  an  election  was 
held  on  Wednesday  and  contend  for  the  regularity  and  legality  of  the  same. 
Thus  do  they  deny  and  question  the  regularity  of  the  Tuesday  election.  But 
the  question  as  to  what  either  party  to  this  proceeding  may  specifically  raise  is 
not  conclusive  upon  this  Department.  This  Department  is  a  tribunal  to  which 
appellant  appeals  for  a  judicial  determination  of  his  right  or  title  to  an  otlice 
and  this  Department  has  not  only  the  jurisdiction  but  it  is  its  bounden  duty  to 
inquire  into  the  regularity  of  every  proceeding  pertaining  to  the  election  upon 
which  appellant  bases  his  claim  to  the  right  for  which  he  contends  and  to  deter- 
mine whether  such  right  or  title  has  been  obtained  as  the  law  contemplates  it 
should  be. 

For  seventy  years  this  Department  has  held  that  in  actions  involving  the 
right  to  an  office  "  it  will  inquire  into  the  bonae  fides  thereof.  Were  the  things 
done  as  such  as  it  was  proper  to  do  at  said  meeting?  Has  any  one  been  misled, 
imposed  upon,  or  wronged?  If  mistakes  and  irregularities  have  occurred  will 
the  greater  hardship  be  imposed  upon  individuals  by  setting  aside  or  sustaining 
such  acts?     {See  decisions  3534  and  4327.) 

The  courts  of  this  State  have  always  sustained  this  principle.  In  the  case 
of  The  People  v.  Vail,  Judge  Bronson  said:  "  Such  proceeding  reaches  beyond 
those  evidences  of  title  which  are  conclusive  for  any  other  purpose,  and  inquires 
into  and  ascertains  the  abstract  question  of  right.  In  legislative  bodies  which 
have  the  power  to  judge  of  their  own  membership,  it  is  the  settled  practice, 
when  the  right  of  the  sitting  member  is  called  in  question,  to  look  beyond  the 
certificate  of  the  returning  officer;  and  I  think  a  court  and  jury  with  better 
means  of  arriving  at  the  truth,  may  pursue  the  same  course." 

In  the  leading  case  of  The  People  v.  Pease,  the  Court  of  Appeals  of  this 
State  held :  "  In  all  cases  where  the  proceeding  is  by  quo  warranto,  or  in  an 
action  of  that  nature,  it  is  held  that  such  proceeding  is  instituted  to  try  the  right 
to  the  office  directly,  and  it  is  competent  to  go  behind  the  certificate,  which 
would  otherwise  be  conclusive,  to  ascertain  the  real  facts  of  the  case.  It  is 
conceded  that  this  proceeding  is  to  ascertain  the  very  right  of  the  person  to 
the  particular  office,  and  that  by  means  of  it  any  negligence,  mistake  or  fraud 
of  the  inspectors  or  canvassers  in  their  proceedings  may  be  corrected.  The 
truth  may  be  inquired  into  and  the  right  ascertained.  As  a  general  rule  affirm- 
ative facts  are  not  to  be  presumed,  but  must  be  proved  by  the  party  asserting 
them.  The  disposition  of  the  courts  in  this  State  is  to  look  through  the  formal 
evidence  of  the  right  to  the  right  itself  and  to  set  aside  the  election  of  officers 
when  necessary  to  promote  the  ends  of  justice."     (27  N.  Y.  45) 


l80  THE   UXIVERSITY   OF   THE   STATE   OF   NEW   YORK 

The  Court  of  Appeals  of  this  State  m  the  case  of  Judson  v.  Thatcher  held : 
"  The  defendant  must  show,  before  he  can  have  judgment  in  his  favor,  that  he 
has  a  legal  title  to  the  office.  Possession  is  not,  in  such  an  action,  evidence  of 
his  right ;  the  burden  is  upon  him  of  showing  that  his  possession  is  a  legal  and 
rightful  one."' 

Where,  however,  the  action  is  brought  on  the  relation  of  one  claiming  the 
office,  the  failure  of  the  defendant  to  prove  his  title  does  not  establish  that  of 
the  relator.  Upon  that  issue  the  plaintiffs  have  the  affirmative,  and  the  burden 
is  upon  them  to  maintain  it. 

The  certificate  of  the  proper  officers  is  prima  facie  evidence  of  election  to 
a  public  office.  But  the  certificate,  and  the  returns  upon  which  it  is  based,  are 
open  to  inquiry,  and  the  returns  will  be  corrected  or  set  aside,  so  far  as  they 
are  shown  to  be  erroneous,  if  necessary  to  promote  the  ends  of  justice. 

The  inquiry  as  to  errors  in  the  returns  is  not  confined  to  intentional  frauds 
on  the  part  of  the  inspectors  of  election  officers.  They  may  be  impeached  and 
set  aside  for  error,  whether  that  of  the  officer  or  arising  from  the  interference 
or  illegal  acts  of  third  persons.      (55  N.  Y.  525) 

The  pleadings  show  that  the  faction  in  control  of  the  annual  meeting  and 
in  favor  of  the  election  of  Conlan  passed  the  following  resolution: 

Whereas,  It  has  been  the  custom  for  some  years  past,  in  school  district  no.  6 
of  the  town  of  Mohawk,  to  hold  the  election  for  a  member  or  members  of  the 
board  of  education  on  the  \\'ednesday  following  the  annual  school  meeting 
between  the  hours  of  i  p.  m.  and  4  p.  m. 

Whereas,  Said  custom  is  unjust  inasmuch  as  it  disfranchises  the  greater 
number  of  the  qualified  electors  of  said  district  on  account  of  their  being  unable 
to  attend  during  the  hours  at  which  it  has  been  held  except  at  great  loss  and 
inconvenience  to  themselves,  and. 

Whereas,  It  is  also  directly  contrary  to  the  school  election  law  which  speci- 
fies that  in  all  union  free  scliool  districts,  with  a  population  of  less  than  300 
children  of  school  age,  the  election  shall  be  held  at  the  annual  school  meeting. 

Therefore,  it  is  hereby  resolved,  That  at  this  and  all  subsequent  meetings, 
until  changed  by  a  proper  resolution,  the  election  of  a  member  or  members  of 
the  board  of  education  shall  be  the  first  order  of  business  at  said  annual  school 
meetings  after  organization  and  that  any  and  all  resolutions  heretofore  adopted 
afifecting  the  time  and  place  of  the  annual  school  election  in  this  district  are 
hereby  rescinded. 

Under  section  14  of  title  8  of  the  Consolidated  School  Law  a  district  of 
this  class  which  has  been  holding  its  elections  under  the  provisions  of  such  law 
may.  by  a  majority  vote,  decide  to  change  the  time  of  such  election  from  Wed- 
nesday to  the  time  of  the  annual  meeting.  It  appears  clear  that  the  faction  favor- 
ing the  election  of  Conlan  believed  that  by  passing  the  above  resolutions  they 
could  proceed  that  night  to  the  election  of  a  trustee  for  three  years.  It  does  not 
appear  that  the  faction  favoring  the  election  of  Dockstader  had  any  knowledge 
of  the  intention  of  the  other  faction  and  they  had  not  attended  the  annual  meeting 
as  the  official  notice  showed  that  the  election  would  be  held  on  Wednesday.  The 
whole  proceeding  in  voting  to  change  the  time  of  the  election  of  trustee  and  the 
election  itself  may  be  properly  looked  upon  as  a  scheme  carefully  planned  to  take 
advantage  of  those  who  might  rely  upon  the  official  notice  of  the  board  and 


JUDICIAL  decisions:     elections  i8i 

remain  away  from  the  annual  meeting  believing  as  they  rightfully  should,  that 
the  election  would  be  held  on  Wednesday  and  in  accordance  with  the  custom 
prevailing  in  the  district  for  the  twenty-seven  preceding  years.  This  Department 
has  always  held  that  when  an  annual  meeting  decides  to  change  the  time  of  an 
election  under  said  section  14,  title  8,  from  Wednesday  back  to  the  annual 
meeting,  such  decision  does  not  become  operative  until  the  election  of  the  follow- 
ing year.  Due  notice  having  been  given  that  the  election  would  be  held  on 
Wednesday  the  people  interested  in  such  election  might  remain  away  from  the 
annual  meeting  expecting  to  vote  on  Wednesday  and  would  thus  be  deprived  of 
the  right  to  express  a.  choice  for  trustee.  To  hold  otherwise  would  also  open 
the  road  to  many  abuses  which  would  result  in  great  evil  to  the  public  school 
system.  This  policy  is  also  in  harmony  with  the  trend  of  legislative  thought  for 
as  recently  as  1903  the  Legislature  amended  the  Consolidated  School  Law  by 
providing  that  the  number  of  trustees  in  any  union  free  school  district  should 
not  be  increased  or  diminished  unless  due  notice  is  given  of  the  intention  to 
present  such  question  to  the  district  for  determination.  A  faction  conspiring 
to  control  a  board  of  education  often  accomplished  that  end  by  increasing  or 
diminishing  the  number  of  members  on  such  board  at  an  annual  meeting  not 
largely  attended  and  when  it  was  not  known  that  such  action  was  contemplated. 
The  action  of  the  annual  meeting  in  passing  the  resolution  in  question  did  not 
confer  the  lawful  right  to  elect  a  trustee  that  night.  It  was  not  until  after  the 
ruling  of  this  Department  on  that  question  was  known  to  appellant's  friends  that 
they  claimed  Tuesday  night  as  the  legal  time  on  which  to  hold  the  election.  The 
resolution  speaks  for  itself  and  shows  conclusively  that  the  annual  meeting  did 
not  regard  it  legal  to  proceed  to  an  election  until  after  such  resolution  was 
adopted. 

The  board  of  education  gave  official  notice  as  before  stated  that  the  election 
of  trustee  would  be  on  Wednesday.  This  notice  was  published  in  the  village 
paper  for  four  weeks  immediately  preceding  the  date  set  for  the  election.  It 
was  also  posted  in  several  public  places  in  the  district.  It  was  a  matter  of  com- 
mon interest  and  knowledge  that  the  election  of  the  district  had  occurred  on  that 
day  for  twenty-seven  years  immediately  preceding.  Should  a  faction  in  the 
district  be  permitted  in  view  of  these  facts  to  take  advantage  of  a  technical  pro- 
vision of  law  and  thus  prevent  a  large  number  of  the  electors  of  this  district  from 
exercising  the  right  to  express  their  choice  for  a  trustee?  It  appears  that  143 
of  such  electors  desired  to  vote  and  at  the  election  of  Wednesday  did  vote  while 
only  64  voted  for  trustee  at  the  annual  meeting. 

It  is  contended  by  the  attorney  for  the  appellant  that  notice  of  the  annual 
meeting  was  unnecessary  and  that  failure  to  give  notice  does  not  invalidate  an 
annual  meeting.  It  is  true  that  the  law  provides  that  a  district  meeting  shall  not 
be  invalid  for  want  of  due  notice  to  all  qualified  voters  unless  it  shall  appear  that 
such  omission  was  fraudulent  or  wilful.  This  Department  has  consistently 
refused  to  set  aside  the  action  of  a  meeting  on  such  ground  unless  it  has  been 
shown  that  the  failure  to  give  notice  was  wilful  or  fraudulent,  or  the  result  of 


l82  THE    UXIVERSITY    OF   THE    STATE    OF    NEW    YORK 

such  meeting  might  have  been  changed  had  those  who  failed  to  receive  notice 
been  present  and  been  permitted  to  participate  in  the  proceedings  of  the  meeting. 
When  the  omission  of  notice  has  shown  such  results  this  Department  has  uni- 
formly set  aside  the  proceedings  of  meetings  on  that  ground.  (Sec  decisions  of 
this  Department  nos.  3587,  3593,  3741,  3809,  3820,  3912,  3921,  3926  and  4000) 

In  decision  4000  it  was  held:  "'Proceedings  of  an  alleged  annual  meeting 
will  be  set  aside  where  a  long  established  custom  in  the  district  for  calling  the 
people  together,  had  been  purposely  and  intentionally  omitted,  thus  enabling  a 
very  small  minority  of  those  intending  to  be  present  at  the  meeting  to  assemble 
and  transact  the  business  of  the  annual  meeting." 

The  accepted  doctrine  of  popular  elections  is  that  the  great  body  of  the  voters 
shall  have  notice  in  fact  of  the  election.  It  is  not  necessary  that  the  formal 
notice  of  an  election  required  by  law  shall  be  given  or  shall  be  brought  to  the 
attention  of  each  voter  but  did  knowledge  of  the  fact  that  such  election  was  set 
to  be  held  at  a  fixed  time  become  known  to  the  great  body  of  the  voters? 

Mechem  says,  at  page  184:  "  When  it  is  obvious  that  the  great  body  of  the 
electors  were  misled  for  want  of  the  official  proclamation,  its  absence  becomes 
such  an  irregularity  as  prevents  an  actual  choice  by  the  electors ;  prevents  an 
actual  election  in  the  primary  sense  of  that  word,  and  renders  invalid  any 
semblance  of  an  election  which  may  have  been  attempted  by  a  few,  and  which 
must  operate,  if  it  operates  at  all,  as  a  surprise  and  fraud  upon  the  rights  of 
many." 

He  also  says  in  section  224:  "  It  is  well  settled  that  where  an  election  has 
been  in  fact  had,  and  the  great  body  of  the  electors  have  actually  participated  in 
it,  irregularities  not  proceeding  from  a  wrongful  intent,  in  the  manner  of  calling, 
holding  or  certifying  the  election,  will,  where  they  do  not  afifect  the  result,  be 
ignored." 

McClary  on  Elections,  section  176,  says:  "It  does  not  follow  that  formal 
notice  of  the  time  and  place  of  holding  an  election  is  always  essential  to  its 
validity.  Whether  it  is  or  not  depends  upon  the  question  whether  the  want  of 
formal  notice  has  resulted  in  depriving  any  portion  of  the  electors  of  their  rights." 
In  section  232  he  says:  "  It  is  safe  to  say  that  a  mistake  should  always  be  cor- 
rected if  it  can  be  corrected  by  the  tribunal  trying  the  contest.  (Sec  also  Loring 
&  Russell's  Election  Cases,  Mass.  p.  343  and  344  and  cases  therein  cited.) 

The  paramount  question  in  this  whole  proceeding  is,  Did  the  voters  generally 
of  this  district  have  an  opportunity  to  legally  express  their  choice  for  a  trustee? 
The  right  of  any  individual  to  the  office  of  trustee  is  subordinate  to  this  great 
right  of  the  legal  voters. 

I  know  that  the  Court  of  Appeals  of  this  State,  in  the  case  of  The  People  v. 
Cowles,  113  N.  Y.  350,  held  where  a  vacancy  occurred  in  the  office  of  a  Supreme 
Court  judge  only  a  few  days  previous  to  the  election  and  such  vacancy  was 
filled  at  the  election  although  no  official  notice  of  such  vacancy  and  the 
filling  of  the  same  was  given,  that  such  election  was  valid.  It  must  be  understood 
in  this  case,  however,  that  the  voters  of  the  judicial  district  had  in  fact  notice 


JUDICIAL  decisions:     elections  183 

of  such  vacancy  and  of  the  election.  The  vacancy  was  caused  by  the  death  of  a 
judge  in  New  York  City.  His  death  was  immediately  announced  in  all  the  great 
journals  of  that  city.  The  pohtical  parties  immediately  nominated  candidates  to 
fill  such  vacancy.  Four  nominations  were  made.  These  nominations  were  printed 
in  the  daily  papers  and  the  relative  merits  and  qualifications  of  such  nominees 
were  also  discussed  by  the  papers  of  that  city.  Then  too  the  prevailing  opinion 
of  the  court  which  was  4  to  3  was  based  upon  a  provision  of  the  State  Con- 
stitution. 

The  books  Avill  be  searched  in  vain  for  a  case  wherein  a  court  or  an  officer 
possessing  judicial  powers  has  sustained  the  claim  of  right  or  title  to  an  office 
when  the  very  right  itself  rests  upon  either  fraud,  corruption,  negligence,  imposi- 
tion or  wrong.  The  Court  of  Appeals  of  this  State  in  1900,  matter  of  Mutual 
Fire  Insurance  Company  of  Albany  (164  N.  Y.  10)  rendered  a  decision  pertinent 
to  the  issue  involved  in  this  proceeding  and  shows  the  views  of  that  tribunal 
upon  an  election  resulting  from  sharp  practice  and  in  unfairness  and  injustice 
and  not  reflecting  or  representing  the  popular  expression  of  those  entitled  to  be 
heard.  In  this  company  there  were  two  classes  of  voters  known  as  cash  polic)-- 
holders  and  note  policyholders.  At  the  annual  election  in  1900  an  unexpected 
contest  occurred.  The  inspectors  reported  11 12  votes  cast  upon  note  policies 
for  the  Lyon  board  and  1347  votes  upon  similar  policies  for  the  Rathbone  board. 
The  inspectors  refused  to  count  895  votes  upon  cash  policies  for  the  Lyon  board. 
No  votes  upon  cash  policies  were  offered  for  the  Rathbone  board  although  they 
controlled  720  votes  on  such  policies.  The  court  (51  App.  Div.  163)  held  that 
the  cash  policy  votes  cast  for  the  Lyon  board  should  be  counted  and  also  directed 
that  the  720  votes  on  cash  policies  controlled  by  the  Rathbone  board  should  be 
counted  although  none  of  such  votes  were  offered  at  the  election.  The  Court 
of  Appeals  modified  the  order  of  the  Appellate  Division  by  holding  that  cash 
policyholders  were  entitled  to  vote  but  directing  that  a  new  election  should  be 
held. 

For  the  views  of  courts  generally  upon  similar  questions  see  also  17  Atlantic 
Reporter  952,  12  Vroom  297,  102  Cal.  184,  10  Iowa  212,  44  Mich.  89. 

There  is  a  different  relation  between  the  Commissioner  of  Education  and  a 
proceeding  before  him  from  that  which  obtains  between  a  court  and  a  proceeding 
before  it.  A  court  is  disinterested  in  all  questions  except  the  facts  and  the  law. 
The  Commissioner  of  Education  is  the  administrative  or  supervisory  officer  of  the 
whole  educational  system  of  the  State.  He  is  bound  to  have  an  interest  in  the 
equity,  right  and  justice  of  all  questions  having  a  bearing  upon  the  administration 
of  the  educational  system.  He  must  determine  judicial  questions  with  a  view  to- 
the  general  effect  upon  the  school  system  as  well  as  to  the  technical  requirements 
of  the  law.  In  the  settlement  of  questions  relating  to  the  election  of  school 
officers  it  is  his  duty  to  see  that  all  parties  are  accorded  a  fair  opportunity  to 
participate  in  elections  if  they  will,  not  only  because  of  the  need  of  extending 
justice  to  individuals  interested  but  also  because  the  peace  and  quiet  of  the 
school  district  can  only  be  maintained  by  doing  so.     The  will  of  the  majority 


184  THE   UXIVERSITY    OF   THE   STATE    OF   NEW    YORK 

desiring  to  express  itself  and  not  guilty  of  any  laglies  must  be  given  its 
opportunit5\ 

I  decide,  That  neither  the  election  at  the  annual  meeting  held  on  August  i, 
1905,  nor  on  the  Wednesday  next  following  were  regular  or  legal  elections  in 
the  sense  contemplated  by  the  statutes  and  that  in  the  interests  of  justice  to  all 
parties  concerned  and  for  the  best  educational  interests  of  this  district  a  new 
election  should  be  held.  It  also  follows  that  the  action  of  the  board  of  education 
in  electing  Harry  H.  Dockstader  its  president  was  illegal.  The  election  in  the 
future  must  be  held  at  the  annual  meeting  until  the  time  for  such  election  is 
changed  as  provided  by  law. 

So  much  of  this  proceeding  as  relates  to  the  election  of  Harry  H.  Dockstader 
as  a  trustee  and  as  the  president  of  the  board  of  education  in  said  district  no.  6, 
Mohawk,  is  sustained,  and  that  relating  to  all  other  matters  is  dismissed. 

It  is  ordered.  That  the  board  of  educatiori  of  union  free  school  district  no.  6. 
town  of  ]Mohawk,  county  of  Montgomery,  shall  within  10  days  from  the  date 
hereof,  call  a  special  meeting  in  such  district  and  give  notice  thereof  as  provided 
in  section  10  of  title  8  of  the  Consolidated  School  Law,  for  the  purpose  of 
electing  a  trustee  in  said  district  whose  term  of  office  shall  extend  until  July 
31,  1908. 

It  is  further  ordered,  That  the  board  of  education  of  said  district  no.  6, 
]\Tohawk,  shall,  within  five  days  after  the  said  election  has  been  held,  hold  a 
meeting  thereof  for  the  purpose  of  electing  a  president  of  said  board. 


5293 

In  the  matter  of  the  appeal  of  E.  H.  Farrington  and  ■Mary  A.  Taylor  from  the 
proceedings  of  the  annual  meeting  of  union  free  school  district  no.  r,  town 
of  Franklinville,  county  of  Cattaraugus. 

Irregularities  in  calling  or  holding  an  election  not  proceeding  from  a  wilful  or  wrongful 
intent  and  not  affecting  the  results  are  not  sufficient  grounds  for  setting  aside  an  election. 

Decided  October  29,  1906 

L.  Thayer  Waring,  attorney  for  appellants 
George  E.  Spring,  attorney  for  respondents 

Draper,  Commissioner 

The  board  of  education  of  union  free  school  district  no.  i.  town  of  Franklin- 
ville, county  of  Cattaraugus,  passed  a  resolution  providing  that  the  election  of 
that  district  to  be  held  at  the  annual  meeting  should  open  at  4  o'clock  in  the 
afternoon  and  continue  until  7  o'clock  in  the  evening  and  that  the  election  should 
be  held  in  the  town  room  of  Morgan  Hall.  The  resolution  also  provided  that 
immediately  after  dosing  the  polls  at  7  o'clock  the  annual  meeting  would  be  con- 
tinued in  the  opera  house  room  of  the  same  hall  for  voting  appropriations,  receiv- 
ing reports  of  officers  and  transacting  any  other  business  which  might  properly 


JUDICIAL  decisions:     elections  185 

come  before  the  meeting.  After  the  adoption  of  this  resolution  by  the  board  of 
education  that  body  gave  notice  that  the  annual  election  of  members  of  the  board 
and  the  annual  meeting  would  be  held  on  August  7,  1906,  at  the  time  and  place 
provided  by  such  resolution.  This  notice  was  published  in  the  Franklinville 
Journal,  a  paper  published  within  the  district,  in  the  issues  of  July  i8th  and  25th, 
and  August  ist.    The  election  and  annual  meeting  were  held  accordingly. 

This  district  is  a  union  free  school  district  whose  boundaries  do  not  corre- 
spond with  the  boundaries  of  an  incorporated  village.  It  appears  there  are  more 
than  300  children  of  school  age  in  this  district  but  that  no  action  has  been  taken 
as  provided  by  section  14,  title  8  of  the  Consolidated  School  Law  to  establish 
the  Wednesday  following  the  date  fixed  by  law  for  holding  the  annual  meetings 
as  the  time  for  holding  the  annual  election  of  members  of  the  board  of  educa- 
tion in  this  district.  Such  election  in  this  district  must  therefore  be  held  as  pro- 
vided by  section  5  of  title  8  at  the  annual  meeting  of  the  district.  Section  13  of 
title  8  provides  that  the  annual  meeting  of  union  free  school  districts  whose 
boundaries  are  not  the  same  as  the  boundaries  of  an  incorporated  village  shall  be 
held  on  the  first  Tuesday  in  August.  The  hour  for  opening  such  meeting  and 
the  place  for  holding  it  are  not  fixed  by  this  section.  Section  8  of  title  7  how- 
ever provides  that  the  annual  meeting  of  every  district  in  the  State  shall  be  held 
at  the  schoolhouse  and  at  7.30  o'clock  in  the  evening  unless  at  a  previous  meeting 
some  other  hour  and  place  shall  have  been  designated.  It  is  not  claimed  that 
any  meeting  of  this  district  has  designated  some  other  hour  or  place  for  holding 
the  annual  meeting.  This  Department  has  held  that  a  district  in  which  a  union 
free  school  has  been  established  is  still  an  ordinar>-  district  except  so  far  as  the 
inhabitants  and  officers  thereof  are  invested  with  additional  powers  and  privileges. 
Under  section  16  of  title  8  all  provisions  of  the  Consolidated  School  Law  which 
relate  to  common  school  districts  apply  to  union  free  school  districts  except 
v^'here  other  or  difi"erent  provisions  relating  to  union  free  school  districts  are 
prescribed  by  title  8.  The  statutes  do  not  confer  upon  a  board  of  education  the 
power  to  fix  an  hour  or  place  for  an  annual  meeting.  Therefore  it  must  follow 
that  in  the  absence  of  a  fixed  hour  and  place  being  prescribed  by  section  13  of 
title  8  and  no  action  having  been  taken  at  a  district  meeting  in  prescribing  an 
hour  and  place  and  the  statutes  not  conferring  power  upon  a  board  to  fix  such 
hour  and  place,  the  annual  meeting  of  this  district  should  have  opened  on  August 
7,  1906,  at  7.30  o'clock  p.  m.  in  the  schoolhouse.  The  action  of  the  board  in 
passing  the  resolution  in  question  and  in  giving  notice  accordingly  was  irregular 
and  without  authority  of  law. 

Section  13  of  title  8  provides  that  notice  of  annual  meetings  shall  be  given 
by  the  board  of  education  in  the  manner  stated  in  section  10  of  that  title.  Sec- 
tion 10  provides  that  notice  of  meetings  shall  be  published  once  in  each  week  for 
the  four  weeks  next  preceding  the  date  of  such  meeting  in  two  newspapers 
published  in  the  district,  if  there  are  two,  or  in  one  paper  if  there  is  but  one 
published  in  the  district.  The  notice  given  by  the  board  appears  to  have  been 
published  in  three  issues  of  one  paper  instead  of  four  and  in  only  one  issue  of 
the  second  paper  published  within  the  district. 


l86  THE  UNIVERSITY   OF   THE   STATE   OF   NEW  YORK 

Some  time  after  this  notice  appeared  in  the  newspapers  the  right  of  the 
board  to  designate  4  o'clock  as  the  hour  for  opening  such  meeting  appears  to 
have  been  questioned.  It  also  appears  that  there  were  two  factions  in  the  dis- 
trict and  each  faction  nominated  a  ticket.  One  ticket  known  as  the  "  administra- 
tion ticket "  was  supported  by  those  who  indorsed  the  board  of  education  and 
the  other  ticket  known  as  the  "  opposition  ticket "  was  supported  by  those  who 
were  opposed  to  the  board  of  education.  A  short  time  previous  to  the  date  of 
the  annual  meeting,  representatives  of  each  faction  communicated  with  this 
Department  to  ascertain  the  right  of  the  board  of  education  to  designate  4  o'clock 
as  the  hour  for  opening  such  meeting.  The  Chief  of  the  Law  Division  was  on  his 
vacation  at  the  time  such  communications  were  received.  The  situation  as  pre- 
sented in  such  letters  appeared  to  be  somewhat  complicated  and  the  clerk  in 
charge  of  the  Law  Division  was  not  willing  to  pass  upon  such  questions  but 
forwarded  the  letters  to  the  chief  of  the  division  for  his  consideration.  These 
letters  did  not  contain  all  the  information  necessary  to  determine  when  the 
annual  meeting  should  be  held.  Tlie  law  contains  separate  provisions  for  dis- 
tricts having  300  children  of  school  age  or  less  and  districts  having  more  than  300 
children.  From  the  information  given,  the  Chief  of  the  Law  Division  assumed 
that  the  district  had  less  than  300  children  of  school  age  and  replied  to  the  letters 
in  question  on  that  understanding.  As  this  district  had  more  than  300  children 
of  school  age  the  board  of  education  construed  the  letter  from  the  Chief  of  the 
Law  Division  as  not  applying  to  their  district.  Another  letter  was  written  by  the 
clerk  of  the  district  explaining  more  fully  the  conditions  in  this  district  and  asking 
for  a  definite  reply  as  to  whether  or  not  the  meeting  might  legally  be  opened  at 
4  o'clock.  This  letter  was  addressed  to  Mr  Finegan  where  he  had  been  spending 
his  vacation.  Before  its  receipt  he  had  gone  to  another  place  and  the  letter  was 
reforwarded  several  times,  reaching  him  at  this  Department  on  Tuesday  morn- 
ing, August  7th,  the  date  of  the  annual  meeting.  He  immediately  wired  a  reply 
to  the  effect  that  the  meeting  should  open  at  7.30  in  the  evening  and  suggested 
that  a  member  of  the  board  should  be  at  the  place  designated  for  holding  the 
meeting  at  4  o'clock  and  give  notice  to  any  who  might  appear  that  the  meeting 
would  not  open  until  7.30  o'clock. 

There  was  to  be  a  sharp  contest  on  the  election  of  members  of  the  board  of 
education.  A  thorough  canvass  had  been  made  by  both  factions.  The  hour  and 
place  of  the  meeting  had  been  given  the  fullest  publicity  possible  and  it  did  not 
seem  practicable  to  the  board  of  education  to  defer  opening  the  meeting  until 
7.30  o'clock.  It  appears  that  a  conference  was  held  between  some  of  the  leaders 
of  the  two  factions  and  it  was  agreed  to  open  the  election  at  4  o'clock  and  keep 
the  polls  open  until  all  had  voted.  This  course  was  pursued.  The  meeting  was 
called  to  order  by  a  member  of  the  board  of  education.  The  Hon.  Alfred 
Spring,  a  Supreme  Court  justice  and  a  member  of  the  Appellate  Division  of  the 
fourth  department,  was  chosen  chairman.  He  stated  at  the  outset  the  ruling  of 
this  Department  on  the  legal  right  of  the  board  to  call  the  meeting  at  4  o'clock. 
He  also  stated  what  had  informally  been  agreed  upon  and  specifically  asked  if 


JUDICIAL    DECISIONS  :       ELECTIONS  187 

there  was  any  objection  to  proceeding  with  the  election.  No  objection  was  made. 
Representatives  of  both  factions  were  present.  Appellants  appear  to  have  been 
present,  but  if  they  were  not  they  came  in  later  and  made  no  objection  to  the 
meeting  being  continued.  Dr  Kales,  one  of  the  prominent  leaders  of  the  opposi- 
tion party,  was  present.  The  evidence  shows  that  he  distinctly  assented  to  the 
meeting  being  called  at  4  o'clock.  This  he  denies.  But  whether  he  agreed  to  it 
or  not,  he  was  present  and  ofifered  no  objection  and  participated  in  the  proceed- 
ings of  the  meeting.  The  appellants  also  participated  in  the  proceedings  of  the 
meeting  and  at  no  time  did  they  object  to  the  meeting  being  held  open  previous 
to  7.30  o'clock.  Had  the  opposition  ticket  been  successful  this  appeal  would 
undoubtedly  never  have  been  brought.  It  is  claimed  by  appellants  that  the  board 
of  education  refused  to  be  bound  by  the  ruling  of  this  Department  in  failing  to 
comply  with  the  suggestion  contained  in  the  telegram  from  j\Ir  Finegan.  This 
contention  is  not  sustained.  Immediately  after  the  close  of  the  annual  meeting 
the  chairman  of  such  meeting  advised  this  Department  fully  of  the  action  taken 
and  gave  the  reasons  therefor  which  were  satisfactory. 

The  school  law  provides  that  no  district  meeting  shall  be  invalid  for  want 
of  due  notice  to  all  qualified  voters  unless  it  shall  appear  that  such  omission  was 
fraudulent  or  wilful.  In  fact  failure  to  give  any  notice  of  an  annual  meeting 
would  not  invalidate  such  meeting.  The  law  fixes  the  date  and  the  hour  of 
annual  meetings  and  the  voters  of  a  district  may  convene  at  that  hour  and 
transact  the  business  of  the  district  even  if  no  notice  is  given.  This  annual 
meeting  was  in  session  at  the  time  fixed  by  law  and  any  legal  voter  of  the  district 
might  have  appeared  at  that  time  and  exercised  any  of  the  rights  or  privileges 
which  the  law  confers  upon  him.  The  legal  rights  of  no  voter  of  the  district 
were  violated  by  having  the  meeting  opened  at  4  o'clock.  The  polls  were  kept 
open  until  8  o'clock  and  until  all  who  desired  had  voted.  The  chairman  distinctly 
asked  two  or  three  times  if  all  who  desired  had  voted.  No  protest  was  made 
by  appellants,  by  Dr  Kales  or  by  any  other  person  against  closing  the  polls  at 
8  o'clock.  It  is  not  shown  in  the  pleadings  of  appellant  that  any  one  was  barred 
from  voting  by  reason  of  the  polls  having  been  closed  at  8  o'clock.  The  mere 
allegation  of  appellants  that  many  were  prevented  from  voting  is  insufficient. 
There  should  be  some  tangible  evidence  in  support  of  such  charge  if  it  is  to  be 
given  any  weight.  The  same  is  true  in  relation  to  the  charge  that  many  illegal 
votes  were  cast.  General  charges  of  this  character  are  not  entitled  to  considera- 
tion unless  there  is  evidence  of  some  character  to  support  them.  Appellants  do 
not  give  in  their  pleadings  the  name  of  one  person  who  voted  illegally  or  who 
was  barred  from  voting  by  reason  of  the  hours  during  which  the  polls  were 
open. 

The  pleadings  show  that  more  than  400  votes  were  cast  and  that  the  meeting 
was  unusually  orderly.  It  appears  that  but  one  vote  was  challenged.  The  chair- 
man questioned  the  challenged  party  and  advised  her  not  to  vote.  The  advice 
was  accepted.  It  appears  that  the  building  designated  was  one  better  adapted 
for  holding  the  annual  meeting  than  the  schoolhouse.     It  was  centrally  located 


l8S  THE   UXIVERSITY    OF   THE   STATE   OF    NEW   YORK 

and  accessible.  No  wrongful  intention  or  motive  is  shown  on  the  part  of  the 
board.  The  only  object  which  the  board  seemed  to  have  in  mind  was  to  afford 
all  voters  of  the  district  an  opportunity  to  vote  for  their  choice  of  candidates  in 
an  orderly  manner  and  with  ease  and  comfort.  In  this  all  parties  acquiesced 
and  are  therefore  barred  now  from  raising  that  question  of  irregularity  and 
technical  procedure. 

The  main  question  in  tliis  appeal  is,  Did  the  voters  of  this  district  have  a 
fair  opportunity  to  legally  and  honestly  express  their  choice  for  the  candidates 
at  such  election? 

The  accepted  doctrine  of  popular  elections  as  laid  down  by  our  courts  is : 
"  It  is  well  settled  that  where  an  election  has  been  in  fact  had,  and  the  great 
body  of  the  electors  have  actually  participated  in  it,  irregularities  not  proceeding 
from  a  wrongful  intent,  in  the  manner  of  calling,  holding  or  certifying  the  elec- 
tion, will,  where  tliey  do  not  affect  the  result,  be  ignored." 

It  appears  that  the  successful  candidates  received  from  263  to  ^j^,  votes  and 
the  opposing  candidates  from  130  to  140  votes.  The  maioritv  in  favor  of  tb'^ 
successful  candidates  was  so  decisive  that  the  general  result  of  the  election  would 
not  be  changed  by  the  few  illegal  A'otes  which  may  have  been  cast  in  an  election 
conducted  as  orderly  and  fairly  as  the  election  in  question.  No  reason  exists 
for  ordering  a  new  election. 

The  appeal  herein  is  dismissed. 


542^ 

In  the  matter  of  the  appeal  of  John  Gasser,  jr,  from  the  acts  and  proceedings 
of  the  annual  meeting  in  district  no.  3,  Hempstead,  Nassau  county. 

Destruction  of  excess  ballots.  The  ballots  cast  for  district  officers  at  an  annual  meeting 
should  be  counted  without  unfolding  them,  except  so  far  as  to  ascertain  whether  such 
ballots  are  single,  and  if  it  is  found  that  the  number  of  ballots  cast  was  greater  than 
the  number  of  persons  who  voted,  all  the  ballots  should  be  replaced  in  the  ballot  box 
without  being  unfolded,  and  after  the  ballots  are  thoroughly  mingled  the  excess  ballots 
should  be  drawn  out  and  destroyed.  The  fact  that  when  the  ballots  are  unfolded  it 
is  found  that  two  of  them  may  have  been  cast  through  error  for  a  person  for  another 
office  does  not  change  the  force  and  effect  of  this  rule. 

Minutes  of  meeting.  The  duly  recorded  and  certified  minutes  of  a  district  meeting,  included 
as  a  part  of  the  pleadings  of  one  of  the  parties  to  an  appeal,  will  be  taken  as  true, 
unless  impeached  by  clear  and  convincing  evidence. 

Decided  November  18,  1909 

John  Lyon,  attorney  for  appellant 

Clock  S.  Seaman,  attorney  for  respondent 

Draper,  Commissioner 

This  appeal  is  brought  to  set  aside  the  action  of  the  chairman  of  the  annual 
meeting  in  school  district  no.  3,  town  of  Hempstead,  county  of  Nassau,  held 
August  3,  1909,  in  declaring  Henry  Rowhel  elected  trustee  of  such  district  for 


JUDICIAL    DECISIONS  :       ELECTIOXS  189 

a  term  of  three  years.  Numerous  affidavits  have  been  presented  by  both  parties, 
and  there  is  conflict  between  them  as  to  some  of  the  material  facts.  It  is  con- 
ceded (i)  that  the  appellant,  John  Gasser,  jr,  and  Henry  Rowhel  were  the  only 
persons  formally  nominated  for  the  office  of  trustee;  (2)  that  83  persons  voted 
by  ballot  for  candidates  for  the  office  of  trustee,  and  that  upon  canvass  by  the 
inspectors  it  appeared  that  85  votes  had  been  cast;  (3)  that  the  meeting  instructed 
the  inspectors  to  destroy  two  ballots,  one  cast  for  the  appellant  Gasser,  and  the 
other  for  the  respondent,  Rowhel ;  (4)  that  when  the  remaining  ballots  had  been 
counted  it  appeared  that  Rowhel  had  41  votes  and  Gasser  had  39. 

The  appellant  alleges  that  when  the  votes  remaining  after  the  destruction 
of  the  2  votes  were  counted,  there  were  still  85  votes  canvassed,  2  more  than 
the  number  on  the  list  of  voters  kept  by  the  clerk  of  the  meeting.  The  respond- 
ent denies  this,  but  does  not  attempt  to  impeach  the  minutes  of  the  meeting  which 
show  that  85  votes  were  counted,  of  which  Rowhel  received  41,  Gasser  39, 
Leary  3  and  Wellstood  2. 

The  respondent  Rowhel  insists  that  he  received  a  majority  of  the  votes  cast 
and  was  properly  declared  elected  as  trustee.  He  bases  his  contention  upon  the 
claim  that  there  were  only  85  votes  in  the  ballot  box  when  the  count  was  begun ; 
that  2  of  these  ballots,  which  were  marked  "for  district  clerk,"  were  cast  for 
William  Wellstood;  that  these  2  ballots  should  have  been  destroyed  instead  of  the 
2  ballots  which  were  destroyed  at  the  direction  of  the  meeting;  that  the  direction 
given  by  the  meeting  as  to  these  2  ballots  was  illegal  and  should  be  disregarded, 
and  that  counting  for  him  the  ballot  which  was  destroyed,  he  received  42  votes, 
a  majority  of  those  legally  cast  at  the  election. 

It  is  not  denied  that  when  the  ballots  were  counted  after  the  polls  were 
declared  closed  2  more  ballots  were  found  than  there  were  voters  on  the  list.  It 
was  recognized  by  all  present  at  the  meeting  that  2  ballots  must  be  destroyed  to 
make  the  number  of  ballots  conform  with  the  list  of  voters.  The  legal  way  would 
have  been  to  count  the  ballots  found  in  the  ballot  box  without  unfolding  them, 
except  so  far  as  to  ascertain  that  each  ballot  was  single,  and  if  it  was  found  that 
the  number  of  ballots  deposited  in  the  box  was  greater  than  the  mmiber  of 
persons  who  voted,  all  the  ballots  should  have  been  replaced  in  the  box  without 
being  unfolded,  and  after  having  thoroughly  mingled  the  ballots,  one  of  the 
inspectors  should  have  drawn  out  the  excess  ballots,  standing  so  that  he  could 
not  see  the  ballots  and  with  his  back  to  the  box.  Such  excess  ballots  should 
have  been  then  destroyed  without  being  unfolded.  This  is  the  procedure  pre- 
scribed by  law  for  like  cases  at  general  elections  (see  election  law,  1909,  §  367). 
This  Department  has  held  that  the  rules  as  to  the  destruction  of  excess  ballots  at 
general  elections  should  apply  to  school  elections  (see  appeal  of  Dillon,  no.  4261, 
July  1894).  It  follows  that  the  method  used  in  the  case  now  being  considered 
was  not  regular.  But  the  respondent  did  not  object  to  the  method  adopted,  and 
seems  to  have  acquiesced  in  it.  It  can  not  be  held  that  the  vote  for  him,  which 
was  destroyed,  should  be  counted  for  him,  upon  the  assumption  that  when  the 
ballots  were  unfolded  two  of  them  were  illegal,  and  that  if  they  were  thrown 


ipO  THE   UNIVERSITY    OF   THE   STATE   OF   NEW   YORK 

out  the  number  of  ballots  would  conform  to  the  list  of  voters.  The  election 
law,  and  parliamentary  usage,  demand  that  the  excess  ballots  be  drawn  out 
before  the  ballots  are  unfolded.  The  rights  of  the  candidates  and  the  prevention 
of  fraud  demand  that  such  a  course  be  followed. 

If  the  vote  for  Rowhel,  which  was  destroyed,  had  been  counted  for  him 
he  would  have  had  42  votes,  enough  to  elect  him.  If  it  is  held  that  he  was  not 
entitled  to  such  vote,  he  was  not  elected  and  the  chairman  was  wrong  in  declaring 
him  elected.  It  must  be  held  either  that  the  method  of  destroying  the  excess 
ballots  was  illegal,  which  nullifies  the  ballot,  or  that  the  method,  while  irregular, 
was  not  illegal,  in  which  event  the  respondent  Rowhel  received  only  41  votes, 
one  less  than  a  majority  of  the  votes  cast  for  the  office.  It  follows  therefore  that 
Rowhel  was  not  legally  elected. 

The  appellant  sets  up  as  a  part  of  his  pleadings,  a  copy  of  the  minutes  of 
the  meeting.  The  respondent  has  not  attempted  to  impeach  the  accuracy  of  these 
minutes.  It  is  an  established  rule  frequently  applied  on  appeals  from  the  acts 
of  district  meetings,  that  the  minutes  of  such  meetings  duly  recorded  will  be 
taken  as  true  unless  impeached  by  clear  and  convincing  evidence.  The  minutes 
of  the  meeting  show  that  "  the  chairman  announced  85  votes  cast,  41  for  Henry 
Rowhel,  39  for  John  Gasser,  3  for  Arthur  Leary  and  2  for  Wm.  Wellstood." 
It  thus  appears  from  the  minutes  that  Rowhel  did  not  receive  a  majority  of  the 
votes  cast,  even  admitting  that  he  is  right  in  his  contention  that  the  votes  for 
William  Wellstood  should  not  be  counted.  It  must  be  held  that  there  was  a 
failure  to  elect  a  trustee  for  the  term  of  three  years  at  the  annual  meeting  and 
that  a  new  election  must  be  held  for  such  purpose. 

The  appeal  is  sustained. 

It  is  hereby  ordered,  That  the  action  of  the  annual  meeting  of  school  district 
no.  3,  town  of  Hempstead,  county  of  Nassau,  held  August  3,  1909,  in  declaring 
Henry  Rowhel  elected  as  one  of  the  trustees  of  such  district  for  a  term  of  three 
years  be,  and  the  same  hereby  is,  set  aside ;  and 

It  is  hereby  further  ordered.  That  the  clerk  of  such  district  give  notice,  as 
provided  by  law,  of  a  special  meeting  of  the  qualified  electors  thereof  to  be  held 
within  thirty  days  after  the  filing  of  this  decision,  for  the  purpose  of  filling  the 
vacancy  caused  by  the  failure  to  elect  a  trustee  for  a  term  of  three  years  at  the 
annual  meeting. 


3564 

In  the  matter  of  the  appeal  of  John  A.  Weatherwax  from  the  proceedings  of  the 
annual  school  meeting  in  district  no.  10,  towns  of  Schaghticoke  and  Lansing- 
burgh,  Rensselaer  county. 
Where  upon  a  ballot  for  trustee  two  ballots  are  found  folded  together,  the  presumption 
is  that  the  vote  is  fraudulent,  and  when  it  is   found  that  the  ballots  cast  exceed  the 
poll  list  by  one,  both  ballots  should  be  rejected. 


JUDICIAL    DECISIONS  :       ELECTIONS  I9I 

When  a  district  clerk  upon  whom  a  copy  of  an  appeal  is  served  colludes  with  the  appellant 
to  keep  all  knowledge  of  such  service  from  the  respondent,  sufficient  ground  is  afforded 
for  his  removal  from  office. 

Decided  February  9,  1887 

G.  H.  Mallory,  Esq.,  attorney  for  appellant 
Hon.  A.  C.  Comstock,  attorney  for  respondent 

Draper,  Superintendent 

This  is  an  appeal  from  the  action  of  the  annual  meeting  in  district  no.  10, 
in  the  towns  of  Schaghticoke  and  Lansingburgh,  Rensselaer  county,  held  upon 
the  31st  day  of  August  1886,  relative  to  the  election  of  a  trustee.  It  appears 
that  there  were  three  candidates  named  for  the  position,  namely,  John  K.  Over- 
rocker,  Charles  Moon  and  the  appellant.  John  N.  Bonesteel  was  made  chairman 
of  the  meeting.  Two  tellers  were  appointed,  namely,  D.  C.  Halstead  and  Henry 
De  Freest.  Henry  Smith  was  clerk  and  kept  the  poll  list.  When  the  meeting 
proceeded  to  elect  a  trustee,  the  names  of  the  voters  present  were  called,  and  each 
person,  as  his  name  was  called  stepped  forward  and  deposited  his  ballot. 

In  his  appeal,  the  appellant  alleges  that  at  the  conclusion  of  the  voting,  the 
tellers  counted  the  ballots  and  announced  that  42  ballots  had  been  cast  and  the 
poll  clerk  stated  that  42  persons  had  voted;  that  Mr  Halstead,  one  of  the  tellers 
declared,  while  counting  the  ballots,  that  two  ballots  were  folded  together  and 
that  the  chairman  took  and  retained  these  two  ballots  and  they  were  not  counted ; 
that  said  two  ballots  were  not  folded  together,  but  had  slipped  together ;  that  the 
two  ballots  not  counted  were  for  the  appellant ;  that  the  tellers  reported  the  result 
of  the  ballot  as  follows,  namely,  Overrocker,  17;  Weatherwax,  the  appellant,  16, 
and  Moon,  7;  that  objection  was  made  by  the  appellant  and  his  friends  to  the 
rejection  of  the  two  ballots,  and  that  it  was  insisted  by  them  that  said  ballots 
should  have  been  allowed  to  him,  and  that  he  was  elected,  as  only  a  plurality 
was  necessary  to  elect;  that,  as  a  result  of  the  controversy,  the  meeting  deter- 
mined to  take  another  ballot,  which  was  done,  and  resulted  in  Overrocker  receiv- 
ing 21  votes  and  the  appellant  19  votes,  and  Overrocker  was  declared  elected. 

The  affidavit  of  service  showed  that  the  papers  of  the  appellant  were  served 
September  25,  1886,  on  Henry  Smith,  the  district  clerk.  The  papers  were  filed 
in  tliis  Department  September  27,  1886. 

No  answer  having  been  received  from  the  respondent,  the  case  was  disposed 
of  on  the  statement  of  facts  set  forth  by  the  appellant,  and  on  the  15th  day  of 
November  1886,  a  decision  was  rendered,  holding  that  the  two  rejected  ballots 
should  have  been  received  and  counted  for  Weatherwax  and  declaring  him  elected 
and  entitled  to  the  office  of  trustee. 

On  the  17th  of  December,  1886,  Mr  Overrocker,  who  was  declared  elected 
trustee  at  the  annual  meeting,  and  afterward  acted  as  such,  and  was  deposed  by 
the  decision  of  November  14th,  presented  an  application  for  a  reopening  of  the 
case  upon  papers  which  had  been  served  on  Weatherwax  on  the  15th  of  Decem- 
ber. He  alleged  that  he  had  received  no  notice  whatever  of  the  appeal ;  that  the 
district  clerk  had  colluded  with  Weatherwax  and  concealed  the  papers  from  Over- 


192  THE  UNIVERSITY    OF   THE   STATE   OF   NEW   YORK 

rocker,  the  trustee  most  interested  in  the  matter.  He  swore  that  he  would  have 
answered  the  appeal  if  he  had  had  any  knowledge  of  it,  and  that  he  had  fully  and 
fairly  stated  his  case  to  counsel,  and  was  advised  by  counsel  that  he  had  a  good 
and  substantial  defense  on  the  merits  of  the  case.  The  statements  of  Mr  Over- 
rocker  remained  uncontroverted  the  requisite  length  of  time,  and,  on  the  27th 
day  of  December,  an  order  was  made  by  the  reopening  of  the  case,  and  allowing 
yir  Overrocker  to  come  in  and  answer. 

The  answer  and  the  affidavits  which  he  has  since  presented  materially  con- 
trovert the  facts  set  up  by  the  appellant.  Not  only  the  respondent,  but  the  chair- 
man of  the  meeting,  the  two  tellers  who  supervised  the  election,  and  numerous 
other  persons  of  undoubted  credibility,  who  stood  about  the  table  at  the  time  the 
ballots  were  cast  and  counted,  all  swear  that  two  ballots  were  folded  together, 
both  being  in  favor  of  said  Weatherwax,  and  were  so  folded  that  the  entire  side 
of  one  was  laid  to  and  against  the  entire  side  of  the  other,  and  were  evenly  folded, 
with  two  folds,  and  had  the  appearance  of  one  ballot,  and  could  not  have  come 
together  after  they  were  cast ;  that  if  both  of  said  ballots  had  been  counted,  there 
would  have  been  an  excess  of  one  ballot  over  the  number  indicated  by  the  poll 
list;  that  at  the  time  of  the  occurrence,  Mr  Weatherwax  and  his  friends  only 
claimed  that  one  of  the  rejected  ballots  should  have  been  counted  for  him,  which 
Vv-ould  have  tied  the  result  and  made  another  ballot  necessary ;  that  the  chairman 
ruled  that  one,  and  but  one,  of  the  ballots  folded  together  should  be  counted; 
that  one  of  said  ballots  was  counted,  which  resulted  in  a  tie  vote  between  Weather- 
wax and  Overrocker;  that  another  ballot  was  taken,  upon  which  Overrocker  was 
elected.  The  preponderance  of  proof  seems  with  Mr  Overrocker.  The  sworn 
statements  of  the  chairman  of  the  meeting  and  the  tellers  who  supervised  the 
election  are  entitled  to  great  weight.  If  their  statements  are  correct,  the  two  bal- 
lots folded  together  were  clearly  fraudulent,  and  the  tellers  would  have  been 
justified  in  rejecting  both  of  them.  The  fact,  which  seems  to  be  pretty  well 
established  by  the  affidavits  presented  by  Mr  Overrocker,  that  the  appellant  at 
the  time  when  the  first  ballot  was  announced,  did  not  claim  to  be  elected,  but 
only  insisted  that  one  of  the  disputed  ballots  should  be  counted  for  him,  and  that 
there  was  a  tie  vote,  rendering  another  ballot  necessary,  and  that  he  maintained 
this  position  until  after  he  was  defeated  upon  the  second  ballot,  is  an  important 
fact.  It  is  important  because  it  is  added  proof  of  the  fact  that  it  was  the  general 
belief  of  the  meeting  that  the  two  ballots  were  fraudulently  folded  together. 
Whether  they  were  or  not  is  the  vital  point  in  the  case.  If  they  were,  neither  of 
them  should  have  been  counted,  and  their  rejection  would  have  elected  the 
respondent  upon  the  first  ballot,  or,  upon  the  view  of  the  matter  most  favorable 
to  the  appellant,  would  have  justified  the  meeting  in  proceeding  to  another  ballot. 
Upon  all  the  proofs  submitted,  it  is  impossible  to  come  to  any  other  conclusion 
than  that  they  were  fraudulent,  and  that  the  appeal  must  be  dismissed. 

It  is  proper  to  add  that  the  manifest  collusion  between  the  appellant  and  the 
district  clerk,  by  whicli  the  former  served  his  appeal  papers  upon  the  latter  as  the 
official  representative  of  the  district,  and  the  latter  kept  them  from  the  knowledge 


JUDICIAL    DECISIONS  :       ELECTIONS  I93 

of  the  trustee  in  ofhce,  whom  it  was  the  purpose  of  the  appeal  to  remove,  not  only 
disparages  all  of  the  proceedings  of  the  appellant,  and  impairs  confidence  in  affi- 
davits presented  by  him,  but,  if  not  capable  of  explanation,  it  affords  sufficient 
grounds  for  the  removal  of  the  district  clerk  from  office. 
The  appeal  is  dismissed. 


3S31 

In  the  matter  of  the  appeal  of  Reuben  A.  Scofield  v.  Stephen  B.  Ayres  et  al. 

\\  here,  in  a  contest  to  determine  who  was  elected  trustee,  it  appears  that  five  double  ballots 
were  found  in  the  box,  which  were  disregarded  and  not  counted  by  the  tellers,  although 
the  total  number  of  ballots  in  the  box  was  less  than  the  number  of  persons  voting, 
as  shown  by  the  poll  list,  and  no  evidence  is  produced  to  show  that  the  double  ballots 
were  fraudulently  folded  together,  but  it  is  shown  on  the  contrary  that  they  might  have 
shpped  together  after  being  cast; 

Held,  that  the  tellers  were  not  justified  in  throwing  out  the  double  ballots.  They  should 
have  produced  evidence  to  show  that  they  were  fraudulent,  or  should  have  counted 
them.  If  the  number  of  ballots  exceeded  the  poll  list,  the  excess  should  have  been 
withdrawn  at  random  from  the  whole  number. 

General  allegations  upon  information  and  belief,  that  many  persons  voted  who  were  not 
entitled  to,  will  not  suffice.     Such  persons  should  have  been  challenged  at  the  election. 

It  is  necessary  not  only  to  state  specifically  who  voted  without  right,  but  that  such  persons 
voted  at  the  procurement,  or  in  the  interest  of  the  opposition. 

Where  affidavits  are  presented  on  one  side  by  a  number  of  persons  who  swear  that  they 
were  paid  for  voting  by  the  other  side,  and  affidavits  by  the  same  affiants  to  the  effect 
that  their  former  affidavits  were  not  true,  and  were  made  for  pay,  or  when  intoxicated, 
it  is  a  case  for  the  district  attorney.  Unless  enough  fraudulent  votes  are  shown  to 
have  been  cast  to  have  changed  the  result,  the  Department  will  not  set  aside  the  election. 

A.  C.  Harwick,  attorney  for  appellant 

Draper,  Superintendent 

This  is  an  appeal  from  the  declared  result  of  an  election  for  trustees  in  the 
union  free  school  district  embracing  the  village  of  Penn  Yan,  in  the  county  of 
Yates,  held  at  the  annual  meeting,  on  the  7th  of  October  18S9.  Three  trustees 
were  to  be  elected.  Five  persons  were  voted  for.  According  to  the  determination 
of  the  inspectors,  Mr  Edson  Potter  received  536  votes,  Mr  P.  P.  Curtis  336,  !\Ir 
Stephen  B.  Ayres  302,  Mr  R.  A.  Scofield  275,  and  Mr  B.  L.  Holt  235,  and  the 
three  first  named  were  declared  elected. 

The  appellant,  with  a  view  to  overthrowing  this  result,  alleges : 

1  That  10  ballots  bearing  the  names  of  Scofield,  Potter  and  Curtis  were 
wrongfully  thrown  out  and  not  cotmted  by  the  inspectors. 

2  That  enough  illegal  votes  were  cast  and  counted  for  the  ticket  opposed  to 
him  to  have  changed  the  result  as  between  Ayres  and  himself. 

3  That  the  result  as  declared  was  attained  through  corrupt  and  fraudulent 
acts  on  the  part  of  his  opponents,  including  the  purchasing  of  votes. 

7 


194  THE  UNIVERSITY   OF   THE   STATE   OF   NEW   YORK 

The  real  and  only  issue  is  between  the  appellant  and  the  respondent  Ayres, 
and  he  alone  interposes  an  answer.  According  to  the  inspectors,  J\lr  Curtis  had  a 
majority  of  loi  over  Mr  Holt,  and  no  substantial  effort  is  made  to  overcome  or 
set  aside  this  result.  But  the  declared  result  gave  Mr  Ayres  but  27  majority  over 
Mr  Scofield,  and  the  latter  insists  that  this  was  attained  by  fraud,  and  should 
be  set  aside.  Mr  Ayres  answers  and  denies  the  allegations  of  the  appellant  gen- 
erally and  specifically. 

It  becomes  necessary  to  examine  each  of  the  appellant's  grounds  of  appeal 
and  the  proofs  thereupon  submitted  by  the  respective  parties  in  interest. 

1  It  is  claimed  that  10  ballots  cast  for  the  appellant  and  his  associates  were 
thrown  out  and  not  counted  by  the  inspectors.  There  is  no  conflict  of  evidence 
upon  this  point.  Mr  George  R.  Young,  one  of  the  members  of  the  board  of  edu- 
cation, and  a  teller,  kept  the  poll  list  of  persons  voting.  At  the  conclusion  of  the 
voting  this  list  showed  the  names  of  563  persons  who  had  voted.  Upon  counting 
the  ballots  before  opening  there  Avere  apparently  but  559.  Air  Young,  however, 
swears  that  upon  opening  the  ballots,  5  double  ballots,  or  10  in  all,  were  found 
folded  together  in  pairs,  each  of  which  contained  the  names  of  Potter,  Curtis  and 
Scofield,  and  that  none  of  these  were  counted.  He  says  that  the  paper  upon 
which  these  ballots  were  printed  was  thinner  than  that  used  for  the  other  ballots, 
and  that  they  were  so  folded  that  they  might  easily  have  been  slipped  together 
after  being  deposited  in  the  box.  This  is  the  only  evidence  upon  this  point. 
Neither  of  the  other  inspectors  makes  any  statement  upon  this  evidence,  and  in 
view  of  the  number  of  names  on  the  poll  list,  I  am  of  the  opinion  that  the 
inspectors  exceeded  their  authority  in  disregarding  the  10  ballots  referred  to.  It 
is  more  likely  that  tlie  names  of  some  voters  were  not  recorded  or  checked  than 
that  more  were  reported  than  voted.  If  the  votes  in  the  box  exceeded  the  names 
upon  the  poll  list,  the  excess  should  have  been  withdrawn  at  random  and  cast 
aside,  unless  a  majority  of  the  inspectors  were  satisfied  that  the  excess  was  due 
to  the  fraudulent  folding  of  ballots  together  before  voting.  In  the  latter  case  the 
inspectors  should  appear  here  to  sustain  their  action,  with  the  reason  for  it.  One 
of  them  appears  and  disowns  and  discredits  the  idea  of  fraudulent  double  ballots, 
and  the  others  are  not  heard  from.  It  therefore  seems  to  me  that  the  appellant 
is  entitled  to  be  credited  with  the  10  votes  in  question. 

2  The  appellant  presents  a  list  of  names  of  31  persons  who  voted,  and  who, 
he  says,  "  upon  faithful  inquiry  and  search,  he  is  unable  to  ascertain,  possess  the 
necessary  qualifications  to  make  them  voters  in  said  district."  He  swears,  upon 
information  and  belief,  that  more  than  enough  of  them  voted  against  him  to  have 
changed  the  result.  It  seems  to  me  that  this  is  not  sufficiently  specific  and  certain 
to  be  of  value  to  appellant's  case.  If  the  right  of  any  of  these  persons  to  vote 
was  in  doubt,  they  should  have  been  challenged  and  required  to  desist  or  take  the 
statutory  oath,  and  a  foundation  laid  for  subsequent  criminal  proceedings  against 
them.  Neglecting  that,  and  raising  the  question  at  this  late  day,  it  is  upon  the 
appellant  to  show  affirmatively  that  these  persons  do  not  own. or  hire  real  estate 


JUDICIAL  decisions:     elections  195 

in  the  district,  and  were  not  assessed  for  more  than  fifty  dollars  of  personal  prop- 
erty on  the  last  assessment  rolls  of  the  town,  and  were  not  the  parents  of  children 
attending  school  during  the  last  year,  and  did  not  meet  any  one  of  the  other  con- 
ditions which,  under  the  statute,  would  qualify  him  to  vote  at  a  school  meeting. 
Moreover,  as  it  seems  to  me,  even  though  he  had  made  a  prima  facie  case  against 
the  right  of  these  persons  or  any  of  them  to  vote,  he  can  not  charge  his  opponent 
with  the  responsibility  of  defending  or  maintaining  that  right  on  their  part  with- 
out first  showing  by  evidence  more  specific  and  substantial  than  information  and 
belief,  that  such  opponent  had  procured  them  to  vote  without  right,  or  at  least 
had  profited  by  their  unlawful  votes.  In  other  words,  to  make  this  point  avail 
him,  it  was  necessary  for  the  appellant  to  show,  affirmatively,  by  proof,  that 
certain  persons  voted  who  had  no  right,  and  also  that  they  voted  for  the 
respondent. 

It  is  of  interest  in  this  connection,  although  it  v/ould  not  seem  to  be  vital, 
that  the  respondent  Ayres  says  under  oath,  that  he  has  made  inquiry  in  regard  to 
this  list  of  names  and  finds  that  nearly  all  of  them  were  legal  voters,  but  that  he 
does  not  know  whether  they  voted  for  him  or  not.  and  that  he  "  has  no  knowledge 
or  information  that  any  vote  was  obtained  for  deponent  by  any  person  by  reason 
of  any  corrupt  or  fraudulent  practice  on  the  part  of  any  one."  This  seems  to  me 
to  be  certainly  all  it  was  necessary  for  him  to  say  in  answer  to  the  general  and 
unsupported  allegations  of  the  appellant  upon  this  point. 

3  In  the  third  place,  the  appellant  asserts  and  undertakes  to  prove  that  the 
bribery  of  voters  was  resorted  to  by  his  opponent.  He  presents  the  affidavit  of 
Holder  Snyder,  who  swears  that  one,  Frank  Conklin,  told  him  he  could  get  a 
dollar  for  voting  the  Ayres  ticket,  and  that  he  promised  to  vote  it  but  got  there 
too  late  and  did  not  vote.  He  also  presents  the  affidavit  of  Bernard  T.  Barry, 
who  swears  that  Morris  F.  Shepperd  gave  him  an  Ayres  ticket  to  vote  and  that  he 
voted  it,  and  subsequently,  Shepperd,  in  his  presence,  gave  Howland  Snyder  one 
dollar  to  be  divided  between  them  for  so  doing,  and  Howland  Snyder  corroborates 
him.  Appellant  also  presents  the  affidavit  of  Johnson  Hewins,  who  swears  Orville 
F.  Randolph  promised  and  paid  him  a  dollar  for  voting  the  Ayres  ticket.  He  also 
presents  the  affidavit  of  Frank  Conklin  to  the  efifect  that  he  was  employed  for  the 
sum  of  three  dollars  by  Samuel  P.  Burrill  to  purchase  "  floaters  "  for  the  Ayres 
ticket  at  one  dollar  each,  and  names  Charles  Stanton,  John  Farrell  and  Charles 
Newland  as  men  whose  votes  he  purchased  according  to  the  terms  of  the  agree- 
ment. The  affidavit  of  John  Kelly,  who  swears  that  he  was  promised  one  dollar 
by  Frank  Conklin  for  voting  the  Ayres  ticket,  but  omits  to  say  that  he  got  the 
money,  is  also  presented.  The  affidavit  of  Charles  Stanton,  saying  that  he  was 
promised  one  dollar  by  Conklin,  if  he  would  vote  the  Ayres  ticket,  that  he  did 
vote  it  and  afterwards  received  the  money  is  also  presented. 

Here  is  evidence  to  the  effect  that  eight  men  at  least  were  procured  to  vote 
against  the  appellant  for  pay.  Although  the  number  is  not  sufficient  to  wipe  out 
the  majority  still  standing  against  the  appellant,  I  should  be  strongly  inclined  to 


196  THE  UNIVERSITY   OF   THE   STATE   OF   NEW   YORK 

deem  it,  if  uncontradicted,  sufficient  to  justify  me  in  holding  the  election  void 
in  order  to  condemn  such  methods  and  rebuke  persons  who  would  be  identified 
with  or  profit  by  them.  I  have,  therefore,  looked  with  considerable  interest  to 
see  what  answer  the  respondent  makes  upon  this  point. 

Mr  Ayres  presents  an  affidavit  by  Holder  Snyder,  in  which  that  worthy 
swears  that  there  is  no  truth  in  his  affidavit  presented  by  the  appellant,  and  that 
he  signed  it  when  intoxicated.  The  respondent  also  presents  an  affidavit  by  Ber- 
nard T.  Barr}',  saying  that  there  is  no  truth  in  the  former  affidavit  made  by  him, 
and  that  he  signed  it  when  intoxicated  and  without  knowing  its  contents.  He 
also  presents  an  affidavit  by  Howland  Snyder,  to  the  effect  that  he  was  asked  by 
one  William  Sheldon  to  make  an  affidavit  that  he  (Snyder)  received  money  for 
his  vote  and  that  he  refused  to  do  so,  as  it  would  not  be  true ;  that  Sheldon  asked 
him  to  state  what  took  place,  and  he  did  so,  and  Sheldon  pretended  to  write  it 
down ;  that  Sheldon  then  read  it  to  him,  and  that  as  he  read  it,  it  was  that  he  did 
not  sell  his  vote,  and  believing  that  to  be  the  nature  of  the  affidavit,  he  signed  and 
swore  to  it.  The  affidavit  of  John  Kelly  is  also  presented,  in  which  he  swears 
that  he  did  not  vote  at  the  election  in  question,  and  did  not  receive  pay  for  so 
doing,  and  that  he  m.ade  the  affidavit  presented  by  appellant  at  the  solicitation  of 
Sheldon,  and  was  paid  seventy-five  cents  for  so  doing.  Also  the  affidavit  of 
Charles  Stanton  that  he  made  his  former  affidavit  at  the  solicitation  of  Sheldon, 
and  without  knowing  what  was  in  it,  and  that  as  it  is  now  read  to  him,  it  is  not 
true,  and  that  he  did  not  receive  any  money  for  his  vote  at  such  election. 

This  answer  of  the  respondent  to  the  third  point  of  appellant's  case,  unfortu- 
nately does  not  reach  and  cover  all  the  instances  in  which  bribery  is  alleged,  but 
it  very  seriously  undermines  his  position.  H  some  evidence  of  alleged  bribery  is 
shown  to  have  been  procured  in  the  way  this  was,  then  we  are  left  to  speculate 
whether  all  is  not  of  the  same  character.  I  am  by  no  means  satisfied  that 
bribery  was  not  resorted  to.  It  is  certain,  however,  that  the  appellant  does  not 
show  enough  of  it  to  have  changed  the  result  of  the  election  in  any  case,  and  out- 
side of  legal  right,  there  would  hardly  be  sufficient  ground  in  view  of  the  doubts 
thrown  upon  all  the  testimony  concerning  bribery,  for  the  exercise  of  the  discre- 
tionary powers  of  the  Superintendent. 

Whether  bribery  was  resorted  to  or  not,  it  is  tolerably  certain  that  other 
crimes  were  committed  on  one  side  or  the  other,  if  not  by  the  principals,  then  by 
their  zealous  partisans,  in  connection  with  this  school  meeting.  Such  crimes 
should  be  ferreted  out  and  punished,  but  this  duty  docs  not  devolve  upon  this 
Department,  and  it  has  neither  the  facilities  nor  the  time  for  doing  it.  The  law 
provides  the  machinery  and  the  officers  for  attending  to  this  phase  of  the  subject. 
The  Department  will  cooperate  with  the  proper  officers  in  punishing  crime,  so  far 
as  it  may  be  able,  but  farther  than  that  it  can  not  go. 

The  appeal  must  be  dismissed. 


JUDICIAL  decisions:     elections  197 

5401 

In  the  matter  of  the  appeal  of  Robert  Thompson,  school  district  no.  10,  Depeyster, 

St  Lawrence  coimt}^ 

Ballot  for  trustee.  Where  two  ballots  for  trustee  were  declared  a  tie,  and  a  third  ballot 
for  the  office  was  announced,  votes  cast  on  such  ballot  which  stated  that  they  were 
for  a  certain  person  for  the  office  of  collector,  should  not  be  counted,  and  if  all  the 
other  votes  were  for  a  person  named  as  trustee,  he  should  be  declared  elected. 

Resolution  to  change  site  of  schoolhouse.  A  resolution  adopted  at  a  special  meeting  which 
provided  for  a  change  of  the  "  location  of  the  schoolhouse  to  the  center  of  the  district," 
and  did  not  describe  the  proposed  site  by  metes  and  bounds,  is  fatally  defective. 

Decided  March  i,  1909 

W.  A.  Stamp,  attorney  for  appellant 

Waterman  &  Waterman,  attorneys  for  respondent 

Draper,  Commissioner 

This  appeal  is  brought  by  Robert  Thompson  on  a  petition  complaining  of 
the  proceedings  of  the  annual  meeting  of  school  district  no.  10,  town  of  Depeyster, 
county  of  St  Lawrence,  held  August  4,  1908,  whereby  Fred  E.  Hurlburt  was 
declared  elected  trustee  of  such  district.  It  is  further  alleged  by  the  appellant 
that  the  said  Hurlburt  unlawfully  moved  the  school  building  from  its  former  site 
to  a  site  across  the  highway  therefrom.  It  appears  that  at  a  special  meeting 
called  for  the  purpose  it  was  voted  to  change  the  location  of  the  school  building 
to  a  point  at  the  corner  of  the  district.  The  petition  is  defective  and  inadequate 
to  inform  as  to  the  relief  desired.  It  contains  no  prayer  for  relief,  and  it  is  not 
easily  understood  therefrom  as  to  what  is  required. 

It  is  alleged  that  Fred  E.  Hurlburt  was  not  legally  elected  as  trustee;  that 
he  is  unlawfully  performing  the  duties  of  that  office.  The  appellant  and  respond- 
ent were  both  candidates  for  the  office.  There  were  two  ballots,  both  of  which 
resulted  in  a  tie.  It  is  claimed  that  one  of  the  voters  for  Hurlburt  was  not  a 
qualified  elector.  It  does  not  appear  that  she  was  challenged  and  obviously  was 
permitted  to  vote  without  question  or  protest.  It  is  now  too  late  to  raise  any 
such  objection.  Hurlburt  was  chairman  of  the  meeting  and  it  is  claimed  by  the 
appellant  that  he  had  no  right  to  vote  for  himself.  This  position  is  untenable.  A 
chairman  of  an  annual  school  meeting  may  vote  for  himself  as  trustee.  The  two 
ballots  were  therefore  legally  declared  a  tie.  Upon  the  third  ballot  for  trustee  it 
appeared  that  four  votes  were  cast  for  Hurlburt  for  trustee  and  four  votes  for 
another  person  as  collector.  It  is  apparent  that  Hurlburt's  opponents  misunder- 
stood the  purpose  of  the  ballot.  The  appellant  and  his  wife  insist  in  their  affida- 
vits that  the  ballot  v/as  announced  as  for  collector.  The  respondent  and  his  wife 
are  equally  insistent  that  the  ballot  was  announced  as  a  third  ballot  for  trustee. 
There  is  nothing  to  show  which  man  and  his  wife  are  telling  the  truth.  If  this 
ballot  was  announced  as  for  trustee,  the  votes  cast  for  persons  named  as  candi- 
dates for  collector  were  properly  excluded,  and  therefore  the  election  of  Hurlburt 
was  valid.  It  certainly  was  in  order  to  proceed  with  the  balloting  for  trustee 
before  voting  for  a  collector.  The  persons  voting  should  have  known  this.  I  am 
of  the  opinion  that  under  the  circumstances  the  respondent  should  be  permitced 
to  continue  in  office  until  the  expiration  of  his  term. 


198  THE  UNIVERSITY   OF   THE   STATE   OF   NEW   YORK 

The  official  acts  of  Hurlburt  are  valid  so  far  as  they  are  within  the  legal 
scope  of  his  office.  The  appellant  complains  that  the  respondent  disregarded  the 
resolution  adopted  at  the  special  meeting  held  August  15th  which  provided  for 
the  change  of  the  "  location  of  the  schoolhouse  to  the  center  of  the  district."  It 
does  not  appear  that  the  resolution  described  the  proposed  site  by  metes  and 
bounds  as  required  by  law.  From  what  is  contained  in  the  record  of  this  case  I 
have  no  hesitation  in  concluding  that  the  resolution  adopted  at  this  meeting  is 
fatally  defective  and  did  not  bind  the  trustee.  He  may  have  exceeded  his  author- 
ity in  moving  the  school  building  to  a  site  across  the  highway  from  the  former 
site.  But  it  appears  that  the  former  site  was  leased  to  the  district  by  Mary  C. 
Thompson  for  a  term  of  years ;  that  it  expired  in  June  1908  and  that  she  refused 
to  renew  the  lease.  This  condition  may  have  justified  the  action  of  the  trustee. 
It  is  unnecessary,  however,  to  decide  this  question  at  this  time.  The  schoolhouse 
should  be  permanently  located  on  a  site  selected  as  required  by  law.  The  action 
of  the  special  meeting  in  attempting  to  change  the  site  was  illegal.  Another  spe- 
cial meeting  of  the  district  should  be  called  by  the  trustee  at  which  a  resolution 
should  be  voted  upon  describing  definitely  the  location  and  boundaries  of  the  site 
selected.  A  suitable  site  should  be  agreed  upon.  It  should  be  located  at  a  place 
as  conveniently  accessible  as  may  be  to  the  children  of  the  district,  having  in  view 
the  accommodation  of  a  majority  of  them.  Swampy  or  badly  drained  places 
should  be  avoided  even  at  the  expense  of  accessibility. 

The  appeal  herein  is  dismissed ;  but 

It  is  hereby  ordered,  That  Fred  E.  Hurlburt,  trustee  of  district  no.  10,  town 
of  Depeyster,  county  of  St  Lawrence,  within  60  days  after  the  filing  of  this 
decision  as  hereinafter  directed,  issue  and  cause  to  be  served,  as  provided  by 
law,  a  notice  of  a  special  meeting  of  the  qualified  electors  of  such  district  for 
the  purpose  of  voting  upon  a  resolution  designating  a  site  for  the  schoolhouse 
in  such  district. 


5396 

In  the  matter  of  the  election  in  union  free  school  district  no.  i,  of  the  town  of 
Walton,  Delaware  county,  held  August  5,  1908. 

Ballots  for  long  and  short  term.  When  three  trustees  are  to  be  elected  for  a  full  term, 
and  one  for  the  balance  of  an  unexpired  term,  the  ballots  must  designate  the  terms 
for  which  the  candidates  are  to  be  elected.  Ballots  which  do  not  specify  the  terms 
are  void,  in  the  absence  of  evidence  to  show  for  whom  the  persons  voting  such  ballots 
intended  to  vote. 

Defective  ballots;  intent  of  voter.  A  person  who  can  identify  a  ballot  cast  by  him  for  a 
school  officer  will  be  permitted  to  explain,  on  appeal,  ambiguities  and  uncertainties 
contained  therein,  to  the  end  that  his  intent  may  be  ascertained  and  his  vote  counted  in 
favor  of  the  candidate  of  his  choice.  The  voter's  intent  must,  however,  clearly  appear 
by  definite,  positive  and  unequivocal  statements. 

Decided  November  24,  190S 

Draper,  Commissioner 

It  appears  from  the  papers  in  this  appeal  that  at  the  annual  school  meeting 
held  in  union  free  school  district  no.  i,  town  of  Walton,  county  of  Delaware, 


JUDICIAL  decisions:     elections 


199 


nominations  v.'ere  made  to  fill  the  offices  of  three  trustees,  whose  terms  expired  at 
that  time,  and  to  fill  a  vacancy  caused  by  the  resignation  of  one  of  the  trustees 
during  the  preceding  year.  John  G.  More,  William  F.  White  and  William  D. 
Burns  were  named  at  this  meeting  as  candidates  to  fill  the  vacancies  caused  by  the 
expiration  of  the  terms  of  the  three  outgoing  trustees.  Rev.  R.  C.  Reed  and 
William  M.  Peck,  the  appellant,  were  nominated  to  fill  the  unexpired  term  of  the 
trustee  who  had  resigned.  R.  W.  Scott  was  named  as  a  candidate  for  district 
clerk.  No  other  nominations  were  made  at  this  meeting  for  any  of  these  offices. 
The  election  of  these  officers  took  place  on  the  following  day,  August  5th.  In 
accordance  with  the  nominations  made  at  the  meeting  held  on  the  evening  of 
August  4th,  two  sets  of  printed  ballots  were  prepared,  and  deposited  near  the 
ballot  box  at  the  voting  place.  These  ballots  were  in  the  following  forms,  desig- 
nated nos.  I  and  2 : 

N(x  X 
FOR    TRUSTEES  FOR    TRUSTEE 

Full  term  Short  term 


William  F.  White 
John  G.  More 
W.  D.  Burns 


FOR    TRUSTEES 
Full  term 

William  F.  Wliite 
John  G.  More 
W.  D.  Burns 


No.  a 


R.  C.  Reed 

FOR    CLERK 

R.  W.  Scott 

FOR    TRUSTEE 
Short  term 

William  M.  Peck 

FOR    TRUSTEE 

R.  W.  Scott 


When  the  polls  were  closed  and  the  votes  counted  it  appeared  that  two  other 
sets  of  ballots  had  been  prepared  and  voted.  These  ballots  were  in  the  following 
forms,  designated  nos.  3  and  4: 


FOR    TRUSTEES 
Full  term 

E.  W.  Harris 
John  G.  More 
W.  D.  Burns 


John  G.  More 
W.  D.  Burns 


FOR 


No.  3 

FOR    TRUSTEE 
Short  term 

William  M.  Peck 

FOR    CLERK 

R.  W.  Scott 

No.  4 
SCHOOL    TRUSTEES 

William  M.  Peck 
R.  C.  Reed 


Twenty-six  electors  voted  ballot  no.  i ;  13,  ballot  no.  2  ;  13,  ballot  no.  3  ;  and  6, 
ballot  no.  4.    One  ballot  was  cast  the  same  in  form  as  no.  3,  except  that  the  name 


200  THE   UNIVERSITY   OF  THE   STATE   OF   NEW  YORK 

of  R.  C.  Reed  was  written  in  the  place  of  W.  D.  Burns.  There  were  thus  59 
ballots  cast.  The  trustees  acting  as  canvassers  counted  the  votes  for  trustee  and 
announced  the  result  to  be  as  follows :  John  G.  More,  59 ;  William  F.  White,  39 ; 
W.  D.  Burns,  57;  E.  W.  Harris,  14;  R.  C.  Reed,  33 ;  William  M.  Peck,  33.  They 
then  declared  that  John  G.  ]\Iore,  William  F.  White  and  W.  D.  Burns  had  been 
elected  as  trustees  for  the  full  term,  and  that  as  R.  C.  Reed  and  William  ]\I.  Peck 
had  each  received  33  votes  there  was  no  election  of  trustee  for  the  short  term. 

The  provision  of  the  Consolidated  School  Law  relative,  to  ballots  at  elec- 
tions of  district  officers  in  union  free  school  districts  having  more  than  300  chil- 
dren of  school  age,  is  as  follows :  "  Such  ballots  shall  contain  the  names  of  the 
persons  voted  for,  and  shall  designate  the  office  for  which  each  one  is  voted.  The 
ballots  may  be  either  written  or  printed,  or  partly  written  and  partly  printed." 
There  were  three  trustees  to  be  elected  in  this  district  for  a  regular  term  of 
three  years.  There  was  one  trustee  to  be  elected  for  an  unexpired  term  of  one 
year.  To  comply  with  the  statute  it  was  necessary  that  each  elector  should 
designate  on  his  ballot  the  persons  for  whom  he  wished  to  vote  for  the  full  term, 
and  the  person  for  whom  he  wished  to  vote  for  the  short  term.  He  could  only 
vote  for  three  for  the  full  term  and  for  one  for  the  short  term.  The  three  can- 
didates receiving  the  greatest  num.ber  of  votes  for  trustees  for  the  full  term  and 
the  candidate  receiving  the  greatest  number  of  votes  for  trustee  for  the  short 
term  should  have  been  declared  elected.  The  first  question  pertains  to  the  validity 
of  the  six  ballots  cast  in  the  form  above  designated  as  no.  4.  The  names  of  both 
Reed  and  Peck,  the  two  opposing  candidates  for  the  short  term,  appear  upon 
these  ballots,  that  of  Peck  being  printed  and  that  of  Reed  being  written  at  the 
end  of  the  ballot  with  the  name  of  White  marked  off.  The  appellant  contends 
that  the  striking  out  of  the  name  of  White,  who  was  a  candidate  for  trustee  for 
the  full  term,  and  adding  Reed's  name  at  the  end,  and  leaving  on  that  of  Peck, 
indicates  the  intent  of  the  elector  to  vote  for  Reed  for  the  long  term  in  the  place 
of  White,  and  for  Peck  for  the  short  term.  I  do  not  think  this  contention  can 
be  sustained.  There  is  nothing  on  the  face  of  these  ballots  indicating  the  prefer- 
ence of  the  voters  in  respect  to  the  two  opposing  candidates  for  trustee  for  the 
short  term.  A  person  who  can  identify  a  ballot  cast  by  him  for  a  school  officer 
will  be  permitted  to  explain,  on  appeal,  ambiguities  and  uncertainties  contained 
therein,  to  the  end  that  his  intent  may  be  ascertained  and  his  vote  counted  in 
favor  of  the  candidate  of  his  choice.  The  voter's  intent  must,  however,  clearly 
appear  by  definite,  positive  and  unequivocal  statements.  In  the  absence  of  suffi- 
cient evidence  to  establish  such  intent  these  ballots  must  be  declared  fatally  defect- 
ive and  therefore  void.  Four  of  the  six  persons  voting  these  ballots  have  made 
affidavit  to  the  effect  that  they  intended  to  vote  for  More,  Burns  and  Reed  for 
trustees  for  the  long  term,  and  for  Peck  for  trustee  for  the  short  term,  and  three 
of  these  four  also  made  affidavit  that  they  supposed  the  four  candidates  were  all 
in  the  same  class  and  that  they  did  not  know  that  some  were  candidates  for  the 
long  term  and  others  for  the  short  term.  I  am  of  the  opinion  that  these  affidavits 
are  not  sufficient  to  explain  the  preferences  of  the  voters  casting  these  ballots 
and  that  they  should  not  therefore  have  been  counted. 


JUDICIAL    decisions:       elections  201 

The  remaining  question  is  in  respect  to  the  ballot  in  the  same  form  as  no. 
3,  on  which  the  name  of  W.  D.  Burns  was  erased  and  that  of  R.  C.  Reed  was 
written  in  place  thereof.  This  ballot  must  be  counted  as  a  vote  for  Reed  for 
trustee  for  the  long  term,  and  as  a  vote  for  Peck  for  the  short  term. 

All  the  ballots  actually  cast  at  this  election  have  been  submitted  by  the 
respondents  on  this  appeal  and  a  recanvass  is  therefore  possible.  Applying  the 
holdings  heretofore  made  such  ballots  should  have  been  counted  as  follows: 
Total  votes  cast  53.  Trustees  for  long  term,  John  G.  ]More.  53 ;  William  F. 
White,  33  ;  W.  D.  Burns,  52;  E.  W.  Harris,  14;  R.  C.  Reed,  i.  Trustee  for  short 
term,  WilHam  '}.!.  Peck,  27;  R.  C.  Reed,  26.  It  thus  appears  that  John  G.  More, 
W.  D.  Burns  and  William  F.  White  were  elected  trustees  for  the  full  term  of 
three  years,  and  that  W.  M.  Peck  was  elected  trustee  for  the  unexpired  term, 
and  I  so  decide. 

The  appeal  herein  is  sustained. 

It  is  hereby  ordered,  That  so  much  of  the  proceedings  of  the  annual  election 
of  union  free  school  district  no.  i,  town  of  Walton,  county  of  Delaware,  held 
August  5,  1908,  as  declared  the  vote  for  the  office  of  trustee  in  such  district,  to 
fill  the  vacancy  caused  by  the  resignation  of  J.  A.  Holley,  to  be  a  tie,  is  hereby 
set  aside. 

It  is  hereby  further  ordered.  That  William  M.  Peck  who  is  hereby  declared 
to  have  been  elected  at  such  election  to  fill  such  vacancy,  on  and  after  the  filing 
of  this  decision  as  hereinafter  directed,  shall  be  a  member  of  the  board  of  educa- 
tion of  such  district  for  a  term  to  expire  at  the  time  of  the  annual  election  in 
1909,  and  that  he  shall  perform  the  duties  and  have  the  powers  imposed  or 
conferred  by  law  upon  the  members  of  such  board. 


5299 

In  the  matter  of  the  appeal  of  Alva  J.  Sibbett  from  the  action  of  a  meeting  of 

school  district  no.   13,  towns  of  Manchester  and  Palmyra. 
An   election  will  be   set  aside   when   it   is   shown  that   all  who   desired  to  vote   were  not 

accorded  that  privilege. 
Decided  January  2,  1907 

S.  R.  &  B.  C.  Williams,  attorneys  for  appellant 
Durfee  &  Lines,  attorneys  for  respondents 

Draper,  Commissioner 

The  last  annual  meeting  of  this  district  convened  August  7th,  the  date  set 
by  law,  elected  a  trustee  and  other  officers,  transacted  the  usual  business  coming 
before  an  annual  meeting  and  adjourned  to  a  future  date  to  consider  the  ques- 
tion of  erecting  a  new  school  building.  Five  meetings  were  held  between  the 
date  of  the  annual  meeting  and  October  18,  1906.     There  can  be  no  doubt  but 


202  THE   UXIVERSITY    OF   THE   STATE   OF   NEW   YORK 

that  the  meeting  adjourned  for  a  special  purpose.  No  other  business  was  con- 
sidered at  any  of  these  meetings  except  that  relating  to  the  erection  of  a  new 
building  until  the  fifth  meeting  held  on  the  i8th  day  of  October.  jMr  Lines, 
one  of  the  attorneys  representing  respondents,  is  clerk  of  the  district  and  kept 
the  record  of  the  proceedings  of  these  several  meetings.  His  record  of  the 
proceedings  of  the  meeting  of  August  21  st  states  that  the  object  of  the  meet- 
ing was  as  follows:  "The  purpose  of  the  meeting  being  the  consideration 
of  the  question  of  altering  and  repairing  the  schoolhouse  or  building  a  new 
one."  Again  in  stating  the  object  of  the  meeting  held  September  4th,  Mr 
Lines  said:  "To  consider  the  matter  of  building  a  new  schoolhouse."  It 
was  generally  understood  that  the  meeting  was  to  consider  the  question  of 
erecting  a  new  schoolhouse  and  nothing  else.  It  is  unnecessary,  however,  to 
determine  whether  an  annual  meeting  adjourned  for  a  special  purpose  may  con- 
sider at  the  adjourned  meeting  any  question  which  rnight  come  before  the  annual 
meeting  in  order  to  decide  the  real  question  involved  in  this  appeal.  At  the 
fifth  adjourned  meeting  it  was  voted  to  increase  the  number  of  trustees  from 
one  to  three  and  the  meeting  elected  two  additional  trustees.  If  this  meeting 
had  the  right  to  elect  such  trustees  it  was  necessary  that  the  election  should  be 
held  as  the  statutes  require.  Under  the  law  the  election  of  trustees  must  be  by 
ballot  and  this  means  that  each  voter  present  must  be  allowed  the  privilege  of 
voting  for  a  trustee  if  he  desires  to  do  so.  This  Department  has  repeatedly  held 
in  appeal  cases  that  a  district  meeting  can  not  legally  elect  a  trustee  by  directing 
the  clerk  or  some  other  person  to  cast  the  vote  of  the  meeting  for  a  particular 
person.  W^hen  an  election  has  been  held  under  such  method  of  voting  and  an 
appeal  therefrom  has  been  brought  to  this  Department  such  election  has  been 
set  aside.  It  is  claimed  by  appellant  that  in  addition  to  the  two  nominees  for 
whom  the  clerk  cast  a  ballot  two  other  persons,  namely,  Jordan  Snook  and 
William  F.  Garlock  were  nominated.  Frank  E.  Blossom,  a  voter  of  the  district, 
swears  that  he  nominated  Snook  and  Garlock.  William  Young,  another  voter 
of  the  district,  swears  that  he  seconded  such  nominations.  Garlock  swears  that 
he  heard  his  nomination  and  that  of  Snook  made  by  Blossom  and  seconded  by 
Young.  Five  other  voters  of  the  district  swear  that  such  nominations  were 
made  and  seconded  and  that  neither  of  such  nominees  declined.  The  pleadings 
of  respondents  contain  several  affidavits  including  that  of  the  chairman  of  the 
meeting  to  the  effect  that  they  did  not  hear  the  nomination  of  Garlock.  The 
chairman  of  the  meeting  also  swears  that  at  such  time  there  was  considerable 
talking  in  a  low  voice  in  the  room.  They  admit  Snook  was  nominated  but  claim 
he  declined.  Appellant  claims  that  Snook  declined  when  nominated  for  chair- 
man of  the  meeting  but  he  did  not  decline  the  nomination  for  trustee. 

Respondents  admit  that  after  the  clerk  had  cast  a  vote  for  the  trustees  the 
question  of  other  nominations  was  raised  and  that  it  was  claimed  such  nomina- 
tions had  not  been  seconded.  It  is  not  necessary  that  nominations  shall  be 
seconded.    A  voter  may  vote  for  any  person  he  desires  in  an  election  of  trustees 


JUDICIAL    DECISIONS  :       ELECTIONS  203 

even  if  such  person  has  not  been  nominated.  It  is  not  necessary  that  all  per- 
sons present  at  a  meeting  shall  vote.  They  must,  however,  be  given  the  oppor- 
tunity to  vote.  Where  it  is  apparent  that  there  is  no  contest  at  an  election  it  is 
unnecessary  for  all  to  vote.  However,  in  such  case  even,  the  polls  should  be 
opened  and  one  or  more  votes  cast.  The  chairman  might  then  ask  if  there  are 
others  who  desire  to  vote  and  must  give  them  ample  opportunity  to  do  so.  He 
should  also  announce  that  if  there  are  no  others  desiring  to  vote  the  polls  will 
be  closed.  This  action  should  be  taken  deliberately  to  the  end  that  any  person 
desiring  to  vote  may  do  so.  The  polls  may  then  be  closed.  All  the  require- 
ments of  subdivision  4,  section  14,  title  7  should  be  strictly  followed.  Elections 
which  are  not  held  in  accordance  with  the  statutes  can  not  be  upheld. 

It  appears  from  respondents'  pleadings  that  the  question  of  directing  the 
clerk  to  cast  the  vote  of  the  district  for  trustee  was  not  voted  upon.  A  motion 
to  that  effect  was  made  but  was  not  put  by  the  chairman.  It  appears  that  the 
chairman  directed  the  clerk  to  cast  the  vote.  He  announced  that  if  there  was 
objection  a  vote  was  necessary,  but  only  waited  20  seconds  for  objection.  The 
whole  election  appears  to  have  taken  place  in  about  one  minute  and  thereafter 
appellant  inquired  about  the  votes  for  the  other  nominees.  Under  all  the  cir- 
cumstances it  must  be  held  that  the  election  in  question  was  illegal. 

The  appeal  herein  is  sustained. 

It  is  ordered.  That  the  action  of  a  special  school  meeting  of  school  district 
no.  13  of  the  towns  of  Manchester  and  Palmyra,  held  on  the  i8th  day  of  Octo- 
ber 1906,  in  electing  Joseph  Blossom  and  S.  M.  Short  trustees  of  said  district 
be  and  the  same  is  hereby  vacated. 


3822 

In  the  matter  of  the  appeal  of  Charles  P.  Hills,  Garit  Van  Vranken  and  others  v. 
school  district  no.  7,  of  the  town  of  Watervliet.  county  of  Albany. 

Proceedings  of  an  annual  school  meeting  set  aside  and  new  election  ordered  where  it 
appeared  that  a  large  number  of  voters  present  thereat  had  no  opportunity  to  vote 
upon  the  question  of  the  election  of  a  trustee. 

Decided  November  8,  1889 

O'Brien  &  Addington,  attorneys  for  appellants 
John  H.  Gleason,  attorney  for  respondents 

Draper,  Superintendent 

The  appellants  allege  that  at  the  annual  school  meeting  in  the  above  named 
district,  the  chairman  of  the  meeting  arbitrarily  declared  one  Jeremiah  Sicker 
elected  trustee  for  the  ensuing  year,  without  affording  the  voters  present  an 
opportunity  to  express  their  wishes  in  the  matter.  They  say  Sicker  was  first 
nominated  and  that  Aaron  Pease  was  also  nominated,  and  that  the  chairman 


204  THE   UXIVERSITY    OF   THE   STATE    OF    NEW    YORK 

disregarded  the  last  nomination,  put  the  afiirmative  of  the  question  on  the 
election  of  Sicker,  and  without  putting  the  negative,  or  affording  the  opponents 
of  Sicker  an  apportunity  to  vote  against  him,  declared  him  elected.  The  chairman 
and  others  deny  this  and  say  that  both  sides  of  the  question,  on  the  election  of 
Sicker,  were  put  to  the  assemblage,  and  that  no  one  voted  against  him.  It  is 
alleged  on  one  side,  and  denied  on  the  other,  that  the  proceedings  were  ver}'- 
disorderly.  It  is  difficult  to  determine  all  the  facts  in  the  matter,  so  opposed 
are  the  statements  of  the  parties.  But  it  is  evident  from  these  conflicting  state- 
ments, that  there  were  two  distinct  parties  present  at  the  school  meeting,  each 
with  a  candidate  for  the  office  of  trustee,  and  it  is  scarcely  conceivable  that  the 
members  of  one  of  these  parties  would  have  suffered  their  opponent  to  be  elected 
without  casting  a  vote  against  him,  if  the  opportunity  had  been  afforded  them. 
On  the  side  of  the  appellants,  21  men  swear  that  they  were  present  at  the  meet- 
ing, intending  to  vote  against  Sicker,  and  were  prevented  from  doing  so  by  the 
arbitrary  course  of  the  chairman.  They  swear  also  that  not  more  than  14 
persons  were  present  in  his  favor.  The  respondents  fail  to  controvert  this 
material  and,  I  think,  controlling  fact. 

In  view  of  this,  it  seems  to  me  that  there  should  be  a  new  election  ordered, 
that  the  respective  parties  may  at  least  have  an  opportunity  for  demonstrating 
which   has   a   majority   of   adherents. 

The  appeal  is  sustained.  The  alleged  election  of  Jeremiah  Sicker,  as  trustee, 
is  declared  void,  and  the  district  clerk  is  directed  to  give  legal  notice  of  a  special 
meeting  for  the  purpose  of  electing  a  trustee,  to  be  held  not  less  than  ten  nor 
more  than  twenty  days  from  the  date  hereof. 


3^14 

In  the  matter  of  the  appeal  of   Fred  G.   Batty  v.  Michael   Moran,  trustee  of 
school  district  no.  2,  of  the  town  of  Easton,  county  of  Washington. 

The   arbitrary  course  of  the  chairman   of   a   district  meeting   in   declaring  himself   elected 

trustee  will  not  be  sustained. 
Decided  September  29,  1889 

B.  E.  Center,  attorney  for  appellant 
L.  S.  Pratt,  attorney  for  respondent 

Draper,  Superintendent 

At  the  annual  meeting  held  in  the  above-named  district  on  the  6th  day  of 
August  1889,  Michael  Moran  was  made  chairman  of  the  meeting.  The  appellant 
alleges  that,  immediately  after  organization,  a  motion  was  made  that  the  said 
Moran  be  elected  trustee  for  the  ensuing  year,  when  the  appellant  moved  as  an 
amendment  that  the  meeting  proceed  to  ballot  for  trustee ;  that  the  chair  refused 
to  entertain  the  amendment,  and  proceeded  to  take  a  vote  on  the  original  motion ; 


JUDICIAL    DECISIONS  :       ELECTIONS  205 

that  three  or  four  voted  in  the  affirmative  and  some  twenty  in  the  negative, 
but  that  the  chairman  declared  the  motion  adopted  and  himself  elected  as  trvistee. 

The  respondent  answers  and  denies  these  allegations.  He  says  that  there 
was  no  motion  made  to  elect  a  trustee  by  ballot  until  after  the  motion  that  he  be 
elected  trustee  had  been  adopted. 

The  appellant  alleges  that  there  were  but  twenty-five  persons  present  at  the 
meeting.  This  is  not  denied  by  the  respondent.  Twenty-two  persons  swear 
that  they  were  present  and  sustain  the  state  of  facts  as  alleged  by  the  appellant. 
Six  persons  swear  to  tlie  facts  as  set  forth  by  the  respondent. 

The  preponderance  of  proof,  therefore,  is  with  the  appellant.  The  fact  that 
the  chairman  of  the  meeting  was  himself  a  candidate  for  trustee  should  at  least 
have  caused  him  to  have  desired  that  the  manner  of  voting  should  be  in  accord 
with  the  wishes  of  his  opponents. 

It  seems  that  the  meeting  was  characterized  by  much  disorder,  and  it  is 
alleged  that  forcible  possession  of  the  meeting  was  taken  by  the  opponents  of 
Moran,  who  selected  another  chairman  and  proceeded  to  hold  another  election 
for  trustee,  and  to  elect  other  officers.  In  view  of  all  the  circumstances,  I  do  not 
feel  justified  in  upholding  this  last-mentioned  meeting. 

The  appeal  is  sustained,  the  alleged  election  of  Moran  declared  to  be  null 
and  void,  and  the  clerk  of  the  district  is  directed  to  give  public  notice  of  a  time 
and  place  for  a  special  meeting  of  the  district  to  transact  the  business  of  the 
annual  meeting. 


3656 

In  the  matter  of  the  appeal  of  John  B.  Aikens  v.  school  district  no.  9,  town  of 

Butler,  county  of  Wayne. 

Unless  it  can  be  shown  that  persons  alleged  to  be  illegal  voters  were  such,  and  that  their 
votes  might  have  changed  the  result,  the  action  of  a  district  meeting  at  which  they 
voted  will  not  be  disturbed. 

Want  of  mental  capacity  to  do  ordinary  business  held  not  to  disqualify  a  voter  at  a  school 
meeting. 

Decided  December  10,  18S7 

Draper,  Superintendent 

At  the  last  annual  meeting  in  school  district  no.  9,  town  of  Butler,  county 
of  Wayne,  it  was  agreed  to  elect  a  trustee  by  ballot.  Upon  the  first  ballot  the 
result  was  a  tie,  and  the  meeting  proceeded  to  another  ballot  which  resulted  in 
a  majority  of  one  for  Elias  H.  Cady.  Upon  this  ballot  two  persons,  namely, 
William  Gould  and  Charles  Cornell,  upon  offering  to  vote  were  challenged,  and 
they  each  took  the  oath  and  deposited  their  ballots.  The  appellant  insists  that 
these  persons  were  not  qualified  electors  of  the  district  at  the  time  of  the  meet- 
ing, and  that  they  had  not  mental  capacity  to  transact  ordinary  business. 

The  appeal  can  not  be  sustained.  It  is  not  shown  that  the  two  persons 
whose  votes  are  objected  to  voted  for  the  prevailing  side.  It  is  claimed  that 
they  were  not  qualified  electors  of  the  district,  but  I  am  inclined  to  think  that 


206  THE   UNIVERSITY    OF   THE   STATE    OF    NEW   YORK 

the  proof  submitted  by  the  respondent  establishes  their  right  to  vote,  on  the 
ground  that  they  rent  real  estate  Hable  to  taxation,  and  reside  in  the  district, 
and  were  of  the  statutory  age.  There  is  nothing  in  the  claim  that  they  had  not 
sufficient  mental  capacity  to  transact  ordinary  business.  Unfortunately  that  is 
no  disqualification,  if  it  were  true,  but  whether  it  was  or  not  it  is  not  important 
to  consider. 


3652 

In  the  matter  of  the  appeal  of  Charles  Schafer,  a  resident  of  school  district  no. 
3,  town  of  Clarence,  Erie  county,  v.  the  proceedings  of  the  annual  school 
meeting,  held  in  said  district,  August  30,  1887. 

An  election  in  a  school  district  will  not  be  overthrown  because  alleged  legal  voters  did 

not  vote  or  offer  to  vote. 
Any  voter  may  freely  challenge  the  right  of  another  offering  to  vote. 
Decided  December  8,  1887 

Draper,  Superintendent 

This  appeal  is  taken  by  Charles  Schafer,  a  resident  of  school  district  no.  3, 
town  of  Clarence,  Erie  county,  from  the  proceedings  of  the  annual  school  meet- 
ing in  the  election  of  a  trustee,  and  from  the  ruling  of  the  chairman  of  said 
meeting  in  excluding  from  voting  the  appellant,  Fremont  Danser  and  Henry 
Reigle,  all  o|  whom  the  appellant  alleges  were  legal  voters.  It  is  claimed  that 
the  appellant  and  Danser  were  tenants  of  real  estate  and  the  parents  of  children 
of  school  age,  who  had  attended  upon  the  school  the  year  previous,  and  that 
Henry  Reigle  was  a  person  liable  to  assessment  for  personal  property. 

Had  these  men  been  permitted  to  vote,  the  result  of  the  election  would  have 
been  a  tie  vote  between  the  opposing  candidates.  The  respondent  answers  that 
these  men  did  not  offer  to  vote ;  that  the  chairman  simply  stated  that  all  who  did 
not  pay  taxes  would  be  required  to  swear  in  their  votes,  intending  to  imply  that 
he  would  challenge  all  such  persons. 

There  was  an  irregularity  at  the  election,  which  was  held  by  ballot.  One 
person  voted  whose  right  to  do  so  was  questioned  and  he  consented  that  his 
ballot  might  be  withdrawn,  as  he  would  not  swear  it  in.  This  would  vitiate 
the  election  if  a  single  ballot  would  change  the  result.  In  this  case  it  would  not. 
The  appellant  and  Messrs  Danser  and  Reigle  have  not  placed  themselves  in  a 
position  to  criticise  the  election.  If  they  claim  the  right  to  vote,  they  should 
have  offered  to  vote,  and  if  entitled  to  do  so  and  challenged,  they  should  have 
taken  the  prescribed  oath.  Any  elector  may  challenge  the  right  of  another  to 
vote.  Indeed,  only  in  this  way  may  any  illegal  votes  be  kept  from  the  ballot 
box.  The  law  expressly  provides  the  course  which  must  be  pursued  by  electors 
whose  right  to  vote  is  disputed,  and  that  course  must  be  followed.  Elections 
can  not  be  overturned  on  the  ground  that  persons  had  the  right  to  vote  and  did 
not  exercise,  nor  seriously  attempt  to  exercise  it.    The  appeal  must  be  dismissed. 


JUDICIAL    DECISIONS  :       ELECTIONS  207 

3820 

In  the  matter  of  the  appeal  of  Sylvester  Espenscheid  and  George  Robinson  v. 
school  district  no.  8,  of  the  town  of  Sodus,  in  the  county  of  Wayne. 

Where  the  proceedings  of  a  district  meeting  are  characterized  by  such  disorder  and  con- 
fusion as  to  make  it  apparent  that  no  fair  expression  of  the  opinions  or  preferences 
of  the  legal  voters  resulted  therefrom,  they  will  not  be  sustained,  but  a  special  meeting 
will  be  ordered. 

Decided  October  23,  1889 

Draper,  Superintendent 

This  appeal  is  brought  for  the  purpose  of  determining  who  was  elected 
trustee,  or  the  result  otherwise  of  the  annual  school  meeting  held  in  the  above- 
named  district.  The  papers  are  voluminous.  I  have  undertaken  to  read  them 
with  care.  After  such  reading  I  am  unable  to  determine  which  of  the  two  con- 
tending- parties  is  in  the  right.  I  am  more  inclined  to  believe  that  both  sides  are 
somewhat  at  fault  for  a  most  unfortunate  controversy  which  exists  in  the  dis- 
trict. It  is  claimed  on  one  side  that  the  annual  meeting  was  organized  before 
the  legal  time  arrived,  and  by  but  seven  persons  who  elected  a  trustee  and  trans- 
acted some  other  business,  and  that  when  some  thirty  or  forty  persons  arrived 
at  about  the  legal  time  and  undertook  to  participate  in  the  action  of  the  meeting 
and  made  motions  concerning  district  business,  the  chairman  refused  to  recognize 
them,  and  that  he  finally  declared  the  meeting  adjourned  without  motion.  On 
the  other  side  this  is  all  denied,  and  it  is  claimed  that  the  meeting  was  not  organ- 
ized until  the  proper  time  and  was  conducted  fairly.  Numerous  witnesses  swear 
squarely  against  each  other.  But  one  thing  seems  clear  to  me,  and  that  is  that 
there  was  much  confusion  and  disorder  at  the  meeting  —  so  much  so  as  to  make 
it  impossible  for  the  Department  to  sustain  the  proceedings  which  are  claimed  to 
have  been  taken  either  by  one  side  or  the  other. 

I  have  therefore  concluded  to  hold  that  no  district  meeting  was  regularly 
held,  and  that  a  special  meeting  should  be  called  for  the  purpose  of  transacting 
the  business  which  devolved  upon  the  annual  meeting. 

It  is  therefore  ordered  that  the  district  clerk  of  said  district  no.  8,  of  the 
town  of  Sodus  and  county  of  Wayne,  call  a  special  meeting  of  the  district  for 
the  purpose  of  transacting  such  business,  not  less  than  ten  nor  more  than  twenty 
days  from  the  date  hereof. 


3752 
In  the  matter  of  the  appeal  of  Henry  Fink  v.  Patrick  Hopkins. 

The  official  minutes  of  a  district  meeting  show  the  election  of  a  certain  person  as  trustee, 
and  also  that  the  chairman  so  declared  at  the  time  of  the  election,  although  the  action 
of  the  chairman  is  disputed.  Held,  that  the  official  record  will  be  accepted  as  true, 
unless  impeached  by  clear  evidence. 


-'08  THE  UNIVERSITY    OF   THE   STATE   OF    NEW   YORK 

Illegal  voting  at  school  meetings  is  to  be  prevented  by  the  exercise  of  the  right  of  challenge 
and  the  exaction  of  the  voter's  oath  as  to  his  qualifications,  and  subsequent  punishment 
for  false  swearing,  if  the  person  challenged  is  guilty  of  the  same. 

A  person  who  merely  occupies  land  for  which  he  pays  no  rent,  and  which  he  does  not  own 
or  hire,  and  upon  which  he  is  an  occupant  by  mere  sufferance;  Iieldj  such  occupant 
not  to  be  qualified  as  a  voter. 

Decided  January  17,  18S9 

Da  vies  &  Johnson,  attorneys  for  appellant 
James  Gallagher,  attorney  for  respondent 

Draper,  Superintendent 

This  appeal  is  brought  for  the  purpose  of  determining  who  was  elected 
trustee  at  the  annual  school  meeting  held  in  August  1S88,  in  school  district  no. 
10,  of  the  towns  of  Camden,  Oneida  county,  and  Constantia,  Oswego  county. 
It  seems  that,  soon  after  the  organization  of  the  district  meeting,  an  informal 
vote  was  taken  for  the  office  of  trustee.  It  was  then  ordered  that  a  formal 
ballot  should  be  taken,  which  was  done.  On  this  ballot  17  votes  were  cast,  of 
which  8  were  for  Patrick  Hopkins,  7  for  Henry  Fink,  i  for  John  Ford  and  i 
a  blank.  A  second  formal  ballot  was  taken,  of  which  10  were  for  Henry  Fink, 
the  appellant,  and  7  for  Patrick  Hopkins. 

The  official  minutes  of  the  meeting  show  the  above  facts,  and  that  the 
chairman  declared  Fink  elected.  There  is  some  controversy  between  the  parties 
as  to  whether  there  was  an  official  declaration  of  the  result  by  the  chair,  and 
the  chairman  has  made  affidavits  on  both  sides.  I  do  not  consider  the  question 
very  material,  but  feel  justified,  under  all  the  circumstances,  in  accepting  the 
statement  of  the  official  record  as  the  true  one.  Since  the  meeting,  both  Fink 
and  Hopkins  have  claimed  to  have  been  elected.  Mr  Hopkins  claims  that  Fink 
was  not  a  qualified  elector  at  the  time  the  district  meeting  was  held,  and  there- 
fore not  eligible  to  a  district  office ;  he  also  claims  that  one  Henry  G.  Ford,  who 
voted  for  Mr  Fink,  was  not  a  qualified  elector.  On  the  other  hand,  Mr  Fink, 
the  appellant,  claims  that  Charles  Miller,  Daniel  Hopkins,  George  A.  Cook  and 
Vreeland  Prest,  who  voted  for  the  respondent,  were  not  entitled  to  vote.  No 
evidence  is  offered  by  the  appellant  to  disprove  the  qualifications  of  either  of 
the  four  persons  named,  except  as  to  Vreeland  Prest. 

The  case  must,  therefore,  turn  upon  the  right  of  the  appellant  and  Henry 
Ford  to  vote  on  one  side,  and  of  Vreeland  Prest  on  the  other.  The  appellant 
swears  that  he  hires  real  estate  in  said  district  liable  to  taxation,  and  did  so 
during  the  year  prior  to  the  annual  meeting  referred  to.  The  fact  seems  to  be 
that  he  is  living  on  a  farm  owned  by  his  wife,  but  this  is  not  inconsistent  with 
his  claim.  Moreover,  it  seems  that  his  right  to  vote  was  challenged  at  the  annual 
meeting,  and  that  he  insisted  upon  it  and  voted.  The  law  does  not  contemplate 
the  determination  of  a  disputed  question  of  that  character  in  a  collateral  pro- 
ceeding. Its  method  of  determining  such  a  matter,  where  the  right  is  insisted 
upon,  is  to  confer  the  right  of  challenge,  exact  the  oath  of  tlie  voter,  and  punish 
him  for  false  swearing. 


JUDICIAL    DECISIONS  :       ELECTIONS  20g 

I  find  no  sufficient  ground  to  sustain  the  claim  that  the  appellant  was  not 
a  legal  voter  and  not  eligible  to  the  trusteeship.  In  the  case  of  Henry  G.  Ford, 
whose  right  to  vote  is  disputed,  he  swears  that  he  was  born  and  brought  up  in 
the  town  of  Camden,  and  has  resided  in  said  school  district  no.  lo  for  the  past 
six  years,  'and  has  during  that  time  held  the  office  of  trustee  of  said  district  for 
two  years  and  the  office  of  clerk  for  one  year,  and  has  voted  at  every  school 
meeting  held  in  said  district  during  said  time;  that  he  has  owned  real  estate, 
been  assessed  and  paid  taxes  thereon,  and  has  sent  children  to  school  in  said 
district  during  all  of  said  time,  and  that  he  is  a  legal  and  qualified  voter.  It  is 
claimed  by  the  respondent  that  Mr  Ford  lived  in  Canada  for  some  time  and  that 
he  became  a  naturalized  citizen  under  the  government  of  Great  Britain.  There 
is  no  proof  of  that  fact  offered,  and  in  the  absence  of  it,  and  in  the  face  of  his 
sworn  statement  showing  his  qualifications,  and  particularly  in  the  face  of  the 
fact  that  for  six  years  he  has  exercised  the  right  of  suffrage  in  the  district 
school  meetings,  and  during  three  years  has  held  office  in  the  district,  the  claim 
of  the  respondent  against  him  can  not  be  sustained. 

On  the  other  hand,  it  is  claimed  by  the  appellant  that  Vreeland  Prest,  who 
voted  for  the  respondent,  is  not  a  legal  voter.  Prest  claims  the  right  to  vote, 
and  founds  his  right  upon  the  fact  that  he  rents  real  property.  The  facts  regard- 
ing such  rental  do  not  very  clearly  appear.  Mr  Spencer  J.  Ford  swears  that  he 
owns  the  land  which  Prest  claims  to  rent.  Ke  admits  that  Prest  lives  upon 
said  land,  but  swears  that  he  pays  no  rent  therefor,  and  that  he  is  only  there  at 
suft'erance.  Prest,  on  the  other  hand,  does  not  even  say  that  he  hires  the  same; 
he  swears  that  he  "  occupies  "  it,  and  pays  for  the  use  by  rendering  services  to 
the  owner,  in  taking  care  of  his  stock,  etc. 

By  the  admission,  therefore,  of  Prest  himself,  his  occupancy  at  the  most,  is 
only  at  sufferance.  He  has  no  title  in  the  land.  The  owner  would  not  be 
obliged  to  serve  notice  of  dispossession  upon  him.  He  could  be  unceremoniously 
ousted  at  any  moment.  It  may  well  be  doubted  if  this  is  such  an  owning  or 
hiring  as  would  confer  upon  him  the  right  of  suffrage  at  a  school  meeting  under 
the  language  of  the  statute. 

I  therefore  come  to  the  conclusion  that,  of  the  votes  cast  upon  the  first  formal 
ballot,  there  were  seven  legal  votes  cast  for  Mr  Hopkins,  seven  legal  votes  for 
Mr  Fink,  and  one  for  John  Ford.  It  clearly  required  a  majority  to  elect.  Even 
if  all  the  votes  cast  for  the  respondent  had  been  legally  cast  by  persons  entitled 
to  vote,  he  would  not  have  been  elected  upon  that  ballot,  for  he  had  no  majority 
of  all  the  votes  cast.  This  would  be  so  considering  the  blank  ballot  as  of  no 
account.  Upon  the  second  formal  ballot  Mr  Fink  had  ten  legal  votes  and  Mr 
Hopkins  but  six. 

From  these  considerations  it  naturally  follows  that  the  appeal  must  be  sus- 
tained and  the  appellant  declared  to  be  entitled  to  exercise  the  functions  of  the 
office  of  trustee  in  the  district  named. 


2IO  THE   UNIVERSITY    OF   THE   STATE    OF    NEW   YORK 

3708 

In  the  matter  of  the  appeal  of  Hambly  T.  Orchard  v.  Ransom  Dodge  and  C.  P. 
Vail,   trustees   of   district  no.    i.   town  of   Beekman,   Dutchess  county. 

The  election  of  a  person  as  trustee  by  a  district  meeting  to  fill  a  vacancy,  held,  that  the 
person  so  chosen  would  be  entitled  to  hold  the  office  only  for  the  unexpired  term, 
and  that  the  district  meeting  could  elect  for  no  shorter  period  than  the  unexpired  term. 

Decided  September  22,  1888 

Draper,  Sitpermtendent 

This  appeal  is  brought  to  determine  the  title  of  the  appellant  to  the  office  of 
trustee  in  the  district  named.  The  respondents  are  trustees  and  refuse  to 
acknowledge  the  right  of  the  appellant  to  act  with  them  in  that  capacity.  The 
appellant  sets  forth  the  facts  to  be  as  follows : 

At  the  annual  meeting  held  in  the  district  in  1886,  Charles  A.  Stephens  was 
elected  a  trustee  for  the  full  term  of  three  years.  He  moved  from  the  district 
in  the  spring  of  1887,  and  the  supervisor  of  the  town  appointed  P.  A.  Skidmore 
to  fill  the  vacancy  thus  created.  At  the  annual  meeting  in  1887  Skidmore  was 
duly  elected  to  fill  the  vacancy.  The  appellant  claims  that  the  district  meeting 
of  1887  elected  Mr  Skidmore  for  the  term  of  one  year.  The  ininutes  of  the 
meeting  seem  to  sustain  this  claim,  but  there  seems  to  have  been  some  contro- 
versy in  the  district  as  to  whether  the  election  of  Skidmore  in  1887  was  for  one 
year  or  for  the  balance  of  the  term  to  which  Stephens  was  elected  in  1886. 
The  district  meeting  in  1888  is  shown  to  have  considered  the  subject,  and  the 
meeting  decided  that  Skidmore  had  been  elected  in  1887  but  for  one  year,  and 
thereupon  it  proceeded  to  elect  the  appellant  for  another  year.  The  respondents 
interpose  no  answer,  but  have  written  a  letter  in  which  they  admit  the  correctness 
of  the  statements  of  the  appellant  and  ask  for  an  immediate  decision. 

I  am  of  the  opinion  that  the  appellant  has  no  lawful  claim  to  the  office. 
When  the  supervisor  appointed  Mr  Skidmore  trustee  in  place  of  Mr  Stephens, 
who  had  moved  away  from  the  district,  that  appointment  was  good  until  the 
next  annual  school  meeting,  but  the  school  meeting  in  1887  had  the  power  to 
elect  a  trustee  to  fill  the  vacancy  for  the  unexpired  term.  There  were  two  years 
of  the  term  yet  to  run  and  they  had  no  power  to  elect  a  trustee  for  that  place 
for  one  year.  There  is  apparently  some  conflict  of  opinion  as  to  whether  there 
was  any  intent  to  elect  for  one  year  or  for  the  balance  of  the  term.  In  my 
judgment,  it  is  not  material.  If  the  meeting  elected  at  all,  it  must  have  been 
for  the  balance  of  the  term.  It  is  undisputed  that  there  was  an  election  and  Mr 
Skidmore  was  chosen.  That  being  so,  there  was  no  vacancy  to  fill  in  the  year 
1888,  and  the  election  of  the  appellant  at  the  school  meeting  of  18SS  is,  therefore, 
void  and  of  no  effect. 

The  appeal  is,  therefore,  dismissed. 


JUDICIAL    DECISIONS  :       ELECTIONS  211 

3568 

In  the  matter  of  the  appeal  of  Louis  Wolf  v.  John  Schaible,  jr,  and  others, 
inspectors  of  election  of   school  district  no.  2,  towns  of   !\Iiddletown  and 
Southfield,  county  of  Richmond. 
When  a  ticket  voted  at  an  election  for  trustee  contained  a  name  printed  and  another  name 

written,  the  presumption  is  that  the  voter  intended  to  vote  for  the  latter,  and  neglected 

to  erase  the  name  of  the  former. 
Where  the  ballots  cast  for  trustee  run  two  short  of  the  poll  list,  and  two  trustee  ballots  are 

found  deposited  in  another  box  at  the  same  election,  they  should  be  counted  for  the 

person  whose  name  appears  thereon. 
Decided  May  3,  1887 

Max  Huebner,  Esq.,  attorney  for  appellant 

Draper,  Superintendent 

This  appeal  is  taken  by  Louis  Wolf  from  the  action  of  the  inspectors  of 
election  of  school  district  no.  2,  towns  of  Middletown  and  Southfield,  in  the 
county  of  Richmond,  in  declaring  the  result  of  an  election  for  trustee  held  in 
said  district  August  31,  1886. 

The  allegations  of  the  appellant  are,  that  at  said  election  John  Schaible,  jr, 
Max  C.  Huebner  and  Squire  Force  acted  as  inspectors  of  election;  that  the 
appellant,  one  William  Nulty  and  one  Nelius  were  voted  for  for  trustee;  that 
the  number  of  votes  cast  was  187;  that  the  votes  were  canvassed  as  follows: 

For  Wolf,  the  appellant 9^ 

For  Nulty 84 

For  Nelius 8 


That  two  ballots  bearing  the  name  of  Louis  Wolf  for  trustee  were  found  in  the 
box  in  which  ballots  for  clerk  were  deposited,  and  two  ballots  for  clerk  found  in 
the  trustee's  box;  that  one  ballot  for  trustee  contained  the  name  of  Louis  Wolf 
printed  thereon  and  the  name  of  William  Nulty  written  thereon;  that  if  these 
three  ballots  had  been  counted,  the  vote  would  have  exactly  corresponded  with 
the  poll  list  kept  at  such  election;  that  the  ballot  containing  both  the  names  of 
Nulty  and  Wolf  was  counted  for  Nulty,  and  the  two  ballots  for  Louis  Wolf  were 
rejected,  and  at  no  time  included  in  the  coimt.  The  chairman  announced  that  no 
election  had  been  held. 

The  respondent,  Max  C.  Huebner,  for  answer  to  the  appeal  denies  that  the 
votes  as  counted  exceeded  the  poll  list,  and  while  admitting  that  there  were  two 
trustee  ballots  found  in  the  clerk's  box,  denies  that  they  were  opened  or  that 
anyone  saw  the  contents  of  the  said  ballots.  He  admits  that  a  ballot  containing 
both  the  names  of  Wolf  and  Nulty  was  counted  for  Nulty.  He  alleges  that  all 
parties  interested  have  not  been  made  parties,  and  further  alleges  that  at  least 
six  illegal  votes  were  cast  for  W^olf,  and  asks  that  the  matter  be  referred  to  the 
school  commissioner  of  Richmond  county  to  enable  all  parties  in  interest  to 
give  testimony  therein. 


212  THE   UXIVERSITY    OF   TPIE    STATE    OF    NEW    YORK 

On  the  27th  day  of  February  18S7,  an  order  was  made,  dated  that  day,  that 
Commissioner  Theodore  Frean  should  give  notice  to  both  parties,  appellant  and 
respondent,  of  a  time  and  place  where  the  testimony  of  witnesses  for  the  respec- 
tive parties  would  be  taken  before  him  pursuant  to  law. 

On  JNIarch  8,  1887.  at  7  p.  m.,  the  commissioner  was  attended  by  counsel  for 
the  appellant  and  by  ]Max  C.  Huebner,  one  of  the  respondents,  and  the  attorney 
who  appeared  herein  for  respondents,  and  by  Squire  Force,  another  respondent 
herein,  and  announced  to  them  that  he  would  attend  at  the  Edgewater  village 
liall  on  the  12th  da}'  of  ]\Iarch  1887,  at  7  o'clock  p.  m.,  to  proceed  to  take  evidence 
herein  pursuant  to  said  order.  Both  attorneys  agreed  to  meet  at  the  time  and 
place  so  fixed.  That  at  the  date,  place  and  time  so  named,  the  commissioner 
attended  and  the  appellant  appeared  wdth  his  counsel  and  witnesses,  but  neither 
respondents  nor  counsel  appeared.  After  waiting  over  three-cjuarters  of  an  hour 
the  matter  was,  on  motion  of  appellant's  counsel,  adjourned  until  3.1arch  18, 
1887,  at  7  p.  m.  On  the  i8th  day  of  March  1887,  at  7  p.  m.,  both  appellant's  and 
respondents'  counsel  appeared,  and  respondents'  counsel  applied  for  an  adjourn- 
ment, which  was  denied,  and  respondents'  counsel  retired.  The  commissioner 
states  that  "  the  motion  was  denied  because  appellant  had  six  witnesses  present, 
five  of  whom  had  been  subpoenaed." 

The  evidence  of  the  appellant  was  thereupon  proceeded  with. 

At  the  close  of  appellant's  evidence,  the  appellant's  counsel  asked  that  a 
notice  be  served  upon  the  respondents,  Max  C.  Huebner  and  Squire  Force,  to 
attend  at  the  next  session,  to  be  held  on  Saturday,  ISIarch  28,  1887,  at  9  a.  n., 
which  was  done. 

After  waiting  some  time  on  the  adjourned  day,  one  of  the  respondents, 
Squire  Force,  appeared,  but  stated  that  he  had  no  counsel,  did  not  want  any  and 
did  not  wish  to  be  examined  and  had  no  witnesses  he  wished  examined. 

Mr  Huebner,  although  in  the  building  and  personally  notified,  did  not  appear 
before  the  commissioner. 

Thomas  W.  Fitzgerald,  an  attorney,  appeared,  and  stated  that  he  did  so  by 
direction  of  Mr  Huebner,  and  asked  for  an  adjournment.  After  waiting  two 
hours,  the  commissioner  declared  the  hearing  closed,  and  has  duly  returned  the 
evidence  taken  to  me. 

From  the  testimony  taken,  I  find  the  facts  to  be  as  follows : 

The  poll  list  kept  at  the  annual  election  showed  that  187  votes  Vv^ere  cast  for 
trustee.  In  canvassing  the  votes  deposited  in  the  trustee's  box,  it  was  found 
that  the  appellant  received  92  votes,  Nulty  84  and  Nelius  8.  There  was  one 
defective  ballot,  wdiich  was  probably  intended  to  be  cast  for  Nulty,  and  I  so 
find.    This  would  increase  his  vote  to  85. 

There  were  two  ballots  for  trustee  in  the  clerk's  box,  placed  there  by  mistake, 
which  were  cast  for  Louis  Wolf,  and  as  the  counting  of  these  two  ballots  would 
make  the  vote  cast  correspond  exactly  with  the  poll  list,  they  should  have  been 
counted  for  him.    This  would  have  increased  his  vote  to  94,  and  the  result  would 


JUDICIAL    DECISIOXS  :       ELECTIONS  213 

then  appear  as  follows:    Wolf,  94;  Nulty,  85;  Nelius,  8;  giving  Louis  Wolf 
a  clear  majority  of  i. 

I  therefore  sustain  the  appeal  and  hold  that  Louis  Wolf  was  duly  elected 
trustee  of  school  district  no.  2,  towns  of  Middletown  and  Southfield,  count}'  of 
Richmond,  at  the  annual  meeting  held  in  1SS6. 


3533 

In  the  matter  of  the  appeal  of  O.  B.  Kelsey  and  others  from  the  proceedings  of 
the  annual  school  meeting  held  August  31,   1886.  in  school  district  no.  2, 
towns  of  Little  Valley  and  Salamanca,  Cattaraugus  county. 
An  election  of  trustees  set  aside  where  it  appeared  that  but  t\vent}--t\vo  persons  voted.    \et 
the  ballot  showed  twelve  for  one  candidate  and  eleven  for  another,  one  illegal  ballot 
having  been  deposited,  and  it  is  not  made  to  appear  for  whom. 
Decided  January  7,  18S7 

Coxe  &  Whipple,  attorneys  for  appellants 

Draper,  Superintendent 

This  is  an  appeal  by  residents  and  voters  of  school  district  no.  2,  towns  of 
Little  Valley  and  Salamanca,  Cattaraugus  county,  X.  Y.,  from  the  action  of 
the  annual  school  meeting  held  August  31,  1886,  in  said  district,  at  vdiich  an 
election  for  trustee  was  held  and  James  Whalen  was  declared  elected. 

For  the  appellants,  it  is  alleged  that  but  22  persons  voted,  and  yet  the  result 
showed  23  ballots  cast,  of  which  one  Charles  Easton  was  credited  with  11  and 
James  Whalen  12.  The  names  of  11  persons,  alleged  to  be  qualified  voters,  are 
signed  to  the  appeal.  The  respondents  allege  that  23  persons  were  present  and 
that  the  vote  as  announced  was  correct,  giving  among  others  as  having  been 
present  at  the  meeting  one  Alexander  Stein;  that  said  Whalen  was  declared 
elected  trustee  by  the  chairman;  that  upon  information  and  behef  two  of  the 
persons,  Messrs  Jones  and  Watkins,  who  signed  the  appeal  and  are  alleged  to 
liave  voted  for  Easton,  were  not  qualified  voters  at  the  meeting,  and  that  one 
Chamberlain,  whose  signature  is  attached  to  appellants'  papers,  voted  for  Whalen, 
repeatedly  promised  to  do  so,  and  has  admitted  he  did. 

The  appellants  reply  and  produce  afiidavits  of  Messrs  Jones  and  Watkins, 
which  prove  that  they  are  qualified  voters,  and  also  several  affidavits  of  persons 
who  swear  that  Chamberlain  stated  to  each  of  them  that  he  voted  for  Easton  at 
the  meeting.  Also,  several  affidavits  that  Alexander  Stein  did  not  vote  at  the 
meeting,  and  that  he  admitted  he  did  not  vote. 

From  the  proofs  presented,  it  would  appear  that  only  22  voted  at  the  annual 
meeting,  and  the  result  which  showed  23  ballots,  proved  that  one  illegal  ballot 
may  have  been  cast  for  either  candidate.  I  can  not  determine  for  which  candi- 
date it  was  cast. 


214  THE   UXIVERSITY    OF   THE   STATE    OF    NEW   YORK 

I  have  reached  the  conclusion  that  the  appeal  must  be  sustained  and  the 
election  of  James  Whalen  set  aside  and  a  new  election  held. 

I  therefore  direct  the  district  clerk  to  give  notice  within  fifteen  days  from 
the  date  of  this  decision  of  a  special  meeting  to  elect  a  trustee. 


3937 

In  the  matter  of  the  appeal  of  M.  H.  Murray  v.  William  T.  Wilson,  as  trustee 
of  school  district  no.  4,  town  of  Newfane,  county  of  Niagara. 

At  an  election  for  trustee  five  persons  voted,  and  the  right  of  each  to  vote  was  promptly 
challenged.  The  presiding  officer  was  requested  to  administer  the  prescribed  oath,  but 
declined  to  do  so.    The  alleged  illegal  votes  were  received. 

These  votes  determined  the  election.  Held,  that  the  action  of  the  presiding  officer  was 
illegal  and  reprehensible,  and  a  special  election  ordered. 

Decided  December  3,  1890 

Draper,  Superintendent 

Appeal  by  an  elector  of  school  district  no.  4,  Newfane,  Niagara  county,  from 
the  action  of  the  above-named  William  T.  Wilson,  in  assuming  to  be  trustee  of 
said  district,  and  from  the  proceedings  of  a  special  meeting  held  in  said  district 
August  12,  1890,  and  the  action  of  the  chairman  of  said  meeting. 

The  appellant  alleges  that  a  ballot  for  trustee  at  said  meeting  resulted  as 
follows:  For  William  T.  Wilson,  14;  for  appellant,  9;  blank,  i;  that  five  per- 
sons voted  for  Wilson  for  trustee  who  were  not  qualified  electors ;  that  each  was 
promptly  challenged  by  appellant,  and  a  request  made  that  the  prescribed  oath 
be  administered.  This  the  chairman  declined  to  do,  and  the  illegal  votes  were 
received. 

The  chair  made  no  declaration  of  the  result  of  the  ballot.  Mr  Wilson,  how- 
ever, has  assumed  the  office.  Deducting  the  five  illegal  votes  cast  for  Mr  Wilson 
from  the  total  vote  he  lacked  a  majority,  and  consequently  there  was  no  choice 
or  election.  The  action  of  the  presiding  ofiicer  in  refusing  to  recognize  legitimate 
challenges,  was  illegal  and  reprehensible. 

The  appeal  is  sustained.  The  district  clerk  is  hereby  directed  to  forthwith 
give  notice  of  a  special  meeting  to  fill  the  vacancy  in  the  office  of  trustee,  as 
declared  by  this  decision. 


4395 

Tn  the  matter  of  the  appeal  of  Thomas  H.  Kavanaugh  from  proceedings  of  annual 

school  meeting  held  on  August  6,  1895,  in  district  no.  10,  town  of  Livonia, 

Livingston  county,  in  the  election  of  a  trustee. 

The  method  of  school  meetings  in  the  election  of  district  officers  when  but  one  candidate 

for  an  office  is  presented  of  authorizing  the  clerk  or  some  other  person  to  cast  a  ballot 

for  such  candidate  is  not  approved  and  is  not  deemed  to  be  an  election  of  such  officer 


JUDICIAL  decisions:     elections  215 

by  ballot  as  required  by  the  provisions  of  the  school  law.  The  polls  should  be  open  for 
the  reception  of  ballots  for  each  of  the  officers  to  be  elected  and  the  vote  of  every 
qualified  voter  who  presents  his  or  her  vote  should  be  received.  It  is  optional  with 
any  voter  whether  he  or  she  will  vote,  and  when  but  one  candidate  is  presented  for 
an  office  and  it  is  apparent  that  all  the  qualified  voters  present  desire  his  or  her  election 
and  the  poll  is  open  and  balloting  has  commenced,  after  all  have  voted  who  wish,  the 
ballot  may  be  closed  by  unanimous  vote  of  those  present  and  the  vote  canvassed  and 
the  vote  announced. 
Decided  October  17,  1895 

Skinner,  Superintendent 

The  appeal  in  the  above-entitled  matter  appears  to  be  intended  as  an  appeal 
from  the  election  of  one  P.  G.  Frutchey,  as  trustee  of  school  district  no.  10,  town 
of  Livonia,  Livingston  county,  at  the  annual  meeting  of  the  district  held  on 
August  6,  1895. 

The  appellant,  as  stated  in  his  appeal,  appeals  from  the  proceedings  and 
decision  of  the  chairman  of  said  annual  meeting,  one  George  L.  McDonald, 
alleging  that  said  chairman's  name  does  not  appear  on  the  assessment  roll,  and 
said  chairman  did  not  send  children  to  school  in  said  district;  that  at  said  meet- 
ing, under  the  head  of  "  nominations  in  order  for  trustee  "  a  Mr  Frutchey  was 
nominated  for  trustee,  and  a  motion  was  then  made  and  seconded  that  the  secre- 
tary be  empowered  to  cast  one  ballot  for  Mr  Frutchey;  that  the  appellant  herein 
moved  to  amend  said  motion  that  we  proceed  to  ballot  for  trustee,  and  the  amend- 
ment was  declared  lost  by  the  chairman;  that  the  chairman  did  not  put  the 
original  motion  but  ordered  the  secretary  to  cast  one  ballot  for  said  Frutchey 
against  the  remonstrance  of  the  appellant  and  other  legal  voters  present  at  said 
meeting.  The  contention  of  the  appellant,  as  stated  by  him  in  his  appeal  is,  thai 
the  chairman  not  being  a  legal  voter,  disqualified  him  as  chairman,  and  his  ruling 
made  a  material  difference  in  the  conduct  of  said  meeting  under  the  statute ;  that 
under  the  school  law,  all  district  officers  shall  be  elected  by  ballot,  and  the  chair- 
man shall  declare  to  the  meeting  the  result  of  each  ballot  as  announced  by  the 
inspectors,  etc. ;  that  the  defeat  of  the  amendment  of  the  appellant,  asking  that 
the  meeting  proceed  to  ballot  for  trustee,  did  not  amount  to  the  election  of  a 
trustee,  as  it  simply  asked  that  the  meeting  proceed  to  elect  officers  as  required 
by  the  statute,  and  in  the  'event  of  any  officer  being  elected  in  any  other  manner, 
said  election  must  necessarily  be  void. 

No  copy  of  the  proceedings  of  said  annual  meeting  accompanied  the  appeal 
nor  is  there  any  affidavit  in  support  of  said  appeal  annexed  thereto  or  presented 
therewith. 

One  Wilbor  C.  Turner,  claiming  to  be  the  clerk  of  said  school  district  has 
filed  an  answer  to  said  appeal,  which  answer  consists  of  a  verified  copy  of  the 
proceedings  of  said  annual  meeting,  and  annexed  is  an  affidavit,  signed  and 
sworn  to  by  seven  persons  who  allege  they  are  legal  voters  of  said  district,  and 
attended  said  annual  meeting,  and  that  said  minutes  of  said  meeting  are  correct 
to  the  best  of  their  memory  and  belief. 

By  said  copy  of  the  minutes  of  the  proceedings  of  said  annual  meeting  it 
appears  that  said  meeting  was  called  to  order  by  the  clerk  of  the  district  for  the 


2l6  THE   UNIVERSITY    OF   THE   STATE   OF    XEW   YORK 

preceding  school  year,  and  that  L.  M.  Coe  was  nominated  as  chairman,  but  he 
declining  to  act,  one  George  L.  McDonald  was  nominated  and  elected  chairman; 
that  W.  C.  Turner  was  elected  district  clerk  and  L.  H.  Chamberlin  collector;  that 
a  motion  was  made  and  seconded  that  the  clerk  cast  one  ballot  for  P.  G.  Frutchey 
for  trustee,  which  motion  was  amended  so  as  to  read  "  that  the  meeting  proceed 
to  ballot  for  trustee  "  and  such  amendment  was  lost ;  that  the  original  motion, 
that  the  clerk  cast  one  ballot  for  P.  G.  Frutchey  for  trustee,  was  unanimously 
carried,  and  the  said  clerk  cast  a  ballot  for  said  Frutchey  for  trustee  who  was 
declared  elected  by  the  chairman,  and  thereupon  the  meeting  adjourned. 

The  burden  is  upon  the  appellant  to  establish  his  appeal  by  a  preponder- 
ance of  proof. 

The  appellant  has  failed  to  sustain  his  allegation  in  the  appeal  that  the 
chairman  of  said  meeting  was  not  a  qualified  voter  of  the  district.  It  Vv'as  incum- 
bent upon  the  appellant  herein,  in  charging  that  said  chairman  was  not  a  qualified 
voter  in  said  district  to  show  by  evidence  the  lack  of  qualifications  on  the  part  of 
said  chairman  in  such  terms  as  necessarily  to  exclude  ever}^  presumption  that 
he  could  be  qualified  under  either  of  the  heads  stated  in  section  ii,  article  i, 
title  7,  of  the  Consolidated  School  Law  of  1894.  The  appellant  alleges  in  his 
appeal  that  the  "  chairman's  name  does  not  appear  on  the  assessment  roll  and 
said  chairman  does  not  send  children  to  school  in  this  district."  A  person  whose 
name  does  not  appear  on  the  assessment  roll  and  does  not  send  children  to  school 
m  his  district  may  notwithstanding  be  a  qualified  voter  in  the  district  under  the 
provisions  of  said  section  11,  above  cited.  Under  the  provisions  of  the  Consoli- 
dated School  Act  of  1864,  chapter  555,  of  the  Laws  of  1864,  prior  to  April  29, 

1893,  no  method  was  prescribed  as  to  the  election  of  school  district  officers, 
except  in  districts  having  more  than  three  hundred  children.  By  chapter  500, 
of  the  Laws  of  1893,  which  was  approved  by  the  Governor  on  April  29,  1893, 
and  became  operative  on  that  date,  subdivision  4,  of  section  16,  of  title  7,  of  said 
chapter  555,  of  the  Laws  of  1864  was  amended  requiring  that  such  district  officers 
shall  be  elected  by  ballot.  Section  14,  article  i,  title  7,  of  the  Consolidated  School 
Law  of  1894,  chapter  556  of  the  Laws  of  1894,  which  took  effect  on  June  30, 

1894,  enacts  that  all  such  district  officers  shall  be  elected  by  ballot  and  prescribes 
the  manner  in  which  such  elections  shall  be  conducted. 

It  does  not  appear  that  at  said  annual  school  meeting  in  said  district  that  a 
suitable  ballot  box  was  provided  by  the  trustee,  nor  that  two  inspectors  of  elec- 
tion were  appointed  in  the  manner  determined  by  the  meeting,  nor  that  a  poll 
list  was  kept  containing  the  name  of  every  person  whose  vote  was  received  was 
kept  by  the  district  clerk  or  the  clerk  for  the  time  of  the  meeting,  nor  that 
written  or  printed  or  partly  written  and  partly  printed  ballots  containing  the 
name  of  the  persons  voted  for  for  the  respective  ofiices  of  trustee,  district  clerk 
and  collector  were  cast  by  the  qualified  voters  of  the  district  present  at  such 
meeting  and  desiring  to  vote,  nor  that  any  such  vote  was  canvassed  by  such 
inspectors  of  election  and  the  result  of  the  ballot  announced  to  the  chairman  of 
the  meeting,  and  by  said  chairman  to  the  meeting.  The  copy  of  the  proceedings 
of  said  meeting,  as  set  out  in  the  answer  to  the  appeal,  fails  to  state  that  two 


JUDICIAL    decisions:       elections  21/ 

inspectors  of  election  were  appointed  or  that  a  poll  list  was  kept.  It  is  stated 
that  W.  C.  Turner  was  elected  clerk  and  L.  H.  Chamberlin  was  elected  collector, 
but  it  does  not  state  how  either  of  them  was  elected.  The  statement  therein 
relative  to  the  election  of  a  trustee  is  as  follows :  "  A  motion  was  made  and 
seconded  '  that  the  clerk  cast  one  ballot  for  P.  G.  Frutchey  for  trustee  for  one 
year,'  which  motion  was  amended  so  as  to  read,  '  that  the  meeting  proceed  to 
ballot  for  trustee.'  The  amendment  was  lost.  The  original  motion  '  that  the 
clerk  cast  one  ballot  for  P.  G.  Frutchey  for  trustee  for  one  year  '  was  then 
unanimously  carried,  whereupon  the  clerk  cast  a  ballot  for  P.  G.  Frutchey  for 
trustee,  who  was  declared  elected  by  the  chairman." 

The  appellant  alleges  that  under  the  head  "  nominations  in  order  for  trustee  " 
said  Frutchey  was  nominated  by  one  of  the  voters  present  for  trustee,  and  then 
a  motion  was  made  and  seconded  that  the  secretary  be  empowered  to  cast  one 
ballot  for  said  Frutchey,  whereupon  the  appellant  made  the  following  amend- 
ment to  said  motion,  namely,  "  that  we  proceed  to  ballot  for  trustee ;"  that  the 
chairman  declared  the  motion  lost;  that  neither  at  that  time,  nor  at  any  other 
time  during  the  meeting  did  the  chairman  put  the  original  motion  to  vote,  but 
ordered  the  secretary  to  cast  one  ballot  for  Mr  Frutchey,  notwithstanding  an 
exception  was  then  taken  by  the  appellant  and  by  other  legal  voters  present.  It 
will  be  seen  that  the  only  conflict  between  the  appellant  and  respondent  as  to 
what  actually  occurred  relative  to  the  election  of  trustee,  is  as  to  whether  or  not 
the  chairman,  after  announcing  the  defeat  of  the  amendment  offered  by  the  appel- 
lant, put  to  vote  the  original  motion.  The  respondent  admits  that  the  election  of 
a  trustee  was  not  had  and  conducted  as  required  by  section  14,  of  article  i,  title  7, 
of  the  Consolidated  School  Law  of  1894,  above  cited;  he  admits  that  a  motion 
was  made  and  entertained  by  the  chairman  that  the  clerk  cast  one  ballot  for 
said  Frutchey  for  trustee,  and  that  the  appellant  offered  an  amendment,  that  the 
meeting  proceed  to  ballot  for  trustee.  Under  the  provisions  of  the  school  law 
every  qualified  voter  present  at  any  school  district  meeting  at  which  an  election 
of  a  district  officer  or  officers  is  had,  has  the  right  to  vote  for  the  person  or 
persons  he  desires  to  fill  such  office  or  offices,  and  neither  the  chairman  of  the 
meeting  nor  any  voter  or  voters  present  has  or  have  the  legal  power,  directly 
or  indirectly,  to  deprive  him  or  her  of  such  right. 

The  method  of  school  meetings  in  the  election  of  district  officers,  when  but 
one  candidate  for  an  office  is  presented,  of  authorizing  the  clerk  or  some  other 
person,  to  cast  a  ballot  for  such  candidate,  is  not  approved,  and  is  not  deemed  to 
be  an  election  of  such  officer  by  ballot  as  required  by  the  provisions  of  the  school 
law.  In  a  few  instances  in  which  it  has  been  indisputably  established  that  all 
the  voters  present  desired  the  election  of  a  person  nominated  for  a  district  office, 
and  no  voter  asked  that  a  ballot  be  taken  I  have  sustained  such  election;  but  I 
am  satisfied  that  even  when  there  is  no  question  but  that  the  voters  present  at 
a  meeting  are  unanimously  in  favor  of  a  candidate  for  a  district  office,  that  to 
comply  with  the  provisions  of  section  14,  of  article  i,  title  7,  of  the  Consolidated 
School  Law  of  1894,  the  polls  should  be  open  for  the  reception  of  ballots  for 
said  office,  and  the  vote  of  every  qualified  voter  who  presented  his  or  her  vote 


2l8  THE   UNIVERSITY   OF   THE   STATE   OF   NEW  YORK 

should  be  received.  It  is  optional  with  the  qualified  voter  wh.ether  he  will  vote. 
and  when  but  one  candidate  is  presented  for  an  office  and  it  is  apparent  that  all 
the  qualified  voters  desire  his  or  her  election,  and  the  poll  is  open  and  balloting 
has  commenced,  and  all  have  voted  who  wish,  by  unanimous  consent  of  the  voters 
present,  the  ballot  may  be  closed,  and  the  votes  canvassed  and  the  result 
announced. 

From  the  papers  presented  in  the  appeal  herein  I  am  satisfied  that  it  was  not 
the  unanimous  wish  of  the  qualified  voters  present  at  said  annual  meeting  in 
said  district  that  Frutchey  be  elected  trustee  of  said  district,  and  that  the  appel- 
lant herein  by  his  said  motion,  or  amendment  to  a  motion,  to  the  effect  that  the 
meeting  proceed  to  ballot  for  trustee,  was  a  request  upon  his  part  that  a  ballot 
be  taken  for  trustee  under  the  provisions  of  the  school  law,  and  such  request 
should  have  been  complied  with. 

I  find  and  decide  that  said  P.  G.  Frutchey  was  not  legally  elected  as  trus- 
tee of  said  district  at  said  annual  meeting,  nor  was  said  Wilbor  C.  Turner  legally 
elected  district  clerk  of  said  district,  nor  was  L.  H.  Chamberlin  legally  elected 
collector  of  said  district. 

The  appeal  herein  is  sustained. 

It  is  ordered.  That  all  proceedings  had  and  taken  at  said  annual  school 
meeting,  held  on  August  6,  1895,  in  said  district  no.  10,  town  of  Livonia,  Liv- 
ingston county,  relating  to  the  election  of  a  trustee,  district  clerk  and  collector  of 
said  district,  and  of  each  of  them,  be,  and  the  same  are,  and  each  of  them  is, 
vacated  and  set  aside. 

It  is  further  ordered,  That  the  trustee  of  said  district  in  office  at  the  time 
said  annual  school  meeting  in  said  district  convened,  be,  and  he  hereby  is, 
authorized  and  directed  to  call  a  special  meeting  of  the  inhabitants  of  said  district 
qualified  to  vote  at  school  meetings  of  said  district  for  the  purpose  of  electing  a 
district  clerk,  a  collector  and  a  trustee  of  said  district  for  the  present  school 
vear. 


4687 

In  the  matter  of  the  appeal  of  William  Wendell  and  others  from  proceedings  of 
annual  school  meeting  held  on  August  2,  189S,  in  district  i,  Greenfield, 
Saratoga  county,  and  the  decision  of  the  chairman  of  the  meeting  that 
Dudley  J.  Wait  was  elected  trustee. 

At  a  school  district  meeting  at  which  school  district  officers  are  elected  it  is  the  duty  of 
the  chairman  of  the  meeting  to  declare  to  the  meeting  the  result  of  each  ballot  as 
announced  to  him  by  the  inspectors  of  election,  and  the  person  or  persons  having  the 
majority  of  votes,  respectively,  for  the  several  offices,  shall  be  elected.  Such  chairman 
has  no  legal  authority  to  decide  who  is  elected  as  such  officer  or  officers. 

Decided  October  17,  1S98 

S.  M.  Richards,  attorney  for  respondents 


•      JUDICIAL    DECISIOXS:       ELECTIONS  219 

Skinner,  Superintendent 

This  is  an  appeal  relative  to  the  proceedings  taken  at  the  annual  school  meet- 
ing held  August  2,  1898,  in  district  i,  Greenfield,  Saratoga  county,  and  from  the 
decision  of  the  chairman  of  the  meeting  that  Dudley  J.  Wait  was  elected  trustee. 

Dudley  J.  Wait  and  John  B.  Easton,  the  chairman  of  said  meeting,  have 
answered  such  appeal. 

The  appellants  and  respondents  herein  admit  that  at  such  annual  school 
meeting.  Calvin  Hopkins  and  Dudley  J.  Wait  were  each  nominated  for  the  office 
of  trustee  of  said  district,  and  thereupon  a  ballot  was  taken  for  the  election  of 
a  trustee;  that  such  ballot  resulted  as  follows:  Whole  number  of  votes  cast,  31, 
of  which  Calvin  Hopkins  received  18  and  Dudley  J.  Wait  13;  that  upon  each  of 
the  13  ballots  cast  for  Wait  were  written  "  For  trustee,  D.  J.  Wait,"  and  upon 
each  of  the  18  ballots  cast  for  Hopkins  was  written  "  Calvin  Hopkins  "  only,  with- 
out the  word  "  trustee  "  or  the  words  "  for  trustee ;"  that  after  the  result  of  the 
canvass  of  the  ballots  so  cast  was  announced,  the  chairman  of  the  meeting  was 
asked  to  render  a  decision  as  to  who  was  elected  trustee,  the  said  Wait  and 
Hopkins  each  claiming  to  have  been  elected,  and  thereupon  the  said  chairman 
decided  and  declared  said  Dudley  J.  Wait  elected  to  the  office  of  trustee  of  said 
district. 

The  respondent,  Wait,  contends  that  the  ballots  cast  for  Calvin  Hopkins 
not  having  thereon  the  word  "  trustee  "  or  the  words  "  for  trustee  "  were  blanks 
and  v.ere  not  counted  in  favor  of  Hopkins,  as  they  did  not  contain  the  name  of 
the  office  for  which  they  were  cast,  namely,  trustee.  This  contention  is  not 
tenable. 

A  "  ballot  "  is  a  written  or  printed  paper  that  expresses  a  voter's  choice.  A 
"  blank  "  is  a  paper  containing  no  written  or  printed  matter,  intended  for  some 
special  use,  as  an  unwritten  or  unprinted  paper  to  be  cast  as  a  ballot.  In  the 
ballot  had  for  trustee  there  was  not  found  in  the  ballot  box  any  paper  or  papers 
containing  no  written  or  printed  matter ;  but  on  the  contrary,  there  were  found  18 
papers  each  containing  the  name  of  Calvin  Hopkins.  The  respondent,  Easton, 
alleges  that  as  the  school  law,  as  contained  in  a  circular  of  instruction  issued 
by  this  Department,  how  to  hold  annual  school  meetings,  a  copy  of  which  was 
handed  to  him  at  such  meeting,  requires  that  the  ballots  cast  must  contain  the 
name  of  the  office  for  which  they  were  cast,  he  decided  that  Wait  was  elected 
trustee.  It  is  clear  that  the  respondent,  Easton,  did  not  correctly  interpret  such 
instructions. 

It  is  true  that  on  page  2  of  said  circular  of  instructions  it  is  stated,  under 
the  heading  "  Election  of  school  district  officers  "  "  the  votes  should  be  written 
or  printed,  or  partly  written  and  partly  printed,  and  contain  the  names  of  the 
person  voted  for  as  well  as  the  office,  and  be  deposited  in  the  ballot  box  " ;  but 
on  page  8  of  such  circular,  after  stating  the  provisions  of  the  school  law  relative 
to  ballots  for  school  officers,  substantially  the  same  as  above  quoted  from  page  2, 
it  is  further  stated,  namely,  "  The  meeting  may  vote  for  persons  for  all  the  dis- 
trict offices  on  one  ballot,  or  may  vote  for  each  officer  separately.  If  the  meeting 
decides  to  vote  for  each  district  officer  separately,  as  for  example,  for  trustee,  a 


220  THE   UXIVERSITY   OF   THE    STATE    OF   NEW   YORK 

ballot  with  the  name  of  a  person  thereon,  but  without  the  designation  '  for  trus- 
tee '  will  be  legal." 

In  decision  4271,  made  by  State  Superintendent  Crooker,  October  5,  1894, 
in  the  appeal  of  Charles  Lamoreaux  and  others  from  proceedings  of  annual 
school  meeting  held  in  district  7,  Schoharie,  Schoharie  county,  on  August  7, 
1894,  Superintendent  Crooker  said:  "The  ballot  should  be  written  or  printed, 
or  partly  written  and  partly  printed,  containing  the  name  of  the  person  voted  for 
and  designating  the  office  for  which  each  is  voted.  This  latter  provision  has 
especial  reference  to  where  all  the  district  officers  are  elected  upon  one  ballot. 
When  each  district  officer  is  balloted  for  separately  the  ballot  will  be  valid, 
having  thereon  only  the  name  of  the  person  voted  for,  as  each  voter  has  knowl- 
edge of  the  office  for  which  the  ballot  is  being  taken  and  the  ballot  is  for  that 
office  only."  See  page  237,  etc.  volume  i  of  the  report  of  the  State  Superin- 
tendent of  Public  Instruction  for  1895. 

At  the  annual  school  meeting  held  August  2,  1898,  in  district  i,  Greenfield, 
Saratoga  county,  no  ballot  was  taken  for  the  election  of  all  the  officers  of  such 
district  at  one  and  the  same  time,  and  upon  one  ballot  containing  the  name  of  a 
person  for  each  office,  and  designating  the  office  for  which  each  was  voted.  A 
ballot  was  taken  for  the  office  of  trustee  only,  and  each  voter  present  and  voting 
at  the  meeting  had  knowledge  that  the  ballot  so  taken  was  for  the  office  of 
trustee  only. 

The  chairman  of  a  school  meeting  at  which  district  officers  are  balloted  for, 
has  no  legal  authority  to  decide  who  is  elected  such  officer  or  officers.  Under 
the  provisions  of  subdivision  4  of  section  14,  article  i,  title  7  of  the  Consolidated 
School  Law  of  1894,  it  is  enacted  that  after  a  canvass  of  the  votes  cast  the 
inspectors  of  election  shall  announce  the  result  of  the  ballot  to  the  chairman; 
that  the  chairman  shall  declare  to  the  meeting  the  result  of  each  ballot  as 
announced  to  him  by  the  inspectors,  and  the  persons  having  the  majority  of  votes 
respectively,  for  the  several  offices,  shall  be  elected.  The  chairman  can  only 
declare  to  the  meeting  the  result  of  the  ballot  as  announced  to  him  by  the 
inspectors  of  election;  the  school  law  determines  and  declares  who  are  elected, 
namely,  the  person  or  persons  having  a  majority  of  the  votes. 

I  decide : 

1  That  in  the  ballot  had  at  such  annual  school  meeting  for  a  trustee  for  the 
district,  the  18  ballots  found  in  the  ballot  box,  containing  on  each  the  name  of 
Calvin  Hopkins,  under  the  consolidated  school  law  and  the  decisions  of  this 
Department,  were  valid  ballots  for  said  Hopkins  as  trustee  of  the  district;  that 
the  inspectors  of  election  in  their  canvass  of  the  ballots  cast  for  trustee  should 
have  counted  said  18  ballots  for  Calvin  Hopkins  for  trustee,  and  should  have 
announced  to  the  chairman  of  the  meeting  as  the  result  of  such  canvass  as 
follows:  Whole  number  of  votes  cast  for  trustee,  31;  of  which  Calvin  Hopkins 
received  18  and  Dudley  J.  Wait  13. 

2  That  at  such  annual  school  meeting,  Calvfn  Hopkins  having  received,  in  a 
ballot  had  thereat  for  trustee,  a  majority  of  the  votes  cast,  was  duly  and  legally 
elected  trustee  of  such  district. 


JUDICIAL    DECISION'S:       ELECTIONS  221 

3  That  the  decision  or  declaration  made  by  the  chairman  of  such  meeting 
that  Dudley  J.  Wait  was  elected  trustee  of  the  district  was  without  authority  of 
law,  and  was  void. 

The  appeal  herein  is  sustained. 

It  is  ordered,  That  the  said  decision  or  declaration  made  by  John  B.  Easton, 
ns  chairman  of  the  annual  meeting  held  on  August  2.  1898,  in  district  i,  Green- 
held,  Saratoga  county,  after  the  ballot  had  thereat  for  trustee,  and  the  announce- 
ment by  the  inspectors  of  election  of  the  result  of  such  ballot  that  Dudley  J. 
Wait  was  elected  trustee  of  said  district  be,  and  the  same  is  hereby,  vacated 
and  set  aside. 


AQ02 


In  the  matter  of  the  appeal  of  John  R.  Welch  and  John  F.  Converse,  trustees 
of  school  district  no.  14,  town  of  Ellisburgh,  Jefferson  county,  from  pro- 
ceedings of  annual  school  meeting  held  in  district  no.  14,  town  of  Ellisburgh. 
Jefferson  county. 

Where  at  any  school  district  meeting  a  district  officer  is  elected  by  the  color  or  form  of  an 
election  although  not  strictly  in  accordance  with  the  school  law,  such  person  becomes  a 
de  facto  officer  of  the  district  and  as  such  is  authorized  and  required  to  perform  the 
duties  of  his  office  until  by  an  order  of  the  Superintendent  of  Public  Instruction  such 
election  is  declared  to  be  illegal  and  void.  A  person  elected  as  trustee  of  a  school 
district  by  color  of  an  election  and  no  appeal  having  been  taken  from  his  election,  he 
will  be  deemed  to  have  been  duly  elected  for  the  term  of  time  provided  for  in  the 
school  law.  The  action  of  a  school  district  meeting,  under  the  assumption  that  such 
election  was  invalid  and  thereupon  electing  a  person  to  fill  the  vacancy  assumed  by 
the  meeting  to  exist,  without  any  order  of  the  Superintendent  declaring  such  election 
invalid,  will  be  illegal  and  void. 

Decided  December  17,  1894 

A.  M.  Lefihngwell,  attorney  for  appellants 
H.  B.  Pierson,  attorney  for  respondents 

Crooker,  Superintendent 

This  appeal  is  taken  from  the  action  of  the  annual  school  meeting,  held  on 
August  7,  1894,  in  school  district  no.  14,  town  of  Ellisburgh,  Jefferson  county, 
in  the  election  of  a  trustee  of  said  district  to  fill  a  vacancy  in  place  of  one  F.  A. 
Wood;  and  from  the  election  of  one  Mrs  Mary  E.  Wood  as  such  trustee  to  fill 
such  vacancy. 

The  main  ground  upon  which  the  appeal  is  taken,  as  alleged  in  the  appeal, 
is  that  there  was  no  vacancy  in  the  office  of  trustee  of  said  district  to  be  filled 
by  said  district  meeting,  the  said  appellant,  Welch,  having  been  elected  by  color 
of  an  election,  at  the  annual  school  meeting  in  said  district  held  on  August  22, 
1894,  as  a  trustee  for  the  term  of  three  years,  and  no  appeal  having  been  taken 
from  such  election,  and  the  said  W^elch  never  having  resigned  or  refused  to 
ser\'e  or  otherwise  legally  vacate  said  office. 


'222  THE   UNIVERSITY   OF   THE   STATE   OF   NEW   YORK 

From  the  proofs  presented  the  following  facts  are  established :  At  the 
commencement  of  the  school  year  of  1893,  to  wit,  the  first  Tuesday  of  August 
1S93,  school  district  no.  14,  town  of  Ellisburgh,  Jefferson  county,  had  the  trustees, 
namely,  the  appellant,  John  R.  Welch,  whose  term  of  office  would  expire  on 
August  23,  1893,  H.  D.  Laird,  whose  term  of  office  would  expire  on  the  first 
Tuesday  of  August  1894,  and  J.  F.  Converse,  whose  term  of  office  would  expire 
on  the  first  Tuesday  of  August  1895  J  that  some  time  in  August  1893,  and  prior  to 
the  time  of  the  annual  school  meeting  in  said  district,  to  wit,  on  the  fourth  Tues- 
day of  August  1893,  the  appellant,  John  R.  Welch,  resigned  to  S.  W.  Maxson, 
then  school  commissioner  of  the  commissioner  district  in  which  said  school 
district  was  situate,  said  office  of  trustee  then  held  by  him,  which  resignation 
was  duly  accepted  by  said  Maxson;  that  no  special  meeting  of  said  school  dis- 
trict was  called  or  held  for  the  purpose  of  supplying  the  vacancy  created  in  the 
office  of  trustee  by  said  resignation  of  said  Welch;  that  on  August  22,  1893, 
the  annual  school  meeting  in  said  district  was  held,  and  among  other  acts  and 
proceedings  had  and  taken  thereat,  a  motion  was  made  that  the  clerk  be  instructed 
to  cast  one  ballot  for  John  R.  Welch,  the  appellant,  for  trustee  for  three  years, 
and  the  chairman  put  the  motion  to  a  viva  voce  vote,  and  not  being  able  to 
decide,  he  called  for  a  rising  vote,  when  16  persons  present  voted  for  the  motion 
and  14  against ;  whereupon  the  chairman  declared  the  motion  adopted,  and 
thereupon  the  clerk  of  the  meeting  cast  one  ballot  for  said  Welch  as  trustee  of 
said  district  for  three  years,  and  said  Welch  was  declared  elected  as  such  trustee ; 
that  no  appeal  has  ever  been  taken  from  the  said  action  and  proceedings  of  said 
anuual  school  meeting  to  the  Superintendent  of  Public  Instruction,  nor  any 
submission  to  him  of  the  question  as  to  the  legality  of  said  election  of  said 
A\  elch  as  trustee  upon  an  agreed  statement  of  facts  relative  to  such  election, 
signed  by  the  contesting  parties ;  that  on  December  4,  1893,  said  School  Com- 
missioner Maxson,  assuming  that  there  was  a  vacancy  in  the  office  of  trustee 
of  said  school  district  caused  by  said  resignation  of  the  ai^pellant,  Welch,  as 
aforesaid,  and  the  failure  of  the  annual  school  meeting  in  August  1893,  to  elect 
a  trustee,  and  that  such  vacancy  had  existed  for  more  than  thirty  days,  appointed 
one  F.  A.  Wood  as  trustee  of  said  school  district  to  fill  the  vacancy  in  said 
office  so  assumed  by  him,  said  Maxson,  as  existing;  that  said  appellant,  Welch, 
was  present  at  said  annual  meeting,  held  on  August  22,  1893,  and  did  not  then 
nor  has  he  since  declined  said  office  of  trustee,  nor  has  he  refused  to  serve  as  such 
trustee,  and  he  has  not  resigned  said  office  or  otherwise  legally  vacated  said 
office,  but,  on  the  contrary,  has  during  the  time  since  said  annual  school  meet- 
ing acted,  to  some  extent,  as  such  trustee ;  that  the  said  F.  A.  Wood,  between 
December  4,  1893,  and  August  7,  1S94,  did  or  performed  acts  as  such  trustee; 
that  at  the  annual  school  meeting  held  in  said  district  on  August  7,  1894,  a 
motion  was  made  that  the  meeting  proceed  to  ballot  for  a  trustee  to  fill  vacancy 
in  the  place  of  F.  A.  Wood  who  had  been  so,  as  aforesaid,  appointed  by  School 
Commissioner  Maxson  to  fill  an  assumed  vacancy,  and  the  appellant,  Welch, 
offered  an  opinion  by  A.   M.   Leffingwell  and  a   letter  of  this  Department  in 


JUDICIAL    DECISIONS  :       ELECTIONS  223 

regard  to  the  annual  school  meeting  held  on  August  22,  1893,  both  of  which 
were  read  to  the  meeting,  whereupon  a  vote  was  had  upon  said  motion  and  the 
motion  was  declared  adopted,  and  thereupon  a  ballot  was  taken  for  trustee,  and 
one  Mrs  Mary  E.  Wood  declared  elected ;  that  from  such  election  of  Mrs  Wood 
this  appeal  is  taken. 

Under  the  provisions  of  subdivision  4  of  section  15,  title  7  of  the  Con- 
solidated School  Law  of  1864  as  amended,  which  were  in  force  on  August  22, 
1893,  school  district  officers  were  required  to  be  elected  by  ballot.  It  is  clear 
from  the  proofs  that  the  appellant,  John  R.  Welch,  was  not  elected  a  trustee 
of  said  school  district  at  such  annual  meeting  in  accordance  with  the  provisions 
of  the  school  law  then  in  force.  Every  qualified  voter  at  a  school  meeting  has 
the  right  to  vote  by  ballot  for  whom  he  or  she  desires  for  any  school  district 
office,  and  such  voter  can  not  be  deprived  of  such  right  by  the  action  of  such 
meeting,  either  directly  or  indirectly.  The  method  of  electing  a  trustee  pursued 
at  said  meeting,  if  allowed  at  all,  should  only  be  allowed  when  such  motion  is 
the  unanimous  wish  of  the  qualified  voters  present  at  such  meeting.  Under  the 
school  law,  the  only  person  who  has  the  power  to  decide  whether  or  not  school 
district  officers  have  been  legally  elected  is  the  Superintendent  of  Public  Instruc- 
tion, and  the  only  method  in  which  the  question  can  be  brought  before  him  for 
a  decision  that  will  be  binding  upon  all  parties  and  the  school  district  is  by  an 
appeal  from  the  action  and  proceedings  of  the  school  meeting  on  the  election 
of  such  officers,  or  by  a  submission  to  him  of  the  question  of  the  legality  of 
such  election  by  the  contesting  parties  upon  a  statement  of  facts  agreed  upon 
and  signed  by  such  contestants.  No  appeal  or  submission,  as  above  stated,  has 
been  taken  or  made  relative  to  the  action  or  proceedings  of  said  annual  school 
meeting  held  August  22,  1893,  nor  relative  to  the  election  of  the  appellant,  Welch, 
as  trustee,  and,  therefore,  no  decision  has  been  made  by  me  that  the  election 
of  said  Welch  was  illegal. 

Where  at  any  school  district  meeting  a  school  district  officer  is  elected  by 
the  color  or  form  of  an  election,  although  not  strictly  in  accordance  with  the 
provisions  of  the  school  law,  such  person  by  such  color  of  election  becomes  a 
de  facto  officer  of  the  district,  and  as  such  de  facto  officer  is  authorized  and 
required  to  perform  the  duties  of  the  office  until  by  an  order  of  the  Superin- 
tendent of  Public  Instruction  such  election  is  declared  to  be  illegal  and  void. 
Until  a  decision  is  made  declaring  void  the  proceedings  of  the  meeting  that  elected 
him,  he  is  to  all  intents  and  purposes  a  legal  officer  of  the  district  so  far  as  the 
public  and  third  persons  are  concerned  while  acting  in  his  official  capacity  for 
the  district. 

After  said  Welch,  in  August  1893,  and  prior  to  the  annual  meeting  of  said 
district,  resigned  the  office  of  trustee  and  such  resignation  was  accepted,  there 
was  a  vacancy  in  said  office  which  could  have  been  supplied  by  a  special  meeting 
of  the  qualified  voters  of  said  district  for  the  balance  of  the  unexpired  term. 
No  such  special  meeting  was  had ;  but  at  the  annual  meeting  of  the  district, 
held  on  August  22,  1893,  the  appellant,  Welch  was,  by  the  color  or  form  of  an 


224  THE   UNIVERSITY   OF   THE    STATE    OF   NEW    YORK 

election,  elected  a  trustee  of  the  district  for  the  term  of  three  years.  When  on 
December  4,  1893.  Commissioner  Maxson  made  his  order  appointing  F.  A.  Wood 
as  trustee  of  said  district  to  fill  a  vacancy,  there  was  no  vacancy  in  the  office 
of  trustee  of  said  district  existing  then ;  and  said  commissioner  erred  in  assuming 
there  was  such  vacancy,  or  that  the  annual  meeting  held  in  August,  1893,  failed 
to  elect  a  trustee  for  the  full  term  of  three  years. 

I  find  and  decide.  That  upon  the  facts  established  herein  and  the  reasons 
hereinbefore  stated,  the  action  of  the  annual  school  meetinsf  held  in  said  district 
on  August  7,  1S94,  in  the  election  of  Mrs  Mary  E.  Wood,  as  trustee  of  said 
district,  was  illegal  and  void. 

The  appeal  herein  is  sustained. 

It  is  ordered,  That  so  much  of  the  action  and  proceedings  of  the  annual 
meeting  held  on  August  7,  1894,  in  school  district  no.  14  of  the  town  of  Ellis- 
burgh,  Jefferson  county,  as  relates  to  the  election  of  Mrs  Mary  E.  Wood,  as  a 
trustee  of  said  district,  to  fi.ll  a  vacancy  in  place  of  F.  A.  Wood,  or  any  vacancy, 
be,  and  the  same  hereby  is,  vacated  and  set  aside  as  illegal  and  void. 


4375 

In  the  matter  of  the  appeal  of  John  HoUenbeck  from  proceedings  of  annual 
school  meeting  held  on  August  6,  1895,  in  district  no.  3,  town  of  Erin, 
Chemung  county. 

An  informal  ballot  for  district  officers  is  not  recognized  in  the  school  law,  but  there  is  no 
provision  of  said  law  which  forbids  the  qualilied  voters  at  a  district  meeting  at  which 
any  district  officer  or  officers  are  to  be  elected,  from  taking  an  informal  ballot  to 
ascertain  the  views  or  wishes  of  such  voters  as  to  the  person  or  persons  to  hold  said 
office  or  offices.  When  said  meeting  adopts  a  resolution  to  take  such  informal  ballot, 
such  ballot  is  not  a  ballot  under  the  school  law  for  the  election  of  a  person  to  hll 
the  office,  and  the  ruhng  of  the  chairman  of  the  school  meeting  that  the  person  receiving 
the  majority  of  votes  was  elected  trustee  of  the  district  was  error. 

Decided  September  2-,  1895 

Skinner,  Superintendent 

The  appeal  and  affidavits  in  support  thereof,  in  the  above  entitled  matter, 
were  filed  in  this  Department  on  August  26,  1895.  ^"0  answer  to  said  appeal 
having  been  filed  in  this  Department,  the  allegations  contained  in  the  appeal 
and  proofs  are  taken  as  admitted. 

The  allegations  contained  in  the  appeal  herein,  and  affidavits  relating  to 
proceedings  taken  in  the  election  of  a  trustee  and  voting  taxes,  are  substantially 
as  follows : 

That  an  annual  school  meeting  was  held  in  district  no.  3,  town  of  Erin, 
Chemung  county,  on  August  6,  1895 ;  that  a  chairman  and  secretar}^  of  the 
meeting  and  two  inspectors  of  election  were  chosen ;  that  the  trustee  had  neglected 
to   furnish  a  suitable  ballot  box  to  receive  the  ballots  cast  in  the  election  of 


JUDICIAL    DECISIONS  :       ELECTIONS  22.5 

district  officers ;  that  a  motion  was  duly  made,  seconded,  entertained  by  the 
chairman  and  unanimously  adopted  that  the  meeting  proceed  to  take  an  informal 
ballot  for  a  trustee  of  said  district ;  that  such  informal  ballot  was  taken,  two 
candidates  being  voted  for,  at  which  43  votes  were  cast,  of  which  one  person 
received  20  votes  and  another  person  received  23  votes ;  that  on  said  informal 
ballot  at  least  four  qualified  voters  of  said  district,  then  present,  did  not  vote 
but  intended  to  vote  when  a  formal  ballot  for  trustee  should  be  taken  ;  that 
after  the  result  of  said  informal  ballot  was  announced  a  motion  was  made  and 
seconded  that  the  meeting  proceed  to  a  formal  ballot  for  trustee  for  the  district ; 
but  the  chairman  of  the  meeting  ruled  said  motion  out  of  order  and  refused  to 
put  the  said  motion  to  a  vote ;  that  said  chairman  was  asked  to  set  aside  the 
proceedings  had  in  said  informal  ballot,  and  that  the  meeting  proceed  to  the 
election  of  a  trustee,  which  was  denied,  and  said  chairman  declared  the  person 
who  received  a  majority  of  the  votes  cast  at  said  informal  ballot  duly  elected 
as  trustee  of  the  said  district.  It  further  appears  that  two  propositions  for  a 
levy  of  a  tax,  for  two  different  purposes,  were  brought  before  said  meeting  for 
action,  and  that  the  vote  thereon  was  not  taken  by  ballot,  or  by  taking  and 
recording  the  ayes  and  noes  of  the  qualified  voters  of  the  district  present  and 
voting  upon  each  of  said  propositions,  as  required  by  the  school  law ;  but  such 
vote  was  taken  viva  voce. 

By  section  14,  of  article  i,  title  7,  of  the  Consolidated  School  Law  of  1894. 
chapter  556  of  the  Laws  of  1894,  all  school  district  officers  shall  be  elected  by 
ballot,  and  the  trustees  of  each  school  district  are  required  to  provide  a  suitable 
ballot  box  at  elections  of  district  officers. 

An  informal  ballot  for  district  officers  is  not  recognized  in  the  school  law, 
but  there  is  no  provision  of  said  law  which  forbids  the  qualified  voters  at  a  dis- 
trict meeting  at  which  any  district  officer  or  officers  are  to  be  elected,  from 
taking  an  informal  ballot  to  ascertain  the  views  or  wishes  of  such  voters  as  to  the 
person  or  persons  to  hold  said  office  or  offices.  When  said  meeting  adopts  a 
resolution  to  take  such  informal  ballot  such  ballot  is  not  a  ballot  under  the  school 
law  for  the  election  of  a  person  to  fill  the  office,  and  the  ruling  of  the  chairman 
of  the  annual  school  meeting,  held  in  said  district  no.  3,  town  of  Erin,  that  by 
and  under  said  informal  ballot  the  person  receiving  the  majority  of  votes  was 
elected  trustee  of  the  district  was  error,  as  it  was  apparent  that  no  voter  was 
misled,  but  all  the  voters  present  clearly  understood  that  in  and  by  such  ballots 
they  were  simply  giving  expression  of  their  choice  for  trustee,  or  putting  candi- 
dates for  the  office  in  nomination,  to  be  voted  for  when  a  regular  ballot  for  the 
election  of  a  trustee  should  be  had.  By  such  wrongful  exercise  of  power  on 
the  part  of  the  chairman  of  said  meeting,  in  refusing  to  put  the  motion  for  a 
formal  ballot  for  trustee,  the  qualified  voters  of  said  district  present  at  said 
meeting  were  prevented  from  exercising  the  right  accorded  them  under  the 
school  law  in  the  election  of  a  trustee  for  said  district. 

Li  subdivision  18,  of  section  14,  article  i,  title  7,  of  said  Consolidated  School 
Law  of  1894  it  is  enacted:   "  In  all  propositions  arising  at  said  district  meetings, 
8 


226  THE   UNIVERSITY   OF   tllE    STATE   OF   NEW   YORK 

involving  the  expenditure  of  money,  or  authorizing  the  levy  of  a  tax  or  taxes, 
the  vote  thereon  shall  be  by  ballot,  or  ascertained  by  taking  and  recording  the 
ayes  and  noes  of  such  qualified  voters  attending  and  voting  at  such  district 
meetings." 

It  appears  that  in  the  action  of  said  annual  meeting  in  authorizing  the  levy 
of  two  taxes  the  vote  thereon  was  not  taken  by  either  of  the  methods  required 
by  the  provision  of  law  above  cited. 

I  find  and  decide  that  at  the  annual  school  meeting  held  on  August  6,  1895, 
in  school  district  no.  3,  town  of  Erin,  Chemung  county,  no  one  was  legally 
elected  a  trustee  of  said  district;  that  no  legal  authorization  of  a  levy  of  a  tax 
or  taxes  for  any  sum  whatever  was  made  at  said  annual  meeting;  that  all  pro- 
ceedings had  and  taken  at  said  meeting,  relating  to  the  election  of  a  trustee  of 
said  district,  should  be  vacated  and  set  aside  as  illegal  and  void ;  that  a  special 
meeting  of  the  district  should  be  held  for  the  purpose  of  electing  a  trustee  of 
the  district,  and  to  act  upon  propositions  for  raising  money  for  school  purposes 
and  authorizing  the  levy  of  a  tax  upon  the  taxable  property  of  said  district 
therefor. 

The  appeal  herein  is  sustained. 

It  is  ordered,  That  all  proceedings  had  and  taken  at  said  annual  meeting 
held  on  August  6,  1895,  ^^  said  district  no.  3,  town  of  Erin,  Chemung  county, 
in  the  election  of  a  trustee  of  said  district,  and  in  authorizing  the  levy  of  a  tax 
or  taxes  in  said  district,  be,  and  the  same  are,  and  each  of  them  is,  vacated  and 
set  aside. 

It  is  further  ordered.  That  a  special  meeting  of  the  inhabitants  of  said 
school  district  no.  3,  town  of  Erin,  Chemung  county,  be  called  for  the  purpose 
of  electing  a  trustee  of  said  district,  and  to  act  upon  propositions  for  raising 
money  for  school  purposes  and  authorizing  the  levy  of  a  tax  upon  the  taxable 
property  of  said  district  therefor. 


4200 

In  the  matter  of  the  appeal  of  W.  A.  Roedel,  F.  J.  Tolles  and  Walter  C.  Reid, 
from  proceedings  of  annual  meeting  in  union   free  school   district  no.    i, 
town  of  East  Chester,  Westchester  county. 
At  an  annual  meeting  of  a  union  free  school  district  for  the  election  of  trustees,  three  persons 
were  elected,  when  only  two  persons  should  have  been  elected  for  a  full  term  of  three 
years.    Held,  that  the  person  elected  to  fill  an  alleged  vacancy,  no  such  vacancy  existing, 
such  election  was  illegal  and  void.     The  voters  in  a  union  free  school  district  have  no 
authority,  under  the  school  law,  to  elect  a  district  clerk. 
Decided  November  15,  1893. 

Herbert  B.  Lent,  attorney  for  respondents 

Crooker,  Superintendent 

The  appellants,  three  members  of   the  board  of  education  of  union   free 
school  district  no.   t,  town  of  East  Chester,  Westchester  county,  appeal   from 


jrniciAi.  decisions:     elections  227 

action  and  proceedings  of  the  annual  meeting  of  said  district  in  the  election  of 
three  persons  as  trustees  of  said  district,  and  of  a  person  as  district  clerk.  The 
appellants  ask  for  my  decision  to  questions  relative  to  the  action  of  said  meeting 
in  relation  to  other  matters  before  said  meeting.  Nathan  Johnson,  a  member 
of  said  board  of  education,  has  interposed  an  answer  to  said  appeal,  and  the 
appellants  have  tiled  a  reply  to  such  answer.  Both  the  appeal  and  answer  herein 
have  annexed  to  them,  a  copy  of  the  proceedings  of  said  annual  meeting,  signed 
by  the  chairman  and  secretary  of  said  meeting. 

It  appears  that  said  meeting  was  called  to  order  at  7.30  p.  m.,  on  August 
22,  1893,  and  Nathan  Johnson  was  duly  elected  chairman,  and  W.  E.  Heyward, 
secretary;  that  a  motion  was  made  and  adopted  to  elect  two  trustees  for  full 
term,  and  one  trustee  to  fill  vacancy  caused  by  resignation  of  Mr  Belmont;  that 
two  tellers  were  appointed  and  a  ballot  was  taken  with  the  result  as  follows: 
Theodore  D.  Rich  received  109,  and  Fred  H.  Hart  108 ;  Thomas  Beattie  received 
56,  and  Lawrence  B.  Holler  55,  for  the  full  term  of  three  years;  Lawrence  B. 
Holler  received  108  votes  to  fill  vacancy,  one  year ;  and  E.  L.  Tourmine  received 
108  votes  for  district  clerk;  that  upon  the  result  of  the  ballot  being  announced 
the  chairman  declared  Theodore  D.  Rich,  Fred  H.  Hart  and  Lawrence  B.  Floller 
to  be  duly  elected  to  fill  the  offices  of  trustees,  and  E.  L.  Tourmine,  as  district 
clerk. 

The  contention  of  the  appellants  is  that  there  were  but  two  trustees  to  be 
elected,  to  wit,  for  the  full  term  of  three  years,  and  that  the  election  of  Mr 
Holler,  as  trustee,  was  illegal  and  void,  as  there  was  no  vacancy  in  the  board  of 
trustees  to  be  filled ;  also,  that  the  meeting  had  no  power  to  elect  a  district  clerk. 

It  is  admitted  by  the  appellants  and  respondent  that  the  board  of  trustees 
of  said  union  free  school  district,  as  constituted  at  the  establishment  of  said 
union  free  school,  consisted  of  six  members,  and  it  does  not  appear  that  such 
number  has  been  changed. 

It  appears  that  in  1889,  Thomas  R.  Hodge  and  Edward  Cordial  were  elected 
trustees  for  the  full  term  of  three  years,  and  their  terms  of  office  would  expire 
in  1892;  that  in  1890,  Theodore  D.  Rich  and  L.  B.  Halsey  were  elected  trustees 
for  the  full  term  of  three  years  and  their  terms  of  office  would  expire  in  1893; 
that  Halsey  resigned  March  8,  1892,  and  Mr  Reid  was  appointed  in  place  of 
Halsey;  that  in  1891,  Nathan  Johnson  and  William  Hitchcock  were  elected 
trustees  for  the  full  term  of  three  years,  and  their  terms  of  office  would  expire 
in  1894;  that  Hitchcock  resigned  April  15,  1892,  and  Mr  Roedel  was  appointed 
in  place  of  Hitchcock;  that  in  1892,  it  was  necessary,  at  the  annual  meeting,  to 
elect  three  trustees  for  three  years  in  place  of  Messrs  Hodge  and  Cordial,  one 
trustee  for  two  years  in  place  of  Hitchcock,  and  one  trustee  for  one  year  in  place 
of  Halsey;  that  at  the  annual  meeting  in  1892,  W.  A.  Roedel  and  Walter  C.  Reid 
were  elected  trustees  for  the  full  term  of  three  years ;  F.  J.  Tolles  for  trustee  for 
the  term  of  two  years,  and  F.  W.  Belmont  for  the  term  of  one  year;  that  after 
said  annual  meeting  of  1892,  said  board  consisted  of  the  following:  Roedel  and 
Reid,  each   for  three  years;  their  respective  terms  expiring  in   1895;  Johnson 


228  THE   UXIVEKSITV    OF   THE    STATE    OF   NEW    YORK 

and  Tolles,  for  two  years;  their  respective  terms  expiring  in  1894,  and  Rich 
and  Belmont  for  one  year;  their  respective  terms  expiring  in  1893;  that  Bel- 
mont removed  from  the  district  in  the  spring  of  1893,  and  School  Commissioner 
Noxon  appointed  Mr  Yale  as  trustee,  to  fill  the  vacancy  caused  by  such  removal 
of  Mr  Belmont.  It  appears  from  the  foregoing  that  at  said  annual  meeting,  held 
m  said  district,  in  August  1893,  the  terms  of  office  as  trustees  of  Messrs  Rich 
and  Belmont  respectively  expired,  and  said  meeting  had  the  legal  right,  and  it 
was  its  duty  to  elect  two  trustees  for  the  full  term  of  three  years  in  place  of 
said  Rich  and  Yale,  appointed  in  the  place  of  Belmont;  that  said  meeting  did 
elect  Theodore  D.  Rich  and  Fred  H.  Hart  as  trustees  for  the  full  term  of  three 
years;  that  said  board  of  trustees  of  said  district,  since  August  22,  1893,  is  con- 
stituted as  follows:  Nathan  Johnson  and  F.  J.  Tolles,  whose  respective  terms 
of  office  will  expire  in  August  1894;  W.  A.  Roedel  and  W.  C.  Reid,  whose 
respective  terms  of  office  will  expire  in  August  1895,  and  Theodore  D.  Rich  and 
Fred  H.  Hart,  whose  respective  terms  of  office  will  expire  in  August  1896. 

I  find  and  decide  that  the  action  of  said  annual  meeting  of  said  district,  in 
voting  for  L.  B.  Holler,  as  trustee,  for  an  unexpired  term,  was  illegal  and  void, 
there  not  then  existing  any  vacancy  in  the  unexpired  term  of  any  trustee  that 
the  meeting  had  the  legal  power  to  fill,  said  meeting  having  the  authority  and 
power  only  to  elect  tvv^o  trustees  for  a  full  term  of  three  years  in  place  of 
Messrs  Rich  and  Yale;  said  Yale  having  been  appointed  in  place  of  Belmont, 
who  had  removed  from  the  district,  before  the  expiration  of  his  term  of  office. 

Section  7  of  title  9  of  the  Consolidated  School  Law  of  1864,  as  amended 
by  chapter  161  of  the  Laws  of  1877,  provides  that  boards  of  education  of  union 
free  school  districts  may,  with  the  advice  and  consent  of  a  majority  of  the  legal 
voters  entitled  to  vote  on  questions  of  taxation,  to  be  had  at  an  annual  meeting 
of  the  inhabitants,  appoint  a  clerk  to  the  board.  Such  appointed  clerk  must 
be  a  resident  of  the  district,  and  a  person  other  than  a  trustee  or  a  teacher  in 
the  employ  of  the  board.  The  clerk  so  appointed  shall  be  the  general  librarian 
of  the  district,  and  also  perform  all  the  clerical  and  other  duties  pertaining  to 
his  office.  For  his  services  he  shall  be  entitled  to  receive  a  salary,  which  shall 
not  be  greater  than  twenty-five  cents  a  year  for  each  scholar,  to  be  computed 
from  the  actual  average  daily  attendance  for  the  previous  year,  as  set  forth  in 
the  annual  report  to  the  school  commissioner,  or  less,  as  in  the  best  judgment 
of  said  legal  voters  to  be  had  at  such  annual  meeting ;  such  consent  and  approval 
not  to  be  for  a  longer  period  of  time  than  one  year.  In  case  no  provision  is 
made  at  an  annual  meeting  of  the  inhabitants  for  the  appointment  and  payment 
of  a  clerk,  then,  and  in  that  case,  the  board  will  appoint  one  of  their  own  num- 
ber to  act  as  clerk. 

Prior  to  the  amendment  of  section  7,  1877,  said  section  provided  that  said 
board  should  elect  one  of  their  number  clerk  thereof,  who  should  also  be  the 
generai  librarian  of  the  district.  It  seems  that  said  union  free  school  district 
no.  I,  of  East  Chester,  has  for  a  number  of  years  elected  a  "  district  clerk"  and 
did,  at  the  last  annual  meeting,  elect  one  E.  L.  Toumine  "  district  clerk ;"  and 
the  said  board  of  education  have  elected  annually  one  of  their  number  as  clerk. 


JUDICIAL    DECISIONS  :       ELECTIONS  229 

Under  section  7,  above  referred  to,  the  board  of  education  can  appoint  a 
clerk,  not  a  member  of  said  board,  who  will  be  entitled  to  a  salary  when  so 
authorized  by  an  annual  meeting.  The  annual  meeting  does  not  "  appoint,"  but 
may  "  advise  and  consent "  to  the  appointment  of  a  clerk  at  a  certain  salary, 
which  salary  is  limited  to  twenty-five  cents  for  each  pupil  of  the  number  in 
actual  average  daily  attendance,  as  stated  in  said  section.  Such  authorization 
of  the  meeting  to  such  appointment  is  valid  for  one  year  only.  The  clerk  so 
appointed  does  not  hold  over  after  his  term  of  office,  which  is  one  year  from  the 
date  of  the  annual  meeting.  If  no  provision  is  made  by  the  annual  meeting  for 
a  clerk,  the  board  shall  appoint  one  of  their  own  number  as  clerk ;  but  no  salary 
or  compensation  can  be  paid  for  his'  services. 

The  annual  meeting  in  said  district  did  not  "  advise  and  consent "  to  the 
appointment  of  a  clerk  at  a  certain  salary ;  it  elected  a  clerk,  but  that  it  had  not 
the  legal  right  to  do,  for  by  section  7,  the  appointment  must  be  made  by  the 
board.  Not  having  advised  and  consented  to  the  appointment  of  clerk  at  a  cer- 
tain salary  in  the  manner  provided  by  said  section  7,  the  election  of  the  meeting- 
of  said  Toumine  as  district  clerk  was  illegal  and  void,  and  the  board  of  educa- 
tion had  the  legal  authority  to  elect  one  of  said  board  as  clerk,  but  who  can  not 
be  paid  any  salary  or  compensation  for  his  services. 

By  section  15  of  title  9  of  the  Consolidated  School  Law  of  1864,  it  is  pro- 
vided that  it  shall  be  the  duty  of  boards  of  education,  at  the  annual  meeting 
of  the  district,  besides  any  other  report  or  statement  required  by  law,  to  present 
a  detailed  statement  in  writing  of  the  amount  of  money  which  will  be  required 
for  the  ensuing  year  for  school  purposes,  exclusive  of  the  public  moneys,  specify- 
ing the  several  purposes  for  which  it  will  be  required,  and  the  amount  of  each. 
By  section  16  of  said  title  9  it  is  provided  that  after  the  presentation  of  such 
statement,  the  question  shall  be  taken  upon  voting  the  necessary  taxes  to  meet 
the  estimated  expenditures,  and  when  demanded  by  any  voter  present,  the  ques- 
tion shall  be  taken  upon  each  item  separately,  and  the  inhabitants  may  increase 
the  amount  of  any  estimated  expenditures,  or  reduce  the  same,  except  for 
teachers'  wages,  and  the  ordinary  contingent  expenses  of  the  school  or  schools. 

At  said  annual  meeting  in  said  district  said  board  submitted  to  the  meeting 
a  detailed  statement  in  writing  of  the  amount  of  money  which  would  be  required 
for  the  year  ensuing  for  school  purposes,  exclusive  of  public  moneys,  specifying 
the  several  purposes  for  which  it  will  be  required,  and  the  amount  for  each,  and 
the  said  several  sums  amounted  in  the  aggregate  to  $4400.  No  voter  present  at 
the  meeting  demanded  that  the  question  should  be  taken  upon  each  item  sepa- 
rately. A  motion  was  made  that  the  amount  to  be  raised  be  the  sum  of  $3800, 
without  specifying  the  several  purposes  which  it  was  for  or  the  amount  of  each, 
and  upon  a  ballot  taken  upon  this  motion  93  votes  were  cast,  of  which  58  votes 
were  for  an  appropriation  of  $3800  and  35  votes  were  against  any  appropriation. 
The  meeting  had  the  legal  right  to  reduce  the  amount  estimated  by  the  board  to 
be  required  for  the  year  then  ensuing  for  school  purposes,  except  for  teachers' 
wages  and  the  ordinary  contingent  expenses  of  the  schools,  and  the  vote  to  raise 


230  THE   UNIVERSITY    OF   THE    STATE    OF    NEW    YORK 

the  sum  of  $3800  was  legally  adopted.  The  action  of  the  meeting  in  voting  the 
sum  of  $3800  can  not  be  ignored  by  the  board,  nor  can  the  board  assess  the 
amount  of  $4400  as  presented  by  it  to  the  meeting.  The  meeting  failed  to  desig- 
nate the  specific  purposes  for  which  the  sum  of  $3800  should  be  expended  and 
the  amount  for  each  purpose,  and  I  can  not  direct  the  board  as  to  the  expendi- 
ture thereof,  nor  indicate  in  what  items  submitted  by  the  board  the  reduction  is 
to  be  made. 

Section  17  of  title  9  of  the  Consolidated  School  Law  provides  that,  if  the 
inhabitants  shall  neglect  or  refuse  to  vote  the  sum  or  sums  estimated  necessary 
for  teachers'  wages,  after  applying  thereto  the  public  moneys,  and  other  moneys 
received  or  to  be  received,  for  that  purpose,  or  if  they  shall  neglect  or  refuse  to 
vote  the  sum  or  sums  estimated  necessary  for  ordinary  contingent  expenses,  the 
board  may  levy  a  tax  for  the  same,  in  like  manner  as  if  the  same  had  been  voted 
by  the  inhabitants.  A  motion  was  made  at  said  meeting  to  raise  $625  in  addition 
to  the  sum  already  voted  for  the  purpose  of  reimbursing  the  various  funds  over- 
drawn by  reason  of  tlie  establishment  of  the  new  school,  and  for  other  expenses 
not  provided  for  in  the  appropriation  of  last  year,  and  said  motion  was  laid  upon 
the  table.  It  was  optional  with  the  voters  present  to  lay  the  motion  upon  the 
table  or  to  have  taken  a  ballot  upon  it.  The  meeting  decided  to  lay  the  motion 
upon  the  table,  and  their  action  was  legal.  There  is  no  provision  of  the  school 
law  which  required  that  a  ballot  should  be  taken  upon  it.  The  proposed  appro- 
priation of  $625,  in  addition  to  the  sum  already  appropriated,  not  having  been 
voted  for  by  the  meeting,  there  is  no  legal  authority  in  the  board  to  include  the 
same  in  the  tax  list  and  assessment  of  the  district. 

Section  20  of  title  9  of  the  Consolidated  School  Law  provides  that  it  shall  also 
be  the  duty  of  said  boards  of  education,  respectively,  to  have  reference  in  all 
expenditures  and  contracts  to  the  amount  of  moneys  which  shall  be  appropriated, 
or  subject  to  their  order  or  drafts,  during  the  current  year,  and  not  to  exceed 
that  amount.  The  qualified  voters  in  union  free  school  districts,  duly  and  legally 
assembled,  only,  under  the  school  law,  have  authority  to  make  appropriations 
of  money  and  vote  taxes  for  maintaining  schools  in  their  respective  districts. 
Boards  of  trustees  have  no  authority,  under  the  school  laws,  to  assess  and  levy 
taxes,  other  than  for  such  purposes  and  such  sums  as  they  are  so  directed  by 
the  district  meetings,  except  when  such  meetings  neglect  or  refuse  to  vote  sums 
necessary  for  teachers'  wages  and  for  ordinary  contingent  expenses.  Said  boards 
have  no  legal  authority  to  exceed  in  their  contracts  and  expenditures  the  sums 
appropriated  and  voted  at  the  district  meeting.  When  the  district  meeting  votes 
a  specific  sum  for  a  specific  purpose,  no  part  of  sum  so  voted  can  be  legally 
expended  by  said  boards  for  any  purpose  other  than  that  for  which  it  was  appro- 
priated ;  nor  can  said  boards  legally  transfer  unexpended  balances  in  any  of  such 
funds  to  make  good  a  shortage  that  may  exist  in  any  other  fund  except  by  con- 
sent of  the  district  meeting,  as  said  boards  have  no  legal  authority  to  exceed  the 
sums  appropriated  for  special  purposes,  and,  hence,  there  should  not  be  any 
shortage. 


JUDICIAL    DECISIONS  :       ELECTIONS  23I 

So  much  of  the  appeal  herein  as  is  taken  from  the  action  and  proceedings 
had  and  taken  at  the  annual  meeting  held  in  union  free  school  district  no.  i,  East 
Chester,  Westchester  county,  relative  to  the  election  of  Lawrence  B.  Holler  as 
trustee  of  said  district  for  an  unexpired  term,  and  the  election  of  E.  L.  Toumine 
as  district  clerk,  is  sustained,  and,  as  to  the  other  matters,  said  appeal  is 
dismissed. 

It  is  ordered  that  so  much  of  the  action  and  proceedings  of  the  annual  meet- 
ing held  on  August  22,  1893,  in  union  free  school  district  no.  i,  town  of  East 
Chester,  Westchester  county,  as  relates  to  the  election  of  Lawrence  B.  Holler  as 
a  trustee  of  said  district,  and  the  election  of  E.  L.  Toumine  as  district  clerk,  be, 
and  the  same  hereby  is,  vacated  and  set  aside  as  illegal  and  void ;  and  the  election 
of  said  Holler  as  trustee  and  said  Toumine  as  district  clerk  is,  and  each  of  them 
is,  hereby  declared  to  be  illegal  and  void. 


4183 

In  the  matter  of  the  appeal  of  John  B.  Russell  and  others,  from  the  proceedings 
of  the  annual  school  meeting  held  August  22,  1893,  in  union  free  school 
district  no.  2,  Wawarsing,  Ulster  county,  in  the  election  of  trustee. 

Where,  at  an  annual  school  meeting  for  the  election  of  a  trustee,  67  ballots  were  cast,  of 
which  Lewis  D.  B.  Hoornbeek  received  33  votes,  Louis  A.  Hoornbeek  received  32  votes, 
S.  A.  Hoornbeek  received  i  vote  and  "  C.  D.  B."  received  i  vote,  and  the  one  vote  for 
S.  A.  Hoornbeek  was  given  to  Louis  A.  Hoornbeek,  and  the  ballot  with  "  C.  D.  B."  was 
given  to  Lewis  D.  B.  Hoornbeek,  and  said  Lewis  D.  B.  Hoornbeek  declared  to  be  elected. 
Held,  that  there  was  no  election  of  trustee  and  a  special  meeting  of  the  district  was 
ordered  for  the  purpose  of  electing  a  trustee. 

Decided  September  22,  1893 

Crooker,  Superintendent 

This  appeal  is  from  the  proceedings  of  the  annual  meeting,  held  in  union 
free  school  district  no.  2.  Wawarsing,  Ulster  county,  held  on  August  22,  1893, 
in  the  election  of  a  trustee. 

It  appears,  from  the  papers  presented  upon  this  appeal,  that  67  ballots  were 
cast  for  the  office  of  trustee,  as  follows:  Lewis  D.  B.  Hoornbeek  received  33 
votes ;  Louis  A.  Hoornbeek  received  32  votes ;  S.  A.  Hoornbeek  received  i  vote, 
and  "  C.  D.  B."  received  i  vote.  In  the  canvass  of  the  ballots  so  received  the 
one  vote  for  S.  A.  Hoornbeek  was  given  to  Louis  A.  Hoornbeek,  and  the  ballot 
with  "C.  D.  B."  upon  it  was  given  to  Lewis  D.  Hoornbeek,  and  result  of 
the  ballot  declared  by  the  chairman  of  the  meeting  was  that  there  were  67  votes 
cast,  of  which  Lewis  D.  B.  Hoornbeek  received  34,  and  Louis  A.  Hoornbeek 
received  33. 

Trustees  of  the  school  districts  of  the  State  must  be  elected  by  ballot  and, 
except  in  school  districts  where  the  election  of  trustees  is  had  under  chapter  248, 
of  the  Laws  of  1878.  and  the  amendments  thereof,  the  persons  having  a  majority 
of  votes  respectively,  shall  be  elected. 


232  THE   UNIVERSITY    OF   THE    STATE    OF    NEW    YORK 

At  the  annual  meeting  held  in  district  no.  2,  Wawarsing,  Ulster  county,  67 
persons  voted  for  trustee,  a  majority  of  which  would  be  34  votes.  It  appears 
that  no  one  received  34  votes.  The  counting  of  the  ballot  for  S.  A.  Hoornbeek 
for  Louis  A.  Hoornbeek  and  the  ballot  for  "  C.  D.  B."  for  Lewis  D.  B.  Hoorn- 
beek was  error  on  the  part  of  the  officers  of  such  meeting.  The  ballot  for  S.  A. 
Hoornbeek  should  have  been  counted  as  a  vote  for  the  person  whose  name 
appeared  upon  said  ballot,  and  not  for  Louis  A.  Hoornbeek.  The  ballot  for 
"  C.  D.  B."  was  a  defective  ballot  and  could  not  be  counted  for  Lewis  D.  B. 
Hoornbeek,  nor  for  any  person,  as  there  was  not  upon  said  ballot  the  name  of 
any  person.  The  ballot  for  trustee  at  said  meeting  should  have  been  reported 
as  follows :  whole  number  of  votes  cast,  67 ;  necessary  to  a  choice,  34 ;  Lewis  D. 
B.  Hoornbeek  received  33 ;  Louis  A.  Hoornbeek,  32 ;  S.  A.  Hoornbeek  received  i, 
and  one  ballot  was  defective. 

No  person  having  received  a  majority  of  the  votes  cast,  there  was  no  election 
of  a  trustee,  and  another  ballot  should  have  been  taken. 

It  has  been  repeatedly  'held  by  the  courts  of  this  State,  that  a  canvassing 
board  has  no  power  to  determine  that  votes  returned  as  cast  for  one  man  were, 
in  fact,  intended  for  another  person,  bearing  another  and  different,  although  smi- 
ilar,  name,  and  has  no  power  to  count  and  allow  such  votes  for  such  other 
person. 

It  is  clear  the  ballot,  having  upon  it  the  letters  "  C.  D.  B."  was  defective, 
and  t;7at  the  officers  of  the  meeting  had  no  authority  of  law  to  count  the  ballot 
lor  Lewis  D.  B.  Lloornbeek;  neither  had  they  authority  to  count  the  ballot  cast 
for  S.  A.  Hoornbeek  to  Louis  A.  Hoornbeek,  nor  for  any  other  person  than  the 
one  whose  name  was  written  thereon. 

In  my  opinion  tlie  appeal  herein  should  be  sustained. 

I  do  find  and  decide : 

That  Louis  D.  B.  Hoornbeek  was  not  elected  as  a  trustee  of  union  free 
school  district  no.  2,  town  of  Wawarsing,  Ulster  county,  at  the  annual  meeting 
of  said  district,  held  on  August  22,  1893,  and  that  no  person  was  elected  a  trustee 
of  said  district  at  said  meeting.     That  the  appeal  herein  is  sustained. 

It  is  ordered.  That  so  much  of  the  proceedings  of  the  annual  meeting  of 
said  union  free  school  district  no.  2,  town  of  Wawarsing,  Ulster  county,  held  on 
August  22,  1893,  as  declared  and  decided  that  Lewis  D.  B.  Hoornbeek  was 
elected  a  trustee  of  said  district,  be,  and  the  same  hereby  is,  vacated  and  set 
aside. 

It  is  further  ordered,  That  a  special  meeting  of  the  qualified  voters  of  said 
union  free  school  district  no.  2,  town  of  Wawarsing,  Ulster  county,  be  forthwith 
called,  under  the  provisions  of  school  laws,  for  the  purpose  of  electing  a  trustee 
for  said  district  to  fill  the  vacancy  in  the  office  of  trustee,  created  by  the  failure 
of  said  district  to  elect  a  trustee  at  the  annual  meeting  held  therein  on  August 
22,  1893. 


JUDICIAL  decisions:     elections  233 

3844 

In  the  matter  of  the  appeal  of  Lewis  S.  Turner  v.  Charles  A.  Davis,  trustee  of 

school  district  no.  7.  of  the  town  of  Mount  Sinai,  Suffolk  county. 
An  election  of  a  trustee  at  a  school  meeting  at  which  there  were  rival  candidates,  and  no 

sufficient  opportunit}-  was  afforded  to  get  the  expression  of  the  voters,  set  aside  and  a 

new  election  ordered. 
Decided  December  9,  1889 

Draper,  Superintendent 

The  appellant,  a  voter  in  school  district  no.  7,  of  the  town  of  Mount  Sinai. 
county  of  Suffolk,  appeals  from  the  proceedings  had  at  the  last  annual  meeting 
held  in  said  district,  so  far  as  they  relate  to  the  election  of  trustee. 

The  facts,  which  are  not  disputed,  are  that  both  appellant  and  respondent 
were  placed  in  nomination  for  trustee  at  the  annual  meeting.  The  chairman,  a 
brother  of  respondent,  put  the  question  in  the  manner,  "  all  those  in  favor  of 
Charles  A.  Davis  for  trustee,  say  aye,"  and  several  responded,  "  all  those  opposed, 
say  no,"  to  which  no  one  responded,  and  the  chairman  therefore  declared  Mr 
Davis  elected. 

This  manner  of  voting  for  district  ofticers,  when  two  persons  are  placed  in 
nomination,  almost  invariably  produces  dissatisfaction  and  discord  in  school 
districts. 

As  my  predecessor.  Judge  Ruggles,  observed  in  a  case  similar  to  this,  such 
elections  are  irregular.  A  vote  for  rival  candidates  should  be  taken  by  ballot, 
calling  the  roll,  by  a  division  of  the  house,  count,  or  some  method  by  which  the 
will  of  each  individual  voter  shall  be  ascertained,  a  reasonable  opportunity 
afforded  for  interposing  challenges,  and  a  fair  expression  of  the  voters  secured. 

In  the  case  before  me,  I  do  not  consider  there  was  a  fair  expression  given 
—  at  most,  but  few  of  those  present  voted,  and  it  would  seem  that  a  majority 
did  not  vote  upon  the  question. 

I  conclude  that  the  election  of  respondent  must  be  set  aside,  and  a  new 
election  ordered.  The  appeal  is  sustained.  The  district  clerk  is  hereby  ordered 
and  directed  to  give  notice  of  a  special  meeting  to  elect  a  trustee  within  ten  days 
from  the  date  of  this  decision. 


3647 

In  the  matter  of  the  appeal  of  John  A.  Strong  v.  joint  district  no.  I,  of  the  towns 
of  Harrietstown,  Franklin  county,  and  of   North  Elba  and  St  Armand,  in 
Essex  county. 
A   person  was   chosen   trustee,  and  because  but   few   persons   voted  he   asked  that   another 
election  be  had,  in  order,  as  he  said,  to  determine  the  sense  of  all  voters  present.     This 
was  done  and  another  was  elected.    Thereupon  the  person  first  chosen  claimed  the  office 
under  the  election  first  held.    Held,  that  he  was  estopped  from  setting  up  his  claim. 
Decided  December  2,  1887 

Draper,  Superintendent 

At  the  annual  school  meeting  held  in  the  district  above  named,  a  controversy 
arose  in  reference  to  the  election  of  trustee,  which  it  is  sought  to  settle  by  means 


234  THE  UXIVERSITY    OF   THE   STATE   OF   NEW   YORK 

of  this  appeal.  It  seems  that,  after  action  upon  the  report  of  the  trustee,  it  was 
moved  and  carried  that  John  A.  Strong,  the  appellant,  be  elected  trustee  for  the 
ensuing  year.  Upon  this  motion,  but  a  small  portion  of  the  persons  present 
voted,  and  Mr  Strong  stated  in  substance,  that  he  preferred  that  there  should 
be  another  vote  taken  and  have  an  expression  of  the  sentiments  of  the  district, 
and,  at  his  instance,  the  action  was  rescinded.  It  was  then  agreed  to  take  a  vote 
by  ballot.  The  statements  of  the  different  parties  disagree  as  to  the  understand- 
ing of  the  meeting  touching  the  ballot  which  was  taken.  The  appellant  insists 
that  it  was  a  ballot  to  determine  the  election  of  a  trustee.  Others  say  that  it  was 
agreed  that  the  voters  present  should  signify  by  a  secret  vote,  whether  or  not 
they  would  have  Strong  for  trustee.  The  result  of  the  vote  seems  to  support 
the  latter  claim,  for,  of  the  17  votes  which  were  in  the  box,  5  were  for  Strong, 
8  were  marked  "  no,"  2  were  marked  "  against,"  and  2  were  blank.  Following 
this,  it  was  moved  and  carried  that  the  meeting  proceed  to  ballot  for  trustee. 
A  ballot  was  taken  and  15  votes  were  cast,  of  which  A.  S.  Wright  received  11 
and  John  Strong  4. 

Mr  Strong  now  claims  that  he  was  elected  by  acclamation  when  the  meeting 
first  voted  by  the  uplifted  hand,  and  again  by  rising,  upon  the  motion  to  elect 
him  trustee.  This  claim  can  not  be  sustained.  Whether  he  was  elected  at  that 
lime  or  not  is  immaterial,  for  he  waived  any  right  which  he  might  have  gained 
to  the  office.  It  was  at  his  instance  that  the  meeting  proceeded  to  determine  the 
matter  in  another  way.  The  appellant  also  claims  that  he  was  elected  upon  the 
first  written  ballot  taken.  This  claim  would  undoubtedly  be  sustained  if  there 
was  sufficient  reason  for  believing  that  it  was  the  purpose  of  the  meeting  to  elect 
a  trustee  upon  that  ballot,  but  the  proofs  do  not  sustain  such  a  position.  The 
fact  that  the  meeting  had  just  been  voting  aye  and  no  upon  a  motion  that 
Strong  be  trustee,  and  the  fact  that,  when  the  written  ballot  was  taken,  5  votes 
were  for  Strong  and  10  indicated  the  opposition  of  that  number  of  persons  to 
him,  while  they  did  not  vote  for  another  person,  sustain  the  claim  that  it  was 
understood  that  that  ballot  was  taken  for  the  purpose  of  determining  whether  or 
not  Strong  should  be  elected  trustee,  and  not  w^ho  should  be  chosen  if  he  was 
not.  The  proceedings  are  somew^hat  irregular.  The  records  are  not  complete, 
but  I  feel  bound  to  sustain  the  manifest  will  of  the  majority  of  the  voters  present 
in  the  district  meeting,  as  it  is  clearly  indicated  by  the  several  votes  which  were 
taken,  and  particularly  by  the  last  one,  in  which  Mr  Wright  received  11  votes 
and  Mr  Strong  4. 

The  appeal  is,  therefore,  dismissed. 


JUDICIAL    DECISIONS  :       ELECTIONS  235 

4261 

In  the  matter  of  the  appeal  of  James  C.  Dillon  v.  the  election  of  trustees  of 
union  free  school  district  no.  2,  town  of  Newtown,  Queens  county,  May 
31,  1894. 

Where  at  a  school  district  meeting  district  officers  are  elected  it  is  the  duty  of  the  inspectors 
of  election,  after  the  polls  shall  be  closed,  to  count  the  ballots  found  in  the  ballot  box 
without  unfolding  them  except  so  far  as  to  ascertain  that  each  ballot  is  single,  and  by 
comparing  the  ballots  found  in  the  box  with  the  number  shown  by  the  poll  list  to  have 
been  deposited  therein.  If  the  ballots  found  in  the  box  shall  be  more  than  the  number 
of  ballots  shown  to  have  been  deposited  therein,  such  ballots  shall  all  be  replaced 
without  being  unfolded  in  the  box  from  which  they  were  taken  and  one  of  the  inspectors 
shall,  without  seeing  the  same,  publicly  draw  out  as  many  ballots  as  shall  be  equal  to 
said  excess,  and  without  unfolding  them  place  them  in  some  place  apart  from  the  other 
ballots.  If  two  or  more  ballots  shall  be  found  in  the  ballot  box  so  folded  together  as 
to  present  the  appearance  of  a  single  ballot,  they  shall  be  destroyed  if  the  whole  number 
of  ballots  in  such  ballot  box  exceeds  the  whole  number  of  ballots  shown  by  the  poll  list 
to  have  been  deposited  therein,  and  not  otherwise. 

Decided  July  25,  1894 

Crooker,  Superintendent 

The  appellant  in  the  above  entitled  matter  appeals  from  the  action  and 
decision  of  the  officers  of  an  adjourned  school  district  meeting  held  on  May  31, 
1894,  in  school  district  no.  2,  town  of  Newtown,  Queens  county,  to  consider  the 
question  of  the  establishment  of  a  union  free  school  therein,  that  one  C.  H. 
George  was  elected  a  trustee  or  member  of  the  board  of  education  of  said 
district. 

The  following  facts  appear  to  be  established:  That  on  May  24,  1894,  a 
duly  called  special  m.eeting  of  the  inhabitants  qualified  to  vote,  of  school  district 
no.  2,  of  the  town  of  Newtown,  Queens  county,  was  held  at  the  schoolhouse  in 
Corona  in  said  town,  to  act  upon  the  proposition  for  the  establishment  of  a 
union  free  school  therein;  that  a  resolution  for  the  establishment  of  a  union 
free  school  in  said  district  was  unanimously  adopted;  that  it  was  voted 
that  the  board  of  education  of  such  union  free  school  district  consist  of  five 
members,  and  thereupon  the  meeting  adjourned  to  May  31,  1894;  that  on  May 
31,  1894,  said  meeting  convened  pursuant  to  adjournment  and  it  was  voted 
that  one  of  said  trustees  or  members  of  said  board  of  education  serve  for  one 
year,  two  for  two  years,  and  two  for  three  years ;  that  four  tellers  or  inspectors 
of  election  were  chosen  and  the  meeting  proceeded  to  the  election  by  ballot  of 
said  five  trustees  or  members  of  the  board  of  education,  all  of  said  five  trustees 
being  voted  for  at  once  on  one  ballot,  but  designating  the  term  of  office  of  each 
class  respectively;  that  after  the  polls  were  closed  a  canvass  of  the  votes  was 
made  by  the  inspectors,  and  it  was  found  that  the  poll  list  had  355  names 
recorded  of  persons  who  had  voted,  and  the  votes  in  the  ballot  box  were  counted 
without  opening  any  ballot  that  was  folded,  and  zvithont  unfolding  any  of  said 
ballots  so  far  as  to  ascertain  that  each  ballot  zuas  single,  and  the  number  of  said 
ballots  was  355,  thus  agreeing  with  the  number  of  names  upon  the  poll  list ;  that 


236  THE   UXIVERSITY    OF   THE    STATE    OF    NEW    YORK 

said  inspectors  then  proceeded  to  unfold  the  ballots  and  canvass  the  same,  when 
they  found  two  ballots  so  folded  together  as  to  present  the  appearance  of  a 
single  ballot,  and  they  decided  that  said  ballot  was  fraudulent  and  ought  not 
to  be  counted  and  did  not  count  the  same;  that  said  tw^o  ballots  so  folded  as  one 
had  thereon  and  on  each  the  name  of  the  appellant  herein  as  a  trustee  for  the 
term  of  three  years;  that  the  result  of  the  said  election,  so  far  as  related  to  the 
election  of  two  trustees  for  the  term  of  three  years  as  ascertained  and  declared 
by  said  inspectors  and  the  chairman  of  said  meeting,  was  as  follows :  That  C.  F. 
Schwartz  received  207  votes  and  was  elected,  and  that  the  appellant  herein.  J.  C. 
Dillon,  received  172  votes,  and  C.  H.  George,  173  votes,  with  certain  votes  for 
sundry  persons,  and  that  said  C.  H.  George  was  elected. 

By  chapter  680  of  the  Laws  of  1892,  being  "An  act  in  relation  to  the  elec- 
tions, constituting  chapter  6  of  the  general  laws,"  article  5,  section  114,  relating 
to  the  canvass  of  votes  by  inspectors,  it  is  enacted :  As  soon  as  the  polls  of  an 
election  are  closed  .  .  .  the  inspectors  of  election  thereat  shall  publicly 
canvass  and  estimate  the  votes  and  not  adjourn  or  postpone  the  canvass  until  it 
shall  be  fully  completed.  They  shall  commence  by  comparing  the  two  poll  lists 
with  each  other,  correcting  any  mistakes  therein,  and  by  counting  the  ballots 
found  in  the  ballot  boxes  without  unfolding  them,  except  so  far  as  to  ascertain 
that  each  ballot  is  single,  and  by  comparing  the  ballots  found  in  each  box  with 
the  number  shown  by  the  poll  lists  to  have  been  deposited  therein.  If  the  ballots 
found  in  any  box  shall  be  more  than  the  number  of  ballots  so  shown  to  have 
been  deposited  therein,  such  ballots  shall  all  be  replaced,  zvithout  being  unfolded, 
in  the  box  from  which  they  were  taken,  and  one  of  the  inspectors  or  canvassers 
shall,  without  seeing  the  same,  publicly  draw  out  as  many  ballots  as  shall  be  equal 
to  such  excess  and.  zvithout  unfolding  them,  deposit  them  in  the  box  for  unvoted 
ballots.  //  two  or  more  ballots  shall  be  found  in  a  ballot  box,  so  folded  together 
as  to  present  the  appearance  of  a  single  ballot,  they  shall  be  destroyed,  if  the 
zvhole  number  of  ballots  in  such  ballot  box  exceeds  the  whole  number  of  ballots 
shown  by  the  poll  lists  to  have  been  deposited  therein,  and  not  otherzvise.'' 

I  hold  that  the  foregoing  provisions  of  law  relative  to  the  canvass  of  votes 
by  inspectors  at  elections  in  the  State  should  govern  the  canvass  of  votes  by 
inspectors  or  tellers  at  elections  held  in  the  school  districts  in  the  State. 

It  is  clear  that  the  inspectors  at  the  school  meeting  in  school  district  no.  2. 
town  of  Newtown,  held  on  May  31,  1894.  in  the  canvass  of  votes  cast  for  mem- 
bers of  the  board  of  education,  did  not  follow  the  provisions  of  the  law  above 
cited.  There  was  one  ballot  box  and  poll  list.  In  counting  the  ballots  found 
in  the  box,  to  compare  the  number  therein  with  the  names  contained  on  the  poll 
list,  the  inspectors  shoidd  have  unfolded  such  ballot  so  far  as  to  ascertain  that  each 
ballot  zvas  single.  This  they  did  not  do.  Had  they  done  this,  they  would  have 
ascertained  the  fact  of  the  two  ballots  folded  together  as  one,  and  on  separating 
them,  and  then  counting  the  ballots,  they  would  have  ascertained  that  there  were 
356  ballots,  which  would  have  been  an  excess  of  one  over  the  number  of  voters 
shown  upon  the  poll  list,  and  it  would  then  have  been  their  duty  to  replace  all 


JUDICIAL  decisions:     elections  237 

of  the  ballots  in  the  box,  and  one  of  the  inspectors,  without  seeing  the  same, 
should  have  publicly  drawn  out  one  ballot,  which  ballot  should  have  been 
destroyed.  The  action  of  the  inspectors  in  treating  the  two  ballots  found  folded 
together  as  one,  as  fraudulent  or  defective,  and  rejecting  them,  was  not  lawful, 
and  hence  there  was  no  legal  or  valid  election  of  one  member  of  said  board  of 
education  for  three  years,  and  said  C.  H.  George  was  not  duly  or  legally  elected 
a  member  of  the  board  of  education  for  said  district  for  the  term  of  three  years 
from  the  first  Tuesday  of  August,  1894,  nor  for  any  term  of  time.  Neither 
Dillon  nor  George  could  be  legally  elected  a  trustee  unless  one  of  them  received 
a  majority  of  the  whole  number  of  votes  cast.  There  were  355  votes  cast,  of 
which  178  is  a  majority,  and  neither  of  them  received  that  number  of  votes. 

The  election  of  Mr  Sandford  for  one  year,  Messrs  Howard  and  Weed  for 
two  years  and  Mr  Schwartz  for  three  years  is  not  in  any  manner  affected  by  the 
action  of  inspectors  in  rejecting  the  two  ballots. 

There  is  no  proof  whatever  that  said  inspectors,  or  either  of  them,  in  reject- 
ing said  two  ballots  containing  the  name  of  the  appellant,  did  so  knowingly  or 
wilfully,  nor  that  they  did  so  in  order  to  defeat  the  election  of  the  appellant  as 
trustee;  nor  is  there  any  proof  that  said  inspectors,  or  either  of  them,  was  or  is 
inimical  or  hostile  to  the  appellant. 

I  am  satisfied  that  said  inspectors,  in  the  canvass  of  said  ballots,  acted  in 
good  faith. 

I  find  and  decide  that  C.  H.  George  was  not  elected  a  trustee  or  member  of 
the  board  of  education  for  the  term  of  three  years  at  said  meeting  of  the  inhab- 
itants qualified  to  vote  in  school  district  no.  2,  town  of  Newtown,  Queens  county, 
on  May  31,  1894,  and  that  but  one  person,  to  wit,  Mr  Schwartz,  was  legally 
elected  at  said  meeting  as  such  trustee  for  the  term  of  three  years ;  and  that  but 
four  of  the  five  members  which  it  was  voted  at  the  meeting,  held  on  May  24, 
1894,  the  board  of  education  of  said  district  should  consist  of,  have  been  legally 
elected. 

The  appeal  herein  is  sustained. 


3662 

In  the  matter  of  the  appeal  of  Suel  Chaddock  and  others,  from  the  proceedings 

of  the  annual  school  meeting,  held  August  30,  1887,  in  school  district  no.  3, 

town  of  LeRoy,  Genesee  county. 

In  an  election  for  trustee  it  was  found  that  the  ballots  overran  the  number  of   qualified 

electors  present  by  two.     Thereupon  two  ballots  were  withdrawn.     Afterward  it  was 

found   that  one  blank  ballot  was  cast  and  this  was  thrown  out  and   one   of   the   two 

withdrawn  was  put  in  its  place.     A  candidate  was  then  declared  elected  by  a  majority 

of  one.    Held,  that  the  proceedings  were  irregular  and  a  new  election  must  be  ordered. 

Decided  January  24,  1888 

Draper,  Superintendent 

This  is  an  appeal  from  the  annual  election  of  trustee  in  school  district  no.  3, 
town  of  LeRoy,  Genesee  county,  and  recites  as  the  grounds  thereof  the  following : 


238  THE   UXIVERSITV    OF   THE   STATE   OF   NEW   YORK 

1  That  when  a  ballot  was  taken  it  was  discovered  that  the  votes  cast  were 
in  excess  of  the  number  of  names  upon  the  poll  list;  that  thereupon  two  ballots 
were  withdrawn  from  the  pile  of  ballots  cast  and  that  subsequently  one  ballot 
remaining  was  found  to  be  a  blank,  when  one  of  the  two  ballots  withdrawn  was 
replaced  and  the  blank  thrown  out  and  then  the  vote  gave  one  Albert  Anderson, 
a  majority  of  one  vote  for  trustee  and  he  was  declared  elected. 

2  That  said  Anderson  was  not  a  qualified  voter  at  said  annual  meeting  and 
therefore  ineligible  to  the  office  of  trustee. 

3  That  one  person  voted  who  was  not  a  qualified  voter. 

No  answer  has  been  interi)osed  and  in  deciding  this  appeal  I  do  not  consider 
it  necessary  to  go  into  the  second  or  third  grounds  of  appeal. 

The  proceedings  of  the  meeting  in  first  withdrawing  two  ballots  from  those 
which  had  been  voted,  then  replacing  one  for  a  blank  ballot  found,  can  not  be 
upheld. 

The  election  of  Anderson  is  held  to  be  void  and  it  is  hereby  ordered  that  a 
special  meeting  be  called  within  fifteen  days  from  the  date  of  this  decision  to  fill 
the  vacancy  existing  in  the  office  of  trustee. 


4410 

In  the  matter  of  the  appeal  of  Michael  Dippold  and  others,  from  proceedings  of 
a  school  meeting  held  on  August  7,  1895,  i"  district  no.  3,  city  of  Kingston, 
Ulster  county,  in  the  election  of  school  district  officers. 

Where  at  the  annual  election  of  school  district  officers  in  a  common  school  district  having 
more  than  300  pupils  therein,  the  trustees,  as  inspectors  of  election,  appointed  one 
Powers,  a  qualified  voter  of  the  district,  to  take  the  votes  from  the  voters  and  deposit 
such  votes  in  the  ballot  box,  no  other  power  or  duty  intrusted  to  said  inspectors  by 
law  being  delegated,  or  given  to,  or  exercised  by  said  Powers.  Held,  that  such  appoint- 
ment was  an  irregularity  on  the  part  of  such  inspectors,  which  is  not  approved  by  this 
Department,  but  does  not  warrant  the  setting  aside  of  said  election.  Irregularities, 
mistakes  or  omissions  on  the  part  of  election  officers  will  not  vitiate  the  election  or 
defeat  the  will  of  the  electors  as  shown  by  their  votes. 

Decided  December  18,  1895 

Brinnier  &  Newcomb,  attorneys  for  appellants 
G.  D.  B.  Hasbrouck,  attorney  for  respondents 

Skinner,  Superintendent 

The  appellants  in  the  above-entitled  matter  appeal  from  the  election  of  offi- 
cers of  school  district  no.  3,  city  of  Kingston,  at  a  meeting  held  in  said  district 
on  August  7,  1895,  but  from  an  examination  of  the  appeal  and  the  statements 
contained  in  the  affidavits  annexed  thereto,  it  is  in  fact  an  appeal  from  the  elec- 
tion of  Henry  Beck  as  a  trustee  of  said  district. 

The  grounds  upon  which  the  appeal  is  brought,  in  substance,  are,  that  the 
trustees  of  the  district,  although  present,  did  not  act  as  inspectors  of  such  elec- 


JUDICIAL    DECISIONS  :       ELECTIONS  239 

tion.  nor  did  they  designate  any  one  of  their  number  to  act  as  chairman  or  to 
receive  the  votes  cast;  that  they  did  not  act  as  inspectors  and  receive  the  votes 
as  required  by  statute,  nor  lawfully  appoint  or  designate  any  other  person  to  act 
as  inspector  and  receive  the  votes;  that  one  Henry  Powers,  the  principal  of  the 
school  in  said  district,  unlawfully  acted  as  an  inspector  and  unlawfully  received 
and  rejected  votes;  that  said  Powers  refused  to  receive  the  votes  of  persons 
duly  qualified  to  vote,  and  refused  to  permit  persons  offering  to  vote  to  make 
the  declaration  under  the  law,  and  threw  ballots  to  the  number  at  least  of  from 
forty  to  sixty,  handed  him  by  legal  voters,  upon  the  floor,  refusing  to  deposit 
such  votes  in  the  ballot  box;  that  at  least  seventy-five  to  one  hundred  illegal 
votes  were  received  and  counted  for  Henry  Beck,  who  was  unlawfully  and  fraud- 
ulently declared  elected  as  trustee. 

The  affidavits  of  five  persons  other  than  the  appellants  in  support  of  some 
of  the  allegations  contained  in  the  appeal,  and  the  affidavits  of  forty  persons, 
each  of  whom  alleges  that  he  or  she  was  a  qualified  voter  in  said  district  and 
who  ofi^ered  to  vote  and  was  not  permitted  to  vote  or  swear  in  the  vote,  are 
annexed  to  the  appeal. 

Trustees  Beck  and  Weiss,  two  of  the  three  trustees  of  said  district,  with 
sixty-eight  qualified  voters  of  the  said  district,  have  filed  answer  to  said  appeal, 
and  to  which  answer  are  annexed  the  affidavits  of  Martin  J.  Sweeney,  Henry 
Powers,  George  M.  Zellmar  and  seventeen  others,  qualified  voters  of  the  district, 
in  support  of  the  statements  contained  in  said  answer. 

The  proofs  filed  herein  establish  the  following  facts : 

That  an  election  of  a  trustee,  clerk,  and  collector  of  school  district  no.  3, 
city  of  Kingston,  Ulster  county,  was  held  on  August  7,  1895.  between  the  hours 
of  12  o'clock  noon  and  4  o'clock  p.  m. ;  that  Messrs  Beck,  Weiss  and  Mulholland, 
then  trustees  of  said  district,  and  George  M.  Zellmar,  then  district  clerk,  assem- 
bled at  the  place  designated  for  holding  said  election  just  prior  to  12  o'clock  noon, 
and  said  Trustee  \\'eiss  was  selected  as  chairman  of  the  board  of  inspectors 
of  election;  that  said  trustees  or  a  majority  of  them,  acting  as  such  inspectors 
of  election,  appointed  Henry  Powers,  a  qualified  voter  of  said  district,  to  assist 
them  in  said  election  by  receiving  the  ballots  from  the  voters  and  depositing 
the  same  in  the  ballot  box  provided  by  the  said  trustees;  that  at  12  o'clock  noon, 
the  said  trustees,  or  a  majority  of  them,  being  present  and  acting  as  inspectors 
of  said  election,  and  the  district  clerk  being  present,  opened  the  poll  of  said 
election  and  received  the  votes,  the  said  Powers  receiving  the  votes  of  each  voter 
and  depositing  the  same  in  the  ballot  box,  under  the  instruction  of  the  said  trus- 
tees as  such  inspectors  of  election,  the  district  clerk  recording  the  name  of  each 
person  whose  vote  was  received  until  4  o'clock  p.  m.,  when  the  poll  was  closed 
and  said  inspectors  of  election  proceeded  to  canvass  the  votes  cast,  first  count- 
ing the  ballots  to  find  if  they  tallied  with  the  number  of  names  recorded  by  the 
clerk;  that  the  whole  number  of  votes  cast  was  y-})!^  ^"^  the  poll  list  kept  by 
the  district  clerk  contained  the  names  of  y^J  persons  as  having  voted;  that 
Henry  Beck  received  429  votes  for  trustee  for  three  years  and  Alichael  Dippold 


240  THE   UNIVERSITY    OF   THE   STATE    OF   NEW    YORK 

received  308  votes,  and  the  result  of  the  ballot  was  announced  by  the  said 
inspectors  of  election,  and  the  result  of  such  ballot  and  election  as  announced 
by  said  inspectors  of  election  was  recorded  by  the  district  clerk. 

It  also  appears  that  said  trustees,  or  a  majority  of  them,  acting  as  inspectors 
of  election,  decided  all  questions  arising  at  said  election  relative  to  the  qualifica- 
tions of  voters,  and  as  to  whether  any  vote  should  be  received  or  refused,  and 
as  to  all  other  questions  which  arose,  and  that  said  Powers  took  no  part  what- 
ever therein,  but  simply  received  such  votes  as  said  inspectors  directed  them  to 
be  received  and  deposited  such  votes  in  the  ballot  box. 

The  burden  is  upon  the  appellants  to  sustain  the  allegations  in  their  appeal 
by  a  preponderance  of  proof.  The  answer  and  affidavits  annexed  to  the  appeal 
deny  that  said  Powers  refused  to  receive  the  vote  of  any  person  or  refused  to 
permit  persons  whose  votes  were  challenged  to  make  the  declaration  required 
by  the  school  law,  or  threw  any  ballot  of  any  person  whose  vote  was  received, 
upon  the  floor,  except  under  the  direction  of  said  inspectors  of  election.  The 
proofs  on  the  part  of  the  respondents  deny  that  said  Powers  said  in  substance, 
"  that  he  was  running  the  meeting  to  suit  himself." 

The  forty  affidavits  annexed  to  appeal  of  persons  who  allege  that  their  votes 
were  rejected  were  verified  the  latter  part  of  August  1895,  but  not  one  of  them 
alleges  that  he  or  she  was  a  qualified  voter  in  said  district  on  August  7th.  Neither 
does  any  one  of  them  state  the  facts  relative  to  his  or  her  alleged  qualifications 
as  a  voter  so  that  it  can  be  ascertained  whether  he  or  she  possessed  on  August 
7,  1895,  ai^y  oi^e  or  more  of  the  qualifications  required  by  the  school  law.  Four- 
teen of  these  affiants  state  that  they  are  taxpayers  in  the  district,  twelve  that 
they  are  householders  in  the  district,  seven  that  they  have  children  who  attend 
school,  but  do  not  state  that  such  children  have  attended  school  for  eight  weeks 
during  the  year  prior  to  said  election.  The  affidavits  of  Sweeney  and  Powers, 
annexed  to  the  answer,  which  affidavits  are  not  answered,  show  that  the  names 
of  those  claiming  to  be  "  taxpayers  or  freeholders  "  are  not,  nor  is  either  of 
them,  upon  the  tax  lists  of  said  districts  for  the  years  1894  and  1895.  The  affi- 
davit of  Powers  shows,  from  an  examination  of  the  school  register  for  the  year 
preceding  the  election,  that  none  of  the  persons  claiming  to  vote  by  reason  of 
sending  children  to  school  in  the  district  had  any  child  or  children  of  his  or  her 
own,  or  residing  with  him  or  her,  who  attended  the  school  in  said  district  for 
the  period  of  eight  weeks  within  one  year  previous  to  said  election. 

Admitting  that  each  of  these  forty  persons  were  qualified  voters  and  each 
had  voted  for  Dippold,  still  Beck  would  have  been  elected  by  eighty-one  majority. 
The  allegation  in  the  appeal,  that  from  seventy-five  to  one  hundred  illegal  votes 
were  received  and  counted  for  Henry  Beck  is  indefinite  and  uncertain.  The 
appeal  does  not  give  the  name  of  any  one  of  the  seventy-five  or  one  hundred 
that  it  is  alleged  voted  illegally,  nor  do  the  appellants  show  by  evidence  the  lack 
of  qualifications  of  any  one  or  all  of  said  seventy-five  to  one  hundred,  in  such 
terms  as  necessarily  to  exclude  every  presumption  that  such  persons  could  not  be 
qualified  to  vote  under  the  provisions  of  the  school  law.  This  allegation  is  not 
supported  by  any  evidence  whatever. 


JUDICIAL  decisions:     elections  241 

The  rule  is  well  settled  that  an  election  will  not  be  vitiated  by  illegal  votes 
unless  a  different  result  would  have  been  produced  by  excluding  such  votes.  To 
warrant  setting  aside  an  election,  it  must  appear  affirmatively  that  the  successful 
ticket  received  a  number  of  illegal  votes  which,  if  rejected,  would  have  brought 
it  down  to  a  minority. 

The  election  in  said  school  district  on  August  7,  1895,  was  held  under  the 
provisions  of  section  15,  article  i,  title  7,  of  the  Consolidated  School  Law  of 
1S94.  Such  section  provides  who  shall  be  inspectors  of  election.  It  does  not 
permit,  neither  does  it  prohibit,  such  inspectors  from  appointing  a  person  simply 
to  perform  the  mechanical  act  of  receiving  votes  from  persons  whom  the 
inspectors  have  decided  are  entitled  to  vote,  and  depositing  such  votes  in  the 
ballot  box.  The  trustees  or  inspectors  of  election,  it  seems,  expected  from  the 
interest  taken  in  said  election  that  a  large  vote  would  be  polled,  and  in  order  to 
enable  them  to  act  upon  questions  that  might  arise  relative  to  the  election  and 
the  qualifications  of  voters,  they  appointed  Powers,  a  qualified  voter  of  the 
district,  to  take  the  votes  from  the  voters  and  deposit  such  votes  in  the  ballot 
box.  No  other  power  or  duty  intrusted  to  said  inspectors  by  law  was  delegated 
or  given  to  or  exercised  by  said  Powers.  It  was  an  irregularity  on  the  part  of 
said  inspectors  which  I  do  not  approve,  but  one  which  I  do  not  think  warrants 
me  in  setting  aside  the  election.  Irregularities,  mistakes  or  omissions  on  the  part 
of  election  officers  will  not  vitiate  an  election,  or  defeat  the  will  of  the  electors 
as  shown  by  their  votes. 

The  appellants  have  failed  to  sustain  their  appeal  by  a  preponderance  of 
proof  and  the  appeal  should  be  dismissed. 

Appeal  dismissed. 


4053 

In  the  matter  of  the  appeal  of  John  H.  Innes,  Frederick  Mark  and  others  v. 
school  district  no.  1 1  of  the  town  of  Newtown,  in  the  county  of  Queens. 

It  is  the  business  of  school  meetings  and  of  presiding  officers  thereof,  to  undertake  to 
ascertain  the  intent  of  the  electors  and  give  expression  of  their  ballot  as  they  intended. 
When  one  Joseph  B.  Johnson  was  nominated  as  one  of  two  trustees  to  be  elected  at 
an  annual  meeting,  and  there  was  no  pretense  that  any  other  person  by  the  name  of 
Johnson  was  a  candidate  or  voted  for  at  the  meeting,  votes  cast  for  "  Mr  Johnson  " 
and  "  Johnson  "  should  be  counted  for  Joseph  B.  Johnson. 

Decided  January  12,  1892 

Draper,  Superintendent 

The  school  district  above  named  is  under  the  operation  of  a  special  act  of 
the  Legislature,  being  chapter  535  of  the  Laws  of  1879.  This  act  provides 
that  the  district  shall  hold  its  annual  school  meeting  on  the  second  Wednesday 
of  October  each  year.  Pursuant  to  this  act  the  district  held  the  annual  meeting 
on  the  14th  day  of  October  1891,  and  proceeded  to  elect  a  trustee  to  succeed 


242  THE   UNIVERSITY    OF   THE   STATE   OE   NEW    YORK 

Edward  H.  Weber,  whose  term  of  office  had  expired.  Edward  H.  Weber  and 
Joseph  B.  Johnson  were  duly  nominated  for  the  position  and  nominations  were 
declared  closed.  The  meeting  then  proceeded  to  ballot  and  the  result  'was 
announced  as  follows: 

Votes 

Edward  H.  Weber 51 

Joseph   B.   Johnson 40 

Mr  Johnson ; i^ 

Johnson -, 

Bernard  Becker    2 

Charles  Klosset i 

G.  T.   Bauman i 

O.    H.    Green i 

T.  McGowan,  j  r i 

Defective 3 


Upon  the  announcement  of  the  result  it  was  moved  and  seconded  that  the 
votes  cast  for  Mr  Johnson  be  counted  for  Joseph  B.  Johnson.  This  motion  was 
declared  out  of  order  by  the  chair.  An  attempt  was  then  made  to  secure  another 
ballot  and  this  was  refused  by  the  chair.  The  chairman  then  declared  that 
Edward  H.  Weber  was  elected.  From  this  action  this  appeal  is  taken.  The 
respondent  offers  several  objections  which  are  technical  if  not  frivolous.  He 
insists  that  if  the  proceeding  was  to  have  been  commenced  at  all,  it  must  haye 
been  commenced  by  Mr  Johnson,  and  that  the  appellants  here  are  not  parties  in 
interest.  I  think  he  is  mistaken  in  this.  Any  elector  in  the  district  is  sufficiently 
interested  in  such  a  matter  to  bring  it  before  the  State  Department. 

Again,  the  respondent  insists  that  there  are  over  300  children  of  school  age 
in  this  district  and  that  the  election  therein  must  be  governed  by  the  provisions 
of  chapter  248  of  the  Laws  of  1878  as  amended.  I  think  he  is  in  error  in  this 
position  also.  The  school  district  is  operating  under  a  special  act  and  is  specially 
exempted  from  the  provisions  of  the  general  act  by  section  10  thereof.  As  a 
matter  of  fact,  the  district  did  not  proceed  under  the  provisions  of  the  general 
act.  If  the  contention  of  the  respondent  was  to  be  upheld,  it  would  be  fatal  to 
his  claim  that  he  was  elected.  I  am  of  the  opinion  that  it  required  a  majority 
of  all  the  legal  votes  cast  to  elect.  I  think  the  chair  was  in  error  in  refusing 
to  permit  the  house  to  pass  upon  the  question  as  to  whether  the  votes  cast  for 
"  Mr  Johnson  "  and  for  "  Johnson  "  were  not  intended  for  Joseph  B.  Johnson. 
Indeed,  I  think  that  the  chair  would  have  been  justified  in  so  holding  without 
the  direction  of  the  meeting,  and  in  declaring  Joseph  B.  Johnson  elected. 

The  3  ballots  which  are  returned  as  defective  should  not  have  been  counted 
at  all  in  determining  the  number  which  constituted  a  majority.  Excluding  these 
3  votes,  58  votes  constituted  a  majority.  It  is  idle  for  the  respondent  to  say 
that  the  18  votes  cast  for  "  Mr  Johnson  "  and  "  Johnson  "  were  not  intended  for 


JUDICIAL  decisions:     elections    ,  243 

Joseph  B.  Johnson,  because  there  are  one  or  two  other  persons  in  the  district 
by  the  name  of  Johnson.  There  is  no  pretense  that  any  other  person  by  the 
name  of  Johnson  was  a  candidate  or  was  voted  for  at  the  meeting.  Counting 
ihese  ballots  for  Joseph  B.  Johnson,  he  received  58  votes  and  was  elected.  It 
is  the  business  of  school  meetings  and  of  presiding  officers  thereof  to  undertake 
to  ascertain  the  intent  of  the  electors  and  to  give  expression  to  their  ballot  as 
they  intended. 

Upon  the  papers  presented,  I  entertain  no  doubt  but  that  a  majority  of  the 
electors  at  this  meeting  who  saw  fit  to  vote  for  trustee,  intended  and  attempted 
to  vote  for  the  election  of  Joseph  B.  Johnson. 

The  appeal  is  therefore  sustained  and  Mr  Joseph  B.  Johnson  is  held  to  have 
been  elected  at  the  school  meeting  held  in  the  above  named  district  on  the  14th 
day  of  October  1891. 


4265 

In  the  matter  of  the  appeal  of  Joseph  Holmes  and  William  Hummiston  from 
proceedings  of  the  annual  school  meeting  held  in  district  no.  10,  town  of 
Stillwater,  Saratoga  county,  on  August  7,  1894,  in  the  election  of  the  officers 
of  said  district. 

Where  at  an  annual  school  meeting  the  election  of  district  officers  was  not  by  ballot  but  by 
a  viva  voce  vote  of  those  present  and  voting;  that  no  suitable  ballot  box  was  provided 
by  the  trustees  of  the  district  for  such  election,  nor  were  any  inspectors  of  election 
appointed,  and  no  poll  list  kept  by  the  clerk  of  the  meeting  containing  the  names  of 
persons  whose  votes  were  received;  held,  that  such  election  was  illegal  and  void,  and 
a  special  meeting  ordered  for  the  election  of  such  district  officers. 

Decided  September  24,  1894 

Crooker,  Superintendent 

The  appellants  in  the  above-entitled  appeal  state  that  at  the  annual  school 
meeting  held  on  the  first  Tuesday  of  August  1894,  in  school  district  no.  10,  town 
of  Stillwater,  Saratoga  county,  one  Jacob  Snyder  was  placed  in  nomination  for 
the  office  of  trustee  of  said  district  and  was  declared  elected ;  that  said  election 
of  said  Snyder  as  trustee  was  not  by  ballot  but  by  a  viva  voce  vote  of  those  present 
and  voting;  that  no  suitable  ballot  box  at  the  election  of  the  district  officers  of 
said  district  was  provided  by  the  trustee  of  said  district,  nor  were  any  inspectors 
of  election  appointed;  that  none  of  the  officers  of  said  district  were  elected  by 
ballot. 

A  copy  of  the  appeal  herein  was  personally  served  upon  the  said  Jacob 
Snyder  on  August  25,  1894,  and  said  appeal,  with  proof  of  service  of  a  copy 
thereof  upon  said  Snyder,  was  received  at  this  Department  on  August  28,  1894. 
No  answer  to  said  appeal  having  been  received  by  me,  the  allegations  contained 
in  said  appeal  are  deemed  by  me  to  be  admitted. 


244  THE   UNIVERSITY    OF   THE    STATE    OF    NEW    YORK 

Under  subdivision  4  of  section  14,  article  i,  title  7  of  the  Consolidated 
School  Law  of  1894,  all  district  officers  in  the  common  school  districts  of  this 
State  must  be  elected  by  ballot.  At  such  elections  the  trustee  or  trustees  of 
such  district  shall  provide  a  suitable  ballot  box.  Two  inspectors  of  election 
shall  be  appointed  as  the  meeting  shall  determine,  who  shall  receive  the  votes 
cast  and  canvass  the  same  and  announce  the  result  of  the  ballot  to  the  chairman 
of  the  meeting.  A  poll  list  containing  the  name  of  every  person  whose  vote 
shall  be  received  shall  be  kept  by  the  clerk  of  the  meeting.  The  ballots  shall 
be  written  or  printed,  or  partly  written  and  partly  printed,  containing  the  name 
of  the  person  voted  for  and  designating  the  office  for  which  each  is  voted. 
The  chairman  shall  declare  to  the  meeting  the  result  of  each  ballot,  as  announced 
to  him  by  the  inspectors,  and  the  persons  having  the  majority  of  votes,  respec- 
tively, for  the  several  offices,  shall  be  elected. 

Upon  the  facts  stated  in  the  appeal  herein,  it  is  clear  that  the  officers  of 
said  school  district  were  not,  nor  was  either  of  them,  elected  pursuant  to  the 
provisions  of  the  Consolidated  School  Law  of  1894. 

The  appeal  herein  is  sustained. 

I  do  find  and  decide,  that  the  said  Jacob  Snyder  was  not,  nor  was  any  one, 
legally  elected  as  trustee  of  said  school  district  no.  10,  town  of  Stillwater,  Sara- 
toga county,  at  the  annual  meeting  of  said  district,  held  on  the  first  Tuesday 
of  August  1894,  nor  was  any  person  legally  elected  as  district  clerk  or  collector 
of  said  district  at  said  meeting. 

It  is  ordered.  That  so  much  of  the  action  and  proceedings  of  the  annual 
meeting  of  said  school  district  no.  10,  town  of  Stillwater,  Saratoga  county,  held 
on  the  first  Tuesday  of  August  1894,  had  and  taken  in  the  election  of  the  officers 
of  said  district,  be,  and  the  same  are,  and  each  of  them  is,  hereby  vacated  and 
set  aside  as  illegal  and  void. 

It  is  further  ordered.  That  Wilson  Wylie,  a  qualified  voter  in  and  of  said 
school  district  no.  10,  and  who  is  now  acting  as  clerk  of  said  district  under  the 
assumption  that  he  was  elected  such  clerk  at  said  annual  meeting,  be,  and  he 
hereby  is,  directed  to  forthwith  call  a  special  meeting  of  the  inhabitants  of  said 
school  district  no.  10,  town  of  Stillwater,  Saratoga  county,  entitled  to  vote  at 
school  meetings  in  said  district,  in  the  manner  prescribed  in  sections  2  and  6 
of  article  i,  title  7  of  the  Consolidated  School  Law  of  1894,  for  the  purpose  of 
the  election  of  a  trustee,  district  clerk  and  collector  of  said  district,  said  election 
to  be  conducted  in  the  manner  provided  in  subdivision  4  of  section  14,  article  i, 
title  7  of  the  Consolidated  School  Law  of  1894. 

It  is  further  ordered.  That  said  Jacob  Snyder  be,  and  he  hereby  is,  enjoined 
and  restrained  from  further  acting  as  trustee  of  said  district,  and  from  doing 
any  act  as  such  trustee  of  said  district. 


JUDICIAL    DECISIONS  :       ELECTIONS  245 

4379 

In  the  matter  of  the  appeal  of  John  Midvihill  from  proceedings  of  annual  school 
meeting  held  on  August  6,  1895,  in  district  no.  3,  town  of  Campbell,  Steuben 
county,  in  the  election  of  a  trustee. 

Where  a  ballot  has  been  taken  for  a  district  officer  and  such  vote  canvassed  by  the 
inspectors  of  election  and  the  result  of  the  canvass  announced  showing  that  some  one 
has  received  a  majority  of  the  votes  cast,  the  power  of  the  meeting  in  the  election  of 
such  officer  has  been  exhausted.  Such  ballot  can  not  be  reconsidered  nor  a  recount 
had  or  the  ballot  impeached  by  the  affidavits  or  statements  that  the  canvass  of  the  votes 
was  not  a  correct  one,  or  by  the  affidavits  of  persons  that  in  such  ballot  they  voted 
for  a  particular  person  for  said  office. 

Decided  September  2.^.  1895 

Francis  E.  Wood,  attorney  for  appellant 

Skinner,  Superintendent 

The  appellant  in  the  above-entitled  matter  appeals  from  so  much  of  the 
proceedings  had  and  taken  in  school  district  no.  3,  town  of  Campbell,  Steuben 
county,  at  the  annual  meeting  held  on  August  6,  1895,  as  relates  to  the  election 
of  a  trustee. 

It  appears  from  the  papers  presented  herein  that  the  said  annual  meeting 
was  duly  organized  by  the  choice  of  one  Chase  as  chairman  and  John  Wilcox, 
district  clerk,  acting  as  clerk;  that  John  S.  Curtis  and  Patrick  Mulvihill  were 
appointed  inspectors  of  election;  that  the  appellant  and  George  D.  Turnbull,  the 
respondent,  were  nominated  for  trustee ;  that  a  ballot  was  taken  for  trustee,  the 
ballot  cast  being  received  by  said  inspectors  and  w^hen  such  ballot  was  closed, 
the  votes  were  canvassed  by  said  inspectors  who  reported  the  result  of  such 
ballot  to  the  chairman  of  the  meeting  as  follows :  Whole  number  of  votes  cast 
25,  of  which  George  D.  Turnbull  received  13  and  John  Mulvihill  11,  and  i  blank  : 
that  said  result  was  announced  by  the  chairman  to  the  meeting,  and  no  objection 
relative  thereto  was  made  at  the  time  such  result  was  announced  by  the  chair- 
man ;  that  the  said  meeting  proceeded  to  elect  other  district  officers  and  transact 
other  business;  that  one  Michael  Lyon  jr,  who  was  not  a  voter  in  said  school 
district,  went  to  the  table  used  by  the  inspectors  of  election  and  upon  which 
several  persons  had  written  ballots  for  the  various  district  officers  who  had 
been  voted  for,  upon  which  also  ballots  were  lying,  and  after  some  time  passed 
in  examining  the  said  ballots,  etc.,  lying  upon  said  table,  stated  that  there  was 
a  mistake  and  that  the  ballot  for  trustee  was  twelve  for  each  of  the  candidates, 
and  one  blank;  that  upon  the  statement  being  so  made  by  said  Lyon  the  chair- 
man stated  that  a  ballot  having  been  had  and  the  votes  cast  having  been  can- 
vassed and  the  result  announced  and  recorded  the  meeting  could  not  act  thereon ; 
that  no  motion  was  made  in  regard  to  the  matter  of  the  election  of  trustee, 
either  to  reopen  or  reconsider  the  ballot  or  for  a  recount  of  the  vote,  or  that 
anything  be  done  in  reference  thereto,  and  the  meeting  adjourned. 

The  appellant  in  his  appeal  alleges,  upon  information  and  belief,  that  twelve 
votes  were  actuallv  cast  for  him  for  trustee,  and  that  only  twelve  votes  were 


246  THE   UNIVERSITY    OF   THE   STATE    OF   NEW    YORK 

cast  for  said  Tnrnbull,  and  that  the  blank  vote  was  cast  and  intended  to  be  cast 
for  him  (the  appellant)  for  trustee;  that  annexed  to  said  appeal  is  an  affidavit 
of  twelve  persons,  including  the  appellant,  who  allege  that  each  of  them  voted 
for  the  appellant  for  trustee,  and  an  affidavit  of  Simon  Mulvihill  that  he  voted 
for  the  appellant. 

The  respondent  avers  in  his  answer,  upon  information  and  belief  that  the 
persons  named  by  him  therein  voted  for  him  for  trustee  and  the  names  of  thir- 
teen persons,  including  his  own,  is  given ;  that  also  annexed  to  said  answer  are 
the  affidavits  of  L.  L.  Chase,  the  chairman,  and  John  Wilcox  the  clerk,  of  said 
meeting,  averring  that  said  answer  is  true,  and  also  the  affidavit  of  John  S. 
Curtis,  one  of  the  inspectors  of  election  at  said  meeting,  averring  that  the  affiant 
and  Patrick  Mulvihill  were  such  inspectors  of  election  and  together  canvassed 
the  votes  cast  for  trustee  and  both  agreed  in  the  result  of  the  ballot  as  so  can- 
vassed and  announced  by  them  as  follows:  Whole  number  of  votes  cast  25,  of 
which  Turnbull  received  13,  John  Mulvihill  11  and  blank  i;  that  he  knows  of 
his  own  knowledge  that  such  result  as  announced  was  correct;  that  there  was 
no  recanvass  of  said  votes  after  such  result  was  announced  by  the  inspectors 
to  the  chairman ;  that  the  facts  stated  in  the  answer  by  Turnbull  of  what 
occurred  at  the  meeting  are  true.  No  affidavit  by  Patrick  Mulvihill,  the  other 
inspector,  in  reply  to  the  allegation  contained  in  said  affidavit  of  Curtis  has 
been  presented.  There  is  also  annexed  to  said  answer  the  affidavit  of  nine 
qualified  voters  each  of  whom  was  present  at  said  meeting,  that  the  statement 
of  facts  as  to  what  occurred  at  said  meeting,  contained  in  said  answer,  is  true. 

The  statement  of  the  man,  Lyon,  is  the  only  statement  presented  in  conflict 
with  the  announcement  of  the  inspectors  of  election  of  the  result  of  the  ballot 
had  for  trustee.  Lyon  does  not  state  at  what  time  he  examined  the  ballot,  and 
it  appears  by  the  affidavit  of  thirteen  voters  of  the  district  verifying  the  state- 
ment of  facts  and  of  what  took  place  at  the  meeting,  contained  in  the  answer 
of  Turnbull,  that  Lyon  did  not  go  to  the  table  on  which  the  votes  for  trustee 
were  canvassed  and  until  the  other  officers  of  the  district  were  elected  and  other 
ballots  other  than  those  for  trustee  were  lying  upon  the  table  with  other  papers. 

Where  a  ballot  has  been  taken  for  a  district  officer  and  such  vote  canvassed 
by  the  inspectors  of  election,  and  the  result  of  the  canvass  announced,  showing 
that  some  one  has  received  a  majority  of  the  votes  cast,  the  power  of  the  meet- 
ing in  the  election  of  such  officer  has  been  exhausted.  Such  ballot  can  not  be 
reconsidered  nor  a  recount  had,  or  the  ballot  impeached  by  the  affidavits  or 
statements  of  persons  that  the  canvass  of  the  votes  was  not  a  correct  one,  or 
by  the  affidavits  of  persons  that  in  such  ballot  they  voted  for  a  particular  person 
for  said  office. 

It  is  difficult  to  reconcile  the  affidavit  of  thirteen  persons  who  swear  they 
voted  for  iMulvihill.  with  the  affidavit  of  Lyon  who  swears  Mulvihill  received 
but  twelve  votes. 

The  burden  is  upon  the  appellant  to  sustain  his  appeal  by  a  preponderance 
of  proof  and  in  this  he  has  failed. 

The  appeal  herein  is  dismissed. 


JUDICIAL    DECISIONS  :       ELECTIONS  247 


4392 


In  the  matter  of  the  appeal  of  H.  H.  Wendell  and  others,  from  proceedings  of 
annual  school  meeting  held  on  August  6,  1895,  in  district  no.  3,  town  of 
Herkimer,  Herkimer  county,  in  election  of  trustee. 

When  at  any  school  district  meeting  for  the  election  of  officers  said  meeting  has  voted  to 
proceed  to  ballot  for  a  trustee  or  other  officer,  votes  cast  for  said  officer  having  the 
name  of  some  person  thereon,  but  not  having  written  thereon  the  name  of  the  office 
for  which  the  person  is  voted,  said  ballot  is  a  legal  ballot.  The  mere  circumstance 
that  improper  votes  are  received  at  an  election  will  not  vitiate  it.  The  fact  must  be 
shown  affirmatively  that  a  sufficient  number  of  improper  votes  were  received  for  the 
successful  ticket  to  reduce  it  to  a  minority  if  they  had  been  rejected;  or  the  election 
must  stand. 

A  party  knowing  a  person  to  be  unqualified  and  permitting  him  or  her  to  vote  without  chal- 
lenge will  not  be  allowed  on  appeal  to  object  to  the  proceedings  of  the  meeting  because 
said  unqualified  person  participated  therein. 

Decided  October  12,  1895 

W.  C.  Prescott,  attorney  for  respondent 

Skinner,  Superintendent 

The  appellants  in  the  above-entitled  matter  appeal  from  so  much  of  the  pro- 
ceedings of  the  annual  school  meeting,  held  in  district  no.  3,  town  of  Herkimer, 
Herkimer  county,  had  and  taken  in  the  election  of  a  trustee,  and  from  the  elec- 
tion of  Miss  Kate  Cot^n  as  trustee  of  said  district,  and  allege  that  her  election 
was  illegal. 

The  grounds,  as  alleged  in  the  appeal,  upon  which  the  election  of  Miss 
Coffin  as  trustee  is  claimed  not  to  have  been  legal,  are,  in  substance,  that  illegal 
votes  were  cast  for  her,  and  she  did  not  receive  a  majority  of  the  votes  of 
the  qualified  voters  cast  at  such  election ;  that  one  Charles  Ely  was  prevented 
from  voting  for  the  appellant,  H.  H.  Wendell,  who  was  one  of  the  can.lidates 
for  the  office  of  trustee :  that  no  notice  was  given  of  the  closing  of  the  polls, 
and  that  the  ballots  cast  did  not  designate  the  office  for  which  the  persons  written 
thereon  respectively  were  voted  for. 

The  appeal  is  signed  and  verified  by  sixteen  persons,  seven  of  whom  were 
not  present  at  said  annual  school  meeting,  and  annexed  to  the  appeal  are  two 
affidavits  in  support  of  the  allegations  contained  in  said  appeal.  ]\Iiss  Kate  Coffin 
has  answered  said  appeal,  denying  the  allegations  in  the  appeal  that  she  did 
not  receive  a  majority  of  the  legal  votes  cast  at  said  meeting  for  the  office  of 
trustee,  and  was  not  legally  elected  trustee  of  said  district ;  denying  the  allegation 
that  one  Charles  Ely  was  prevented  from  voting  for  trustee  at  said  meeting, 
and  denying  the  allegation  that  no  notice  was  given  of  the  closing  of  the  polls 
in  the  election  of  trustee.  To  her  answer  are  annexed  the  affidavits  of  thirteen 
persons  in  support  of  the  statements  made  in  said  answer. 

To  said  answer  the  appellants  have  made  a  reply.  The  following  facts  are 
established : 

That  the  annual  school  meeting  in  district  no.  3,  town  of  Herkimer,  Her- 
kimer county,   was   held   on   August  6,    1S95,.  and   was   duly   organized   by  the 


248  THE   UNIVERSITY    OF   THE    STATE    OF   NEW    YORK 

election  of  George  P.  Gunn  as  chairman;  C.  W.  Arnolds,  districL  clerk,  acting 
as  clerk;  that  Eddy  J.  Clark  and  John  W.  Coffin  were  duly  appointed  inspectors 
of  election;  that  the  appellant,  H.  H.  Wendell,  and  respondent.  Miss  Kate  Coffin, 
were  each  nominated  for  the  office  of  trustee  and  a  ballot  for  trustee  was  taken, 
said  inspectors  of  election  receiving  a  ballot  from  each  of  the  persons  offering 
to  vote  and  the  name  of  each  person  whose  vote  was  received  was  recorded  bv 
the  district  clerk  upon  the  poll  list  kept  by  him ;  that  two  persons  offering  to 
vote  for  trustee  were  challenged,  namely,  M.  J.  Richards  and  Alice  Ely,  each  of 
whom  made  the  declaration  required  by  the  school  law,  and  the  vote  of  each 
was  received;  that  after  the  ballots  of  those  desiring  to  vote  were  received 
the  chairman  asked  if  all  had  voted  who  desired,  and  hearing  no  response, 
declared  the  polls  closed;  that  the  votes  cast  were  then  canvassed  by  said 
inspectors  of  election,  and  the  result,  as  announced  to  the  meeting  by  the  clerk 
at  the  request  of  the  chairman,  was  as  follows:  Whole  number  cf  votes  cast, 
25,  of  which  Miss  Kate  Coffin  received  15  and  H.  H.  Wendell  10. 

It  also  appears  that  the  ballots  for  trustee  were  written,  and  upon  about 
three  were  the  words  "  For  Trustee,  H.  H.  Wendell,"  but  the  words  "  For 
Trustee "  were  not  upon  the  other  twenty-two  votes ;  that  upon  said  ballots 
were  written  respectively,  ''  Mr  Wendel,"  "  Mr  Wendal,"  "  j\Ir  Windel," 
"  Windell."  "  H.  Windell,"  "  Miss  Kate  Coffin,"  "  Miss  Cofffn,"  "  K.  Coffin," 
"  Kate  Coffin  "  and  "  Gate  Coffin ;  "  that  there  were  residing  in  said  district  at 
the  time  of  said  annual  school  meeting  therein  two  persons  by  the  name  of 
Wendell,  namely,  Herman  H.  Wendell  and  Earl  D.  Wendell,  and  two  unmarried 
ladies  by  the  name  of  Coffin,  namely,  Kate  Coffin  and  Emma  Coffin,  who  are 
sisters,  and  Kate  Coffin  being  the  elder  is  known  as  Miss  Cofhn. 

It  is  admitted  by  the  respondent  that  Mrs  Joseph  Dudleston,  Mrs  J.  A. 
Shaw,  Mrs  G.  P.  Gunn,  Mrs  Walter  Davidson  and  Mrs  Jennie  Worden,  whose 
votes  were  received  for  the  office  of  trustee  at  said  annual  meeting,  were  not. 
nor  was  either  of  them,  qualified  to  vote  at  said  meeting;  and  it  is  established 
that  Jennie  Worden  voted  for  the  appellant,  Wendell,  and  the  four  other  ladies 
voted  for  the  respondent.  Kate  Coffin.  The  appellants  have  failed  to  establish 
that  Alice  Ely,  whose  vote  was  challenged,  but  who  made  the  declaration  and 
voted,  was  not  qualified  to  vote  at  said  meeting. 

The  appellants  herein  have  failed  to  establish  the  allegation  made  by  them 
that  said  Charles  Ely  was  prevented  from  voting  at  said  meeting. 

By  subdivision  4,  of  section  14,  article  i,  title  7,  of  the  Consolidated 
School  Law  of  1894,  it  is  enacted  that  the  ballots  for  school  district  officers 
shall  be  written  or  printed  or  partly  written  and  partly  printed,  containing  the 
name  of  the  person  voted  for  and  designating  the  office  for  which  each  is 
voted.  The  words  "  designating  the  office  for  which  each  is  voted  "  applies 
when  at  a  district  meeting  for  the  election  of  officers  persons  for  more  than 
one  office  are  to  be  elected,  i.  e.,  for  a  trustee,  district  clerk,  etc.,  and  upon  one 
ballot,  and  is  not  intended  to  apply  in  a  case  where  a  ballot  is  ordered  for  the 
election  of  a  trustee.     At  the  annual  meeting  in  said  district  no.  3,  Herkimer,  a 


JUDICIAL    DECISIONS  :       ELECTIONS  249 

ballot  was  ordered  for  the  election  of  a  trustee  and  the  voters  present  were 
informed  and  knew  that  only  a  trustee  of  the  district  was  to  be  voted  for,  and  no 
one  was  misled.  A  vote  cast  in  such  ballot  having  upon  it  the  name  of  a  person 
and  without  the  words  ''  For  Trustee  "  thereon,  was  a  legal  ballot  under  the 
school  law.  The  votes  cast  were  properly  canvassed  and  counted  for  Miss 
Kate  Coffin,  and  H.  H.  Wendell  respectively  for  trustee.  But  two  persons 
were  put  in  nomination  for  trustee,  to  wit,  said  Aliss  Kate  Coffin  and  H.  H. 
Wendell,  and  such  persons  were  w'ell  known  to  the  voters  present,  and  it  was 
clearly  the  intention  of  each  person  who  voted,  to  vote  for  the  one  or  the  other  of 
the  two  persons  nominated,  and  it  was  the  duty  of  the  inspectors  of  election  in 
canvassing  the  votes  cast  to  ascertain  that  intent  and  to  count  such  ballots  as 
such  voters  intended,  whether  the  ballot  had  H.  H.  Wendell,  Wendel  or  Mr 
Wendell,  or  Miss  Kate  Coffin,  Kate  Coffin,  or  Miss  Coffin  thereon.  No  one  of 
the  five  persons  who,  it  is  admitted,  voted  at  said  meeting  for  trustee,  and  who, 
it  is  also  admitted,  were  not  qualified  voters  in  the  district,  were  challenged 
when  ofifering  to  vote.  This  Department  has  held  that  "A  party  knowing  a 
person  to  be  unqualified  and  permitting  him  to  vote  without  challenge  will  not 
be  allowed  to  object  to  the  proceedings  of  the  meeting  because  said  unqualified 
person  participated  in  them." 

The  Supreme  Court  of  this  State  held,  in  ex  parte  Murphy  and  others,  7 
Cowen  153,  that  the  mere  circumstance  that  improper  votes  are  received  at  an 
election  will  not  vitiate  it.  The  fact  should  be  shown  affirmatively  that  a  suffi- 
cient number  of  improper  votes  were  received  for  the  successful  ticket,  to 
reduce  it  to  a  minority  if  they  had  been  rejected;  or  the  election  shall  stand. 
The  Court  of  Appeals  in  the  People  v.  Pease,  27  N.  Y.,  page  57,  said :  "  It  is 
a  paradox  to  say  that  a  vote  can  be  given  by  one  not  a  voter,  and  as  it  is  the 
greatest  number  of  votes  which  elects  a  candidate  and  gives  title  to  the  office, 
it  follows  logically  that  those  ballots  given  or  handed  in  by  persons  not  voters 
are  not  votes  and  can  not,  therefore,  be  rightfully  estimated  or  have  any 
infiuence  upon  the  result."  Judge  Andrews  of  the  Court  of  Appeals  said  in 
the  People  ex  rel.  Frost  v.  Wilson,  62  N.  Y.,  page  179:  "The  43  votes  cast 
by  persons  not  registered  were  plainly  illegal.  If,  however,  they  are  taken 
from  the  vote  of  the  defendant  the  result  would  not  be  changed,  and  for  this 
reason  the  fact  that  they  were  illegally  received  is  immaterial."  It  is  conceded 
that  25  votes  were  received  at  said  annual  meeting  for  trustee,  of  which  the 
apjoellant,  Wendell,  received  10  and  the  respondent.  Coffin,  received  15.  It  is 
admitted  that  5  votes  were  received  from  persons  not  qualified  voters  at  such 
meeting,  i  of  which  was  for  the  appellant,  Wendell,  and  4  for  the  respondent. 
Coffin.  The  5  illegal  votes  must  be  deducted  from  the  25  votes  received,  leav- 
ing 20  legal  votes  cast  for  trustee.  Of  said  5  illegal  votes,  i  was  for  the 
appellant,  Wendell,  and  4  were  for  the  respondent.  Coffin.  It  follows,  there- 
fore, of  the  20  legal  votes  cast  the  respondent.  Coffin,  received  11  and  the 
appellant,  Wendell,  9,  and  that  the  respondent.  Coffin,  having  received  a  majority 
of  the  legal  votes  cast  was  duly  and  legally  elected  trustee  of  said  district. 


250  THE   UXIVERSITY    OF   THE    STATE    OF   NEW    YOKK 

Admitting  for  the  purpose  of  argument  only,  that  Miss  Alice  Ely,  who 
voted  for  the  respondent,  Coffin,  was  not  a  qualified  voter,  the  whole  number 
of  legal  votes  cast  would  be  19,  of  which  the  respondent,  Coffin,  received  10 
and  the  appellant,  Wendell,  9,  giving  a  majority  of  i  to  the  respondent.  Coffin, 
who  thereby  was  duly  and  legally  elected  trustee.  The  burden  is  upon  the 
appellants  herein  to  sustain  their  appeal  bv  a  preponderance  of  proof,  and  in 
this  they  have  failed. 

The  appeal  herein  is  dismissed. 


4315 

In  the  matter  of  the  appeal  of  W.  R.  Harris  and  others  from  proceedings  of 
annual  school  meeting  in  district  no.  3,  town  of  Southtield..  Richmond 
county,  in  election  of  trustees. 

In  the  election  of  school  district  officers  the  mere  circumstance  that  improper  votes  were 
received  will  not  vitiate  the  election.  The  fact  must  be  shown  affirmatively  that  a  suffi- 
cient number  of  improper  votes  were  received  for  the  successful  ticket  to  reduce  it  to 
a  minority  if  they  had  been  rejected;  that  a  person  believing  or  knowing  a  person 
offering  to  vote  at  a  school  meeting  to  be  unqualitied  and  permitting  him  or  her  to 
vote  without  challenge,  such  person  will  not  be  allowed  to  object  to  the  proceedings 
of  such  meeting  upon  appeal,  because  such  unqualified  person  voted  therein.  That  in 
appeals  from  the  proceedings  and  decision  of  a  school  meeting  on  the  ground  that  the 
same  was  secured  by  illegal  votes,  it  is  incumbent  upon  the  appellants  not  only  to 
allege  the  illegal  voting  or  the  disqualifications  of  certain  persons,  but  to  show  by  evi- 
dence the  lack  of  qualifications  in  such  terms  as  necessarily  to  exclude  every  presump- 
tion that  the  voter  or  voters  could  be  qualified  under  either  of  the  provisions  of  the 
section  of  the  school  law  prescribing  the  qualifications  of  voters  at  the  school  district 
meetings  in  this  State. 

Decided  January  28,  1895 

W.  H.  H.  Ely,  attorney  for  respondents 

Crooker,  Superintendent 

This  appeal  is  taken  from  the  action  of  the  annual  school  meeting,  held 
on  the  first  Tuesday  of  August  1894,  in  school  district  no.  3.  town  of  Southfield, 
Richmond  county,  in  the  election  of  H.  S.  La  Vaud.  Elizabeth  A.  Britton  and 
James  Simpson  as  trustees  of  said  district. 

The  sole  ground  alleged  in  the  appeal  is  that  such  election  was  secured 
by  illegal  votes. 

The  pleadings  and  proofs  are  very  voluminous,  but  much  stated  therein 
is  not  relevant  to  the  question  as  to  whether  the  election  of  the  persons  here- 
inbefore named  as  trustees  of  said  school  district  was  secured  by  illegal  votes. 
Such  pleadings  and  proofs  have  received  careful  examination. 

The  burden  is  upon  the  appellants  to  establish  their  contention  by  a  pre- 
ponderance of  proof. 


JUDICIAL    DECISIO^■S:        ELECTIONS  2~,l 

In  ex  parte  iMurphy  and  others,  7  Cowen  153,  the  Supreme  Court  of  the 
State  held  that  the  mere  circumstance  that  improper  votes  are  received  at  an 
election,  will  not  vitiate  it.  If  this  were  otherwise,  hardly  an  election  in  the 
State  could  be  sustained.  The  fact  should  be  shown  affirmatively  that  a  suffi- 
cient number  of  improper  votes  were  received  for  the  successful  ticket  to  reduce 
it  to  a  minority  if  they  had  been  rejected;  or  the  election  shall  stand. 

This  Department  has  uniformly  held  in  accordance  with  the  decision  of 
the  court  above  stated,  in  appeals  taken  from  the  election  of  school  district 
officers  in  the  contention  that  such  election  was  secured  by  illegal  votes.  This 
Department  has  uniformly  held  that  a  person  believing  or  knowing  a  person 
offering  to  vote  at  a  school  meeting  to  be  unqualified  and  permitting  him  or  her 
to  vote  without  challenge,  will  not  be  allowed  to  object  to  the  proceedings  of 
such  meeting  because  such  unqualified  person  participated  therein. 

This  Department  has  also  uniformly  held  that  in  case  of  an  appeal  from 
the  proceedings  had  and  taken  at  a  school  meeting,  on  the  ground  that  the 
same  were  secured  by  illegal  votes,  it  is  incumbent  upon  the  appellant  not  only 
to  allege  the  illegal  voting  or  the  disqualification  of  certain  persons,  but  to 
show  by  evidence  the  lack  of  qualifications  in  such  terms  as  necessarily  to 
exclude  every  presumption  that  the  votes  or  voters  could  be  qualified  under 
either  of  the  provisions  of  the  section  of  the  school  law  prescribing  the  quali- 
fications of  voters  at  the  school  district  meetings  in  this  State. 

The  question  for  my  determination,  upon  the  papers  presented  is,  have  the 
appellants  established  by  evidence  the  lack  of  qualifications  of  certain  persons 
who  voted  at  the  annual  meeting  in  said  school  district,  in  such  terms  as  neces- 
sarih'  to  exclude  every  presumption  that  such  persons  could  be  qualified  voters 
under  either  of  the  provisions  contained  in  section  11,  article  i,  title  7,  of  the 
Consolidated  School  Law  of  1894.  and  that  a  sufficient  number  of  votes  cast 
by  such  unqualified  persons  in  favor  of  the  successful  ticket  were  received  to 
reduce  said  ticket  to  a  minority  if  said  improper  votes  had  been,  or  should  be, 
rejected. 

The  proofs  presented  herein  show  that  at  said  annual  meeting  three  trustees 
were  to  be  elected  for  the  term  of  one,  two  and  three  years  respectively ;  that 
six  persons  were  put  in  nomination  for  trustees,  to  wit:  William  R.  Harris  for 
three  years,  Thomas  Smith  for  two  years  and  John  Smith  for  one  year,  and  H. 
S.  La  Vaud  for  three  years,  Elizabeth  A.  Britton  for  two  years  and  James 
Simpson  for  one  year;  that  printed  ballots  were  furnished  to  the  voters,  the 
ballot  headed  for  La  Vaud  having  also  thereon  a  candidate  for  the  office  of  clerk 
and  collector  respectively ;  that  it  was  decided  to  ballot  first  for  trustees,  and  then 
for  clerk  and  collector,  which  decision  rendered  it  necessary  for  the  supporters 
of  La  Vaud  and  others  for  trustees,  to  eliminate  from  their  ballots  the  names 
thereon  of  the  candidates  for  clerk  and  collector;  that  inspectors  of  election 
were  appointed,  a  ballot  for  trustees  was  taken  and  a  poll  list  kept  containing 
the  names  of  each  person  whose  vote  was  received,  on  which  poll  list  were 
recorded  the  names  of  1 19  persons ;  that  upon  a  canvass  of  the  ballots  cast  there 


2^2  THE   UNIVERSITY    OF   THE    STATE    OF   NEW   YORK 

were  found  ii8  single  ballots,  and  2  ballots  folded  together,  each  of  which  con- 
tained the  names  of  Harris  and  Thomas  and  John  Smith ;  that  upon  2  ballots 
were  found  respectively  the  names  of  James  Simpson  for  trustee  for  one  year 
and  that  of  William  E.  Cruise  for  clerk  and  August  Wenske  for  collector;  that 
I  of  said  ballots  contained  the  name  of  Harris  for  trustee  for  three  years.  La 
\  and  for  trustee  for  two  years  and  John  Smith  for  one  year;  that  another  ballot 
contained  only  the  names  of  Harris  for  trustee  for  three  years  and  John  Smith 
for  trustee  for  one  year;  and  another  ballot  contained  only  the  name  of  Harris 
for  trustee  for  three  years ;  that  the  2  ballots  found  folded  together  were  laid 
aside  until  118  single  ballots  were  canvassed  and  said  2  ballots,  notwithstanding 
objections  made,  were  allowed  to  and  counted  for  Messrs  Harris  and  Smith; 
that  the  result  of  the  ballot  was  then  announced,  as  follows :  H.  S.  La  Vaud,  60 
votes;  Airs  Elizabeth  A.  Britton,  61  votes;  James  Simpson,  63  votes;  William 
R.  Llarris,  58  votes;  Thomas  Smith,  55  votes  and  John  Smith,  55  votes;  that 
it  does  not  clearly  appear  what  persons  offering  to  vote  at  said  meeting  were 
challenged  aside  from  the  four  persons  noted  upon  the  copy  of  the  poll  list 
attached  to  the  appeal. 

The  appellants  allege  in  their  appeal  that  '*  upon  investigation  we  believe  that 
more  than  10  votes  cast  for  H.  S.  La  Vaud  and  E.  A.  Britton  and  James  Simp- 
son were  voted  by  persons  not  having  a  legal  right  to  vote  at  said  meeting,  hence 
should  be  stricken  from  the  list  and  not  counted,"  and  then  follow  the  names  of 
eleven  persons  who  voted,  with  allegations,  stating  the  grounds  upon  which  they 
claim  that  said  persons  were  not  qualified  voters  at  said  meeting.  The  appellants 
also  allege,  in  papers  filed  by  them  subsequently  to  said  appeal,  that  August 
Wenske,  W.  L.  IMcCarthy  and  August  P.  M.  Helmeyer,  who  voted  at  said  meet- 
ing were  not  legal  voters.  The  appellants  do  not  show  affirmatively  that  the 
votes  cast  by  said  persons  were  for  the  successful  ticket  for  trustees  at  said 
meeting. 

The  respondents  in  their  answer  to  the  appeal  allege  that  nine  persons  who 
voted  at  said  meeting  were  not  legal  voters,  and  state  the  grounds  upon  which 
said  allegations  are  made.  One  of  said  nine  persons,  it  is  admitted  by  the  appel- 
lants, was  not  a  legal  voter.  I  have  grave  doubts,  upon  the  proofs  presented, 
as  to  whether  several  of  the  eight  other  persons  named  were  at  said  annual 
school  meeting  qualified  voters  in  said  district.  But  I  am  of  the  opinion  that 
upon  said  proofs  I  can  not  find  that  the  respondents  have  shown  by  evidence 
the  lack  of  qualifications  of  said  persons  in  such  terms  as  necessarily  to  exclude 
every  presumption  that  said  persons  could  be  qualified  under  some  one  of  the 
provisions  of  section  11  of  title  7  of  the  school  law. 

I  find  that  Mr  and  Mrs  Reggonet,  Richard  King  and  Jacob  Swain  were  not 
legal  voters,  nor  was  any  one  of  them  a  legal  voter,  at  said  meeting;  but  the 
appellants  have  not  shown  affirmatively  that  their  votes  or  the  vote  of  any  one 
of  them  was  cast  for  the  successful  ticket  for  trustees- at  said  meeting. 

I  find  upon  the  admission  of  the  appellants,  that  August  Smultz,  or  Schmult, 
was  not  a  qualified  voter  at  said  meeting,  but  that  he  voted  at  said  meeting  and 


JUDICIAL    DECISIONS  :       ELECTIONS  253 

for  Harris,  Smith  and  Smith  for  trustees,  as  appears  by  his  affidavit,  sworn  to 
on  December  12.  1894,  which  affidavit  has  been  filed  by  the  appellants  in  the 
appeal  herein. 

I  find  that  the  two  ballots  folded  together  should  have  been  destroyed  by 
the  inspectors,  and  it  was  error  in  counting  said  two  ballots  for  Messrs  Harris, 
Smith  and  Smith  for  trustees.  It  appears  that  119  persons  voted,  and  there  were 
120  votes  in  the  box,  and  where  two  or  more  ballots  shall  be  found  in  a  ballot 
box  folded  together  as  to  present  the  appearance  of  a  single  ballot,  they  shall  be 
destroyed,  if  the  whole  number  of  ballots  exceeds  the  whole  number  of  ballots 
shown  by  the  poll  list  to  have  been  deposited  therein. 

The  appellants  state  in  their  appeal,  "Aside  from  our  interest  in  the  school, 
the  appeal  is  brought  to  put  an  end  to  illegal  voting  in  the  district,  etc.,  etc." 
Under  the  provisions  of  the  school  law,  any  qualified  voter  in  a  school  district  has 
the  right,  at  any  school  district  meeting,  to  challenge  the  vote  of  any  person  ofiier- 
ing  to  vote,  upon  the  ground  that  he  or  she  is  disqualified ;  that  upon  such  chal- 
lenge the  chairman  presiding  at  such  meeting  shall  require  such  person  to  make 
the  declaration  required  in  section  12,  article  i,  title  7  of  the  Consolidated  School 
I.aw ;  that  if  such  person  makes  the  declaration  his  or  her  vote  must  be  received ; 
but  if  such  person  refuses  to  make  the  declaration  then  his  or  her  vote  shall  be 
rejected.  Under  section  13,  same  article  and  title,  any  person  who  shall  wilfully 
make  a  false  declaration  of  his  or  her  right  to  vote  after  such  vote  shall  have 
been  challenged,  shall  be  deemed  guilty  of  a  misdemeanor.  If,  at  the  school  meet- 
ing, the  above  provisions  of  the  school  law  should  be  brought  to  the  attention 
of  the  persons  attending  said  meeting,  and  any  person  challenged  shall  make  and 
file  a  false  declaration,  and  such  person  be  proceeded  against  and  punished  for 
the  misdemeanor  committed,  that  illegal  voting  in  the  district  would  be  stopped. 

I  find  and  decide  that  there  must  be  deducted  from  the  votes  counted  at 
said  annual  meeting  for  Harris,  Smith  and  Smith,  the  two  votes  folded  together, 
and  also  one  vote  cast  by  Smultz,  or  Schmult ;  that  William  R.  Harris  received 
55  votes,  Thomas  Smith  52  votes  and  John  Smith  52  votes ;  that  H.  S.  La  Vaud 
received  60  votes,  Mrs  Elizabeth  A.  Britton  61  votes,  and  James  Simpson  63 
votes,  and  that  said  La  Vaud,  Britton  and  Simpson  were,  and  each  of  them  was, 
duly  elected  trustees  of  said  school  district. 

Assuming  for  the  purpose  of  argument  that  Mr  and  Mrs  Regonnet,  Richard 
King  and  Jacob  Swain  each  voted  for  La  Vaud,  Britton  and  Simpson,  it  would 
not  change  the  result  of  said  election,  for  the  reason  that  deducting  the  four 
votes  as  cast  for  La  Vaud,  Britton  and  Simpson,  La  Vaud  received  56  votes, 
Mrs  Britton  57  votes,  and  James  Simpson  59  votes,  as  against  55  votes  for  Harris, 
52  votes  for  Thomas  Smith,  and  52  votes  for  John  Smith. 

The  appellants  have  failed  to  establish  their  appeal  herein  and  the  appeal 
should  be  dismissed. 

Appeal  dismissed. 


254  THE    UNIVERSITY   OF   THE    STATE    OF    NEW    YORK 

4397 

In  the  matter  of  the  election  of  school  district  officers  in  school  district  no.  8, 
town  of  Hounsfield,  Jefferson  county. 

At  an  annual  school  meeting  the  several  district  officers  were  declared  elected  upon  a  vote 
for  each  taken  by  acclamation  or  viva  voce  and  not  by  ballot.  That  the  trustees  elect, 
assuming  that  said  election  was  not  legal,  called  a  special  meeting  of  the  district  for  the 
election  of  such  district  officers;  that  at  such  special  election  some  person  other  than 
the  one  assumed  to  be  elected  at  the  annual  meeting  was  elected  trustee.  Held,  that  at 
the  annual  meeting  the  district  officers  were  elected  by  the  form  or  color  of  an  election 
and  as  such  were  entitled  to  perform  the  duties  of  their  respective  offices  until  by  an 
order  of  the  State  Superintendent  of  Public  Instruction  such  election  was  declared 
illegal  and  void.  That  the  special  meeting  held  in  said  district  was  illegal  and  void. 
That  the  election  of  said  district  officers  was  vacated  and  set  aside,  and  a  special  meet- 
ing of  the  district  called  for  the  election  of  said  officers,  excepting  for  the  office  of 
librarian.     That  the  trustee,  under  the  school  law,  must  appoint  the  librarian. 

Decided  October  i8,  1895 

Skinner,  Supenntendent 

In  the  above-entitled  matter  Levi  Bowles  and  George  W.  Stetson  each  claim- 
ing- to  have  been  legally  elected  trustee  of  school  district  no.  8,  town  of  Houns- 
field, Jefferson  county,  have  presented  to  me  an  agreed  statement  of  facts,  signed 
by  them,  as  to  the  proceedings  taken  relative  to  the  election  of  school  officers  in 
said  district,  and  have  submitted  the  same  to  me  for  my  consideration  and 
decision. 

The  following  is  a  statement  of  the  facts  as  so  agreed  upon: 
On  August  6,  1895,  the  annual  school  meeting  was  held  in  said  school  district 
no.  8,  town  of  Hounsfield,  Jefferson  county.  Jefferson  Baker  was  elected  chair- 
man and  George  H.  Weaver  acted  as  clerk ;  a  vote  was  taken  by  acclamation  and 
the  following  named  persons  were  declared  elected  as  officers  of  said  school 
district,  namely.  George  H.  Weaver  district  clerk,  Samuel  Hicks  collector,  Levi 
Bowles  trustee,  and  Lester  Lamson  librarian ;  that  after  the  meeting  had 
adjourned,  Mr  Bowles  was  informed  by  one  or  more  electors  of  said  district  that 
the  election  of  the  said  persons  by  acclamation,  as  such  school  district  officers, 
was  not  a  legal  election,  and  that  they  should  have  been  elected  by  ballot;  that 
after  considering  the  matter  Mr  Bowles  announced  that  he  thought  the  proper 
course  to  pursue  was  to  call  a  special  meeting  of  the  district  for  the  purpose  of 
electing  thereat  by  ballot  the  officers  of  the  district  for  the  school  year  and  sug- 
gested to  Mr  Weaver,  the  clerk,  that  he  call  such  special  meeting;  that  such 
special  meeting  was  called  and  held  and  at  said  meeting  George  W.  Stetson  was 
declared  elected  trustee  by  ballot ;  that  three  ballots  for  trustee  were  had  at  such 
meeting  each  of  which  resulted  as  follows :  first  ballot,  whole  ntmiber  of  votes 
cast  was  11,  of  which  Levi  Bowles  received  3,  William  Dunbar  4  and  George  W. 
Stetson  4;  second  ballot,  whole  number  of  votes  cast  was  11,  of  which  Levi 
Bowles  received  2,  William  Dunbar  4  and  George  W.  Stetson  5  ;  third  ballot. 
whole  number  of  votes  received  was  11,  of  which  William  Dunbar  received  4  and 
George  W.  vStetson  7 ;  that  at  said  special  meeting  the  other  district  officers  were 


JUDICIAL    DECISIONS  :       ELECTIONS  255 

not  balloted  for  and  no  action  was  taken  thereat  to  declare  such  other  officers 
elected;  that  at  the  annual  school  meeting  there  was  no  dissenting  vote  against 
any  of  the  candidates  named. 

Levi  Bowles  claims  to  be  de  facto  trustee  of  said  district,  and  George  W. 
Stetson  claims  that  he  is  the  lawfully  elected  trustee  of  said  district. 

By  section  14,  of  article  i,  title  7,  of  the  Consolidated  School  Law  of  1894, 
chapter  556  of  the  Laws  of  1894,  the  annual  school  meeting  held  in  said  school 
district  had  the  power,  and  it  was  its  duty,  to  appoint  a  chairman  of  the  meeting 
and  if  the  district  clerk  was  absent,  to  appoint  a  clerk  for  the  meeting;  to  elect 
a  trustee,  a  district  clerk  and  a  collector ;  that  all  such  district  officers  should  be 
elected  by  ballot ;  that  the  trustee  should  have  provided  a  suitable  ballot  box ; 
that  two  inspectors  of  election  should  have  been  appointed  in  such  manner  as  the 
meeting  determined,  who  should  have  received  the  votes  cast,  and  canvassed  the 
same,  and  announced  the  result  to  the  chairman ;  a  poll  list  containing  the  name 
of  every  person  whose  vote  was  received  should  have  been  kept  by  the  district 
clerk,  or  the  clerk  for  the  time  of  the  meeting ;  that  such  voters  should  have  used 
ballots  written  or  printed,  or  partly  written  and  partly  printed,  containing  the 
name  of  the  person  voted  for,  and  if  said  meeting  decides  to  vote  for  all  of  such 
officers  upon  one  ballot,  designating  on  said  ballot  the  office  for  each  person 
named  on  said  ballot  was  voted  for;  that  the  chairman  should  have  declared  to 
the  meeting  the  result  of  each  ballot  as  announced  to  him  by  the  inspectors,  and 
the  persons  having  the  majority  of  the  votes  respectively,  for  the  several  offices, 
should  have  been  elected. 

It  appears,  from  said  statement  of  facts,  that  said  annual  meeting  complied 
with  the  provisions  of  law  above  cited  in  electing  a  chairman  and  having  the 
district  clerk  act  as  clerk  of  the  meeting;  but  in  all  other  matters  there  was  a 
total  disregard  of  the  said  provisions.  No  ballot  was  had  for  any  of  the  district 
officers  and  none  of  such  district  officers  were  legally  elected.  Said  meeting 
had  no  legal  authority  to  elect  a  librarian,  as  by  the  provisions  of  section  2,  of 
title  13,  of  said  Consolidated  School  Law  of  1894,  the  trustee  of  the  school  dis- 
trict shall  appoint  a  teacher  of  the  school  of  the  district  as  librarian  of  the  school 
library. 

The  only  person  authorized  under  the  school  law  to  render  a  decision  as  to 
whether  a  school  district  officer  is  or  school  district  officers  are  legally  elected 
is  the  State  Superintendent  of  Public  Instruction,  and  the  matter  can  be  brought 
to  him  for  decision  either  by  an  appeal  from  the  proceedings  of  the  district  meet- 
ing taken  in  such  election,  or  by  submitting  the  question  to  him  for  decision  upon 
an  agreed  statement  of  facts,  signed  by  the  contesting  parties.  Mr  Bowles  had 
not,  nor  had  any  other  officer  or  voter  of  said  district,  the  legal  authority  to 
assume  or  decide  that  the  election  of  district  officers  at  said  annual  meeting  was 
illegal,  and  to  call  a  special  meeting  for  the  purpose  of  electing  such  district 
officers  or  any  of  them.  The  special  meeting  called  and  held  after  said  annual 
meeting,  for  the  purpose  of  electing  officers  of  said  district,  was  illegal,  and  all 
proceedings  had  and  taken  thereat  were  illegal  and  void. 


256  THE   UNIVERSITY    OF   THE   STATE   OF   NEW   YORK 

This  Department  has  uniformly  held  that,  when  at  a  school  district  meeting, 
district  officers  are  elected  by  the  form  or  color  of  an  election,  but  not  in  accord- 
ance with  the  provisions  of  the  school  law,  the  said  officers  so  elected  are 
de  facto  officers,  and  are  authorized  and  empowered  to  perform  all  the  duties 
imposed  upon  them  respectively  by  law,  until  by  an  order  of  the  State  Superin- 
tendent of  Public  Instruction  the  election  of  said  officers  or  any  of  them,  is 
declared  to  be  illegal  and  void.  The  persons  elected  to  the  respective  district 
offices  by  the  color  or  form  of  an  election  at  said  annual  meeting,  except  the 
person  elected  librarian,  became  de  facto  officers,  and  all  contracts  made,  or 
expenses  incurred  by  them  or  any  of  them,  authorized  by  law,  are  valid  and  a 
charge  upon  said  district. 

As  the  special  meeting  held  after  the  annual  meeting  was  illegal  and  void, 
Mr  Stetson,  who  claims  to  have  been  elected  trustee  at  said  meeting  did  not 
become  by  the  action  of  said  meeting  a  trustee  either  de  facto  or  de  jure,  and 
hence  had  no  authority  whatever  to  do  or  perform  any  act  as  trustee  of  said 
district. 

It  is  ordered,  That  all  action  and  proceedings  had  and  taken  at  said  special 
meeting  held  in  said  school  district  at  which  George  W.  Stetson  claims  to  have 
been  elected  trustee  of  said  district  be,  and  the  same  are  and  each  of  them  is, 
hereby  vacated  and  set  aside  as  illegal  and  void. 

It  is  further  ordered,  That  all  proceedings  had  and  taken  at  the  annual 
school  meeting,  held  in  said  district,  relating  to  the  election  of  trustee,  district 
clerk,  collector  and  librarian,  or  of  any  of  them  be,  and  the  same  are,  and  each 
of  them  is,  hereby  vacated  and  set  aside,  as  illegal  and  void. 

It  is  further  ordered,  That  George  H.  Weaver,  the  district  clerk  of  said 
school  district  for  the  school  year  of  1894-95  be,  and  he  hereby  is,  authorized 
and  directed  to  call  a  special  meeting  of  the  inhabitants  of  said  district,  qualified 
to  vote  at  its  school  meetings  for  the  purpose  of  electing  a  district  clerk,  a  col- 
lector and  a  trustee  of  said  district  for  the  present  school  year;  that  he  cause  a 
notice  of  said  special  meeting  to  be  served  upon  each  of  the  qualified  voters  of 
said  district;  that  the  proceedings  of  said  special  meeting  when  convened  shall 
be  in  accordance  with  section  14,  article  i,  title  7,  of  the  Consolidated  School 
Law  of  1894. 


4414 

In  the  matter  of  the  appeal  of  Cassius  B.  Lynde  from  proceedings  of  annual 
school  meeting  held  August  6,  1895,  and  special  school  meeting  held  August 
31,  1895,  in  district  no.  7,  town  of  Antwerp,  Jefferson  county;  and  acts  of 
Arthur  Gleason  as  trustee. 

Where  at  an  annual  meeting  in  a  common. school  district  in  the  election  of  a  trustee  thereof 
no  person  received  a  majority  of  the  votes  cast  in  the  ballot  taken  for  said  office,  but 
the  chairman  of  the  meeting  declared  the  person  receiving  the  highest  number  of  votes 
elected  trustee,  and  a  special  meeting  of  the  district  having  been  called  upon  the  assump- 


JUDICIAL    DECISIONS  :       ELECTIONS  2'^/ 

cion  that  there  was  no  valid  election  of  a  trustee  and  which  meeting  assumed  to  elect  a 
trustee ;  held,  that  it  was  error  on  the  part  of  the  chairman  of  the  meeting  in  declaring 
the  person  having  a  plurality  of  the  votes  only  as  elected  trustee.  That  such  meeting 
should  have  proceeded  to  ballot  until  some  one  received  a  majority  of  the  votes  cast. 
That  such  special  meeting  was  null  and  void.  That  the  tax  list  and  assessment  made 
and  issued  by  the  person  claimed  to  have  been  elected  trustee  at  such  meeting  be  vacated 
and  set  aside,  and  that  a  special  meeting  of  the  district  be  called  for  the  purpose  of 
electing  trustee  and  district  clerk. 
Decided  December  i8,  1895 

A.  W.  Orvis,  attorney  for  appellant 

Skinner,  Superintendent 

At  the  annual  school  meeting  held  on  August  6,  1895,  in  school  district  no 
7,  town  of  Antwerp,  Jefferson  county,  a  ballot  was  taken  for  trustee  of  the  dis- 
trict for  the  school  year  of  1895-96,  and  said  ballot  resulted  as  follows:  whole 
number  of  voters  cast  12,  of  which  H.  H.  Kelsey  received  6,  Milo  Paddock  3,  and 
Frank  Hicks  3,  and  said  Kelsey  was  declared  elected ;  that  a  ballot  was  then  taken 
for  district  clerk,  which  resulted  as  follows:  whole  number  of  votes  cast  12,  of 
which  Arthur  Gleason  received  6,  Frank  Hicks  4,  and  George  Wood  2,  and  said 
Gleason  was  declared  elected ;  that  after  such  meeting  James  McRobbie,  the 
trustee  of  the  district  for  the  school  year  1894-95,  delivered  to  said  Kelsey  the 
books  and  papers  pertaining  to  said  office  of  trustee;  that  a  few  days  after  said 
annual  meeting,  a  special  meeting  of  the  inhabitants  of  the  district  was  called  for 
the  evening  of  August  31,  1895,  the  notices  for  said  meeting  being  given  by 
Kelsey,  the  clerk  of  said  district  for  the  school  year  1894-95,  with  the  consent  of 
said  McRobbie;  that  at  said  meeting  on  August  31,  1895,  ^  ballot  was  taken  for 
trustee  that  resulted  in  Arthur  Gleason  receiving  a  majority  of  the  votes  cast; 
that  a  ballot  was  taken  for  district  clerk  that  resulted  in  George  Wood  receiving 
a  majority  of  the  votes  cast;  that  the  said  Gleason  received  from  Kelsey  the  books 
and  papers,  and  assumed  to  act  as  trustee  of  said  district ;  that  on  November  7, 
1895,  said  Gleason  delivered  to  the  collector  of  said  district  a  tax  list,  with  the 
warrant,  for  the  collection  of  the  taxes  assessed  therein. 

The  appellant  herein  has  appealed  from  the  tax  list  issued  by  said  Gleason, 
assuming  to  act  as  trustee  of  said  district.  An  answer  by  Gleason  has  been  filed 
in  which  the  material  facts  in  the  appeal  are  admitted. 

Subdivision  4,  of  section  14,  article  i,  title  7,  of  the  Consolidated  School 
Law  of  1894,  enacts  that  in  the  election  of  school  district  officers  the  person  hav- 
ing the  majority  of  votes,  respectively,  for  the  several  offices,  shall  be  elected. 
It  is  the  majority  of  the  votes  cast  for  a  school  officer  that  elects  such  officer,  not 
the  declaration  of  the  chairman  of  the  meeting. 

It  is  clear  that  at  the  annual  school  meeting  in  said  district  there  was  no 
election  of  a  trustee  or  district  clerk  for  said  district.     It  was  the  duty  of  the 


258  THE   UNIVERSITY    OF   THE    STATE    OF    NEW    YORK 

meeting  to  have  balloted  until  some  one  received  a  majority  of  the  votes  cast 
for  trustee  and  clerk  respectivelv.  and  the  meeting  having  failed  to  do  so,  the 
trustee  and  district  clerk  in  office  at  the  time  the  said  annual  meeting  convened 
respectively,  continued  to  hold  office  until  their  successors  should  be  elected  or 
appointed.  The  special  meeting  held  in  said  district  on  August  31,  1895,  at  which 
it  is  claimed  said  Gleason  was  elected  trustee,  and  said  Wood  was  elected  dis- 
trict clerk,  was  illegal  and  void.  There  was  no  vacancy  then  existing  either  in 
the  office  of  trustee  or  clerk  of  said  district  that  a  special  meeting  of  the  district 
could  supply. 

I  find  and  decide  that  said  Arthur  Gleason  is  not  legally  a  trustee  of  said 
district,  not  having  been  legally  elected  to  said  office ;  that  for  like  reasons  George 
Wood  is  not  legally  the  district  clerk  of  said  district ;  that  the  tax  list  and  warrant 
issued  by  said  Gleason  is  illegal  and  void ;  that  James  McRobbie  is  the  legal 
trustee  of  said  district  and  that  H.  H.  Kelsey  is  the  legal  clerk  of  said  district. 

It  also  appears  that  said  McRobbie,  as  trustee  of  said  district,  prior  to  August 
6,  1895,  employed  one  James  O'Brien  to  teach  the  school  in  said  district. 

I  find  and  decide  that  said  McRobbie,  as  such  trustee  of  said  district,  had 
authority,  under  subdivision  9,  of  section  47,  article  6,  title  7,  of  the  Consoli- 
dated School  Law,  to  contract  for  the  employment  of  said  O'Brien  as  a  teacher 
therein,  if  such  employment  was  not  for  more  than  one  year  in  advance;  and 
that  such  contract  is  binding  upon  the  successor  or  successors  in  office  of  said 
McRobbie  and  upon  said  district. 

As  it  appears,  the  cjualified  voters  of  said  district  have  been  misled  by  the 
action  of  the  chairman  of  said  annual  meeting,  and  the  provisions  of  the  school 
law,  a  special  meeting  of  such  district  should  be  called  for  the  purpose  of  elect- 
ing a  trustee  and  district  clerk  of  said  district. 

The  appeal  herein  is  sustained. 

It  is  ordered,  That  the  tax  list  and  warrant  made  and  delivered  to  the  col- 
lector of  said  school  district  no.  7,  town  of  Antwerp,  Jefferson  county,  on  or 
about  November  7,  1895,  t>y  Arthur  Gleason,  assuming  to  act  as  trustee  of  said 
district,  be,  and  they  are,  hereby  vacated  and  set  aside  as  illegal  and  void. 

It  is  further  ordered.  That  the  action  and  proceedings  had  and  taken  at 
special  meeting  of  said  district,  held  on  August  31,  1895,  be,  and  they  are,  hereby 
vacated  and  set  aside  as  illegal  and  void. 

It  is  further  ordered.  That  James  McRobbie,  trustee  of  said  district,  be,  and 
he  is,  hereby  authorized  and  directed  to  call  a  special  meeting  of  said  district  for 
the  purpose  of  electing  a  trustee  and  a  district  clerk  of  said  district  for  the  present 
school  year. 


JUDICIAL  decisions:     elections  259 


4IOI 


In  the  matter  of  the  appeal  of  F.  A.  Button  and  others  from  the  proceedings 
of  the  annual  meeting  held  on  August  2,  1892,  in  union  free  school  district 
no.  9  of  the  town  of  Gainesville,  Wyoming  county. 

At  a  meeting  in  a  union  free  school  district  in  which  the  number  of  school  children  does  not 
exceed  300,  after  the  nomination  of  three  persons  for  trustees  for  three  years,  a  motion 
was  made  that  the  clerk  be  instructed  to  cast  the  ballot  of  the  meeting  for  the  three 
persons  nominated  for  trustees.  Such  motion  was  put  by  the  chairman,  whereupon 
responses  of  "  aye"  were  made,  and  thereupon  the  chairman  called  for  the  nays  and 
responses  of  "nay"  were  made,  and  the  motion  was  declared  carried,  and  the  ballot 
was  cast  by  the  clerk  and  the  persons  named  in  said  ballot  declared  elected.  Held,  that 
there  was  no  valid  and  legal  election  of  trustees  by  said  meeting;  and  that  the  trustees 
whose  terms  of  office  expired  at  such  meeting  held  office  until  their  successors  were 
elected  or  appointed,  and  that  there  are  no  vacancies  in  the  office  of  trustees,  that  a 
special  meeting  of  the  district  can  till. 

Decided  September  22,  1892 

Crooker,  Superintendent 

This  is  an  appeal  from  certain  proceedings  had  and  taken  at  the  annual 
meeting  held  on  August  2,  1892,  in  union  free  school  district  no.  9  of  the  town 
of  Gainesville,  Wyoming  county. 

The  appeal  alleges  improper  and  arbitrary  decisions  and  action  on  the  part 
of  the  chairman  of  the  meeting,  and  his  refusal  to  recognize  and  permit  certain 
qualified  voters  to  speak  at  such  meetings ;  and  that  the  election  of  three  trustees 
for  said  district  was  not  valid  or  legal.  The  appeal  is  verified  by  fourteen  of 
the  voters  of  the  district,  but  no  copy  of  the  proceedings  had  and  taken  at  said 
meeting  is  contained  in  or  annexed  to  said  appeal. 

Milton  R.  Brown  has  filed  an  answer  to  said  appeal,  in  which  answer  he 
denies  the  allegations  contained  in  the  appeal  relative  to  decisions  and  actions  of 
the  chairman  of  the  meeting  and  the  refusal  to  recognize  and  permit  qualified 
voters  to  speak  at  such  meeting,  and  sets  forth  the  proceedings  had  and  taken 
at  such  meeting.  x\nnexed  to  said  answer  are  the  affidavits  of  about  thirty-two 
of  the  voters  of  the  district  as  to  the  truth  of  the  statements  contained  in  the 
answer,  and  a  certified  copy  of  the  proceedings  had  and  taken  at  said  meeting 
relative  to  the  election  of  trustees. 

The  appellants  have  failed  to  establish  their  allegations  relative  to  the 
decisions  and  actions  of  the  chairman,  and  his  refusal  to  recognize  and  permit 
qualified  voters  to  speak  at  said  meeting. 

The  facts  clearly  established  by  the  papers  presented  upon  the  appeal  rela- 
tive to  the  election  of  trustees  for  said  district  are  as  follows : 

That  Mr  M.  R.  Brown,  the  chairman  of  the  meeting,  stated  that  nomina- 
tions for  candidates  to  fill  vacancies  in  the  board  of  education  were  in  order; 
that  one  G.  S.  Skifif  placed  in  nomination  M.  R.  Brown,  J.  W.  Bristol  and 
William  Canning  for  members  of  the  board  of  education  for  the  ensuing  three 
years ;  that,  no  other  nominations  being  made,  said  Skiff  moved  that  the  clerk 


26o  THE   UXTVERSITY    OF   THE    STATE    OF    NEW    YORK 

be  instructed  to  cast  the  ballot  of  the  meeting  for  M.  R.  Brown,  J.  W.  Bristol 
and  William  Canning  to  be  members  of  the  board  of  education  for  the  ensuing 
three  years;  that  said  motion  was  seconded  by  one  John  Hickey;  that  the 
chairman  of  said  meeting  put  the  said  motion,  saying,  in  substance,  "  All  who 
are  in  favor  of  said  motion,  say  '  aye,'  "  whereupon  responses  of  "  aye  "  were 
made ;  the  chairman  then  said,  "  Contrary,  '  nay,' "  whereupon  responses  of 
"  nay  "  were  made,  and  the  chairman  declared  the  motion  carried ;  that  there- 
upon the  clerk  cast  one  ballot  for  M.  R.  Brown,  J.  W.  Bristol  and  William 
Canning  for  members  of  the  board  of  education  for  the  ensuing  three  years ; 
that  no  other  ballots  were  cast;  that  the  chairman  declared  the  persons  so  voted 
for  elected;  that  thereupon  a  motion  was  made  and  seconded  that  the  meeting 
adjourn,  which  motion  was  put  and  declared  carried  by  the  chairman,  and  said 
chairman  declared  said  meeting  adjourned. 

The  only  question  to  be  decided  in  this  appeal,  upon  the  papers  presented, 
is  whether  there  was  or  there  was  not  a  valid  and  legal  election  of  trustees  or 
members  of  the  board  of  education  at  the  annual  meeting  held  on  August  2, 
1892,  in  union  free  school  district  no.  9  of  the  town  of  Gainesville,  Wyoming 
county. 

School  district  no.  9  of  the  town  of  Gainesville,  Wyoming  county,  is  a 
union  free  school  district;  its  board  of  trustees  or  of  education  consists  of 
seven  members ;  the  terms  of  three  of  said  members  expired  at  the  annual  meet- 
ing of  the  district  on  the  first  Tuesday  of  August  1892 ;  the  terms  of  two  members 
will  expire  on  the  first  Tuesday  of  August  1894.  In  said  district  the  number 
of  children  of  school  age  does  not  exceed  300,  and  the  provisions  of  chapter 
248  of  the  Laws  of  1878  in  relation  to  the  election  of  officers  in  certain  school 
districts  do  not  apply;  but  under  the  school  laws  said  district  must  hold  its 
annual  meeting  on  the  first  Tuesday  of  August  in  each  year,  and  elect  trustees 
in  place  of  persons  whose  terms  of  office  expire  at  the  time  of  such  annual 
meeting.  Such  election  must  be  by  ballot.  The  qualifications  necessary  to  be 
possessed  by  persons  to  entitle  them  to  vote  at  any  school  meeting  in  said  dis- 
trict are  defined  in  the  school  law,  and  a  majority  of  the  votes  of  those  present 
and  voting  at  the  meeting  who  are  qualified  to  vote,  is  requisite  to  elect  such 
trustees. 

Every  person  duly  qualified  to  vote  at  any  school  meeting  held  in  said  dis- 
trict, present  at  said  annual  meeting  on  August  2,  1892,  had,  under  the  school 
laws  of  this  State,  the  right  to  vote  by  ballot  for  whom  he  or  she  desired,  for 
three  persons  as  trustees  in  place  of  the  persons  whose  term  of  office  as  trustees 
expired  at  such  meeting,  and  such  voter  can  not  be  deprived  of  such  right  by 
the  action  of  the  district  meeting,  either  directly  or  indirectly. 

Persons  who  were  qualified  voters  at  said  meeting  were  deprived  of  their 
legal  right  to  vote  by  the  act  of  said  meeting  in  the  attempted  election  of  three 
trustees  of  said  district  by  the  ballot  of  the  clerk,  cast,  upon  a  motion  adopted 
by  an  aye  and  no  vote,  on  the  decision  of  the  chairman  of  the  meeting  that  such 
motion  was  adopted. 


JUDICIAL    DECISIONS  I       ELECTIONS  261 

If  the  method  of  electing  district  officers  pursued  at  said  meeting  of  said 
district  should  be  allowed  at  all,  it  should  only  be  allowed  where  the  method 
is  the  unanimous  wish  of  the  qualified  voters  of  the  district  present  at  said 
meeting.  The  fact  that  voters  present  at  said  meeting  voted  "  no  "  upon  the 
motion  requesting  the  clerk  to  cast  a  ballot  for  the  three  persons  whose  names 
were  presented  to  the  meeting  for  trustees,  shows  that  it  was  not  the  unanimous 
wish  of  the  voters. 

It  is  not  shown  in  the  appeal  papers  how  many  of  the  voters  voted  "  aye  " 
nor  how  many  voted  "  no,"  nor  is  it  shown  whether  or  not  all  those  present  and 
voting  "  aye  "  or  "  no  "  were  qualified  voters.  The  motion  was  declared  adopted 
by  the  chairman  of  the  meeting,  it  seeming  to  him  that  a  majority  voted  "  aye" 
and  that  the  "  noes  "  were  in  the  minority. 

The  legal  method  of  electing  members  of  the  board  of  trustees  or  board 
of  education  in  union  free  school  districts  is  by  ballot  by  the  qualified  voters 
of  the  district,  presented  to  and  received  by  the  tellers,  duly  appointed  by  the 
meeting,  and  the  name  of  each  voter  as  she  or  he  votes  to  be  recorded  by  the 
clerks  or  secretaries  of  the  meeting.  A  reasonable  time  should  be  given  for 
taking  the  vote.  After  the  polls  are  closed  the  votes  should  be  canvassed  and 
result  recorded  and  announced  and  such  result  duly  certified  to  by  the  board  of 
education.  No  declaration  by  the  chairman  of  who  is  elected  is  required.  It  is 
not  the  declaration  of  a  chairman,  but  the  fact  that  a  person  or  persons  received 
a  majority  of  the  legal  votes  cast,  which  constitutes  an  election. 

The  method  and  proceedings  relative  to  the  election  of  trustees  or  members 
of  the  board  of  education  which  were  had  and  taken  at  said  meeting  are  con- 
trary to  the  letter  and  spirit  of  the  school  law  governing  such  elections  in  union 
free  school  districts ;  resulted  in  depriving  the  qualified  voters  of  the  district 
present  at  the  meeting  of  the  right  of  expressing  his  or  her  choice  for  trustees 
by  his  or  her  ballot,  and  can  not  be  sustained. 
I  do  decide  and  determine : 

That  no  valid  and  legal  election  of  trustees  or  members  of  the  board  of 
education  of  union  free  school  district  no.  9  of  the  town  of  Gainesville.  Wyoming 
county,  was  had  at  the  annual  meeting  of  said  district  held  on  August  2,  1892 ; 
that  all  proceedings  had  or  taken  at  said  meeting  relative  to  the  election  of 
trustees  are  void. 

There  having  been  no  valid  and  legal  election  of  trustees  or  members  of 
the  board  of  education  in  said  district  at  its  annual  meeting,  and  under  section 
25  of  title  7  of  the  school  law  the  trustees  whose  several  terms  expired  at  said 
annual  meeting  hold  office  until  their  successors  are  elected  or  appointed,  there 
are  no  vacancies  in  the  office  of  trustees  that  a  special  meeting  of  the  district 
can  fill. 

So  much  of  said  appeal  herein  as  is  taken  from  the  action  and  proceedings 
of  said  annual  meeting  relative  to  the  election  of  trustees  or  members  of  the 
board  of  education  is  sustained;  as  to  all  other  matters  contained  in  said  appeal, 
the  said  appeal  is  dismissed. 


262  THE    U^'lVERSlTy    OF   THE    STATE    UF    NEW    VURK 

4281 

III  the  matter  of  the  appeal  of  Michael  Mitchell  from  proceedings  of  annual 
school  meeting  in   district  no.    11,  town  of  Annsville,   Oneida  county. 

All  school  district  officers  must  be  elected  by  ballot  in  the  manner  prescribed  by  section  14, 
article  i,  title  7  of  the  Consolidated  School  Law  of  1894,  and  the  persons  having  the 
majority  of  votes  respccti\cly  for  the  several  offices  shall  be   elected. 

Decided  October  19,  1894 

Silas  L.  Snyder,  attorney  for  appellant 
P.  H.  Fitzgerald,  attorney  for  respondent 

Crooker,  Superintendent 

The  appellant  in  the  above-entitled  matter  appeals  from  the  proceedings 
of  the  annual  school  meeting,  held  on  the  first  Tuesday  of  August  1894,  in 
school  district  no.  11,  town  of  Annsville,  Oneida  county,  on  the  ground  that 
such  proceedings  were  irregular  and  in  violation  of  the  school  law  of  this  State. 
The  appeal  alleges  that  no  inspectors  of  election  were  appointed  to  receive  and 
canvass  the  votes  and  announce  the  result  of  the  ballot  to  the  chairman ;  that 
only  a  partial  poll  list  of  the  names  of  the  persons  who  voted  was  kept;  that 
the  chairman  of  the  meeting  nominated  a  candidate  for  the  office  of  trustee, 
received  the  votes  cast,  canvassed  the  same  and  announced  the  result  of  the 
ballot;  that  persons  voted  who  were  not  qualified  voters  in  the  district.  An 
answer  by  Harry  W.  White  to  the  appeal  has  been  received,  and  sundry  affidavits 
in  support  of  the  appeal  and  answer  have  been  received.  There  is  some  conflict 
in  the  affidavits  filed  as  to  the  number  of  ballots  cast  for  the  office  of  trustee, 
and  the  qualification  of  certain  persons  who  voted  for  trustee  at  said  annual 
meeting. 

The  following  allegations  contained  in  the  appeal  are  not  denied  by  the 
respondent,  namely:  that  the  annual  meeting  of  school  district  no.  11,  town  of 
Annsville.  Oneida  county,  was  held  on  August  7,  1894,  at  the  schoolhouse  in 
said  district  at  7.30  p.  in. ;  that  Benjamin  Ballard  was  elected  chairman  and 
William  Stedman,  clerk;  that  the  chairman  nominated  Harry  W.  White  for 
the  office  of  trustee,  and  James  Duffy  and  William  Stedman  were  placed  in 
nomination  for  said  office;  that  no  inspectors  of  election  were  appointed  or 
elected,  but  the  chairman  of  the  meeting  received  the  ballots  cast  for  trustee, 
canvassed  said  ballots  and  announced  the  result  to  the  meeting;  that  the  clerk 
of  the  meeting  kept  a  poll  list;  that  the  whole  number  of  persons  residing  in 
the  district  claiming  to  be  qualified  voters  in  said  district  are  33  and  that  16 
persons  claiming  to  be  qualified  voters  were  present  at  said  meeting. 

The  appellant  alleges  in  his  appeal  that  16  ballots  were  cast  for  trustee, 
and  upon  the  canvass  of  the  ballots  by  the  chairman  it  was  discovered  that  the 
number  of  ballots  exceeded  the  number  of  names  on  the  poll  list  by  one,  there 
being  16  ballots  and  but  15  names  on  the  poll  list  (the  appellant's  name  not 
appearing  upon  said  poll  list)  whereupon  the  chairman  cast  out  a  ballot  and 
declared  Harry  W.  White  duly  elected,  he  having  received  8  votes;  that  appel- 
lant voted  at  said  meeting  for  William  Stedman  as  trustee. 


JUDICIAL  decisions:     ei.eltioxs  263 

In  support  of  these  allegations  the  appellant  filed  his  own  affidavit,  in  which 
he  states  he  voted  at  said  meeting  for  said  Stedman  and  was  the  third  person 
who  voted;  that  after  the  voting  was  over  the  chairman  counted  the  votes  and 
said  there  were  16  votes  and  asked  the  clerk  how  many  names  there  were  on 
the  poll  list  and  the  clerk  replied  15;  and  Ballard,  the  chairman,  said  he  would 
have  to  throw  one  out.  and  did  take  up  a  vote  from  the  table  and  threw  it  on 
the  floor  at  his  feet;  that  the  deponent  stood  close  to  said  chairman,  almost 
touching  him.  He  also  files  the  affidavits  of  four  other  persons  who  were  present 
at  said  meeting  who  each  swear  they  saw  the  appellant  vote  at  said  meeting; 
three  of  whom  swear  that  the  chairman  of  the  meeting  received  the  vote  of  the 
appellant.  He  also  files  the  affidavit  of  the  clerk  of  the  meeting,  that  after  the 
voting  was  concluded  he  (the  affiant)  heard  the  chairman  say  there  were  16 
votes  cast,  and  said  chairman  asked  deponent  how  many  names  were  on  the 
poll  list  and  deponent  counted  the  names  and  informed  said  chairman  there  were 
15,  and  the  appellant's  name  was  not  among  them.  He  also  files  the  affidavit  of 
three  other  persons  present  at  the  meeting,  each  of  whom  swears  that  he  heard 
the  chairman,  who  counted  the  ballots,  declare  that  there  were  16  votes  cast, 
and  also  heard  the  clerk  say  there  were  only  15  names  on  the  poll  list. 

The  respondent,  White,  alleges  in  his  answer  to  the  appeal  that  the  poll 
list  at  said  meeting  contained  the  names  of  15  persons  as  having  voted  for 
trustee,  the  name  of  the  appellant  not  appearing  therein ;  that  at  the  close  of  the 
polls  the  names  on  the  poll  list  were  counted  and  also  the  number  of  ballots 
cast  and  that  both  corresponded,  each  being  15;  that  the  respondent  received  8 
of  the  15  votes  and  was  declared  elected.  Annexed  to  said  answer  and  in  sup- 
port thereof  is  the  affidavit  of  the  respondent  and  six  other  persons  in  which 
it  is  alleged  that  the  ballots  were  counted  and  found  to  be  15  aiul  the  names  on 
the  poll  list  counted  and  found  to  be  15;  that  no  ballot  was  eliminated,  thrown 
away  or  destroyed;  that  none  of  said  deponents  remember  having  seen  the 
appellant  vote  at  said  meeting ;  that  they  verily  believe  that  if  the  appellant  had 
voted  at  said  meeting  they  would  have  seen  and  remembered  it.  The  respondent 
also  files  in  support  of  his  answer  the  affidavit  of  three  lads  of  the  age  of  11. 
14  and  16  years  respectively,  who  each  swears  he  was  present  at  said  meeting; 
that  there  were  15  votes  cast  at  said  meeting,  and  there  were  only  15  votes; 
that  there  were  15  names  on  the  poll  list,  and  that  the  names  on  the  poll  Hst 
and  the  number  of  votes  cast  at  the  meeting  correspond;  that  in  the  presence 
of  each  deponent  the  votes  were  counted  by  Ballard  and  found  to  be  15. 

Both  the  appellant  and  respondent  allege  that  certain  persons  voted  at 
said  meeting  who  were  not  qualified  voters.  \\'hen  such  allegations  are  made  it 
is  incumbent  upon  the  party  making  the  allegations  to  show  by  evidence  the 
lack  of  such  qualifications  in  such  terms  as  necessarily  to  exclude  every  pre- 
sumption that  person  or  persons  could  be  qualified  under  either  of  the  heads 
stated  in  section  11,  article  i,  title  7  of  the  Consolidated  School  Law.  Both 
parties  to  this  appeal  have  failed  in  this  regard.  A  party  knowing,  or  having 
good  reason  to  believe,  a  person  to  be  unqualified,  and  permitting  him  to  vote 
without  challenge,  will  not  be  allowed  to  object  to  the  proceedings  of  the  meet- 
""ihg  because  such  unquahfied  person  participated  therein. 


264  THE   UNIVERSITY    OF   THE    STATE    OF    NEW    YORK 

From  the  uncontroverted  facts  established  in  this  appeal  it  is  clear  that 
the  election  of  a  trustee  at  the  school  meeting,  held  on  August  7,  1894,  in  dis- 
trict no.  II,  Annsville,  was  not  in  conformity  with  the  provisions  of  subdivision 
4  of  section  14,  article  i,  title  7  of  the  Consolidated  School  Law.  It  does  not 
appear  affirmatively  that  any  ballot  box  was  furnished;  no  inspectors  of  election 
were  chosen  or  appointed.  The  chairman  of  the  meeting,  in  contravention  at 
least  of  the  proprieties,  nominated  a  candidate  for  trustee;  he  assumed  the  duties 
of  inspectors  of  election  and  received  the  ballots  cast;  canvassing  the  same  and 
declaring  the  result. 

The  main  questions  presented  by  this  appeal  for  decision  are :  first,  How 
many  ballots  were  cast  at  said  meeting  for  the  office  of  trustee?;  and,  second. 
Did  any  person  receive  a  majority  of  the  votes  cast  for  the  office  of  trustee? 

It  is  conceded  by  the  respondent  that  there  were  fifteen  votes  cast,  and  it 
is  claimed  by  the  appellant  that  there  were  sixteen  votes  cast.  The  appellant 
swears  positively  that  he  voted  for  Stedman  for  trustee,  and  was  the  third 
person  who  voted ;  one  Cornelius  Mitchell  swears  he  saw  the  appellant  vote  for 
trustee.  Hall,  Downey  and  Corcoran  each  swear  they  saw  appellant  vote,  and 
Ballard  (the  chairman)  received  such  vote.  In  answer  to  this  proof  on  the 
part  of  the  appellant,  the  respondent.  White,  and  six  other  persons,  in  a  joint 
affidavit,  one  of  the  affiants  being  Ballard  (the  chairman),  say  "  that  none  of 
them  remember  having  seen  Michael  Mitchell  vote  at  said  meeting."  Five 
persons  swear  positively  to  a  fact,  to  wit,  that  the  appellant  voted  for  trustee 
at  said  meeting;  and  seven  persons  swear  that  none  of  them  remember  having 
seen  the  appellant  vote.  The  appellant,  the  clerk,  Stedman,  and  three  other 
persons  swear  that  the  chairman,  after  counting  the  ballots,  said  there  were  16, 
and  asked  the  clerk  how  many  names  were  on  the  poll  list,  to  which  the  clerk 
replied  15;  the  appellant  swears  positively  that  he  was  standing  close  to  the 
chairman  and  almost  touching  him;  he  saw  the  chairman,  after  receiving  said 
reply  from  the  clerk,  take  up  a  vote  from  the  table  and  throw  it  on  the  floor 
at  his  (the  chairman's)  feet. 

I  am  of  the  opinion  that  it  is  established  herein  by  a  preponderance  of 
proof,  that  the  appellant  herein  voted  at  said  meeting  for  William  Stedman  for 
trustee ;  that  the  appellant  handed  his  said  ballot  to  the  chairman  of  the  meet- 
ing, who  received  said  ballot ;  that  said  chairman  failed  to  give  the  name  of 
the  appellant  to  the  clerk  for  entry  upon  the  poll  list;  that  16  ballots  were  cast 
for  the  office  of  trustee  at  said  meeting  and  said  16  votes  should  have  been 
canvassed  and  the  result  of  said  canvass  announced  to  said  meeting. 

As  to  the  second  proposition,  I  am  of  the  opinion  also,  that  no  one  received 
a  majority  of  the  votes  cast  at  said  meeting  for  the  office  of  trustee.  There 
having  been  16  votes  cast  a  majority  of  said  vote  is  9.  The  respondent  herein 
received  8,  and  the  remaining  8  votes  cast  were  given  for  either  Stedman  or 
Dufify.  Therefore,  no  one  was  legally  elected  trustee  of  said  district  at  said 
meeting. 

The  ap])eal  herein  is  sustained. 


JUDICIAL    DECISIONS  :       ELECTIONS  265 

I  find  and  decide,  That  at  the  annual  school  meeting,  held  on  August  7, 
1894,  in  district  no.  11,  town  of  Annsville,  Oneida  county,  Harry  W.  White, 
the  respondent  herein,  was  not,  nor  was  any  person,  legally  elected  a  trustee 
of  said  district. 

It  is  ordered,  That  the  trustee  of  said  school  district  no.  11,  town  of  Anns- 
ville, Oneida  county,  in  office  on  August  i,  1894,  be,  and  he  is,  hereby  author- 
ized and  directed  forthwith  to  call  a  special  meeting  of  the  inhabitants  of  said 
district  qualified  to  vote  at  its  school  meetings,  for  the  purpose  of  electing  a 
trustee  of  said  district,  the  last  annual  meeting  of  said  district  having  failed 
to  elect  a  trustee.  That  notice  of  said  special  meeting  be  served  upon  said 
inhabitants  in  the  manner  prescribed  in  section  2,  article  i,  title  7  of  the  Con- 
solidated School  Law  of  1894;  and  that  the  proceedings  of  said  special  meeting 
when  assembled,  in  organizing  and  in  the  election  of  said  trustee,  shall  be  in 
accordance  with  the  provisions  of  section  14,  article  i,  title  7  of  said  Consoli- 
dated School  Law  of  1894. 


4881 

In  the  matter  of  the  appeal  of  Charles  H.  Simmons  and  others  from  proceedings 
of  annual  meeting  held  August  7,  1900,  in  school  district  no.  6,  Springfield, 
Otsego  county,  relating  to  the  election  of  district  officers. 

Under  the  Consolidated  School  Law  of  1804  all  school  district  officers  must  be  elected  by 
ballot;  at  such  election  the  trustee  shall  provide  a  suitable  ballot  box;  two  inspectors 
of  election  shall  be  appointed  in  such  manner  as  the  meeting  shall  determine,  who  shall 
receive  the  votes  cast  and  canvass  the  same,  and  announce  the  result  of  the  ballot  to 
the  chairman;  a  poll  list,  containing  the  name  of  every  person  whose  vote  shall  be 
received  shall  be  kept  by  the  district  clerk  or  the  clerk  for  the  time  of  the  meeting; 
the  ballots  shall  be  written  or  printed,  or  partly  written  and  partly  printed,  containing 
the  name  of  the  person  voted  for  and  designating  the  office  for  which  each  is  voted; 
the  chairman  shall  declare  to  the  meeting  the  result  of  each  ballot  as  announced  to  him 
by  the  secretary,  and  the  persons  having  the  majority  of  votes  respectively,  for  the 
several  offices,  shall  be  elected. 

Said  law  also  exacts  that  in  all  propositions  arising  at  school  district  meetings,  involving 
the  expenditure  of  money  or  authorizing  the  levy  of  a  tax  or  taxes,  the  vote  thereon 
shall  be  by  ballot,  or  ascertained  by  taking  and  recording  the  ayes  and  noes  of  such 
qualified  voters,  present  and  voting  at  such  district  meeting.  Taking  and  recording 
the  ayes  and  noes  means  that  the  clerk  of  the  meeting  shall  record  the  name  of  each 
person  whose  vote  is  received  and  set  opposite  to  each  name  whether  such  person  votes 
aye  or  no.  No  person  can  vote  at  any  school  district  meeting  unless  he  or  she  possesses 
the  requisite  qualifications  as  prescribed  in  section  11  of  article  i,  title  7  of  said 
Consolidated  School  Law  of  1894. 

Decided  September  22,  1900 

Skinner,  Superintendent 

This  is  an  appeal  from  the  proceedings  of  the  annual  meeting  held  August 
7,  1900,  in  school  district  6,  Springfield,  Otsego  county. 

The  appellants  allege  as  the  grounds  for  bringing  their  appeal,  that  no 
inspectors   of  election  were  appointed   in  such   manner  as  the  meeting  should 


266  TPIE   university   of   the   state   of   new   YORK 

determine,  who  should  receive  the  votes  cast  and  canvass  the  same,  and  announce 
the  result  of  the  ballot  to  the  chairman;  that  no  ballot  was  had  for  a  district 
clerk  or  a  collector;  that  the  vote  upon  the  appropriation  of  money  for  school 
purposes  or  the  levy  of  a  tax  was  not  taken  by  ballot,  or  ascertained  by  taking 
and  recording  the  ayes  and  noes  of  the  qualified  voters  attending  and  voting 
at  such  annual  meeting. 

An  answer  has  been  made  to  the  appeal. 

The  following  facts  are  established- by  the  proofs  filed  herein: 

That  the  annual  meeting  was  held  in  school  district  6,  Springfield,  Otsego 
county,  August  7,  1900,  and  George  Eckerson  was  elected  chairman  and  George 
W.  McRorie,  the  district  clerk,  acted  as  clerk;  that  the  proceedings  of  the  last 
meeting  were  read  and  accepted ;  that  the  report  of  the  trustee  was  read  and 
accepted ;  that  a  motion  was  adopted  that  they  proceed  to  ballot  for  trustee ; 
that  upon  the  suggestion  of  one  S.  M.  Ingalls,  no  motion  being  made  or  any 
vote  taken  in  that  regard,  the  chairman  and  clerk  acted  as  inspectors  of  election, 
the  clerk  keeping  a  poll  list  containing  the  names  of  the  persons  whose  votes 
were  received  for  trustee ;  that  the  trustee,  not  having  provided  a  ballot  box,  a 
hat  was  used  in  which  the  ballots  cast  for  trustee  wxre  deposited  by  the  chair- 
man, w4io  received  such  ballots  from  the  persons  voting;  that  the  poll  list  kept 
by  the  clerk  contained  the  names  of  25  persons  whose  votes  had  been  received, 
but  by  the  count  made  of  the  votes  in  the  hat  there  were  found  to  be  26  votes 
cast;  that  a  motion  was  made  and  seconded  that  one  ballot  be  withdrawn,  to 
which  said  Ingalls  objected,  and  upon  his  suggestion  the  names  upon  the  poll  list 
were  called  by  the  clerk,  and  thereupon  Charles  H.  Simmons,  one  of  the  appel- 
lants, declared  that  he  had  voted,  and  Simmons'  name  was  entered  by  the 
clerk  upon  the  poll  list;  that  the  votes  in  the  hat  were  then  canvassed  by  the 
chairman  and  clerk,  and  the  result  of  the  count  reported  as  follows :  Whole 
number  of  votes  cast,  26,  of  which  S.  M.  Ingalls  received  17,  J.  L.  McKellip 
received  7,  and  Henry  C.  Sheldon  received  2 :  that  G.  W.  McRorie  was  elected 
district  clerk  by  a  viva  voce  vote ;  that  A.  T.  McRorie  was  elected  collector  by 
a  viva  voco  vote ;  that  upon  a  motion  made  and  seconded,  and  adopted  by  a 
viva  voce  vote,  the  sum  of  $40  was  ordered  to  be  raised  by  tax  for  wood  and 
other  expenses,  and  upon  a  like  motion  and  vote  the  further  sum  of  $17.98 
was  directed  to  be  raised  by  tax  to  pay  a  note  given  for  the  purchase  of  a  globe. 

In  subdivision  4  of  section  14  of  article  i,  title  7  of  the  Consolidated 
School  Law  of  1894,  chapter  556  of  the  Laws  of  i8q4,  it  is,  among  other  things, 
enacted  that  all  district  officers  shall  be  elected  by  ballot:  that  at  elections  of 
district  officers  the  trustee  shall  provide  a  suitable  ballot  box ;  that  two  inspectors 
of  election  shall  be  appointed  in  such  manner  as  the  meeting  shall  determine, 
who  shall  receive  the  votes  cast,  and  canvass  the  same,  and  announce  the  result 
of  the  ballot  to  the  chairman:  that  a  poll  list  containing  the  name  of  every  person 
whose  vote  shall  be  received  shall  be  kept  by  the  district  clerk,  or  the  clerk  for 
the  time  of  the  meeting ;  the  ballots  shall  be  written  or  printed,  or  partly  written 
and  partly  printed,  containing  the  name  of  the  person  voted  for  and  designat- 


JUDICIAL    DECISIONS  :       ELECTIONS  26/ 

ing  the  office  for  which  each  is  voted;  that  the  chairman  shall  declare  to  the 
meeting  the  result  of  each  ballot,  as  announced  to  him  by  the  inspectors,  and 
the  persons  having  the  majority  of  votes  respectively,  for  the  several  offices, 
shall  be  elected. 

In  subdivision  i8  of  section  14,  article  i,  title  7,  of  said  Consolidated  School 
Law  of  1894,  it  is  enacted  that  in  all  propositions  arising  at  said  district  meet- 
ings, involving  the  expenditure  of  money  or  authorizing  the  levy  of  a  tax  or 
taxes,  the  vote  thereon  shall  he  by  ballot  or  ascertained  by  taking  and  recording 
the  ayes  and  noes  of  such  qualified  voters  present  and  voting  at  such  district 
meetings. 

Taking  and  recording  the  ayes  and  noes  means  that  the  clerk  of  the  meet- 
ing shall  record  the  name  of  each  person  whose  vote  is  received  and  set  opposite 
to  each  name  whether  such  person  votes  aye  or  no. 

The  provisions  above  cited  have  been  the  law  since  June  50,  i8p4,  and  it  is 
time  that  school  district  meetings  should  be  conducted  in  accordance  with  said 
provisions. 

The  proceedings  with  reference  to  the  election  of  district  officers  and 
authorizing  the  levy  of  taxes  taken  at  the  annual  meeting  in  school  district  6, 
.Npringtield,  Otsego  county,  with  the  exception  of  keeping  a  poll  list  by  the 
clerk  in  the  ballot  taken  for  trustee,  were  not  as  required  by  the  school  law. 

The  trustee  failed  to  provide  a  suitable  ballot  box;  the  meeting  failed  to 
appoint  two  inspectors  of  election,  and  the  chairman  and  clerk  assumed,  zvith- 
out  any  authority  of  laiv  or  vote  of  the  meeting,  but  upon  the  suggestion  of  the 
respondent,  Ingalls,  to  act  as  such  inspectors.  The  ballots  cast  for  trustee 
exceeded  the  number  of  names  of  persons  recorded  by  the  clerk  upon  the  poll 
list  kept  by  him,  by  one;  that  instead  of  placing  all  the  votes  in  the  hat  and  draw- 
ing out  one  ballot  and  destroying  it  and  then  proceeding  to  canvass  the  votes 
remaining,  as  was  proposed  by  a  motion  made  and  seconded,  but  wdiich  was  not 
put  to  vote,  on  the  objection  of  said  Ingalls,  upon  the  suggestion  of  said  Ingalls 
the  clerk  called  the  names  upon  the  poll  list  and  each  person  so  called  responded, 
when  Simmons,  one  of  the  appellants  herein,  stated  that  he  had  voted,  and 
thereupon  his  name  was  added  to  the  poll  list,  and  the  canvass  of  the  votes 
was  announced  by  the  chairman.  Neither  the  district  clerk  nor  the  collector 
was  elected  by  ballot,  and  the  vote  authorizing  the  levy  of  a  tax  was  not  taken 
by  ballot  or  ascertained  by  the  clerk  recording  the  name  of  each  person  who 
voted  and  setting  opposite  to  each  whether  such  person  voted  aye  or  no. 

This  Department  has  held  that  wdiere  the  trustee  or  trustees  of  a  district 
have  failed  to  provide  a  ballot  box,  the  use  of  a  hat  for  the  reception  of  ballots 
will  not  of  itself  invalidate  an  election. 

It  is  alleged  by  the  appellants  that  Mrs  Carrie  Smith,  the  wife  of  Fred  W. 
Smith,  who  at  the  time  of  said  annual  meeting  was  a  citizen  of  the  United 
States,  upwards  of  21  years  of  age  and  who  with  her  husband  had  resided  in 
such  school  district  for  more  than  30  days  prior  to  such  meeting,  and  wdio  had 
residing-  with  them  four  children  of   school  age,   some  one  or  more  of   whom 


268  THE   UXIVERSITY    OF   THE    STATE    OF   NEW   YORK 

had  attended  the  school  in  such  district  for  at  least  eight  weeks  during  the  school 
year  ending  July  31,  1900,  offered  to  vote,  but  her  vote  was  rejected  by  the 
chairman  upon  the  opinion  expressed  by  the  respondent  Ingalls  that  she  was 
not  a  qualified  voter  in  the  district.  Said  Ingalls  in  his  answer  admits  that  the 
statements  made  by  Mrs  Smith  as  to  her  qualifications  as  a  voter  are  true,  but 
denies  that  she  offered  to  vote.  He,  however,  admits  that  he  stated  to  the 
meeting  that  in  his  (Ingalls')  opinion  she  was  not  a  qualified  voter.  Under 
section  11  of  article  i,  title  7  of  the  Consolidated  School  Law  of  1S94,  and  the 
uniform  rulings  of  this  Department,  Mrs  Smith  was  a  qualified  voter  in  said 
district  at  said  meeting. 

The  appeal  herein  is  sustained. 

It  is  ordered: 

That  all  proceedings  taken  at  said  annual  meeting,  held  on  August  7,  1900, 
in  school  district  6,  town  of  Springfield,  Otsego  county,  subsequent  to  the 
acceptance  of  the  report  of  the  trustee  of  the  district  for  the  school  years  1899- 
1900,  be,  and  the  same  are,  hereby  vacated  and  set  aside. 

It  is  further  ordered : 

That  Henry  C.  Sheldon,  without  unnecessary  delay,  call  a  special  meeting 
of  the  inhabitants  of  school  district  6,  Springfield,  Otsego  county,  qualified  to 
vote  at  school  meetings  therein,  for  the  purpose  of  electing  a  trustee,  a  clerk 
and  a  collector  of  said  district,  and  for  considering  and  acting  upon  the  ques- 
tion of  the  appropriation  of  money,  and  the  levy  of  a  tax  for  school  purposes 
for  the  present  school  year;  that  the  notice  of  such  special  meeting  be  given  in 
the  manner  required  by  sections  2  and  6  of  article  i,  title  7,  of  the  Consolidated 
School  Law  of  1894;  that  in  the  election  of  such  district  officers  the  proceedings 
taken  shall  conform  to  the  provisions  contained  in,  and  the  methods  prescribed 
in,  subdivision  4  of  section  14,  article  i,  title  7,  of  the  Consolidated  School  Law 
of  1894,  relating  to  the  election  of  school  district  officers,  that  the  vote  appro- 
priating money  or  authorizing  the  levy  of  a  tax  for  school  purposes,  must  be 
made  in  the  manner  required  by  subdivision  18  of  section  14,  article  i,  title  7, 
of  the  Consolidated  School  Law  of  1894. 


3448 

The  candidate  for  collector  was  not  eligible.  It  not  appearing  that  knowledge  of  his  dis- 
qualification was  brought'  home  to  the  electors,  the  opposing  candidate  can  not  be 
declared  elected,  and  a  new  election  must  be  ordered. 

Decided  October  22,  1885 

Ruggles,  Superintendent 

At  the  annual  school  meeting  in  district  no.  3,  Philipstown,  Putnam  county. 
upon  a  ballot  for  the  election  of  district  collector,  James  S.  Mcllravy  received 
86  votes  and  Thomas  Smythe  received  79.  The  appeal  is  brought  to  set  aside  the 
election  of  Mcllravy  upon  the  ground  that  at  the  time  of  the  election  he  was  not 


JUDICIAL    DECISIONS  :       ELECTIONS  269 

a  qualified  voter  at  school  meeting  in  the  district.  The  allegation  of  the  appel- 
lant, that  the  respondent  did  not  at  the  time  of  said  election  possess  any  of  the 
qualifications  necessary  to  make  him  a  qualified  voter  at  such  election,  is  not  suc- 
cessfully controverted  by  the  respondent,  who  alleges  that  he  was  a  qualified  voter 
solely  upon  the  ground  that  he  owned  upwards  of  $50  worth  of  personal  prop- 
erty liable  to  taxation  for  school  purposes.  This  is  not  a  legal  qualification.  The 
statute  provides  that  a  resident  of  the  district,  twenty-one  years  of  age  "  who 
owns  any  personal  property  assessed  on  the  last  preceding  assessment  roll  of 
the  town,  exceeding  fifty  dollars  in  value,  exclusive  of  such  as  is  exempt  from 
execution,"  is  a  qualified  voter.  r\IcHravy  not  having  been  so  assessed  was, 
therefore,  disqualified  to  hold  the  oftice  of  collector. 

It  is  a  well-settled  rule  of  law  that  had  the  disqualification  been  known  to 
a  sufticient  number  of  electors  to  constitute  a  majority  for  Mcllravy,  and  had 
they,  notwithstanding  this  knowledge,  cast  their  ballots  for  him,  their  votes  would 
have  been  a  nullity,  and  it  would  follow  that  Smythe,  if  duly  qualified,  must  be 
declared  the  legally  elected  collector  of  the  district.  But  there  is  no  proof  that 
the  disqualification  of  Mcllravy  for  the  ofiice  of  collector  was  known  to  any  of 
the  electors  prior  to  the  election,  nor  that  any  elector,  before  voting,  received 
notice  that  Mcllravy  was  disqualified.  Knowledge  of  the  disqualification  not 
having  been  brought  home  to  the  electors  who  voted  for  IMcIlravy,  it  only  remains 
for  me  to  decide  that  there  was  not  a  legal  election  of  collector  on  the  26th  day 
of  August  last  in  said  district.    A  new  election  ordered. 


Upon  evidence  tending  to  show  that  illegal  ballots  were  cast  at  an  election  for  officers 
of  a  district,  it  will  not  be  assumed  that  the  illegal  votes  were  cast  for  the  successful 
candidate. 

Decided  February  26,  1869 

Weaver,  Superintendent 

At  an  annual  meeting  the  result  of  the  first  ballot  for  trustee  was  declared 
to  be  80  votes  cast,  50  for  Casey,  and  30  for  Bierce. 

Upon  the  ballot  taken  immediately  thereafter  for  a  second  trustee,  there 
being  two  to  elect,  the  result  was  55  ballots  cast,  of  which  50  were  for  Wilson,  3 
for  Casey  and  2  for  Smith. 

The  same  number  of  persons  was  in  the  room  at  the  taking  of  each  of  these 
ballots  and  the  conclusion  is  reached  that  upon  the  first  ballot,  25  votes  in  excess 
of  the  voters  were  cast  or  counted. 

The  Superintendent  says :  "  No  charge  is  made  and  no  proof  is  given  that 
any  such  votes  were  cast  for  the  persons  declared  elected,  and  it  is  a  notable  cir- 
cumstance that  upon  each  balloting  the  successful  candidate  received  just  50  votes. 
Under  these  circumstances  I  can  not  assume  that  illegal  votes  were  cast  for  the 
person  who  received  the  highest  number  on  the  first  ballot.  7  Cow.  153  clearly 
lays  down  the  law  appHcable  to  the  facts  of  this  case.    '  To  warrant  setting  aside 


2/0  THE    UNIVERSITY    OF   THE    STATE    OF   NEW    YORK 

the  election  it  must  appear  affirmatively  that  the  successful  ticket  received  a  num- 
ber of  improper  votes  which  if  rejected  would  have  brought  it  down  to  a  minority. 
The  mere  circumstance  that  improper  votes  were  received  will  not  vitiate  an 
election.'  " 


4407 

In  the  matter  of  the  appeal  of  Charles  W.  Dutchcr  from  proceedings  of  annual 
school  meeting  held  on  August  6,  1895,  in  union  free  school  district  no.  3, 
town  of  East  Chester,  Westchester  county. 

Where  at  an  annual  school  meeting  in  a  union  free  school  district  a  vote  is  cast  upon  each 
of  certain  resolutions  involving  the  expenditure  of  money  or  authorizing  the  levy  of 
tax  or  taxes  by  the  secretary  or  some  other  person,  under  a  motion  adopted  by  the 
meeting  upon  a  viva  voce  vote,  whether  such  motion  is  declared  to  be  adopted  unani- 
mously or  not,  it  is  not  a  vote  upon  such  propositions  or  resolutions  as  is  required  by 
the  provisions  of  the  school  law,  and  upon  such  action  and  proceedings  will  be 
vacated  and  set  aside. 

The  fact  that  the  votes  of  persons  not  qualified  were  received  at  a  school  meeting  in  any 
ballot  taken  thereat  will  not  vitiate  such  ballot;  but  to  warrant  setting  aside  said  ballot 
it  must  appear  affirmatively  that  the  resolution  balloted  for  received  a  sufficient  number 
of  improper  votes  for  it  to  reduce  such  vote  to  a  minority  if  they  had  been  rejected, 
otherwise  the  vote  adopting  the  resolution  would  stand. 

It  is  incumbent  upon  the  party  appealing,  not  only  to  allege  the  illegal  voting  or  the  dis- 
qualification of  persons  who  voted  upon  such  resolution,  but  to  show  by  evidence  the 
lack  of  qualification  in  such  terms  as  necessarily  to  exclude  every  presumption  that  such 
voters  could  not  be  qualified  under  either  of  the  heads  stated  in  the  sections  of  the 
school  law,  describing  the  qualifications  of  voters  at  school  meetings  in  the  respective 
school  districts  of  the  State. 

Decided  December  2,  1895 

William  P.  Fiero,  attorney  for  appellant 
Jared  Sand  ford,  attorney  for  respondents 

Skinner,  Superintendent 

The  appellant  in  the  above-entitled  matter  appeals  from  the  proceedings  of 
the  annual  school  meeting,  held  on  Atigust  6,  1895,  in  union  free  school  district 
no.  3,  town  of  East  Chester,  Westchester  cotmty,  first,  in  the  election  of  W.  F. 
Jefifers  as  a  trustee,  on  the  ground  that  his  election  was  not  in  accordance  with 
the  provisions  of  the  school  law.  Second,  in  voting  to  appropriate  the  sum  of 
$25,000  for  the  purchase  of  a  new  schoolhouse  site  and  the  erection  of  a  new 
schoolhouse  in  Waverly-on-the-Hill,  same  to  be  raised  in  annual  instalments,  on 
the  ground  that  persons  not  qualified  voted  upon  said  proposition.  Third,  in 
voting  to  appropriate  $1500  for  the  building  of  an  addition  to  school  building 
no.  2,  Upper  Tuckahoe,  and  in  appropriating  $5000  for  a  site  and  new  school 
building  in  the  vicinity  of  the  Harlem  Railroad  depot,  on  the  ground  that  the 
votes  thereon  were  not  taken  by  ballot  or  ascertained  by  taking  and  recording 
the  ayes  and  noes  of  the  voters  attending  and  voting;  that  the  new  sites  voted 


JUDICIAL  decisions:     elections  271 

for  were  not  described  by  metes  and  bounds ;  that  the  board  of  trustees  failed  to 
cause  to  be  pubHshed  an  account  of  moneys  received  and  expended,  as  required 
by  section  18,  article  4,  title  8,  of  the  Consolidated  School  Law. 

Annexed  to  the  appeal  and  in  support  of  the  allegations  therein  are  the 
affidavits  of  two  persons  who  allege  that  the  statements  in  said  appeal,  are,  from 
the  recollection  of  the  affiants  of  the  occurrences  and  proceedings  at  said  meet- 
ing, true. 

The  five  persons  constituting  the  board  of  education  of  said  school  district 
have  answered  said  appeal,  and  annexed  thereto  are  the  affidavits  of  Matthew 
Horan,  the  chairman  of  said  annual  school  meeting  and  four  other  persons  in 
support  of  said  answer;  that  also  annexed  to  said  answer  and  forming  a  part 
thereof,  is  annexed  a  copy  of  the  proceedings  of  said  annual  school  meeting  as 
recorded  in  the  records  of  said  district  certified  by  the  clerk  of  the  board  of 
education  of  said  district. 

From  such  appeal  and  answer  the  following  facts  are  established : 

That  at  said  annual  meeting  Matthew  Horan  was  elected  chairman  and  that 
two  persons  were  appointed  inspectors  of  election;  that  William  Rickard  and 
Walter  F.  Jeffers  were  placed  in  nomination  for  the  office  of  trustee  to  succeed 
William  Rickard,  whose  term  of  office  expired  at  the  time  of  said  meeting;  that 
Rickards  declined  the  office  and  no  other  nominations  being  made  a  motion  was 
adopted  that  the  secretary  cast  one  ballot  for  said  Jeffers  for  trustee;  that  said 
secretary  thereupon  cast  one  ballot  for  said  Jeffers  for  trustee  for  the  term  of 
three  years,  and  the  result  of  the  ballot  being  announced  the  chairman  declared 
said  Jeffers  elected  as  such  trustee ;  that  a  resolution  was  submitted  to  the  meet- 
ing that  there  be  appropriated  the  sum  of  .'^25,000  to  be  levied  and  raised  by  tax 
on  the  taxable  property  within  school  district  no.  3,  town  of  East  Chester,  for 
the  purchase  of  a  new  site  in  Waverly-on-the-Hill,  and  for  erecting,  completing 
and  furnishing  a  new  school  building  therein ;  and  that  said  sum  be  raised  by 
annual  instalments,  the  last  instalment  to  be  paid  in  the  year  1916,  and  a  vote 
thereon  was  taken  by  ballot,  the  result  thereof,  as  declared,  being  as  follows: 
.  Whole  number  of  votes  cast  129,  of  which  89  were  for  the  resolution  and  40 
against  the  resolution;  that  a  resolution  was  adopted  that  the  board  of  trustees 
of  said  district  be  authorized  and  empowered  to  purchase  a  new  site  on  which  to 
erect  a  new  schoolhouse,  and  that  we  recommend  the  selection  for  said  site  the 
following  described  lot  or  premises,  to  wit,  200  feet  front  on  the  old  White 
Plains  road  adjoining  and  north  of  Matthew  Horan's  property,  and  500  feet 
deep,  known  as  the  Morgan  property;  that  a  resolution  was  adopted  that  $1500 
be  raised  by  tax,  in  annual  instalments,  the  last  instalment  to  be  paid  in  the  year 
1916  for  the  purpose  of  building  an  addition  to  schoolhouse  no.  2,  Upper  Tucka- 
hoe,  and  that  the  vote  thereon  was  taken  by  the  secretary  casting  one  ballot  for 
the  resolution,  under  a  resolution  to  that  effect  adopted  by  the  meeting;  that  a 
resolution  was  offered  to  raise  by  tax  the  sum  of  $5000  in  annual  instalments, 
the  last  instalment  to  be  paid  in  the  year  19 16,  for  the  purchase  of  a  site  in 
the  vicinity  of  the  Harlem  Railroad  depot,  and  for  the  erecting,  completing  and 


272  THE   UNINERSITY    OF   THE   STATE    OF    NEW    YORK 

furnishing  thereon  of  a  new  school  building,  said  site  to  be  thereafter  designated ; 
that  the  appellant  herein  moved  to  increase  the  amount  to  $10,000,  and  one  Alulvy 
moved  to  amend  the  amendment  that  only  the  amount  advertised  be  voted  on, 
which  was  adopted,  and  the  vote  upon  said  resolution  was  taken  by  the  secretary 
casting  one  ballot  for  the  resolution,  under  a  resolution  to  that  effect  adopted  by 
the  meeting;  that  a  resolution  was  adopted  that  the  board  of  trustees  of  said 
district  be  authorized  and  empowered  to  purchase  a  new  site  on  which  to  erect 
a  new  schoolhouse  in  the  vicinity  of  the  Harlem  Railroad  depot. 

It  appears  that  two  persons  were  put  in  nomination  for  the  office  of  trustee 
of  the  district  for  three  years,  and  one  of  them  declined  to  be  a  candidate,  thus 
leaving  but  one  person  in  nomination  before  the  meeting.  The  appellant  alleges 
that  after  the  declination  of  Rickard  one  R.  T.  Young  was  attempting  to  place  in 
nomination  another  person  for  trustee,  but  was  prevented  by  the  summary  action 
of  the  meeting.  After  the  declination  of  Rickard,  there  being  but  one  person 
put  in  nomination,  a  motion  was  made  and  unanimously  adopted,  by  a  viva  voce 
vote,  that  the  secretary  be  directed  to  cast  one  ballot  for  Jeft'ers  (the  only  nominee 
before  the  meeting)  and  the  secretary  cast  such  ballot  and  the  result  of  the  ballot 
was  announced. 

This  Department  has  held,  in  some  special  cases,  in  which  it  was  indisput- 
ably established  that  it  was  the  unanimous  wish  of  the  meeting  that  a  certain 
person  nominated  for  a  district  office  should  be  elected,  that  a  vote  cast  by  the 
clerk,  or  some  other  designated  person  for  the  meeting,  should  be  sustained.  I 
do  not,  however,  approve  of  such  method  of  electing  district  officers,  and  in  my 
opinion  such  method  is  not  a  compliance  with  the  provisions  of  the  school  law, 
in  the  election  of  school  district  officers.  Under  said  law,  a  ballot  for  each  officer 
should  be  had,  and  if  after  the  ballot  has  commenced  it  appears  all  present  are 
favorable  to  the  election  of  the  person  or  persons  being  voted  for,  and  no  other 
voter  present  desires  to  vote,  the  ballot  may  be  closed  and  the  votes  cast  be  can- 
vassed and  the  result  announced.  In  this  appeal  I  sustain  the  action  of  the  meet- 
ing in  the  election  of  Jeft'ers,  as  it  is  not  affirmatively  shown  that  any  qualified 
voter  present  was  opposed  to  such  election  or  desired  a  ballot.  No  other  voter 
of  the  district  has  appealed  from  such  election,  and  the  appellant  does  not  allege 
that  he  was  opposed  to  Jeft'ers,  or  to  the  motion  that  the  secretary  cast  the  ballot 
for  Jeffers.  Upon  the  proofs  presented  I  am  of  the  opinion  that  the  resolutions 
alleged  to  have  been  passed  at  said  meeting  raising  by  tax  the  sum  of  $1500  and 
S5000  respectively,  were  not,  nor  was  either  of  them,  passed  in  accordance  with 
the  provisions  of  the  school  law.  All  propositions  arising  at  a  school  meeting, 
involving  the  expenditure  of  money  or  authorizing  the  levy  of  a  tax  or  taxes  in 
one  sum  or  by  instalments  the  vote  thereon  shall  be  by  ballot,  or  ascertained  by 
taking  and  recording  the  ayes  and  noes  of  such  qualified  voters  attending  and 
voting  at  such  meetings.  A  vote  cast  for  such  resolutions,  or  either  of  them, 
by  the  secretary  or  any  other  person,  under  a  motion  adopted  by  the  meeting 
upon  a  viva  voce  vote,  whether  such  motion  is  declared  to  have  been  adopted 
unanimously  or  not,  is  not  a  vote  upon  such  propositions  or  resolutions  as  is 
required  by  the  provisions  of  the  school  law. 


JUDICIAL    DECISIONS  :       ELECTIONS  273 

Under  the  school  law  the  designation  of  a  site  or  sites  must  be  made  by  the 
district  meeting.  Such  meeting  can  not  delegate  the  selection  or  designation  of 
such  sites  to  the  board  of  trustees.  Such  designation  must  be  made  at  a  district 
meeting  and  by  a  written  resolution  or  resolutions,  containing  a  description  thereof 
by  metes  and  bounds,  and  such  resolution  must  receive  a  majority  of  the  votes 
of  the  qualified  voters  present  and  voting  at  such  meeting,  to  be  ascertained  by 
taking  and  recording  the  ayes  and  noes.  The  action  of  said  annual  meeting  rela- 
tive to  new  school  sites  at  Waverly-on-the-Hill  and  the  Harlem  Railroad  depot 
was  not  a  legal  designation  of  school  sites,  and  such  action  can  only  be  held  to 
be  an  expression  of  opinion  of  the  voters  present  at  said  meeting  in  relation 
thereto.  It  is  clear  that  it  will  require  the  further  action  of  a  district  meeting, 
in  accordance  with  the  provisions  of  the  school  law,  to  designate  new  sites  in 
each  of  said  localities.  The  appellant  alleges  that  the  report  of  the  trustees  of 
said  district,  required  by  section  i8,  article  4,  title  8,  of  the  Consolidated  School 
Law  of  1894,  was  not  published.  Whether  such  report  was  or  was  not  published 
is  not  material  as  to  the  legality  of  the  annual  meeting,  or  the  validity  of  the  pro- 
ceedings of  said  meeting. 

The  only  other  ground  of  appeal  herein  remaining  for  consideration  is, 
that  in  the  vote  of  said  meeting  appropriating  the  sum  of  $25,000,  to  be  levied 
and  raised  by  tax  for  the  purchase  of  a  new  site  in  Waverly-on-the-Hill  and  for 
erecting,  completing  and  furnishing  a  new  school  building  thereon,  the  votes  of 
persons  not  qualified  were  received.  The  appellant  alleges,  in  substance,  that  the 
persons  favoring  the  purchase  of  said  new  site  and  the  erecting  of  such  new 
schoolhouse,  "  packed  and  crowded  said  school  meeting,  as  the  appellant  is  reliably 
informed  and  believes,  and  from  an  examination  of  the  alleged  voters  at  said 
meeting  he  is  satisfied,  with  nonresidents  of  said  district  and  with  74  voters  out 
of  a  total  of  129  voting  at  said  meeting  who  were  not  then  and  there  legally 
entitled  to  vote  thereat  upon  the  question  of  bonding  aforesaid  or  otherwise." 
The  respondents  deny  this  allegation,  and  allege  that  the  persons  who  voted  at 
said  meeting  were  residents  of  said  district  and  entitled  to  vote  upon  all  matters 
presented  thereat  upon  which  a  vote  was  required. 

The  burden  is  upon  the  appellant  to  sustain  his  appeal  by  a  preponderance 
of  proof.  This  the  appellant  has  failed  to  do  with  regard  to  his  allegation  that 
the  votes  of  persons  not  qualified  to  vote  were  received. 

The  fact  that  the  votes  of  persons  not  qualified  were  received  in  the  ballot 
had  upon  said  resolution  will  not  vitiate  such  ballot.  To  warrant  setting  aside 
said  ballot,  it  must  appear  afiirmatively  that  said  resolution  received  a  sufficient 
number  of  improper  votes  for  it  to  reduce  such  vote  to  a  minority  if  they  had 
■  been  rejected;  or  otherwise  the  vote  adopting  the  resolution  stands.  It  is  incum- 
bent upon  the  appellant  in  this  appeal,  not  only  to  allege  the  illegal  voting, 
or  the  disqualification  of  persons  who  voted  upon  such  resolution,  but  to  show 
by  evidence  the  lack  of  qualifications  in  such  terms  as  necessarily  to  exclude 
every  presumption  that  such  voters  could  not  be  qualified  under  either  of  the 
heads  stated  in  the  section  of  the  school  law  prescribing  the  qualifications  of 
_  voters  at  school  meetings  in  said  district. 


274  THE   UNIVERSITY    OF   THE    STATE    OF    NEW    YORK 

No  evidence  is  produced  by  the  appellant  showing  that  any  one  of  the  129 
persons  who  voted  upon  said  resolution  was  not  qualified  to  vote  thereon,  and 
hence  has  failed  to  establish  affirmatively,  that  said  resolution  received  a  suffi- 
cient (or  any)  number  of  improper  votes  for  it  to  reduce  such  vote  to  a  minority 
for  such  resolution  if  such  improper  votes,  if  any,  had  been  rejected. 

I  find  and  decide,  That  so  much  of  the  appeal  herein  as  is  taken  from  the 
action  and  proceedings  of  the  said  annual  meeting,  held  in  said  district  as  relates 
to  the  appropriation  of  $1500  for  the  addition  to  a  school  building  in  Upper 
Tuckahoe,  and  the  appropriation  of  $5000  for  a  site  and  new  school  building  in 
the  vicinity  of  the  Harlem  Railroad  depot,  and  as  relates  to  two  sites,  is  sus- 
tained; and  as  to  all  other  matters,  the  appeal  herein  is  dismissed. 

It  is  ordered,  That  the  action  and  proceedings  had  and  taken  at  the  annual 
school  meeting,  held  August  6,  1895,  in  union  free  school  district  no.  3,  town  of 
East  Chester,  Westchester  county,  appropriating  $1500  for  an  addition  to  school 
building  no.  2,  Upper  Tuckahoe.  and  the  appropriating  of  $5000  for  a  site  and 
the  erection  of  a  new  school  building  in  the  vicinity  of  the  Harlem  Railroad 
depot,  be,  and  the  same  are,  and  each  of  them  is,  vacated  and  set  aside. 


4930 

In  the  matter  of  the  appeal  of  Kenner  G.  Gifford  and  J.  X.  Mumpton  from  jiro- 
ceedings  of  special  meeting  held  November  9,  1900,  in  union  free  school  dis- 
trict no.  7,  Checktowaga,  Erie  county. 

In  an  appeal  from  the  election  of  school  district  officers  the  appellant  must  not  only  allcc/c 
the  disqualifications  of  persons  whose  votes  were  received,  but  must  show  by  evidence 
the  lack  of  qualifications  of  such  persons  in  such  terms  as  necessarily  to  exclude  every 
presumption  that  they  were  qualified  to  vote. 

Under  the  school  law  every  person  of  full  age  who  has  resided  in  a  school  district  for  a 
period  of  thirty  days  preceding  an  annual  or  special  meeting  held  therein,  and  a  citizen 
of  the  United  States,  who  owns  or  hires,  or  is  in  possession  under  a  contract  of  pur- 
chase of  real  property  in  the  district  liable  to  taxation  for  school  purposes,  is  entitled 
to  vote  for  school  district  officers,  and  upon  all  matters  brought  before  the  school 
meeting.  The  tax  law  of  the  State  defines  the  term  "  real  property  "  to  include  the 
land  itself,  above  and  under  water,  all  buildings  and  other  articles  and  structures,  sub- 
structures and  superstructures  erected  upon  or  above,  or  affixed  to,  the  same. 

The  school  law  does  not  define  the  quantity  of  real  property  necessary  to  be  owned,  hired, 
or  in  the  possession  under  a  contract  of  purchase,  subject  to  taxation  for  school  pur- 
poses in  the  district,  of  a  person  to  entitle  him  or  her  to  vote,  provided  he  or  she 
possesses  the  necessary  qualifications  of  residence,  age  and  citizenship.  Such  real 
property  may  consist  of  a  small  parcel  of  land,  or  a  tract  of  many  acres,  or  of  a  room, 
or  a  flat  in  a  building,  or  a  dwelling  house,  or  a  block  of  buildings,  and  the  rent  may 
be  payable  in   work,  money,  taxes  or  improvements. 

Decided  February  28,  1901 

Skinner,  Superintendent 

This  is  an  appeal  from  the  proceedings  of  a  special  meeting,  held  on  Novem- 
ber 9,  1900,  in  union  free  school  district  7,  Cheektowaga,  Erie  county,  in  the 
election  of  Eugene  J.  McGuire  as  a  trustee  of  the  district. 


JUDICIAL    DECISIONS  :       ELECTIONS  275 

The  appellants  allege,  in  substance,  as  the  grounds  for  bringing  their  appeal, 
that  they  feel  and  believe  that  there  were  at  least  30  votes  cast  by  men  not 
entitled  to  vote;  that  they  challenged  voters  until  they  saw  that  each  person 
challenged  would  make  the  declaration  required  by  the  Consolidated  School  Law ; 
that  they  name  24  persons  whose  votes  were  received,  none  of  whom,  from  the 
best  knowledge  and  belief  of  the  appellants,  was  a  qualified  voter  under  the  school 
law. 

'Annexed  to  the  appeal  is  a  copy  of  the  proceedings  of  said  special  meet- 
ing, verified  by  the  district  clerk  who  acted  as  clerk  of  such  special  meeting. 

An  answer  to  the  appeal  herein  has  been  made  by  a  committee  appointed  at 
a  special  meeting  held  in  sUch  district  February  i,  1901,  to  consider  such  appeal, 
which  answer,  upon  the  information  and  belief  of  the  respondents  therein,  denies 
each  and  all  of  the  allegations  made  by  the  appellants  in  the  appeal. 

It  appears  that  a  special  meeting  was  held  the  evening  of  November  8,  1900, 
in  said  union  free  school  district  7,  Cheektowaga,  Erie  county,  for  the  purpose  of 
electing  a  trustee  of  such  district  for  the  term  of  three  years  from  the  first 
Tuesday  of  August  1900;  that  the  meeting  was  duly  organized  by  the  election 
of  a  chairman,  the  clerk  of  the  district  acting  as  clerk  of  the  meeting,  and  the 
appointment  of  two  inspectors  of  election ;  that  Eugene  J.  McGuire  and  Kenner 
G.  Gifford  were  each  nominated  as  candidates  for  the  office  of  trustee;  that  a 
ballot  was  thereupon  taken  for  a  trustee,  and  the  poll  being  closed  and  the 
inspectors  of  election  having  canvassed  the  vote  cast,  announced  to  the  chairman 
the  result  of  the  election,  as  follows:  whole  number  of  votes  cast  159,  of  which 
Eugene  J.  McGuire  received  85,  Kenner  G.  Gifford  received  73  and  Jacob  B. 
Williams  received  i ;  that  the  chairman  of  the  meeting  then  announced  that 
Eugene  J.  McGuire  was  elected  trustee  of  the  district  for  the  term  of  three 
years  from  August  1900,  and  the  meeting  adjourned. 

It  also  appears  that  during  the  ballot  taken  for  trustee,  only  five  persons 
ofifering  to  vote  were  challenged,  and  each  of  said  persons  made  the  declaration 
required  by  the  Consolidated  School  Law,  and  their  votes  respectively  were 
received;  but  it  does  not  appear  for  whom  such  persons,  or  either  of  them, 
voted,  nor  is  there  any  evidence  presented  that  such  persons  were  not,  or  that 
either  of  them  was,  not  qualified,  under  the  school  law,  to  vote  at  such  meeting. 

Under  the  provisions  of  section  12,  article  i,  title  7  of  the  Consolidated 
School  Law  of  1894,  any  legal  voter  present  at  a  school  district  meeting  has 
the  right  to  challenge  any  person  ofifering  to  vote.  Neither  the  chairman  nor 
the  inhabitants  assembled  at  the  meeting  can  act  as  judges  of  any  person's  quali- 
fications. All  that  lies  in  their  power  is  to  make  the  challenge  and  accept 
the  vote  if  the  person  makes  the  declaration,  or  reject  it  if  he  or  she  refuses. 

Section  13,  article  i,  title  7  of  such  law  provides  that  any  person  who  shall 
wilfully  make  a  false  declaration  of  his  or  her  right  to  vote  at  any  school  meet- 
ing, after  his  or  her  right  to  vote  has  been  challenged,  shall  be  guilty  of  a 
misdemeanor. 

This  Department  has  uniformly  held  that  any  legal  voter  present  at  a  school 
district  meeting,  and  knowing  or  having  reason  to  believe,  that  any  person  or 


276  THE   UNIVERSITY    OF   THE    STATE    OF    NEW    YORK 

persons  offering  to  vote  thereat,  is  or  are,  not  a  legal  voter  or  voters,  and  per- 
mitting such  person  or  persons  to  vote  without  challenge,  will  not  be  allowed  to 
object  to  the  proceedings  taken  at  svsch  meeting  because  such  unqualified  person 
or  persons  participated  in  such  proceedings. 

The  rule  is  well  settled  that  the  proceedings  taken  at  a  school  meeting  will 
not  be  vitiated  by  illegal  votes  unless  a  different  result  would  have  been  produced 
by  excluding  such  votes.  It  lies  upon  the  party  objecting  to  show  that  fact, 
even  if  the  nature  of  the  proceedings  (as  in  the  case  of  a  vote  by  ballot)  is 
such  as  to  deprive  him  of  the  power.  For  aught  that  appears  in  the  proofs  filed 
herein  the  ballots  cast  by  the  person  claimed  by  the  appellants  not  to  have  been 
qualified  voters  were  for  Gifford,  the  minority  candidate.  To  warrant  setting 
aside  an  election  it  must  appear  affirmatively  that  the  successful  ticket  received 
a  number  of  illegal  votes  which,  if  rejected,  would  have  brought  it  down  to  a 
minority. 

It  is  incumbent  in  case  of  appeal  from  the  election  of  school  district  officers, 
for  the  appellant  not  only  to  allege  the  illegal  voting,  or  the  disqualification  of 
certain  persons  whose  votes  were  received,  but  to  show  hy  evidence  the  lack  of 
qualification  of  such  persons  in  such  terms  as  necessarily  to  exclude  every  pre- 
sumption that  such  persons  could  be  qualified  under  the  provisions  of  the  school 
law  prescribing  the  qualifications  necessary  to  be  possessed  by  persons  to  entitle 
them  to  vote  at  school  district  meetings. 

Under  the  provisions  of  section  8,  article  2,  title  8  of  the  Consolidated  School 
Law  of  1894,  it  is  enacted  that  every  person  of  full  age,  residing  in  any  union 
free  school  district,  and  who  has  resided  therein  for  a  period  of  thirty  days  next 
preceding  any  annual  or  special  meeting  held  therein,  and  a  citizen  of  the  United 
States,  who  ozvns  or  hires  or  is  in  possession  under  a  contract  of  purchase  of 
real  property  in  such  school  district  liable  to  taxation  for  school  purposes,  is 
entitled  to  vote  at  any  school  meeting  held  in  said  district. 

The  tax  law  of  this  state  defines  the  term  "  real  property  "  to  include  the 
land  itself  above  and  under  water,  all  buildings  and  other  articles  and  structures, 
substructures  and  superstructures  erected  upon,  under  or  above,  or  affixed  to 
the  same. 

The  school  law  does  not  define  or  declare  the  quantity  of  real  property 
necessary  to  be  owned,  hired  or  to  be  in  the  possession  of  a  person  under  a  con- 
■  tract  to  purchase,  subject  to  taxation  for  school  purposes  to  entitle  such  person 
to  vote  at  a  school  district  meeting,  provided  he  or  she  possesses  the  necessary 
qualifications  of  citizenship,  age  and  residence.  Such  real  property  may  con- 
sist of  a  small  parcel  of  land  or  a  tract  of  many  acres,  or  of  a  room,  or  a  flat  in  a 
building,  or  of  a  dwelling  house,  or  a  block  of  buildings,  and  the  rent  may  be 
payable  in  work,  money,  taxes  or  improvements. 

The  appellants  herein  have  failed  to  establish  their  appeal  herein  by  com- 
petent evidence,  and  their  appeal  must  be  dismissed. 

The  appeal  herein  is  dismissed. 


JUDICIAL    DECISIONS  :       ELECTIONS  277 


4885 


In  the  matter  of  the  appeal  of  WilHam  Skutt,  Edward  M.  A^aii  Densen  and 
William  Clark  from  proceedings  of  annual  meeting  held  August  7,  1900, 
in  school  district  no.   16,  Elbridge,  Onondaga  county. 

In  the  election  of  school  district  officers  the  chairman  and  clerk  of  the  meeting  can  not 
legally  act  as  inspectors  of  election;  but  two  qualified  voters  of  the  district  must  be 
appointed  as  such  inspectors,  in  such  manner  as  the  meeting  shall  determine.  When 
the  trustee  has  failed  to  provide  a  suitable  ballot  box,  the  use  of  a  hat  in  which  to 
deposit  the  votes  cast  will  not  of  itself  vitiate  an  election.  When  the  meeting  decides 
to  vote  for  a  district  officer  separately,  as  for  example,  for  trustee,  a  ballot  with  the 
name  of  a  person  thereon,  without  the  designation  "  for  trustee"  will  be  legal. 

Decided  September  29,  1900 

J.  C.  McLaughlin,  attorney  for  appellant 
Barton  C.  Meays,  attorney  for  respondent 

Skinner,  Superintendent 

This  is  an  appeal  from  the  proceedings  of  the  annual  meeting  held  August 
7,  1900,  in  school  district  16,  Elbridge,  Onondaga  county,  upon  the  grounds  that 
such  proceedings  were  not  in  accordance  with  the  provisions  of  the  Consolidated 
School  Law  of  1894,  and  the  acts  amendatory  thereof. 

In  subdivision  4  of  section  14  article  i  title  7  of  the  Consolidated  School 
Law  of  1894,  it  is  enacted  that  all  school  district  officers  shall  be  elected  by 
ballot;  that  at  such  elections  the  trustees  shall  provide  a  suitable  ballot  box; 
that  two  inspectors  of  election  shall  be  appointed  in  such  manner  as  the  meet- 
ing shall  determine,  who  shall  receive  the  votes  cast,  and  canvass  the  same,  and 
announce  the  result  of  the  ballot  to  the  chairman ;  that  a  poll  list  containing  the 
name  of  every  person  whose  vote  shall  be  received,  shall  be  kept  by  the  district 
clerk,  or  the  clerk  for  the  time  of  the  meeting;  that  the  ballot  shall  be  written 
or  printed  or  partly  written  and  partly  printed,  containing  the  name  of  the  per- 
son voted  for  and  designating  the  office  which  each  is  voted  for;  that  the  chair- 
man shall  declare  to  the  meeting  the  result  of  each  ballot,  as  announced  to  him 
by  the  inspectors,  and  the  persons  having  a  majority  of  the  votes,  respectively, 
for  the  several  offices,  shall  be  elected. 

In  subdivision  18  of  section  14,  article  i,  title  7  of  said  Consolidated 
School  Law  of  1894,  it  is  enacted,  that  in  all  propositions  arising  at  district  meet- 
ings, involving  the  expenditure  of  money  or  authorizing  the  levy  of  a  tax  or  taxes, 
the  vote  thereon  shall  be  by  ballot,  or  ascertained  by  taking  and  recording  the  ayes 
and  noes  of  such  qualified  voters  attending  and  voting  at  such  district  meetings. 

This  Department  has  uniformly  held  that  ascertaining  a  vote  by  taking  and 
recording  the  ayes  and  noes  means  that  the  clerk  of  the  meeting  shall  record  the 
name  of  each  person  whose  vote  is  received,  and  by  setting  opposite  to  each 
name  whether  such  person  voted  aye  or  no. 

This  Department  has  uniformly  held  that  under  the  provisions  contained 
in  subdivision  4  of  section   14  of  article  i  title  7  of  said  Consolidated  School 


2/8  THE   UNIVERSITY    OF   THE   STATE    OF   NEW    YORK 

Law,  above  referred  to,  when  the  trustee  has  failed  to  provide  a  suitable  ballot 
box,  the  use  of  a  hat  for  a  ballot  box  will  not  of  itself  vitiate  the  election;  that 
in  the  election  of  district  officers  the  ballots  may  have  names  for  all  of  said  offi- 
cers, or  each  officer  may  be  voted  for  separately ;  that  when  the  meeting  decides 
to  vote  for  a  district  office  separately,  as  for  example  for  trustee,  a  ballot  with 
the  name  of  the  person  thereon,  without  the  designation  "  for  trustee  "  will  be 
legal,  and  that  two  inspectors  of  election  to  receive  and  canvass  the  vote  cast, 
must  be  elected  or  appointed  by  the  meeting;  that  the  chairman  and  clerk  can 
not  act  as  such  inspectors,  or  receive  or  canvass  the  votes  cast  in  any  ballot  taken 
at  any  school  meeting. 

Frank  Spaulding  has  filed  an  answer  to  the  appeal  herein,  and  to  such 
answer  the  appellants  have  filed  a  reply. 

The  following  facts  are  established  by  the  ])leadings  and  affidavits  filed 
herein : 

The  annual  meeting  in  school  district  i6,  Elbridge.  Onondaga  county,  was 
held  August  7,  1900.  and  John  W.  Barnett  was  elected  chairman,  and  John  D. 
Cory  acted  as  clerk;  that  two  inspectors  of  election  to  receive  the  votes  cast  in 
any  ballot  or  ballots  had  and  taken  at  the  meeting,  canvass  the  same  and  announce 
the  result  of  each  ballot  to  the  chairman,  were  not  appointed  by  the  meeting; 
that  the  chairman  and  clerk  acted  as  inspectors  of  election  and  the  clerk  received 
the  votes  cast  in  all  ballots  taken  at  such  meeting,  and  canvassed  the  same  and 
announced  the  result  to  the  chairman  who  announced  such  result  to  the  meet- 
ing ;  that  no  poll  list  containing  the  name  of  each  person  whose  vote  was  received 
in  the  ballot  for  trustee  was  kept  by  the  clerk ;  that  a  ballot  was  taken  for  trus- 
tee, such  ballots  being  received  by  the  clerk  and  deposited  in  a  hat,  the  trustee 
not  having  provided  a  suitable  ballot  box  to  receive  such  ballots;  that  17  ballots 
were  declared  by  the  clerk  to  have  been  cast  for  trustee,  of  which  9  were  said 
to  have  been  for  Frank  Spaulding  and  8  for  William  Skutt,  and  the  chairman 
announced  such  result  to  the  meeting,  and  declared  Spaulding  elected  trustee.  It 
does  not  affirmatively  appear  that  any  ballot  was  taken  for  district  clerk;  that 
the  clerk  on  a  vote  of  the  meeting,  cast  one  ballot  for  Ed.  Van  Deusen  for  col- 
lector, and  the  chairman  declared  A^an  Deusen  elected  for  collector;  that  the 
vote,  appropriating  the  sum  of  $80  for  teachers'  wages,  $20  for  contingent 
expenses,  $15  for  fuel  and  50  cents  to  reimburse  the  collector  for  United  States 
revenue  stamp,  was  not  ascertained  by  taking  and  recording  the  ayes  and  noes 
of  the  persons  voting  thereon,  but  such  vote  was  taken  viva  voce. 

The  respondent  alleges  "  that  no  inspectors  of  election  were  appointed  at 
such  meeting  because  the  meeting  and  each  voter  waived  such  requirement,  no 
one  asking  for  the  appointment  of  tellers,  and  no  objection  was  made  to  the 
method  or  the  result."  This  claim  is  not  tenable,  for  the  reason  that  the  meet- 
ing in  the  aggregate  or  the  individual  voters  thereof  could  not  waive  the  require- 
ment of  the  school  law  in  regard  to  the  appointment  of  such  inspectors  of 
election. 

The  appeal  herein  is  sustained. 


JUDICIAL  decisions:     elections  279 

It  is  ordered: 

That  all  the  proceedings  taken  at  the  annual  meeting  held  August  7,  1900, 
in  school  district  16,  Elbridge,  Onondaga  county,  except  the  election  of  John  W. 
Barnett  as  chairman,  and  the  acceptance  of  the  report  of  the  outgoing  trustee, 
be,  and  the  same  are,  hereby  vacated  and  set  aside. 

It  is  further  ordered : 

That  William  Skutt,  without  unnecessary  delay,  call  a  special  meeting  of 
the  inhabitants  of  school  district  16.  Elbridge,  Onondaga  county,  qualified  to 
vote  at  school  meetings  therein,  for  the  purpose  of  electing  a  trustee,  a  clerk 
and  collector  of  such  district,  and  for  considering  and  acting  upon  the  question 
of  the  appropriation  of  money  and  the  levy  of  a  tax  for  school  purposes  for 
the  present  school  year  of  1900-01.  That  the  notice  of  such  special  meeting  be 
given  in  the  manner  required  by  sections  2  and  6  of  article  i  title  7  of  the  Con- 
solidated School  Law  of  1894;  that  in  the  election  of  such  district  officers  the 
proceedings  taken  shall  conform  to  the  provisions  contained  in,  and  the  methods 
prescribed  in  subdivision  4  of  section  14.  article  i,  title  7,  of  the  Consolidated 
School  Law  of  1894.  relating  to  the  election  of  school  district  officers;  that  the 
vote  appropriating  money  or  authorizing  the  levy  of  a  tax  for  school  purposes, 
must  be  made  in  the  manner  required  by  subdivision  18  of  section  14  article  i 
title  7  of  the  Consolidated  School  Law  of  1894. 


4366 

In  the  matter  of  the  appeal  of  Elvin  A.   Barrett  from  proceedings  of  annual 
school  meeting  held  on  August  6,  1895,  in  district  no.  12,  town  of  Alabama, 
Genesee  county. 
Where  at  an  annual  school  meeting  a  motion  is  made  and  adopted  that  the  meeting  proceed 
to  ballot  for  a  trustee,  and  such  ballot  was  taken,  and  on  a  canvass  of  the  ballots  it  was 
found  that  on  some  of  the  ballots  the  words  "  For  trustee  "  were  not  written,  and  the 
chairman   of  the  meeting  rejected  said  ballots   as  being  illegal;   held,  that  the   ballots 
were  legal  and  the  rulings  and  decision  of  the  chairman  vacated  and  set  aside. 
Decided  September  20,  1895 

Tyrrell  &  Ballard,  attorneys  for  appellant 

Skinner,  Superintendent 

The  appellant  in  the  above-entitled  matter  appeals  from  the  action  and 
proceedings  of  the  annual  school  meeting,  held  on  August  6.  1895,  in  district 
no.  12,  town  of  Alabama,  Genesee  county,  in  the  election  of  a  trustee. 

George  Daniels,  who  claims  to  have  been  elected  trustee  at  said  meeting, 
has  filed  an  answer  to  the  appeal. 

The  following  facts  are  established:  that  the  annual  school  meeting  in 
and  for  said  district  no.  12,  Alabama,  was  held  on  August  6.  1895;  that  said 
meeting  was  organized  by  the  choice  of  a  chairman  and  clerk,  and  two  tellers 


28o  THE   UNIVERSITY    OF   THE    STATE   OF   NEW   YORK 

or  inspectors  of  election  were  appointed;  that  after  the  reading  of  the  reports 
of  the  trustee  and  collector,  a  motion  was  made  and  adopted  that  an  informal 
ballot  be  taken  for  trustee  of  the  district,  and  such  informal  ballot  was  taken 
which  resulted,  as  announced,  as  follows:  whole  number  of  votes  cast  2)7^  of 
which  E.  R.  Greene  received  i8,  George  Daniels  ii,  Hale  Wright  5,  Theron 
Ames  2  and  Mrs  E.  A.  Barrett  i ;  that  a  motion  was  then  made  and  adopted 
that  the  meeting  proceed  to  ballot  for  a  trustee  and  such  ballot  was  taken  and 
the  result  thereof,  as  announced,  was  as  follows:  whole  number  of  votes  cast 
39,  of  which  E.  R.  Greene  received  18,  George  Daniels  11,  Hale  Wright  9  and 
Theron  Ames  i ;  that  after  the  announcement  of  the  result  of  said  ballot  it  was 
claimed  that  as  24  of  the  ballots  cast  did  not  have  thereon  the  name  of  the 
office  for  which  the  person  or  persons  whose  name  or  names  were  written 
thereon  were  voted  for,  to  wit,  "  For  trustee,"  that  such  ballots  were  illegal 
and  therefore  the  chairman  of  said  meeting  declared  said  24  ballots  so  received 
and  cast  were  illegal,  and  stated  that  of  the  legal  votes  cast  the  whole  number 
was  fifteen  of  which  George  Daniels  received  11  and  Hale  Wright  4,  and  that 
said  George  Daniels  was  elected  trustee;  that  a  motion  was  then  made  and 
seconded  and  put  by  the  chairman  to  the  meeting,  that  another  ballot  be  taken 
for  trustee  and  declared  by  the  chairman  to  be  carried,  but  no  other  or  further 
ballot  w^as  taken  for  trustee  and  the  meeting  adjourned.  It  does  not  appear  that 
any  poll  list  was  kept  or  that  any  ballot  box  was  provided  in  accordance  with 
the  provisions  of  section  14,  article  i,  title  7,  of  the  Consolidated  School  Law. 
It  is  not  claimed  that  any  person  not  a  qualified  voter  of  the  district  voted  at 
such  m.eeting. 

It  is  clear  that  the  chairman  of  said  meeting  had  no  legal  right  to  reject 
the  twenty-four  votes  cast,  for  the  reason  that  said  ballots  did  not  have  thereon 
the  words  "  For  trustee."  The  provisions  of  subdivision  4,  section  14,  article  i, 
title  7,  of  the  Consolidated  School  Law  of  1894,  requiring  that  ballots  for  school 
district  officers  shall  designate  the  office  for  which  each  is  voted,  applies  to 
ballots  for  more  than  one  office,  namely,  for  trustee,  district  clerk,  etc.,  and  not 
to  ballots  cast  for  a  single  office,  namely,  that  of  trustee,  as  was  the  motion 
adopted  at  said  district  meeting.  The  ballot  taken  at  said  meeting  in  which  the 
whole  number  of  votes  cast  was  39  was  for  the  office  of  trustee,  and  a  ballot 
so  cast,  having  the  name  of  a  person  was  a  legal  ballot  for  that  person  for  the 
office  of  trustee  of  said  district. 

It  follows,  therefore,  that  the  decision  of  the  chairman  that  but  15  legal 
votes  for  trustee  were  cast  and  that  George  Daniels  having  received  11  votes 
was  elected  trustee  of  the  district,  was  without  authority  of  law. 

From  the  facts  established  in  the  appeal  herein  I  find  and  decide  that  the 
annual  school  meeting,  held  in  said  district  no.  5,  town  of  Alabama,  Genesee 
county,  on  August  6,  1895,  failed  to  elect  a  trustee  for  said  district  for  the 
present  school  year;  that  the  decision  of  the  chairman  of  said  school  meeting, 
rejecting  24  of  the  ballots  cast  at  said  meeting  as  illegal  ballots,  was  illegal  and 
void;  that  the  decisions  of  the  chairman  of  said  meeting  that  but  15  legal  ballots 


JUDICIAL  decisions:     elections  281 

for  trustee  were  received  and  that  George  Daniels,  having  received  11  of  the 
said  15  votes,  was  elected  trustee  of  said  district  were,  and  each  of  them  was, 
illegal  and  void;  that  said  George  Daniels  was  not,  by  the  form  or  color  of 
an  election,  elected  trustee  of  said  district  at  said  annual  meeting;  that  there 
was  no  legal  election  of  a  trustee  of  said  school  district  at  said  annual  meet- 
ing and  that  the  trustee  of  said  district  in  office  on  August  6,  1895,  hold 
over  as  trustee  of  said  district  until  his  successor  in  office  shall  be  legally  elected 
or  appointed;  that  there  is  no  vacancy  in  the  office  of  trustee  of  said  district 
which  can  be  supplied  at  a  special  meeting  of  said  district. 

The  appeal  herein  is  sustained. 

It  is  ordered,  That  the  rulings  or  decisions  made  by  the  chairman  of  the 
annual  school  meeting,  held  on  August  6,  1895,  in  district  no.  12,  town  of  Ala- 
bama, Genesee  county,  in  rejecting  24  of  the  39  ballots  cast  for  trustee  of  said 
district  at  said  meeting  is  illegal,  that  but  15  legal  ballots  for  trustee  were  cast 
and  that  George  Daniels  was  elected  trustee  of  said  district  are,  and  each  of 
them,  is  illegal  and  void,  and  they  are,  and  each  of  them  is,  vacated  and  set  aside. 


4371 

In  the  matter  of  the  appeal  of  William  M.  Chapman  from  proceedings  of 
annual  school  meeting  held  on  August  6,  1895,  in  district  no.  2,  town  of 
Catherine,  Schuyler  countv. 

When  at  an  annual  school  meeting  in  a  common  school  district  a  ballot  has  been  had  for  a 
trustee  of  the  district,  and  such  ballot  has  been  canvassed  and  the  result  announced  by 
which  it  appears  that  one  of  the  candidates  voted  for  had  received  a  majority  of  the 
votes  cast;  held,  that  the  power  of  said  meeting  in  the  election  of  a  trustee  was 
exhausted,  and  said  meeting  had  no  legal  power  or  authority  to  recanvass  the  ballots 
cast  upon  such  formal  ballot,  nor  to  reconsider  said  ballot,  nor  to  take  another  ballot 
for  trustee. 

Decided  September  20,  1895 

Skinner,  Superintendent 

The  appeal  in  the  above  entitled  matter  is  taken  from  the  proceedings  of 
the  annual  school  meeting  held  on  August  6,  1895,  in  school  district  no.  2,  town 
of  Catherine,  Schuyler  county. 

John  Pelham  and  others  have  answered  said  appeal.  It  appears  from  said 
appeal  and  answer  that  the  annual  school  meeting  in  said  district  was  held  on 
August  6,  1895,  and  that  Owen  Gardner  was  chosen  chairman  and  James 
Woodard,  clerk ;  that  one  William  Larue  was  appointed  an  inspector  of  election ; 
that  the  report  of  the  trustee  was  read  and  accepted;  that  the  chairman 
announced  that  the  election  of  a  trustee  was  in  order  and  upon  a  motion  made 
and  adopted  the  meeting  proceeded  to  an  informal  ballot  for  trustee ;  that  there- 
upon said  inspector  of  election  passed  around  the  room  and  collected  the  ballots 
and  after  counting  them  announced  that  22  votes  were  cast,  of  which  William 
M.  Chapman  received  11  and  John  Pelham  ii  ;  that  a  motion  was  then  adopted 


282  THE   UNIVERSITY    OF   THE    STATE    OF    NEW    YORK 

that  the  meeting  proceed  to  a  formal  ballot  for  trustee,  and  such  ballot  was  had  in 
like  manner  as  the  informal  ballot;  that  the  result  of  the  ballot,  announced  by  the 
chairman  as  received  from  the  inspector,  was  that  23  votes  were  cast  of  which 
William  M.  Chapman  (the  appellant  herein)  received  12  and  John  Pelham  11,  and 
the  said  Chapman  thereupon  accepted  said  office  of  trustee;  that  the  meeting  then 
ballotted  in  like  manner  for  collector  and  John  Pelham  was  announced  as  having 
received  a  majority  of  the  votes  cast;  that  in  canvassing  the  votes  for  collector  the 
chairman  and  clerck  acted  with  said  inspector,  Larue,  pursuant  to  a  vote  of  the 
meeting;  that  a  motion  was  then  adopted  that  the  votes  cast  upon  the  second 
(formal)  ballot  for  trustee  be  recounted  by  the  chairman,  clerk  and  inspector  of 
election,  which  recount  was  had  and  the  result  announced  that  the  total  vote  was 
19,  of  which  William  Chapman  received  9  and  John  Pelham  10;  that  a  motion 
was  then  adopted  that  the  ballot  for  trustee  be  reconsidered  and  a  new  ballot  for 
trustee  be  taken ;  that  said  new  ballot  was  taken  in  like  manner  as  the  previous 
ballots  and  the  votes  so  received  were  canvassed  by  the  inspector  of  election, 
chairman  and  clerk  and  the  result  thereof  announced  as  follows:  Whole  num- 
ber 18,  of  which  John  Pelham  received  13  and  William  M.  Chapman  5,  and 
said  Pelham  was  declared  elected  trustee  of  the  district;  that  after  said  announce- 
ment said  Pelham  declined  to  accept  the  office  of  collector  to  which  he  had  been 
I^reviously  elected,  and  thereupon  said  meeting  elected  John  Woodard  as  col- 
lector ;  that  after  the  transaction  of  other  business  the  meeting  adjourned. 

It  appears  that  no  poll  list  was  kept  containing  the  names  of  the  voters 
whose  votes  were  received ;  but  it  is  not  claimed  that  any  but  persons  duly 
qualified  voted  in  the  election  of  such  district  officers. 

School  district  officers  and  voters  should,  in  the  election  of  officers,  comply 
strictlv  with  the  provisions  of  section  14,  article  i,  title  7,  of  the  Consolidated 
School  Law  of  1894,  and  prevent  contentions  from  arising  in  such  districts,  like 
those  present  in  the  appeal  herein. 

I  find  and  decide  that  the  method  had  and  taken  at  the  annual  meeting  in 
said  district  no.  2,  town  of  Catherine,  in  the  formal  ballot  for  trustee  was  a  suffi- 
cient compliance  with  the  provisions  of  the  school  law  and  that  the  appellant 
herein.  William  M.  Chapman,  was  legally  elected  trustee  of  said  district,  he 
having  received  a  majority  of  the  votes  cast;  that  upon  such  election  the  power 
of  said  meeting  in  the  election  of  a  trustee  was  exhausted,  and  said  meeting 
had  no  legal  power  or  authority  to  recount  the  ballots  cast  upon  said  formal 
ballot,  nor  to  reconsider  said  formal  ballot,  nor  to  take  another  ballot  for  trustee ; 
that  all  proceedings  taken  at  said  meeting  after  said  formal  ballot  was  taken 
and  the  result  thereof  announced  relative  to  said  ballot  or  any  ballot  for  the 
office  of  trustee  was  illegal  and  void  and  must  be  set  aside. 
The  appeal  herein  is  sustained. 

It  is  ordered.  That  all  proceedings  had  and  taken  at  said  annual  meeting, 
held  in  said  school  district  no.  2,  town  of  Catherine,  .Schuyler  county,  relating 
in  any  manner  to  the  election  of  a  trustee  of  said  district,  after  said  formal 
ballot  for  trustee  was  taken  and  the  result  thereof  announced  be,  and  the  same 
are,  and  each  of  them  is,  vacated  and  set  aside  as  illegal  and  void. 


JUDICIAL    DECISIUXS:       ELECTIONS  283 

371I 

In  the  matter  of  the  appeal  of  WilHani  H.  Gardner  v.  school  district  no.  6,  town 
of  North  Salem.  Westchester  county. 

A  person  receiving  a  majority  of  the  votes  cast  for  the  office  of  trustee  will  be  held  to 
have  waived  his  right  to  the  office  by  participating  without  a  protest  in  a  second  ballot, 
upon  which  another  was  chosen  as  trustee. 

Decided  October  i,  1888 

Draper,  Superintendent 

The  appellant  alleges  that,  at  the  election  for  trustee  held  at  the  annual 
meeting  in  school  district  no.  6  of  the  town  of  North  Salem,  Westchester  county, 
a  vote  was  taken  with  the  following  result:  Martin  Todd  10,  Leander  Mead  11. 
The  respondent  alleges  that  one  vote  was  also  cast  upon  this  ballot  for  Isaac  C. 
Wright,  but  I  do  not  consider  the  variance  in  the  allegations  of  the  parties  in 
reference  to  this  one  vote  as  very  material.  After  the  result  of  the  ballot  was 
announced,  one  William  McCoy  alleged  that  he  had  not  voted  and  that  he  was 
entitled  to  do  so,  whereupon  the  clerk  ordered  another  ballot  to  be  taken.  This 
second  ballot  resulted  as  follows:  Leander  Mead  12,  Martin  Todd  13,  and  Mr 
Todd  was  thereupon  declared  elected.  The  appellant  now  claims  that  Mead  was 
elected  on  the  first  ballot,  and  that  the  meeting  had  no  right  to  proceed  to  a 
second  ballot. 

The  respective  parties  now  allege  that  persons  voted  against  them  who 
were  not  lawfully  entitled  to  vote.  It  is  claimed  that  challenges  were  interposed 
at  the  time  of  taking  the  second  ballot,  which  were  disregarded  by  the  chair, 
and  that  the  persons  challenged  were  allowed  to  vote  without  making  the  declara- 
tion required  by  law  in  such  cases.  The  clerk's  minutes  of  the  meeting  are  not 
found  in  the  papers,  and  no  proof  is  offered  beyond  the  bare  allegations  of  the 
parties.  This  being  so,  I  am  obliged  to  disregard  this  phase  of  the  matter.  If 
Mr  Mead  received  a  majority  of  the  votes  cast  on  the  first  ballot  he  was  un- 
doubtedly entitled  to  the  office  of  trustee  in  consequence,  unless  he  waived  his 
right  under  said  ballot.  If  it  appeared  in  the  papers  that  he  or  his  friends  inter- 
posed objections  to  the  taking  of  a  second  ballot,  and  had  insisted  upon  their 
rights  under  the  first  one,  I  should  feel  bound  to  sustain  him ;  but  the  papers 
clearly  indicate  that  the  second  ballot  was  taken  by  mutual  consent  and  agree- 
ment in  the  meeting  with  a  view  to  allaying  feeling  and  straightening  out  a 
confused  state  of  affairs.  This  being  done,  the  parties  are  bound  to  abide  by 
the  result.  They  could  not  proceed  to  the  taking  of  a  second  ballot  and  avail 
themselves  of  the  benefit  of  it  if  they  succeeded,  and,  at  the  same  time  repudiate 
the  consequences  of  it  if  they  failed. 

For  these  considerations,  I  have  arrived  at  the  conclusion  that  the  appeal 
must  be  dismissed. 


284  THE    UXIVEKSITY    OF   THE   STATE    UE    NEW    YUKK 

3713 

In  the  matter  of  the  appeal  of  Peter  H.  Keller  v.  school  district  no.  5,  town  of 

Roseboom,  county  of  Otsego. 

A  person  chosen  trustee  will  be  held  to  have  waived  his  right  to   the  office  liy  consenting 

to  the  taking  of  a  second  ballot  upon  which  ballot  another  was  elected  to  the  office. 
Decided  October  i,  1888 

Draper,  Superintendent 

At  the  annual  meeting  held  August  28th,  1886,  in  district  no.  5  of  the  town 
of  Roseboom,  county  of  Otsego,  the  appellant  and  one  Clark  Sisum  were  candi- 
dates for  the  office  of  trustee.  A  ballot  was  taken,  which  was  announced  as 
follows :  Keller  7  votes  and  Sisum  6  votes.  The  chairman  then  stated  that  he 
had  not  voted,  and  insisted  upon  doing  so,  and  voted  for  Mr  Sisum,  which 
made  the  votes  of  the  two  men  a  tie.  Another  ballot  was  taken,  which  resulted 
in  Mr  Keller's  getting  6  votes  and  Mr  Sisum  8,  and  Mr  Sisum  was  declared 
elected.  Mr  Keller  appeals  from  this  action,  and  contends  that  he  was  elected 
upon  the  first  ballot.  The  chairman  had  the  right  to  vote  with  the  others  when 
the  ballot  was  taken.  He  had  no  right  to  vote  after  the  ballot  was  closed  and 
the  result  announced.  I  should  hold  that  Mr  Keller  was  elected  upon  the  first 
ballot  and  entitled  to  the  office  of  trustee  but  for  the  fact  that  he  states  in  his 
appeal  that  he  consented  to  the  taking  of  the  second  ballot.  If  he  did  so.  he  is 
bound  to  abide  the  result  of  that  ballot.  His  act  must  be  held  to  waive  any 
rights  which  he  acquired  under  the  first  ballot 

The  appeal  is  therefore  dismissed. 


3736 

In  the  matter  of  the  appeal  of  F.  S.  Houscknecht  v.  Daniel  T.  Bennett,  trustee 
of  school  district  no.  4,  towns  of  Alden,  Erie  county,  Darien,  Genesee 
county,  and  Bennington,  W'yoming  county. 

A  person  who  claims  to  have  been  elected  trustee  upon  a  ballot  about  which  there  is  a 
dispute,  who  acquiesced  and  participated  in  subsequent  ballots  and  until  another  person 
was  chosen  for  the  office  will  be  deemed  to  have  waived  his  right  to  the  office. 

Decided  November  28,  1888 

Draper,  Superintendent 

This  is  an  appeal  from  the  action  of  the  annual  meeting,  held  in  district 
no.  4,  of  the  towns  of  Alden,  Erie  county,  Darien,  Genesee  county,  and  Benning- 
ton, Wyoming  county,  in  electing  a  trustee.  The  appellant  alleges  that,  at  that 
meeting  he  was  duly  elected  to  the  office  of  trustee  upon  a  vote  taken  by  ballot, 
the  result  of  which  was  10  for  the  appellant,  one  for  A.  C.  Nichols,  and  7  for 
Daniel  Bennett.  It  further  api)ears  that  no  declaration  of  an  election  was  made 
by  the  chairman,  and  that  a  second  ballot,  which  resulted  in  no  election,  was 


JUDICIAL    DECISIOXS  :       ELECTIONS  285 

taken,  and  thereupon,  a  third  ballot  was  taken,  which  resulted  in  the  election  of 
the  respondent,  and  he  was  so  declared  by  the  chair. 

The  respondent  avers  that  the  first  ballot  was  informal,  and  that  after  the 
vote  on  tlie  third  ballot,  and  the  declaration  of  his  election  as  trustee,  the  appel- 
lant, who  had  held  the  office  of  trustee  the  preceding  year,  gave  the  key  of  the 
schoolhouse  to  the  respondent  and  notified  him  that  the  trustee's  book  was  at 
one  place,  and  that  by  calling  at  his  residence  he  could  have  the  code  at  any 
time.  This  appeal  was  not  taken  until  long  after  thirty  days  after  the  meeting 
was  held,  and  no  excuse  is  shown  for  this  delay. 

Ordinarily,  I  should  dismiss  this  appeal  upon  this  ground,  but  in  order  to 
settle  any  misunderstanding,  I  shall  determine  the  case  upon  its  merits.  It  is 
not  claimed  b}-  the  appellant  that,  after  the  first  ballot  was  taken  and  the  second 
ballot  was  about  to  be  proceeded  with,  any  objection  thereto  was  made  by 
liim'  or  any  of  his  supporters.  On  the  other  hand,  it  is  averred  by  the  respond- 
ent and  his  witnesses  that  no  objection  was  made  to  the  taking  of  a  second 
and  third  ballot,  or  to  the  declaration  of  the  chairman  that  the  respondent  was 
elected,  and  from  the  evidence  before  me  it  v/ould  appear  that  the  appellant  and 
his  supporters  participated  in  the  second  and  third  ballots,  and.  as  it  appears 
from  the  pleadings,  acquiesced  in  the  result. 

In  view  of  these  facts,  I  have  concluded  to  dismiss  the  appeal  and  to  hold 
that  the  respondent  was  duly  elected  trustee  of  the  above-mentioned  district  at 
the  annual  school  meeting  aforesaid. 


EQUALIZATION  OF  VALUES 


3490 

Apportionment  of  railroad  property;  jurisdiction  of  Superintendent  over  assessors;  pioper 

basis  of  apportionment. 
Decided  March  31,  1886 

Morrison,  Superintendent 

The  appeal  is  taken  in  behalf  of  district  no.  6,  Hamburg,  Erie  county,  from 
the  action  of  the  assessors  of  said  town,  in  apportioning  the  property  of  the  Lake 
Shore  and  Michigan  Southern  Railroad  between  the  different  school  districts 
of  said  town. 

It  appears  that  there  are  nine  and  twenty-nine  one-hundredths  miles  of  track 
belonging  to  said  company  in  the  said  town  of  Hamburg,  of  which  379  feet,  about 
two  acres  in  area,  belongs  to  district  no.  6.  Included  in  the  above  379  feet  of 
track  is  an  immense  and  costly  culvert,  one  of  the  largest  in  the  country,  which 
cost,  it  is  alleged,  about  $200,000.  The  total  valuation  of  the  railroad  in  Ham- 
burg, as  appraised  by  the  assessors  for  the  present  year,  is  $340,000,  and  in 
said  assessors'  apportionment  to  the  district  in  question,  the  sum  of  $2625,  giving 
as  their  reason  that  said  district  is  only  entitled  to  its  proportion  of  a  mile. 

The  appellants  claim,  and  with  seeming  justice,  that  the  proportion  of  the 
assessment  to  which  district  no.  6  is  entitled  should  range  from  $30,000  to 
$40,000. 

It  appears  that  in  1881  an  appeal  was  taken  from  the  action  of  the  assessors 
of  that  year,  in  apportioning  only  $10,200  to  said  district  no.  6,  the  assessors 
then  claiming,  as  they  do  now,  that  the  district  is  only  entitled  to  its  proportion 
of  a  mile  of  valuation ;  that  the  amount  of  railroad  property  in  the  town  should 
be  regarded  as  a  unit,  and  that  the  district  is  only  entitled  to  that  proportion 
of  the  assessment  which  the  length  of  the  railroad  in  the  district  bears  to  the 
total  length  of  the  railroad  in  the  town.  The  Superintendent,  in  1881,  did  not 
agree  with  this  view  of  the  case,  but  sustained  the  appeal  and  directed  a  new 
apportionment  to  be  made  by  the  assessors. 

The  fact  that  the  Superintendent  passed  upon  this  question  as  early  as  1881, 
renders  it  unnecessary  for  me  to  discuss  the  point  raised  by  the  respondents, 
that  the  Superintendent  is  without  jurisdiction  in  the  case. 

The  acts  of  the  assessors  proceeding  within  the  statute  are  judicial  and 
not  ministerial.  But  the  conclusive  character  of  their  act  is  only  while  they 
confine  themselves  within  the  statute. 

It  is  admitted  in  this  case  that  the  assessment  was  not  based  upon  the 
actual  valtte  of  the  railroad  property  in  the  school  district,  but  was  based  upon 
the  theory  that  one  mile  of  railroad  was  equal  in  value  to  any  other  value.     By 

[286I 


JUDICIAL  decisions:    equalization  of  values  287 

adopting  this  plan  of  apportionment,  the  assessors  failed  to  confine  themselves 
within  the  statute,  which  provides  that  it  shall  be  their  duty  to  apportion  the 
value  of  the  property  of  each  and  every  railroad  company,  as  appears  on  the 
assessment  list,  among  the  several  school  districts  in  their  town  in  which  any 
portion  of  said  property  is  situated,  giving  to  each  of  said  districts  their  proper 
proportion,  according  to  the  proportion  that  the  value  of  said  property  in  each 
of  said  districts  bears  to  the  value  of  the  ivholc  thereof  in  said  town. 

It  may  be  that  interference,  at  this  late  day,  with  an  apportionment  which 
has  already  gone  into  effect  in  eight  districts  of  the  town,  would  create  confusion 
which  would  impair  rather  than  protect  the  interests  of  the  schools.  I  am, 
therefore,  induced,  though  very  reluctantly,  to  abstain  from  according  the  relief 
sought  by  the  appellants  in  this  instance ;  but  the  assessors  of  the  town  of 
Hamburg  are  directed,  within  ten  days  after  notice  to  them  of  the  filing  of  this 
decision,  to  meet  and  again  apportion  the  valuation  of  the  property  of  every 
railroad  company  "  as  appears  on  the  assessment  list  among  the  several  school 
districts  of  their  town  in  which  any  portion  of  said  property  is  situated,  giving 
to  each  of  said  districts  their  proper  proportion  according  to  the  proportion  that 
the  "  actual  value  of  said  property  in  each  of  said  districts  bears  to  the  actual 
value  of  the  whole  thereof  in  said  town,  in  accordance  with  the  provisions  of 
section  i,  chapter  694  of  the  Laws  of  1867;  and  that  hereafter  in  the  assessment 
and  collection  of  taxes  in  any  of  the  school  districts  of  the  town,  the  apportion- 
ment then  made  shall  be  followed  by  local  school  authorities  until  the  comple- 
tion of  the  next  annual  assessment. 


5446 

In  the  matter  of  the  appeal  of  James  T.  Morris,  Clarence  C.  Donelson  and 
Edwin  Morton  for  relief  from  excessive  taxation  upon  that  part  of  the 
real  property  of  union  free  school  district  no.  i,  lying  in  the  town  of 
Greenburgh,  as  compared  with  that  lying  in  the  town  of  White  Plains. 

Equalization  of  taxes  by  supervisors  A  determination  of  the  supervisors  of  towns,  a 
portion  of  which  is  included  in  a  school  district,  is  not  binding  upon  the  board  of  educa- 
tion of  such  district  unless  made  as  required  by  law.  It  is  not  sufficient  for  the  super- 
visors to  state  in  their  order  that  a  specified  reduction  should  be  made  upon  the  assess- 
ment of  real  property  of  one  of  the  towns.  The  order  of  the  supervisors  is  fatally 
defective  unless  it  determines  the  relative  proportion  of  taxes  that  ought  to  be  assessed 
upon  the  real  property  of  the  parts  of  such  district  lying  in  different  towns. 

Decided  May  13,  1910 

Draper,  Com missioner 

This  appeal  was  filed  in  this  office  January  5,  1910,  having  been  served  on 
the  president  of  the  board  of  education  of  union  free  school  district  no.  i,  town 
of  Greenburgh,  county  of  Westchester,  on  January  4,  1910. 

The  appellants  allege  that  some  time  in  April  1909  they  appeared  before  the 
board  of  education  of  such  district  and  requested  that  some  action  be  taken  to 


288  THE   UNIVERSITY    OF   THE    STATE    OF    NEW    YORK 

secure  an  adjustment  of  the  assessment  of  school  taxes  between  the  portions  of 
the  districts  lying  respectively  in  the  towns  of  White  Plains  and  Greenburgh. 
The  board  of  education  passed  a  resolution  directing  notice  to  be  given  to  the 
supervisors  of  such  towns  to  meet  at  the  office  of  the  supervisor  of  White  Plains 
April  30,  1909,  "  to  proceed  to  inquire  and  determine  whether  the  valuation  of 
real  property  upon  the  assessment  rolls  of  the  towns  of  White  Plains  and 
Greenburgh  are  substantially  just  as  compared  with  each  other,  so  far  as  union 
free  school  district  no.  i  of  the  town  of  White  Plains  is  concerned,  and  if 
ascertained  not  to  be  so,  that  they  shall  determine  the  relative  proportion  of 
taxes  that  ought  to  be  assessed  upon  the  real  property  of  the  parts  of  such 
district  lying  in  said  towns  of  White  Plains  and  Greenburgh."  A  certificate 
signed  by  the  supervisors  of  these  towns  is  attached  to  the  petition  which  states 
that  they  met  on  the  day  specified  in  the  notice,  namely,  April  30,  1909,  and  that 
"  it  was  agreed  that  in  order  to  equalize  the  taxes  for  school  purposes  upon  the 
real  property  lying  in  the  respective  towns,  a  reduction  should  be  made  upon 
the  assessment  of  the  real  property  made  by  the  town  of  Greenburgh  of  22  per 
cent  as  shown  by  the  table  of  equalization  and  assessments,  1908,  board  of 
supervisors."  It  does  not  appear  that  the  board  of  education  was  ever  informed 
of  this  determination  or  that  copies  were  filed  in  the  town  clerks'  office  or  the 
office  of  the  district  clerk. 

The  appellants  complain  of  the  board's  action  in  failing  to  conform  its 
assessments  to  the  determination  of  the  supervisors.  If  the  de1;ermination  of 
the  supervisors  was  properly  made  and  was  duly  brought  to  the  board's  atten- 
tion, it  was  their  duty  to  make  their  assessment  in  accordance  therewith.  The 
certificate  attached  to  the  papers  shows  that  a  legal  determination  was  not  made 
by  the  supervisors  of  the  towns.  It  is  not  sufficient  to  state  that  a  specified 
"  reduction  should  be  made  upon  the  assessment  of  the  real  property  "  of  one 
of  the  towns.  The  supervisors,  in  such  a  proceeding,  must  determine  "  the 
relative  proportion  of  taxes  that  ought  to  be  assessed  upon  the  real  property 
of  the  parts  of  such  district  lying  in  different  towns."  In  this  case  the  super- 
visors of  White  Plains  and  Greenburgh  should  have  stated  in  their  order  the 
portion  of  the  taxes  to  be  collected  in  the  entire  district,  which  should  be 
assessed  upon  the  real  property  in  each  town.  In  making  such  determination 
the  supervisors  must  ascertain  the  actual  value  of  the  real  property  in  the  school 
district  situated  in  the  town  of  White  Plains,  and  the  actual  value  of  the  real 
property  in  such  district  in  the  town  of  Greenburgh.  After  deducting  the  tax 
to  be  paid  in  the  district  on  account  of  personal  property  assessments,  the  bal- 
ance is  to  be  assessed  upon  the  real  property  in  the  part  of  the  district  in  each 
town,  in  the  proportion  that  the  actual  value  of  the  real  property  in  such  part 
of  the  town  bears  to  the  actual  value  of  the  real  property  in  the  entire  district. 
It  is  evident  that  the  supervisors  failed  to  observe  any  of  these  rules  in  making 
their  determination.    For  this  reason  this  appeal  must  be  dismissed. 

It  is  evident  from  the  certificate  of  the  two  supervisors  above  referred  to, 
that  the  valuation  of  real  property  upon  the  assessment  rolls  is  not  "  substan- 


JUDICIAL  decisions:    equalization  of  values  289 

tially  just  as  compared  with  each  other,"  within  the  meaning  of  section  414  of 
the  Education  Law  of  1910  (former  Education  Law,  §  384).  The  appellants, 
as  taxpayers  of  the  town  of  Greenburgh  in  such  district,  are  entitled  to  the  privi- 
leges conferred  by  such  section.  They  may  serve  upon  the  supervisors  of  the 
two  towns  the  notice  required,  and  such  supervisors  may  then  be  compelled  by 
a  legal  proceeding  in  court,  if  need  be,  to  determine  as  to  the  relative  valuation 
of  real  property  in  the  parts  of  the  towns  constituting  the  joint  district. 

The  statute  relative  to  the  equalization  of  real  property  values  in  joint 
district  has  been  in  force  since  the  Consolidated  School  Law  of  1864.  The 
practice  thereunder  is  well  established.  There  must  be  a  substantial  compliance 
therewith.  For  the  method  of  computation  and  the  procedure,  reference  may 
be  made  to  the  Code  of  Public  Instruction  of  1887,  pages  380-82.  When  the 
relative  proportion  of  taxes  to  be  assessed  upon  the  real  property  of  the  parts 
of  this  district  lying  in  the  towns  of  White  Plains  and  Greenburgh  has  been 
legally  ascertained  the  board  of  education  of  such  district  may  be  compelled  by 
a  proper  proceeding  to  comply  with  the  determination  of  the  supervisors. 

The  appeal  herein  is  dismissed. 


3550 

William  N.  Callender  from  the  action  of  the  trustees  of  joint  school  district 
no.  I,  towns  of  Greenbush  and  East  Greenbush,  Rensselaer  cotmty,  N.  Y., 
in  levying  and  apportioning  a  school  tax  upon  an  illegal  valuation  of  real 
property  in  said  district. 

EQUALIZATION  OF  VALUES   IN   JOINT  DISTRICTS 

Supervisors  have  no  power  to  change  the  values  as  fixed  in  the  town  assessment  rolls. 
Their  duty  is  to  determine  what  proportion  of  a  school  district  tax  sha'A  be  paid  by  each 
town  forming  a  joint  district,  so  that  relatively  each  shall  pay  the  same. 

Trustees,  in  preparing  a  tax  list,  iiiiist  use  the  last  town  assessment  roll  after  correction  by 
assessors. 

Decided  December  24,  1886 

Draper,  Superintendent 

This  is  an  appeal  by  William  N.  Callender,  a  taxpayer  of  the  town  of  East 
Greenbush.  Rensselaer  county,  N.  Y.,  a  portion  of  which  town  forms  a  part 
of  joint  school  district  no.  i,  towns  of  East  Greenbush  and  the  village  of 
Greenbush,  which  is  a  portion  of  the  town  of  Greenbush,  in  the  county  aforesaid, 
from  the  action  of  the  supervisors  of  the  said  towns  in  assuming  to  change  the 
assessed  valuations  of  property  from  the  valuations  placed  thereon  by  the 
respective  town  assessors,  and  from  the  action  of  the  trustees  of  said  district 
in  using  as  a  basis  of  valuations  of  real  property  the  tax  roll  of  the  assessors 
of  the  town  of  East  Greenbush  for  the  year  1885,  as  altered  by  said  supervisors, 
instead  of  the  assessors'  last  roll,  which  was  filed  in  1886,  and  asking  to  have 
said  assessment  and  the  apportionment  of  school  taxes  for  said  district  thereon 
and  the  warrant  dated  December  2,  1886,  which  accompanies  it,  set  aside,  and 
10 


290  THE   UNIVERSITY    OF   THE   STATE   OF   NEW   YORK 

the  receiver  of  taxes  of  the  village  of  Greenbush  enjoined  and  stayed  from 
enforcing  the  collection  thereof.  The  errors  alleged  as  above  set  forth  are  sub- 
stantially admitted  by  the  trustees,  who  appear  as  respondents  herein.  For  the 
errors  assigned,  this  appeal  is  sustained. 

The  supervisors  and  trustees  in  preparing  the  tax  list,  should  have  used  the 
last  assessment  rolls  of  the  towns,  after  correction  by  the  assessors,  as  the  basis 
of  valuation  for  the  tax  list.    This,  it  appears,  they  did  not  do. 

The  supervisors  of  the  towns  composing  this  district  had  no  authority  under 
the  law  (§  69,  title  7,  ch.  555  of  the  Laws  of  1864),  to  change  the  valuation 
of  any  piece  of  real  property  appearing  in  said  tax  list  as  they  assumed  to  do. 
Their  duty  under  the  law  was  simply  to  determine  the  basis  upon  which  the 
respective  town  assessors  had  proceeded  in  determining  values  for  their  assess- 
ment, and  if  found  not  to  be  ratably  the  same,  to  determine  what  proportion 
of  a  school  tax  to  be  collected  should  be  apportioned  to  each  town.  Having 
failed  so  to  do,  their  action  was  manifestly  irregular  and  illegal,  and  can  not  be 
sustained. 

I,  therefore,  sustain  the  appeal  and  set  aside  the  action  of  the  supervisors 
in  changing  the  assessed  valuations,  and  the  apportionment  of  taxes  by  the  trus- 
tees made  thereon,  and  the  tax  list  upon  which  such  apportionment  was  made. 

The  receiver  of  taxes  of  the  village  of  Greenbush  is  perpetually  stayed  and 
enjoined  from  the  collection  of  the  tax  as  at  present  apportioned;  and  said 
receiver  of  taxes  is  hereby  ordered  and  directed  to  refund  all  sums  which  may 
have  been  collected  by  virtue  of  the  aforesaid  warrant  upon  said  tax  list  to  the 
persons  from  whom  the  same  were  collected. 


3763 

In  the  matter  of  the  equalization  of  the  assessments  in  school  district  no.   Ii, 
of  the  towns  of  Middleburgh  and  Broome,  in  the  county  of  Schoharie, 

In  a  school  district  composed  of  parts  of  more  than  one  town  the  equalization  of  assess- 
ments for  school  purposes  by  supervisors  will  be  set  aside  when  it  appears  that  the 
supervisors  merely  rode  through  the  district  and  listened  to  interested  parties,  and  then 
made  their  equalization  by  the  vote  of  two  of  three  supervisors,  and  it  also  appears 
from  the  town  assessment  rolls,  and  the  affidavits  of  the  assessors  and  others  that  the 
valuations  fixed  by  the  assessors  were  substantially  just  as  compared  with  each  other, 
and  that  the  real  property  of  each  town  was  assessed  at  its  full  value.  The  evidence 
of  sworn  officers,  chosen  with  special  reference  to  the  particular  duty  of  determining 
values,  will  be  given  more  weight  than  the  unofficial  declaration  of  residents  of  a 
neighborhood. 

Decided  February  16,  1889 

Engle  and  Getter,  attorneys  for  appellants 
W.  H.  Albro,  attorney  for  respondents 

Draper,  Superintendent 

School  district  no.  11,  of  the  towns  of  Middleburgh  and  Broome,  is  situated 
partly  in  each  of  said  towns.     That  part  of  the  district  in  the  town  of  Broome 


JUDICIAL  decisions:    equalization  of  values  291 

contains  1183  acres  and  that  part  of  the  town  of  Middleburgh  1416  acres.  There 
is  a  Httle  dispute  about  the  entire  accuracy  of  these  figures,  but  they  are  suffi- 
ciently correct  for  present  purposes,  certainly.  In  December  1888,  the  super- 
visors of  the  towns  met,  upon  application  as  provided  by  statute,  for  the  purpose 
of  inquiring  whether  the  valuations  of  real  property  upon  the  assessment  rolls 
of  the  two  towns  were  substantially  correct  as  compared  with  each  other.  Being 
unable  to  agree,  they  called  in  the  supervisor  of  the  adjoining  town  of  Schoharie. 
After  riding  through  the  district  and  hearing  what  several  interested  parties  had 
to  say,  the  third  supervisor  joined  with  the  supervisor  of  the  town  of  Middle- 
burgh, and  on  the  26th  day  of  January  1889,  made  an  order  declaring  that  the 
assessments  in  the  two  towns  were  not  just  as  compared  with  each  other,  and 
directing  that  one-half  of  the  school  taxes  should  be  levied  upon  the  1183  acres 
in  one  town  and  the  other  one-half  upon  the  1416  acres  in  the  other  town. 

F'rom  this  determination  this  appeal  is  taken.  The  affidavits  submitted  are 
many  and  long,  but  I  have  read  and  considered  them  as  carefully  as  I  am  able. 

There  is  no  question  about  which  opinions  will  more  widely  differ,  or  none 
upon  which  sworn  statements  can  more  easily  be  procured,  than  upon  the  values 
of  real  property.  I  have  found  it  the  safer  course  to  rely  upon  the  valuations 
fixed  by  the  assessors,  who  are  officers  chosen  with  special  reference  to  the  par- 
ticular duty  of  determining  values,  and  wdio  are  sworn  to  perform  their  work 
fairly  and  justly,  than  upon  the  unofficial  declaration  of  residents  of  the  neigh- 
borhood. There  certainly  must  be  a  very  clear  and  overwhelming  case  pre- 
sented to  impeach  the  facts  set  forth  in  the  assessment  rolls,  or  they  must  be 
given  full  faith  and  credence.  In  the  present  case,  the  assessment  rolls  of  the 
two  towns  purport  respectively  to  assess  the  real  property  of  each  at  full  value. 
Outside  of  the  rolls,  the  assessors  in  each  town  swear  that  they  did  so.  It  is 
clear  to  me  that  the  determination  of  the  supervisors  upon  a  casual  observance 
of  the  lands,  in  the  winter  season,  as  against  the  assessment  rolls  and  the  affi- 
davits of  the  assessors,  is  scarcely  to  be  relied  upon,  and  particularly  so,  when 
they  only  assume  to  find  the  differences  in  the  values  as  compared  with  each 
other  so  very  slight  as  in  this  case.  There  is  no  pretense  that  competent  proof 
was  presented  to  the  supervisors,  outside  of  their  inspection,  to  establish  the  fact. 
It  is  a  material  fact,  moreover,  that  the  assessment  rolls  of  Middleburgh,  the 
town  favored  by  the  majority  of  the  supervisors,  for  the  year  1888,  show  a  not 
inconsiderable  reduction  in  values  over  the  year  1887. 

Taking  all  the  circumstances  together,  I  am  unable  to. find  any  sufficient 
ground  for  the  supervisors  finding  that  the  valuations  fixed  by  the  respective 
town  assessors  were  not  substantially  just,  as  compared  with  each  other.  If 
there  was  not,  then  they  had  nothing  farther  to  do.  If  their  determination  of 
that  fact  can  not  be  upheld,  then  their  subsequent  proceedings  must  fall  to  the 
ground. 

The  appeal  is  sustained,  and  until  the  making  of  new  assessment  rolls,  the 
trustees  of  the  district  will  use  the  values  fixed  in  the  last  assessment  rolls  of 
the  towns  after  revision,  in  levying  school  taxes. 


292  THE   UNIVERSITY   OF  THE   STATE   OF   NEW   YORK 

4358 

In  the  matter  of  the  appeal  of  C.  R.  Bowen  of  school  district  no.  6,  Almond  and 
Hornellsville,  v.  Nelson  Ayers,  Dwight  Bardeen  and  Thomas  Burrows,  as 
assessors  of  town  of  Hornellsville,  Steuben  county. 

When  town  assessors,  under  the  provisions  of  chapter  694  of  the  Laws  of  1867  and  the 
amendments  thereof,  apportion  the  valuation  of  property  of  any  railroad,  telegraph, 
telephone  and  pipe  line  company  as  appears  on  the  assessment  roll  of  the  town  among 
the  several  school  districts  in  the  town,  make  such  apportionment  upon  a  diflFerent  rule 
or  basis  than  that  specified  in  said  chapter,  an  appeal  to  the  State  Superintendent  of 
Public  Instruction  may  be  taken,  and  he  has  jurisdiction  of  such  assessors,  and  may 
set  aside  their  action  and  direct  a  new  apportionment  to  be  made  by  them  in  the 
manner  directed  in  said  chapter.  When,  however,  said  assessors  proceed  within  the 
provisions  of  said  chapter,  their  acts  are  judicial. 

Decided  July  g,  1895 

Near  &  Rathbun,  attorneys  for  respondents 

Skinner,  Superintendent 

The  above-named  appellant,  as  a  qualified  voter  in  school  district  no.  6, 
Almond  and  Hornellsville,  appeals  froin  the  assessment  and  decision  of  the 
above-named  respondents  as  assessors  of  the  town  of  Hornellsville,  made  in 
September  1894,  in  apportioning  the  valuation  of  the  property  of  the  New  York, 
Lake  Erie  and  Western  Railroad  as  it  appeared  on  the  last  assessment  roll  of 
the  town  of  Hornellsville,  in  school  district  no.  6,  Almond  and  Hornellsville, 
situated  in  said  district  in  said  town  of  Hornellsville,  in  the  sum  of  $7000,  under 
the  provisions  of  section  i,  of  chapter  694,  of  the  Laws  of  1867,  as  amended  by 
section  i,  of  chapter  414,  Laws  of  1884,  upon  the  grounds,  as  alleged  in  the 
appeal,  that  said  respondents  as  such  assessors  did  not  give,  in  such  apportion- 
ment, to  said  school  district  no.  6,  its  proper  portion  according  to  the  proportion 
that  the  value  of  said  property  of  said  railroad  in  each  of  school  districts  lying 
in  the  town  of  Hornellsville  bears  to  the  value  of  the  whole  thereof,  in  said  town, 
as  required  by  section  i,  of  said  chapter  694,  Laws  of  1867,  and  the  amendments 
thereof,  but  that  said  assessors  made  such  apportionment  upon  the  establishment 
by  them  of  a  unit  of  value  of  said  railroad  at  a  certain  sum  per  rod,  and  appor- 
tioned the  valuation  of  said  railroad  in  said  town  as  it  appeared  upon  their  town 
assessment  roll,  among  the  several  school  districts  in  said  town,  including  said 
district  no.  6,  Almond  and  Hornellsville,  in  accordance  with  the  number  of  rods 
in  length  of  said  railroad  in  said  school  districts  respectively  at  the  miit  of 
value  per  rod  as  so  established  by  them ;  that  is,  in  effect,  that  the  amount  or 
assessed  value  of  the  property  of  said  railroad  within  said  town,  should  be 
regarded  as  a  unit,  and  that  said  school  district  no.  6,  Almond  and  Hornellsville, 
is  only  entitled  to  that  proportion  of  such  assessed  value  which  the  length  of 
the  railroad  in  that  part  of  said  district  situate  in  the  town  of  Hornellsville  bears 
to  the  total  length  of  the  said  railroad  in  said  town;  the  theory  of  the  assessors 
being  that  any  rod  or  mile  of  said  railroad  in  the  town  of  Hornellsville  was 
equal  in  value  to  any  other  rod  or  mile  thereof. 


JUDICIAL   DECISIONS  :     EQUALIZATION    OF   VALUES  293 

The  appeal  herein  was  filed  on  October  9,  1894.  An  answer  was  received 
October  16,  1894,  and  not  being  properly  verified  was  returned  to  respondents 
for  proper  verification.  On  October  27th,  a  reply  of  the  appellant  to  said  answer 
was  received.  On  ■March  8,  1895,  upon  taking  up  the  appeal  herein  for  examina- 
tion and  decision,  no  answer  was  found  and  the  respondents  w^ere  written  to 
inquiring  what  had  become  of  said  answer,  and  it  was  ascertained  that  it  was 
lost,  and  respondents  had  permission  to  file  an  answer  in  place  of  the  one  lost, 
which  they  did  on  3,Iarch  23,  1895.  On  iVpril  12,  1895,  the  appellant  filed  a 
reply  to  said  answer,  and  on  June  25th  additional  aftidavits  in  support  of  the 
answer  were  filed.  The  only  papers  which  I  can  consider  in  deciding  this  appeal 
are  the  appeal,  answer  received  March  23,  1895,  the  reply  thereto  received  April 
12,  1895,  'i^d  the  additional  affidavits  of  respondents  received  June  25,  1895. 
The  answer  filed  October  16,  1894,  was  never  returned  to  me  by  respondents. 
The  reply  of  the  appellant  to  the  lost  answer  can  not  be  considered. 

It  appears  from  the  papers  presented  to  me  that  the  respondents  in  making 
up  the  assessment  roll  of  the  town  of  Hornellsville  in  August  1894,  assessed 
and  valued  the  property  of  said  New  York,  Lake  Erie  and  Western  Railroad 
within  the  town  of  Hornellsville  at  the  aggregate  sum  of  $175,000;  that  on  Sep- 
tember 15,  1894,  said  respondents  filed  in  the  office  of  the  town  clerk  of  Hor- 
nellsville a  certificate  of  apportionment  of  the  valuation  of  the  property  of  the 
several  railroad,  telegraph,  telephone  and  water  companies,  as  appeared  on  the 
assessment  list  or  roll  of  said  town  of  Hornellsville  for  the  year  1894,  among 
the  several  school  districts  of  said  town  in  which  any  portion  of  said  property 
is  situated,  and  that  from  said  certificate  it  appears  that  the  apportionment  made 
by  said  assessors  of  the  property  of  the  said  New  York,  Lake  Erie  and  Western 
Railroad,  as  aforesaid,  upon  said  assessment  roll  of  said  town  to  said  school 
district  no.  6,  Almond  and  Hornellsville,  for  that  portion  of  said  railroad  situate 
in  said  district,  was  the  sum  of  $7000. 

Aside  from  the  statements  contained  in  the  appeal  the  appellant  has  not 
furnished  any  aftidavits  or  other  proof  sustaining  the  allegations  made  by  him 
as  to  the  methods  adopted  by  said  assessors  in  making  the  apportionment  of 
valuation  of  said  New  York,  Lake  Erie  and  Western  Railroad  to  said  school 
district  no.  6. 

The  respondents  in  their  answer  deny  the  most  of  the  allegations  contained 
in  the  appeal,  and  they  deny  that  they  regard  the  amount  of  railroad  in  the 
town  as  a  unit  and  give  each  district  only  that  proportion  of  the  assessment 
which  the  length  of  the  track  in  the  district  bears  to  the  total  length  of  the  road 
in  the  town;  they  deny  that  they  have  admitted  to  the  appellant  or  any  other 
person  that  the  apportionment  appealed  from  is  not  based  upon  the  actual  value 
of  the  road,  but  upon  the  length  of  it.  The  respondents  allege  that  in  appor- 
tioning the  valuation  of  said  railroad  as  appeared  on  the  assessment  roll  of  said 
town  of  Hornellsville  in  1894,  among  the  several  school  districts  of  said  town 
in  which  any  portion  of  said  railroad  property  was  situate,  they  gave  to  each  of 
said  districts  including  said  district  no.  6,  their  proper  portion  according  to  the 


294  THE  UXIVERSITY   OF   THE   STATE   OF   NEW   YORK 

proportion  that  the  value  of  the  property  in  each  of  said  districts  bears  to  the 
value  of  the  whole  of  said  railroad  property  in  said  town. 

The  appellant  alleged  that  the  respondents  did  not  apportion  the  property 
of  the  New  York,  Lake  Erie  and  Western  Railroad  as  valued  and  assessed  on 
the  assessment  roll  of  1894,  among  the  school  districts  in  said  town,  in  accord- 
ance with  the  provisions  of  section  i,  chapter  694,  of  the  Laws  of  1867.  The 
respondents  explicitly  deny  said  allegations  of  the  appellant,  and  specifically  aver 
that  such  apportionment  was  made  strictly  in  accordance  with  the  provisions 
of  the  law  as  above  cited.  The  onus  is  upon  the  appellant  to  sustain  his  appeal 
by  a  preponderance  of  proof,  and  in  this  he  has  failed. 

The  Department  has  held  that  when  town  assessors,  under  the  provisions 
of  section  i,  chapter  694,  Laws  of  1867,  make  the  apportionment  to  school  dis- 
tricts referred  to  therein  upon  a  different  rule  or  basis  than  that  specified  therein, 
that  upon  appeal  to  the  State  Superintendent  of  Public  Instruction  from  such 
action  and  decision  he  has  jurisdiction  of  said  assessors,  and  may  set  aside  their 
action  and  direct  a  new  apportionment  to  be  made  by  them  in  the  manner 
directed  in  said  section  i ;  that  the  acts  of  town  assessors  proceeding  within  the 
said  chapter  694  are  judicial ;  the  conclusive  character  of  their  act,  however,  is 
only  while  they  confine  themselves  within  the  statute.  In  the  appeal  herein  the 
appellant  has  failed  to  show  that  the  respondents,  in  making  the  apportionment, 
did  not  confine  themselves  within  the  statute,  but  went  outside  of  it  and  acted 
upon  a  rule  or  method  adopted  by  them,  ignoring  the  provisions  of  said  statute. 

In  my  opinion  the  appeal  herein  must  be  dismissed. 

Appeal  dismissed. 


LIBRARY 

Decided  September  17,  1839 


Spencer,  Superinicndent 

That  part  of  the  district  hbrary  purchased  with  money  raised  by  tax  upon 
the  district  may  be  sold. 


Trustees  may  exchange  old  library  books  for  new  ones. 
Decided  April  20,  1854 

Randall,  Deputy  Superintendent 

Trustees  of  districts  may  legally  exchange  old  books  belonging  to  the  dis- 
trict library  for  new,  paying  the  difference,  if  any,  in  price  from  the  library 
money. 


In  regard  to  exchanging  library  books. 
Decided  September  8,  1854 

Rice,  Superintendent 

No  objection  might  be  raised,  if  a  district  so  determine  by  unanimous  vote, 
to  the  exchanging  of  books  in  a  library  for  others  more  appropriate  to  the  wants 
of  the  people. 


That  part  of  district  library  which  was  purchased  by  a  tax  on  property  of  district  belongs 
to  district,  and  may  be  disposed  of  by  its  voters  as  they  shall  direct.  But  that  part 
bought  with  public  money  belongs  to  the  State,  and  the  district  can  not  sell  it. 

Decided  November  23,  1865 

Rice,  Superintendent 

That  part  of  the  district  library  which  had  been  purchased  by  a  tax  upon 
the  property  of  the  district  belongs  unqualifiedly  to  the  district,  and  may  be 
disposed  of  by  the  voters  thereof  as  they  may  see  fit  to  direct.  But  in  that  which 
has  been  purchased  with  the  public  money  apportioned  to  the  district  it  has  only 
a  qualified  property.  This  portion  of  the  library  really  belongs  to  the  State,  and 
the  district  is  the  bailee  and  not  the  owner  of  it.  As  such  bailee  it  has  no  power 
to  sell  or  otherwise  dispose  of  the  library. 

[295] 


MEETINGS 

5151 

In  the  matter  of  the  appeal  of  Clinton  Muclge  and  Glen  Stone  from  proceedings 
of  school  meeting  held  in  and  for  school  district  no.  9,  town  of  Lima, 
Livingston  county. 

In   conducting   school   district   meetings   a   wide   latitude   must   be   accorded    officers   in   the 

enforcement  of  parliamentary  rules. 
A  refusal  or  neglect  on  the  part  of  the  trustee  to  call  a  special  meeting  of  the  voters  of  a 

district  as   required   under  subdivision  4  of   section   13   of   title  5  of  the   Consolidated 

School  Law  is  a  wilful  violation  of  the  school  law. 
When  a  schoolhouse  has  been  regularh^  condemned  by  the  school  commissioner  the  district 

has  not  the  legal  right  to  vote  a  tax  for  repairs  or  equipments  of  any  character  to  such 

building. 
The  expenses  incurred  by  a  trustee  in  his  wilful  determination  to  evade  the  provisions  of 

the  law  are  not  a  legitimate  charge  upon  the  district  and  a  meeting  of  the  district  can 

not  legally  authorize  the  payment  of  the  bills  therefor. 
A  trustee  is  barred  by  the  Penal  Code  from  making  a  contract  with  his  minor  son  who  is 

not  emancipated,  to  act  as  janitor. 
Decided  November  17,   1904 

Albert  H.  Stearns,  attorney  for  appellants 
George  W.  Atwell,  attorney  for  respondent 

Draper,  Coimnissioner 

The  appellants  request  the  Department  to  declare  illegal  the  proceedings  of 
the  annual  school  meeting  of  school  district  no.  9,  town  of  Lima,  held  on  the 
second  day  of  August  1904,  and  especially  to  declare  illegal  the  action  of  such 
meeting  in  voting  certain  appropriations  which  will  hereafter  be  specifically 
enumerated  and  considered. 

It  is  alleged  by  the  appellants  that  the  school  meeting  was  disorderly  and 
that  the  chairman  of  the  meeting  was  arbitrary  and  unfair  in  his  rulings  and 
that  such  meeting  was  not  conducted  in  the  manner  provided  by  the  Consoli- 
dated School  Law  and  in  accordance  with  the  usual  parliamentary  practices  of 
such  bodies. 

Patrick  Hendrick,  the  sole  trustee,  by  direction  of  a  special  meeting  of  said 
district,  has  filed  an  answer  to  this  appeal.  He  states  in  his  answer  that  the 
meeting  was  held  in  the  town  hall  in  said  district  and  that  such  hall  has  a  seat- 
mg  capacity  for  not  more  than  150  persons,  but  that  more  than  250  persons 
were  in  attendance  at  the  meeting.  He  also  claims  that  the  meeting  was  as 
orderly  as  could  be  expected  under  the  conditions,  and  that  such  meeting  was 
regularly  and  legally  conducted.  In  proof  of  this  a  certified  copy  of  the  pro- 
ceedings of  such  meeting  is  offered. 

[296] 


JUDICIAL    DECISIONS  :     MEETINGS  297 

It  is  clearly  true  that  the  meeting  was  somewhat  disorderly,  that  many 
irregularities  occurred,  and  that  parliamentary  practices  were  not  carefully 
observed.  In  conducting  school  district  meetings  a  wide  latitude  must  be  accorded 
officers  in  the  enforcement  of  parliamentary  rules.  The  appellants  have  failed 
to  satisfy  me  that  the  disorder  or  irregularities  were  sufficiently  grave  to  war- 
rant the  setting  aside  of  all  the  proceedings  of  the  meeting  on  the  ground  that 
material  rights  of  electors  were  denied  or  that  the  proceedings  do  not  reflect  the 
will  of  the  majority  of  the  voters  attempting  to  participate. 

The  annual  meeting  in  question  voted  appropriations  for  the  following  pur- 
poses: $500  for  heating  apparatus,  $93.50  for  professional  services  to  George  W. 
Atwell,  $20  to  School  Commissioner  McXinch,  $165.80  for  professional  services 
to  George  W.  Atwell  $53.04  to  reimburse  Trustee  Hendrick,  $54  to  Alartin 
Hendrick    for  janitor  services. 

On  the  21  st  of  March  1904,  Scott  L.  McXinch,  the  school  commissioner 
having  jurisdiction  over  school  district  no.  9,  town  of  Lima,  regularly  issued  an 
order  condemning  the  schoolhouse  in  said  school  district  and  providing  that  such 
order  should  take  efifect  June  i,  1904.  No  appeal  from  such  order  of  the  school 
commissioner  has  been  brought.  In  issuing  such  order  the  school  commissioner 
showed  that  the  total  resident  population  of  children  between  5  and  18  years  of 
age  was  191  and  that  the  number  of  resident  children  between  the  ages  of  8  and 
16,  or  those  children  coming  within  the  provisions  of  the  compulsory  education 
law  was  130.  Such  order  of  the  school  commissioner  also  showed  that  the  school- 
house  in  such  district  had  seating  capacity  for  only  60  pupils  and  that  such  build- 
ing v.as  unfit  for  use  and  not  worth  repairing.  Although  the  order  of  the  school 
commissioner  was  issued  March  31,  1904,  it  did  not  take  efifect  until  June  i,  1904, 
thus  allowing  the  school  district  ample  time  to  make  the  necessary  arrangements 
for  the  erection  of  a  new  building. 

Under  subdivision  4  of  section  13,  title  5  of  the  Consolidated  School  Law, 
it  was  the  duty  of  Trustee  Hendrick,  immediately  upon  receiving  the  order  of 
School  Commissioner  McNinch,  condemning  the  schoolhouse  of  that  district,  to 
call  a  special  meeting  of  the  legal  voters  of  the  district  to  consider  the  question 
of  building  a  new  schoolhouse.  If  the  district  failed  or  refused  to  vote  the  neces- 
sary tax  to  build  such  schoolhouse  within  thirty  days  from  the  date  of  such  meet- 
ing, it  was  then  the  duty  of  said  Trustee  Hendrick  to  contract  for  the  building  of 
such  schoolhouse  and  to  levy  a  tax  for  the  same.  A  refusal  or  negelect  on  his  part 
to  call  a  meeting  of  the  voters  of  the  district  for  such  purpose  is  a  wilful  violation 
of  the  school  law.  As  the  school  building  of  the  district  was  regularly  condemned 
by  the  school  commissioner,  such  district  had  not  the  power  to  vote  a  tax  for 
repairs  or  equipments  of  any  character  to  such  building.  The  action  of  the  annual 
meeting  of  such  district  in  voting  $500  for  a  system  of  heating  was  not  within 
the  power  of  such  district  and  was,  therefore,  illegal. 

The  said  annual  meeting  held  in  1904  voted  to  pay  the  Atwell  bill  of  $93.50. 
This  bill  was  for  professional  services  of  said  Atwell  in  defending  appeal  no. 
5049  before  the  Department  of  Public  Instruction  and  known  as  the  Bates  appeal. 


29S  THE    UXlVEKSirV    OF   THE   STATE    OF    NEW    YORK 

The  district  at  a  special  meeting  held  June  9,  1903,  authorized  the  payment  of 
this  bill,  but  Warren  I.  Johnson  brought  appeal  no.  5140  to  the  Department  of 
Public  Instruction  to  set  aside  the  action  of  the  district  in  voting  to  pay  sucli 
bill.  The  State  Superintendent  of  Public  Instruction,  in  a  decision  rendered 
March  30,  1904,  sustained  such  appeal.  It  is  claimed  by  the  respondents  in  the 
appeal  under  consideration  that  the  State  Superintendent  of  Public  Instruction 
sustained  the  Johnson  appeal  on  the  technical  ground  that  the  vote  authorizing 
the  payment  of  the  Atwell  bill  of  $93.50  was  at  a  special  meeting  of  the  district 
called  for  another  purpose  and  that  the  notice  of  such  special  meeting  did  not 
state  that  one  of  the  questions  to  come  before  the  meeting  was  the  consideration 
of  the  Atwell  bill.  This  is  true,  but  it  is  also  true  that  in  his  opinion  on  such 
Johnson  appeal  the  State  Superintendent  of  Public  Instruction  expressly  held, 
as  pointed  out  in  appellant's  brief:  "  Mr  Atwell,  who  is  employed  by  Mr  Hen- 
drick  to  answer  the  Bates  appeal,  was  the  attorney  for  Trustee  Sylvester  in  the 
appeal  of  Ferris  and  others  and  when  employed  by  Hendrick  knew  that  the  acts 
of  Hendrick  appealed  from  were  contrary  to  the  decisions  of  the  Department  and 
that  Hendrick  had  no  valid  or  legal  defense  to  such  appeal."  "  In  my  opinion 
Mr  Atwell  has  no  legal  claim  against  school  district  no.  9,  town  of  Lima,  for  any 
services  performed  by  him  for  Hendrick  in  the  appeal  of  Alfred  K.  Bates.  Such 
claim  is  for  services  performed  for  Hendrick  personally,  Hendrick  knowing  that 
the  acts  performed  by  him  as  trustee  were  in  violation  of  the  rulings  and  decisions 
of  this  Department." 

The  decision  of  the  State  Department  on  that  question  was  "  final  and  con- 
clusive and  not  subject  to  question  or  review  in  any  place  or  court  whatever," 
under  subdivision  7  of  section  i,  title  15  of  the  Consolidated  School  Law.  The 
district,  therefore,  had  no  legal  power  to  authorize  the  payment  of  such  bill  at 
its  annual  meeting  in  1904. 

The  special  meeting  of  June  9,  1903,  also  authorized  the  payment  of  the 
McNinch  bill  of  $20.  The  Johnson  appeal  also  requested  the  Department  of 
Public  Instruction  to  set  aside  the  action  of  the  meeting  in  authorizing  the  pay- 
ment of  such  bill  and  the  State  Superintendent  of  Public  Instruction,  in  his 
decision  of  March  30.  1904,  did  set  aside  such  action  of  the  district  meeting  and 
in  so  doing  held  that  the  McNinch  bill  was  not  a  proper  charge  against  the  school 
district.  The  district,  therefore,  had  no  legal  power  to  authorize  the  payment 
of  the  McNinch  bill  of  $20  at  its  annual  meeting  in  1904. 

A  change  in  the  administration  of  this  Department  has  taken  place  since  the 
decision  in  the  Johnson  appeal  was  rendered.  In  view  of  such  fact,  I  have  care- 
fully examined  the  pleadings  in  that  appeal  and  am  satisfied  that  the  decision 
th.erein  is  based  on  sound  legal  principles  and  on  a  wise  administration  of  school 
district  affairs. 

The  Atwell  bill  of  $165.80  is  for  professional  services  in  three  cases,  namely: 
$50  for  defending  the  Johnson  appeal,  $88  for  defending  the  Miner  appeal,  and 
$27.80  for  services  rendered  in  an  action  entitled  "  Supreme  Court,  Nora 
O'Connor  v.  Patrick  Hendrick  as  Trustee  etc." 


JUDICIAL  decisions:    meetings  299 

This  Department  has  held  that  the  Atwell  bill  in  the  Bates  appeal  was  not 
a  proper  charge  against  the  district.  Atwell's  defense  in  the  Johnson  appeal  was 
to  establish  the  claim  that  his  bill  in  the  Bates  appeal  was  a  proper  charge  against 
the  district.  If  Atwell's  claim  in  the  Bates  appeal  was  not  legally  chargeable  to 
the  district,  his  bill  for  services  in  an  unsuccessful  endeavor  to  give  vahdity  to 
such  claim  is  certainly  not  chargeable  to  the  district. 

The  Miner  appeal  for  which  Atwell  claims  $88  became  necessary  because 
of  the  action  of  Trustee  Hendrick  in  refusing  to  comply  with  certain  decisions 
and  orders  of  the  State  Superintendent  of  Public  Instruction.  The  conditions, 
therefore,  under  which  Atwell  rendered  services  in  the  Miner  appeal  are  similar 
to  those  of  the  Bates  appeal  and  his  bill  for  such  services  is  not  a  proper  and 
legal  claim  against  the  district.  If  the  bills  of  Atwell  for  services  in  the  Bates 
and  Miner  appeals  are  not  a  valid  claim  against  the  district,  then  the  bill  for  his 
services  in  the  "  O'Connor  v.  Hendrick  "  case  in  the  Supreme  Coiirt  is  not  a 
claim  chargeable  to  the  district.  The  services  rendered  in  this  case  were  in 
defense  of  the  wrongful  and  illegal  acts  of  Trustee  Hendrick. 

It  was  the  persistent  and  intentional  refusal  of  Trustee  Hendrick  to  comply 
with  what  he  knew  to  be  the  school  law  of  this  State  and  withwhat  he  knew  to 
be  the  orders  and  decisions  of  the  Department  which  led  to  bring  the  Bates,  the 
Johnson,  and  the  Miner  appeals  and  subsequently  to  the  O'Connor  v.  Hendrick 
case  in  the  Supreme  Court.  The  expenses  incurred  by  him  in  his  wilful  detei- 
mination  to  evade  the  provisions  of  the  law  are  not  a  legitimate  charge  upon  ihe 
district  and  the  action  of  the  annual  meeting  in  authorizing  the  payment  of  the 
Atwell  bill  of  .$165.80  was,  therefore,  illegal.  It  also  follows  that  the  district 
meeting  had  not  the  legal  power  to  vote  to  reimburse  Trustee  Hendrick  to  the 
amount  of  $53.04  for  costs  rendered  by  the  Appellate  Division  against  Hendrick 
in  the  appeal  of  the  motion  to  intervene  by  Miner  and  others. 

The  said  annual  meeting  also  voted  to  pay  a  bill  of  $54  to  ^Martin  Hendrick 
for  services  as  janitor  and  for  taking  care  of  the  furnace.  ]\Iartin  Hendrick  is 
the  minor  son  of  Trustee  Hendrick.  Section  473  of  the  Penal  Code  prohibits  a 
trustee  of  a  school  district  from  being  directly  or  indirectly  interested  in  any 
contract  made  by  him  as  trustee.  It  is  clear  that  he  is  interested  in  a  contract  with 
his  minor  son.  Trustee  Hendrick  claims  that  such  son  has  been  emancipated.  It 
is  a  well-settled  principle  of  law  that  emancipation  is  a  question  of  fact  to  be 
determined  from  circumstances  and  from  the  conduct  of  interested  parties.  It 
can  not  be  presumed  but  must  be  established  by  positive  proof.  In  my  opinion 
the  respondent  has  not  produced  sufficient  evidence  to  establish  an  emancipation. 
He  was,  therefore,  barred  by  the  Penal  Code  from  making  such  contract  with  his 
minor  son  and  under  such  circumstances  the  bill  of  $54  to  Martin  Hendrick  is 
not  legally  chargeable  to  said  district  and  the  annual  meeting  could  not  authorize 
its  payment. 

The  appellants  also  request  that  the  action  of  the  said  annual  meeting  in 
authorizing  Hendrick  to  employ  counsel  to  defend  the  appeal  of  Killips  v.  Hen- 
drick be  set  aside.     It  is  agreed  by  the  appellants  and  the  respondents  that  the 


30O  THE   UNIVERSITY   OF  THE   STATE   OF   NEW   YORK 

motion  on  the  question  was  adopted  by  a  viva  voce  vote.  Subdivision  i8  of 
section  14,  title  7  of  the  Consohdated  School  Law  provides  that  all  propositions 
at  school  district  meetings  involving  the  expenditure  of  money  or  authorizing 
the  levy  of  a  tax,  the  vote  thereon  shall  be  by  ballot  or  by  taking  and  recording 
the  ayes  and  noes  of  the  qualified  voters  present  and  voting  at  such  meetings.  A 
motion  to  employ  counsel  to  defend  an  appeal  involves  an  expenditure  of  money 
and  could  not  legally  be  adopted  by  a  viva  voce  vote. 

This  district  has  the  numerical  and  financial  strength  to  maintain  a  good 
school  provided  its  forces  were  wisely  and  harmoniously  directed.  It  is  to  be 
regretted  that  such  is  not  the  case. 

I  decide,  That  the  annual  school  meeting  of  district  no.  9,  town  of  Lima, 
county  of  Livingston,  did  not  possess  legal  authority  to  authorize  the  expenditure 
of  $500  for  installing  a  system  of  heating  in  the  condemned  schoolhouse  of  such 
school  district,  and  that  such  annual  meeting  did  not  possess  legal  power  to  vote 
appropriations  for  the  payment  of  the  Atwell  bill  of  $93.50,  the  McNinch  bill  of 
$20,  the  Atwell  bill  of  $165.80,  the  bill  of  $53.04  to  reimburse  Trustee  Ilendrick 
and  the  bill  of  Martin  LIendric1<  of  $54  for  janitor  services  and  that  such  bills  are 
not  properly  or  legally  cliargeable  to  the  said  school  district. 

I  also  decide  that  the  action  of  said  school  district  in  voting  by  viva  voce  to 
authorize  Trustee  Hendrick  to  obtain  counsel  to  defend  the  Killips  appeal  was 
illegal  and  no  appropriation  of  the  district's  funds  can  be  made  thereon. 

It  is  ordered,  That  Patrick  Hendrick  as  trustee  of  school  district  no.  9,  town 
of  Lima,  Livingston  county,  and  his  successor  or  successors  in  office,  are  hereby 
enjoined  and  restrained  from  making  any  expenditure  for  the  installation  of  a 
heating  system  in  the  condemned  schoolhouse  of  said  district  and  from  making 
any  other  repairs  to  said  condemned  school  building  and  is  also  hereby  enjoined 
and  restrained  from  paying  the  bill  of  George  W.  Atwell  for  $93.50,  the  bill  of 
School  Commissioner  McXinch  for  $20  and  the  bill  of  George  W.  Atwell  for 
$165.80,  the  bill  of  $53.04  to  reimburse  Trustee  Hendrick  and  the  bill  of  Martin 
Hendrick  of  $54  for  janitor  services  or  any  part  or  portion  of  each  or  any  of 
such  bills. 

It  is  further  ordered.  That  ihe  said  Patrick  Hendrick,  trustee  of  school 
district  no.  9,  town  of  Lima,  Livingston  county,  shall  refund  and  pay  to  such 
district  any  and  all  of  such  amounts  paid  by  his  direction  or  order  from  the 
funds  of  the  said  di.strict  no.  9,  town  of  Lima,  which  are  hereinbefore  declared  to 
be  improper  and  illegal  charges  against  said  district. 

So  much  of  the  appeal  herein  as  relates  to  the  action  of  the  annual  meeting 
of  said  district  no.  9,  town  of  Lima,  in  voting  appropriations  of  $500  for  heating 
apparatus,  of  $93.50  to  pay  the  bill  of  George  W.  Atwell,  of  $20  to  pay  the  bill 
of  School  Commissioner  McNinch,  of  $165.80  to  pay  the  bill  of  George  W. 
Atwell,  of  $53.04  to  reimburse  Trustee  Hendrick,  of  $54  to  pay  Martin  Hendrick 
for  janitor  services,  and  the  vote  by  which  Trustee  Hendrick  was  authorized  to 
employ  counsel  to  defend  the  Killips  appeal,  is  sustained. 


JUDICIAL  decisions:    meetings  301 


5153 


In  the  matter  of  the  appeal  of  J.  E.  Curtiss  from  the  action  of  the  board  of 
education  of  school  district  no.  i,  town  of  Elba,  Genesee  county,  in  adopt- 
ing textbooks. 

A  board  of  education  should  have  some  definite  system  for  calling  special  meetings  and 
for  the  transaction  of  its  business.  The  proper  authority  to  serve  the  notice  of  a 
special  meeting  of  a  board  of  education  is  the  clerk  of  that  body  unless  the  board  has 
regularly  designated  some  other  person.  It  is  not  proper  for  a  board  of  education 
to  designate  some  one  not  a  resident  of  the  district  to  call  its  meetings. 

Decided  December  2,  1904 

Wood  &  Dunham,  attorneys  for  respondents 

Draper,  Commissioner 

The  papers  in  this  appeal  show  that  at  a  meeting  of  the  board  of  education 
of  district  no.  I,  Elba,  Genesee  county,  on  the  23d  day  of  August  1904,  such 
board  authorized  a  change  in  certain  textbooks  to  be  used  in  the  school  of  such 
district.  Another  meeting  of  this  board  was  held  on  September  6,  1904,  and  a 
change  was  again  authorized  in  textbooks  on  the  same  subjects.  Another  change 
was  authorized  in  textbooks  on  the  same  subjects  at  a  meeting  of  said  board 
on  the  24th  day  of  September  1904.  None  of  these  meetings  of  this  board  of 
education  appears  to  have  been  regularly  held.  In  some  cases  all  members  of 
the  board  were  not  notified  of  the  meetings.  In  other  cases  the  notices  of  such 
meetings  were  served  by  a  person  not  a  resident  of  the  district.  In  fact  all  of 
these  meetings  appear  to  have  been  held  on  the  solicitation  of  representatives 
of  certain  publishers  of  textbooks  and  the  notices  of  the  meetings  of  the  board 
in  most  cases  were  served  by  one  of  these  representatives  although  not  a  resi- 
dent of  the  district.  These  representatives  of  pubhshing  houses  may  have 
shown  much  business  enterprise,  but  the  board  of  education  has  undoubtedly 
extended  them  a  privilege  beyond  the  courtesy  to  which  they  are  entitled.  A 
board  of  education  should  have  some  definite  system  for  calling  special  meetings 
and  for  the  transaction  of  its  business.  The  proper  authority  to  serve  the  notice 
of  a  special  meeting  of  a  board  of  education  is  the  clerk  of  that  body  unless 
the  board  has  regularly  designated  some  other  person.  It  is  not  proper  for  a 
board  to  designate  some  one  not  a  resident  of  the  district  to  call  its  meetings. 
If  some  definite  system  for  calling  meetings  of  a  board  is  not  adopted  how 
shall  its  members  know  when  a  meeting  is  properly  called? 

It  appears  that  this  board  of  education  adopted  a  resolution  on  September 
9.  1902,  providing  that  the  clerk  of  the  board  be  empowered  to  call  special 
meeting's  when  necessary,  although  the  respondent  claims  the  proof  of  such 
action  is  insufficient.  The  respondent  also  claims  that  if  such  resolution  was 
adopted  in  1902  it  is  not  binding  upon  the  present  board.  Any  rule  or  by-law 
not  in  conflict  with  the  law  adopted  by  a  board  of  education  in  1902  to  govern 
or  regulate  the  business  transactions  of  that  body  is  binding  upon  successive 


302  THE    UNIVERSITY    OF   THE   STATE    OF    NEW    YORK 

boards  until  revoked  or  modified.  The  adoption  of  textbooks  by  a  board  of 
education  is  an  important  matter  and  will  not  be  looked  upon  lightly  by  this 
Department.  All  proceedings  in  relation  thereto  must  conform  to  the  pro- 
visions of  the  school  law.  A  failure  to  notify  all  members  of  a  board  of  educa- 
tion of  a  meeting  to  consider  the  adoption  of  textbooks  or  the  transaction  of 
other  business  will  be  regarded  as  sufficient  reason  for  setting  aside  the  action 
of  a  board  when  the  matter  is  presented  to  this  Department  upon  appeal.  In 
the  adoption  of  textbooks  a  board  of  education  should  be  governed  by  a  desire 
to  put  in  the  possession  of  the  children  and  teachers  of  its  school  the  best  text- 
books to  be  procured,  to  the  end  that  the  greatest  educational  results  possible 
may  be  achieved.  In  adopting  textbooks  a  board  of  education  should  not  be 
influenced  by  a  proposition  from  publishers  or  their  representatives  to  donate 
books  to  a  certain  value  for  the  district  library  on  the  condition  that  the  books 
are  adopted.  Textbooks  should  be  selected  upon  their  merits  and  then  not 
changed  except  for  decisive  reasons.  Books  for  the  library  should  be  selected 
because  of  their  special  fitness  for  that  purpose. 

It  is  unnecessary  to  enter  into  a  discussion  of  the  evils  resulting  from  the 
frequent  changing  of  textbooks.  They  are  generally  recognized.  The  school 
law  provides  that  when  a  textbook  has  been  adopted  in  a  union  free  school  dis- 
trict it  shall  not  be  changed  within  a  period  of  five  years  except  by  a  three- 
fourths  vote  of  the  board  of  education  of  such  district.  See  article  2,  title  15 
of  the  Consolidated  School  Law. 

In  view  of  the  irregularities  in  calling  the  meetings  of  said  board  of  educa- 
tion in  question  in  this  appeal  it  must  be  held  that  such  meetings  were  not  prop- 
erly called  and  therefore  not  legal  meetings. 

The  appeal  herein  is  sustained. 

It  is  ordered.  That  the  action  of  the  board  of  education  of  school  district 
no.  I,  town  of  Elba,  Genesee  county,  in  the  adoption  of  textbooks  at  its  meetings, 
held  on  the  23d  day  of  August  1904.  the  6th  day  of  September  1904,  the  24th 
dav  of  September  1904,  and  the  19th  day  of  October  1904,  be,  and  the  same 
hereby  is,  declared  illegal  and  void. 


5430 

In  the  matter  of  the  appeal  of  William  Davidson   from  the  proceedings  of  a 
special  school  meeting  in  district  no.  6,  Marathon,  Cortland  county. 

Regularity  of  annual  meeting  must  be  determined  by  the  Commissioner  of  Education 
on  appeal.  Where  it  is  alleged  that  an  annual  meeting  was  irregularly  conducted,  the 
trustees  are  not  authorized  to  set  aside  such  meeting  and  call  a  special  meeting  to 
transact  the  business  which  should  have  been  transacted  at  the  annual  meeting.  The 
Commissioner  of  Education  is  vested  with  exclusive  authority  to  determine  whether 
or  not  the  officers  declared  elected  at  an  annual  meeting  were  legally  elected  and 
whether  the  proceedings  thereof  were  legally  conducted.     The  officers  declared  elected 


JUDICIAL  decisions:    meetings  303 

at  such  meeting  are  to  be  deemed  the  officers  of  the  district  until  their  election  is  set 
aside  on  appeal  duly  brought  as  provided  in  the  law  and  rules  of  practice  relating  to 
appeals. 
Decided  December  29,  1909 

L.  R.  Chase,  attorney  for  appellants 

Draper,  Commissioner 

This  appeal  concerns  the  legality  of  a  special  meeting  held  in  district  no.  6, 
town  of  Marathon,  county  of  Cortland,  on  the  28th  day  of  August  1909.  Such 
meeting  was  called  by  a  notice  signed  by  two  of  the  three  trustees  of  the  district 
for  the  purpose  of  transacting  the  business  of  the  annual  meeting.  At  such 
special  meeting  Fred  Alexander  was  elected  trustee,  W.  F.  Brown  was  elected 
collector,  David  Wallace  was  elected  clerk,  and  Earnest  Maricle  was  elected  treas- 
urer. Certain  appropriations  were  made  at  such  meeting  and  a  contract  was  let 
to  furnish  wood  to  the  district.  The  appellant,  William  Davidson,  appeals 
from  the  actions  of  such  special  meeting,  and  alleges  in  his  petition  that  the 
annual  meeting  was  regularly  held  in  such  district  on  August  3,  1909  and  that 
the  proceedings  thereof  were  legally  conducted.  The  appellant  was  elected 
as  trustee  at  such  meeting,  and  W.  F.  Brown  was  elected  collector.  David 
Wallace,  clerk,  and  Frank  Gardner,  treasurer.  An  appropriation  of  $500  was 
made  at  such  annual  meeting  for  the  payment  of  teachers'  wages,  $60  for  the 
purchase  of  wood  during  the  ensuing  school  year  for  school  purposes,  and  $100 
for  the  payment  of  janitor's  services  and  incidentals. 

The  two  members  of  the  board  of  trustees  who  took  upon  themselves  to 
issue  the  call  for  the  special  meeting  to  transact  the  business  of  the  annual 
meeting,  have  not  answered  the  allegations  of  the  petition.  There  is  nothing  in 
the  record  which  indicates  in  what  respect  the  actions  and  proceedings  of  the 
annual  meeting  were  irregular  or  illegal.  A  certified  copy  of  the  minutes  of  the 
annual  meeting  is  attached  to  the  petition.  Such  minutes  do  not  specify  whether 
the  ofticers  were  elected  by  ballot  or  by  acclamation,  nor  do  they  state  how  the 
votes  upon  the  appropriations  were  taken.  It  is  probable  that  the  respondent 
trustees  assumed  that  the  proceedings  of  the  annual  meeting  were  illegally  con- 
ducted and  concluded  that  they  had  the  right  to  call  another  meeting  to  elect 
district  officers  and  transact  the  business  of  the  annual  meeting.  It  has  been 
frequently  decided  upon  appeals  that  the  Commissioner  of  Education  is  vested 
with  the  exclusive  authority  to  determine  whether  the  officers  declared  elected 
at  an  annual  meeting  were  legally  elected  and  whether  the  proceedings  thereof 
were  legally  conducted.  The  officers  so  declared  elected  are  to  be  deemed  the 
officers  of  the  district  until  their  election  is  set  aside  on  an  appeal  duly  brought 
as  provided  in  the  law  and  rules  of  practice  relating  to  appeals.  Until  such 
time  the  official  acts  of  such  officers  are  valid  and  binding  upon  the  district. 
The  appropriations  alleged  to  have  been  made  at  an  annual  meeting  are  deemed 
legally  made  unless  it  is  decided  on  an  appeal  that  they  were  unlawfully  voted. 

It  must  therefore  be  held  in  this  case  that  the  officers  elected  at  the  annual 
meeting  are  the  officers  of  this   district,  and  that  the  appropriations  made  at 


304  THE   UNIVERSITY    OF   THE   STATE   OF   NEW   YORK 

such  meeting  are  legal  and  binding  upon  the  district.  The  special  meeting  held 
in  such  district  August  28,  1909,  was  illegal  and  the  acts  and  proceedings  thereof 
were  of  no  effect. 

The  appeal  is  sustained. 

It  is  hereby  ordered,  That  the  special  meeting  held  in  district  no.  6,  town 
of  ]\Iarathon,  county  of  Cortland,  on  August  28,  1909  be,  and  the  same  is  hereby 
declared  to  be,  illegal,  and  all  the  proceedings  thereof  are  hereby  set  aside  and 
declared  of  no  effect;  and 

It  is  hereby  further  ordered,  That  \\'illiam  Davidson  be  one  of  the  three 
trustees  of  such  district,  and  that  other  officers  of  such  district  elected  at  the 
annual  meeting  be  the  officers  of  such  district,  to  the  exclusion  of  those  persons 
declared  elected  as  such  officers  at  the  special  meeting  held  August  28,  1909. 


5434 

In  the  matter  of  the  appeal  of  Alwin  E.  Powell  and  \\'illiam  C.  Elmendorf 
from  the  proceedings  of  special  meeting  in  school  district  no.  3,  Hurley, 
Ulster  county 

Appropriations  for  legal  expenses.  Appropriations  to  paj-  the  expenses  of  an  action 
which  may  be  brought  against  a  district  and  to  provide  for  the  expenses  of  the 
trustee  in  taking  a  trip  to  Albany  to  look  after  the  welfare  of  the  district,  are  not 
authorized  where  it  is  apparent  that  no  action  on  appeal  has  been  brought  by  or  against 
the  district.  Subdivision  15,  section  96  of  the  Education  Law  of  1909  does  not  authorize 
a  resolution  voting  a  tax  to  pay  expenses  which  may  be  incurred  in  defending  a  suit 
or  appeal  which  has  not  yet  been  commenced. 

Decided   February   14,    1910 

Alilton  O.  Auchmoody,  attorney  for  appellants 
Charles  F.  Prescott,  attorney   for  respondent 

Draper,  Commissioner 

The  appellants  appeal  from  the  proceedings  of  a  special  meeting  held  in 
district  no.  3.  town  of  Hurley,  county  of  Ulster,  on  the  17th  day  of  September 
1909,  and  from  the  tax  list  and  warrant  issued  by  the  trustee  of  said  district^ 
based  upon  certain  resolutions  adopted  at  such  meeting.  It  is  insisted  by  the 
appellants  that  the  meeting  was  illegally  held,  since  the  notices  calling  such 
meeting  were  not  served  as  required  by  law.  The  respondent  trustee  admits 
that  the  notices  of  the  meeting  were  not  served  on  the  appellants,  but  states 
that  they  were  posted  in  three  conspicuous  places  in  the  district  ten  days  before 
the  meeting  was  held.  This  is  not  sufficient  to  constitute  legal  notice  of  the 
meeting,  unless  a  resolution  had  been  adopted  at  some  annual  meeting  prescribing 
that  such  method  of  giving  notice  of  a  special  meeting  should  be  followed.  It 
does  not  appear  from  the  papers  in  the  case  whether  or  not  such  a  resolution 
had  been  adopted.  It  is  not  necessary  to  determine  the  question  of  the  suffi- 
ciency of  the  notice  in  rendering  a  decision  on  this  appeal. 

The  minutes  of  the  meeting  show  that  three  resolutions  were  adopted,  all 
of  which  are  attacked  by  the  appellants.     The  first  resolution  appropriated  Sioa 


JUDICIAL    DECISIONS  :      MEETINGS  305 

to  be  "  raised  by  taxes  to  defend  any  action  which  may  come  against  said 
district."  The  second  resolution  directed  a  ]\Ir  Bundy  to  employ  a  lawyer  to 
defend  the  district  at  a  cost  not  to  exceed  $15.  The  third  resolution  directed 
the  trustee,  Charles  Prescott  "  to  go  to  Albany  to  look  after  the  welfare  of  said 
district  no.  3  and  that  he  may  take  with  him  w'hom  he  may  deem  necessary  and 
that  said  district  shall  pay  his  and  their  expenses."  It  is  apparent  that  the 
appropriation  of  $100  was  to  cover  all  the  expenses  incurred  under  these  reso- 
lutions including  the  expenses  of  the  proposed  trip  to  Albany.  It  was  apparently 
contemplated  that  an  action  or  appeal  might  be  brought  by  or  against  the  district 
wdiich  would  make  it  advisable  for  the  trustee  to  go  to  Albany  in  behalf  of  the 
district.  At  the  time  the  appropriation  was  made  no  action  or  appeal  was  pend- 
ing either  against  the  district  or  any  of  its  ofificers.  There  is  nothing  in  the  peti- 
tion or  answer  which  shows  the  purpose  of  the  proposed  trip  to  Albany,  or  how 
the  interests  of  the  district  were  to  be  thereby  promoted. 

Subdivision  15  of  section  96  of  the  Education  Law  authorizes  a  district 
meeting  to  vote  a  tax  '"  to  pay  the  reasonable  expenses  incurred  by  district 
officers  in  defending  suits  or  appeals  brought  against  them  for  their  official 
acts,  or  in  prosecuting  suits  or  appeals  by  direction  of  the  district  against  other 
parties."  This  provision  does  not  authorize  a  resolution  voting  a  tax  to  pay 
expenses  which  may  be  incurred  in  prosecuting  or  defending  a  suit  or  appeal 
w^hich  has  not  yet  been  commenced.  There  is  no  other  provision  of  the  Edu- 
cation Law  which  authorizes  a  tax  to  pay  expenses  to  be  incurred  in  a  threat- 
ened suit  or  appeal  by  or  against  the  district  or  its  officers.  It  must  therefore 
be  held  that  the  resolution  voting  a  tax  of  $100  "  to  defend  any  action  which 
may  come  against  said  district  "  was  illegal.  The  tax  list  and  warrant  issued 
by  the  trustee  for  the  collection  of  such  tax  was  invalid,  and  the  taxes  collected 
thereunder  were  illegally  paid. 

The  appeal  herein  is  sustained. 


3765 
In  the  matter  of  the  appeal  of  James  Riley  v.  Evan  O.  Prichard,  trustee  of 
joint  school  district  no.  5,  towns  of  Deerfield,  Oneida  county,  and  Schuyler, 
Herkimer  county. 
A  trustee   in  a   school   district   in  which  the   schoolhouse  had  been   destroyed  by  fire,   and 
who  had  received  insurance  money  thereon  and  who  neglected  for  a  considerable  time 
to  respect  a  petition  of  the  inhabitants  requesting  the  calling  of  a  special  meeting  to 
act  upon  the  question   of   building  a  new   schoolhouse,   held   remiss   in  his   duty.     The 
district  clerk  directed  to  call  a  special  meeting  for  the  consideration  of  the  question 
above  referred  to. 
Decided  February  21,  1889 

Jones  &  Townsend,  attorneys  for  appellant 

Draper,  Superintendent 

This  appeal  is  taken  by  a  resident  taxpayer  of  joint  district  no.  5,  towns 
"o-f  Deerfield.  Oneida  county,  and  Schuyler,  Herkimer  county,  from  the  refusal 


300  THE   UNIVERSITY    OF   THE   STATZ   OF    NEW    YORK 

of  the  respondent,  a  trustee  of  said  district,  to  call  a  special  meeting  of  the 
inhabitants  upon  the  request  of  a  reasonable  number  of  electors,  for  the  purpose 
of  providing  for  the  rebuilding  of  a  schoolhouse  in  said  district,  which  was 
destroyed  by  fire  on  the  i8th  day  of  October  1888.  The  property  so  destroyed 
was  insured  for  the  sum  of  $200,  which  amount  was,  on  the  nth  day  of 
December  1888,  paid  over  by  the  insurance  company  to  the  said  trustee,  who  still 
retains  said  amount.  A  majority  of  the  taxpayers  in  said  district,  on  the  21st 
day  of  December  1888,  joined  in  a  petition  requesting  said  trustee  to  call  a 
special  meeting  as  above  stated. 

The  appeal  was  duly  served  upon  the  respondent  on  the  25th  day  of  Janu- 
ary 1889,  and  although  more  than  ten  days  have  elapsed,  no  answer  thereto  has 
been  received.  It  appears  from  the  pleadings  of  the  appellant  that  the  weather 
has  been  favorable  for  holding  a  district  meeting  and  for  proceeding  to  build  a 
schoolhouse,  and  the  only  obstacle  in  the  way  has  been  the  refusal  of  the  trustee 
to  respect  the  petition  of  the  voters. 

I  conclude,  therefore,  to  sustain  the  appeal,  and  hereby  order  and  direct 
the  district  clerk,  Mr  Milton  Dainard,  upon  receipt  of  a  copy  of  this  order, 
to  give  notice  for  a  special  meeting  of  the  district  to  consider  the  questions 
proposed  in  the  petition  above  referred  to. 


5147 

In   the   matter   of    the   appeal   of    Philip    Best,    Crawford   Rockefeller,   ArLliur 
Rockefeller  and  Edward  Rockefeller  jr,  qualified  voters  in  school  district  no. 
5,  town  of  Germantown,  Columbia  county,  N.  Y.,  from  the  proceedings  of 
a  special  school  meeting  alleged  to  have  been  held  in  said  district. 
The   failure  to  hold  a  district  meeting   or   to   properly   adjourn   it  terminated   the   meeting 
and  had  the  same  force  and  effect  upon  the  meeting  as  an  adjournment  without  date 
would  have. 
Decided  October  25,  1904 

Draper,   Commissioner 

The  object  of  this  appeal  is  to  set  aside  the  action  of  a  special  meeting  of 
the  district  held  September  7,  1904.  in  school  district  no.  5,  town  of  Germantown, 
Columbia  county,  on  the  ground  that  notice  of  such  meeting  was  not  given  in 
accordance  with  the  provisions  of  the  Consolidated  School  Law.  The  parties 
to  this  appeal  are  agreed  upon  the  essential  facts  relating  to  this  point.  It  is, 
therefore,  unnecessary  to  enter  into  a  discussion  of  the  other  questions  involved. 

The  trustee  of  this  district  called  a  special  meeting  to  be  held  on  August  27, 
1904.  for  the  purpose  of  raising  the  sum  of  $500  for  repairs  to  the  schoolhouse. 
It  is  claimed  by  the  appellants  that  several  legal  voters  of  the  district  did  not 
receive  notice  of  the  meeting  and  that  the  notices  which  were  given  were  not 
given  in  the  form  and  by  the  method  prescribed  in  sections  2  and  6  of  title  7 
of  the  Consolidated  School  Law.  The  technicalities  raised  on  this  question 
are  not  sufficient  in  themselves  to  cause  this  Department  to  hold  that  the  meet- 
ing was  not  legally  called.    The  meeting  was  held  on  August  27lh,  but  regularly 


JUDICIAL    DECISIONS  :     MEETINGS  307 

adjourned  until  Saturday  evening,  September  3,  1904.  The  appellants  show, 
and  it  is  admitted  by  the  respondents,  that  Saturday  evening,  September  3, 
1904,  was  a  stormy  evening  and  no  meeting  was  held.  None  of  the  officers 
of  the  meeting  or  district,  or  any  of  the  qualified  voters  of  the  district  appeared 
at  such  meeting.  The  schoolhouse  was  not  even  opened.  The  failure  to  hold 
such  meeting  or  to  properly  adjourn  it  terminated  the  meeting  and  had  the 
same  force  and  efifect  upon  the  meeting  as  an  adjournment  without  date  would 
have  had.  It  was  not  proper,  or  lawful  to  convene  such  meeting  again  under 
the  original  call  for  the  meeting  of  August  27th.  The  only  way  by  which  a 
meeting  could  have  been  held  after  September  3,  1904,  was  by  the  trustee  issu- 
ing another  call  for  such  meeting  and  causing  due  notice  of  the  same  to  be 
served  on  all  the  legal  voters  of  the  district  in  accordance  with  the  provisions 
of  sections  2  and  6  of  title  7  of  the  Consolidated  School  Law.  The  action  of  the 
trustee  in  telling  the  voters  of  the  district  whom  he  met  that  a  special  meeting 
would  be  held  on  September  7,  1904,  and  directing  others  to  spread  such  informa- 
tion throughout  the  district  was  not  a  proper  or  legal  method  of  convening 
the  voters  of  the  district  in  a  special  meeting. 

The  desire  of  the  district  to  maintain  suitable  school  buildings  and  to  make 
proper  repairs  is  commendable.  Meetings  for  commendable  purposes  must, 
however,  be  called  and  held  as  the  law  directs.  It  will  be  necessary  to  issue  a 
new  call. 

Decision.  The  meeting  of  September  7,  1904,  in  district  no.  5,  town  of 
Germantown,  Columbia  county,  was  not  a  legal  meeting  of  the  district,  and  all 
business  transacted  at  such  meeting  was  irregular  and  without  legal  effect. 

The  appeal  herein  is  sustained. 


5300 

In  the  matter  of  the  petition  of  voters  of  school  district  no.  4,  town  of  Windsor, 
for  the  removal  of  Bert  E.  Brown  as  trustee  of  said  district. 

Notice  of  an  adjourned  annual  meeting  is  not  required  when  such  meeting  is  adjourned 
for  less  than  thirty  days. 

An  adjourned  annual  meeting  may  transact  any  business  which  might  legally  be  trans- 
acted at  an  annual  meeting. 

The  practice  of  a  trustee  in  drawing  district  funds  from  the  collector  and  holding  the  same 
for  the  purchase  of  incidentals  as  needed  is  not  founded  upon  any  legal  right  or  upon 
proper  business  methods.  The  procedure  contemplated  is  that  such  purchases  shall 
be  paid  by  order  of  the  trustee  upon  the  collector  of  the  district. 

A  trustee  will  not  be  removed  for  pursuing  the  established  custom  in  vogue  in  the  district 
for  several  years,  even  if  such  custom  is  contrary  to  the  statutes,  when  the  act  does 
not  proceed  from  a  wilful  intent  and  no  wrong  or  injustice  is  perpetrated. 

Decided  January  3,  1907 

H.  S.  Williams,  attorney  for  petitioners 
U.  C.  Lyons,  attorney  for  respondent 

Draper,  Commissioner 

The  petitioners  herein  allege  that  the  respondent  was  not  legally  elected 
';to  the  office  of  trustee.    They  also  allege  that  he  drew  orders  upon  the  collector 


3o8  THE   UXIVERSITY   OF   THE   STATE   OF   NEW   YORK 

payable  to  himself  to  the  amount  of  $25  and  that  he  did  not  use  such  money 
for  the  purposes  for  which  it  was  collected.  It  is  further  alleged  that  he  did 
not  require  the  collector  to  give  a  bond  before  putting  the  tax  list  in  his  hands. 

It  was  stormy  on  the  evening  on  which  the  annual  meeting  occurred  and 
the  trustee  and  one  other  resident  of  the  district  were  the  only  persons  present. 
The  annual  meeting  was  adjourned  for  one  week.  The  respondents  claim  that 
the  notices  of  such  adjourned  meeting  were  posted  in  conspicuous  places  in 
the  district.  One  of  these  was  at  the  creamery  where  many  of  the  residents  of 
the  district  drove  daily  with  milk.  Personal  notice  was  given  many  residents 
of  the  district  and  many  were  notified  by  telephone.  The  adjournment  of  such 
meeting  was  talked  over  by  the  residents  of  the  district  as  they  met  during  the 
week  and  appears  to  have  been  generally  known.  The  meeting  was  adjourned 
for  only  one  week  and  the  law  does  not  require  notice  to  be  given  of  a  meeting 
adjourned  for  a  period  less  than  thirty  days.  It  is  claimed  by  petitioners  that 
such  meeting  was  a  special  meeting  and  that  legal  notice  thereof  was  not  given. 
The  clerk  entered  upon  the  records  that  it  was  an  adjourned  annual  meeting  and 
it  appears  that  the  meeting  was  generally  regarded  as  an  adjourned  annual 
meeting.  The  trustee  made  his  report;  officers  were  elected  for  the  ensuing 
A-ear  and  the  other  business  of  an  annual  meeting  transacted.  No  objection 
was  raised  by  anybody.  The  proceedings  appear  to  have  been  regular.  No 
objection  has  been  raised  since  the  election  until  now — four  months  after  the 
meeting  occurred  and  after  the  trustee  had  acted  for  that  period  of  time.  If 
there  had  been  irregularities  in  such  election  a  proceeding  to  set  it  aside  should 
have  been  instituted  within  thirty  days  from  the  date  on  which  it  occurred. 
Some  of  the  petitioners  were  also  present  at  the  meeting  and  participated  in 
the  election.  Under  all  conditions  such  persons  are  barred  from  raising  objec- 
tion now.  The  meeting  must  therefore  be  regarded  as  having  been  legally  held 
and  respondent  as  having  been  legally  chosen  trustee. 

On  September  17th.  respondent  issued  a  tax  list  for  $191.85.  This  tax 
was  raised  for  the  following  purposes:  teachers'  wages  $160,  fuel  $16.50,  to 
pay  balance  due  teacher  of  last  year  $9,  other  expenses  $6.33.  The  respondent 
should  have  required  the  collector  to  give  bond  in  double  the  amount  to  be  col- 
lected with  acceptable  sureties  before  placing  the  tax  list  and  warrant  in  his 
hands  for  collection.  He  failed  to  do  this.  He  alleges  that  he  did  not  require 
such  bond  because  it  had  not  been  the  custom  of  former  trustees  to  require  it 
and  states  that  he  previously  served  as  collector  in  the  district  and  did  not  give 
bonds.  The  right  of  a  collector  to  proceed  with  the  collection  of  taxes  without 
giving  bond  was  questioned  by  certain  residents  of  the  district.  The  respondent 
thereupon  directed  the  collector  to  give  bonds  as  the  law  provides.  The  collector 
refused  to  give  such  bonds.  Thereupon  the  trustee  very  properly  declared  the 
office  of  collector  vacant  and  filled  such  vacancy  by  appointment.  Under  the 
law  he  had  full  authority  and  under  the  circumstances  it  was  his  duty  to  take 
such  action.  The  new  collector  gave  a  bond  and  the  retiring  collector  turned 
over  to  him  the  funds  of  the  district  which  were  in  his  possession.  The  con- 
duct of  respondent  in  this  whole  proceeding  appears  to  have  been  that  of  an 


JUDICIAL  decisions:    meetings  309 

honest  man  and  an  official  who  wanted  to  do  right,  and  to  conform  to  the  law 
according  to  his  best  understanding  of  it. 

Respondent  acknowledges  that  he  drew  an  order  of  $5  on  the  collector, 
payable  to  himself.  He  states  that  it  has  been  the  practice  of  trustees  in  pre- 
vious years,  as  a  matter  of  convenience,  to  draw  such  a  sum  as  was  necessary  to 
purchase  small  supplies  from  time  to  time  and  to  make  a  detailed  report  of  such 
expenditures  to  the  annual  meeting.  This  is  not  denied  by  petitioners.  The 
sum  of  $6.33  was  raised  by  the  trustee  for  the  purchase  of  such  supplies.  The 
practice  of  the  trustee  drawing  district  funds  from  the  collector  and  holding 
them  for  purchase  of  incidentals  as  needed  is  not  founded  upon  any  legal  right 
or  upon  proper  business  methods.  Where  the  amount  is  small  such  method  will 
undoubtedly  serve  as  a  convenience,  but  the  plan  may  lead  to  abuses  and  mis- 
understandings. A  trustee  should  therefore  adhere  to  the  procedure  contem- 
plated by  the  law  and  when  such  purchases  are  made,  pay  for  them  by  order 
upon  the  collector  of  the  district.  In  this  particular  case  respondent  should  pay 
to  the  collector  of  the  district  any  unexpended  portion  of  the  $5  in  question  and 
should  make  an  accounting  to  the  annual  meeting  of  the  portion  which  he  has 
expended,  submitting  vouchers  therefor. 

Respondent  also  admits  that  he  drew  an  order  upon  the  collector  for  $20 
payable  to  himself.  He  claims  that  this  money  was  drawn  for  the  purchase  of 
blackboards,  repairs  to  windows,  etc.,  but  that  the  school  commissioner  had 
made  an  order  relative  to  the  size  of  the  blackboard  which  had  caused  a  delay 
in  placing  it  in  the  school  and  that  he  has  paid  the  $20  to  the  present  collector 
of  the  district.  The  trustee  should  purchase  the  blackboard  and  pay  for  the 
same  by  order  upon  the  collector.  It  involves  more  labor  but  it  is  the  usual 
and  proper  method  in  dealing  with  public  funds. 

The  procedure  of  respondent  may  have  been  somewhat  irregular  but  not 
altogether  unusual.  It  is  not  shown  that  there  was  any  intentional  act  com- 
mitted with  a  wrongful  purpose.  The  petitioners  simply  claim  that  the  method 
pursued  by  the  trustee,  although  it  appears  to  be  the  usual  one  for  this  district,  is 
unauthorized.  They  do  not  allege  a  wilful  intent  on  the  part  of  the  petitioner 
to  wrong  the  district  or  improperly  expend  its  funds.  Pursuing  the  established 
custom  in  vogue  in  the  district  for  several  years,  even  if  such  custom  is  unau- 
thorized is  not  in  itself  sufficient  ground  for  removal.  There  must  be  some 
wrong  or  injustice  done  or  some  wilful  act  to  warrant  such  action.  None  is 
shown  in  this  case  and  on  the  moving  papers  this  proceeding  should  be  dis- 
missed. 

It  is  charged  that  respondent  has  contracted  to  supply  wood  to  the  district. 
He  had  a  right  to  make  such  contract.  He  did  not  as  trustee  purchase  from 
himself  wood  for  the  district.  The  district  at  the  annual  meeting  usually  lets 
a  contract  for  wood  to  the  lowest  bidder.  It  pursued  the  same  course  this 
year.  Respondent  was  the  lowest  bidder  and  the  annual  meeting  awarded  him 
the  contract. 

It  appears   that   this   proceeding   is   instigated   as    the   result   of   a   district 
^quarrel  over  repairing  the  schoolhouse.    The  school  commissioner  has  endeavored 


3  JO  THE   UXIVERSITY    OF   THE   STATE   OF   NEW   YORK 

to  get  this  district  to  make  proper  repairs  to  its  buildings.  The  annual  meeting 
took  no  action.  A  special  meeting  was  held  thereafter  and  certain  repairs 
authorized,  which  in  the  judgment  of  the  school  commissioner  were  insufficient. 
The  matter  was  reported  officially  to  this  Department.  School  Commissioner 
Hurlburt  came  to  the  Department  and  agreed  with  the  Third  Assistant  Com- 
missioner upon  the  repairs  which  should  be  made.  The  school  commissioner 
made  an  order  accordingly  on  the  3d  day  of  November  and  directed  certain 
repairs  at  an  expense  not  to  exceed  $200.  It  then  became  the  duty  of  the  trustee 
to  make  such  repairs  irrespective  of  any  action  taken  at  the  special  meeting  of 
the  district.  The  trustee  did  undertake  to  make  such  repairs.  Certain  residents 
of  the  district  were  opposed  to  the  repairs  which  the  commissioner  ordered.  It 
appears  that  some  of  the  petitioners  in  this  proceeding  called  at  the  schoolhouse 
and  insisted  that  respondent  should  stop  work  on  such  repairs  and  make  those 
only  which  the  district  had  authorized.  They  claimed  so  many  irregularities 
in  the  procedure  that  the  trustee  ceased  work  to  ascertain  definitely  what  his 
duty  in  the  matter  was.  It  also  appears  that  thereafter  certain  residents  of  the 
district  entered  the  schoolhouse  and  made,  so  far  as  possible,  the  repairs  voted 
at  the  special  meeting.  The  school  commissioner  had  requested  this  Department 
to  send  an  inspector  to  examine  the  building  and  it  appears  to  have  been  the 
desire  of  those  opposed  to  the  repairs  ordered  by  the  commissioner  to  make  the 
repairs  voted  by  the  special  meeting  before  an  inspector  from  the  Department 
arrived. 

Without  further  delay  the  trustee  should  proceed  to  make  such  repairs  as 
the  order  of  the  school  commissioner,  made  on  the  3d  day  of  November  last, 
directed.  He  may  utilize  so  far  as  possible  any  material  supplied  by  residents 
of  the  district  and  any  repairs  which  have  already  been  made.  He  may  not  only 
expend  the  $200  directed  in  the  order  of  the  school  commissioner  but  he  may 
on  his  own  motion  expend  an  additional  sum  of  $50  if  necessary.  The  school 
commissioner  is  hereby  directed  to  report  to  this  Department  within  the  next 
thirty  days  the  progress  being  made  in  such  repairs. 

If  the  school  commissioner  has  made  an  improper  order  and  petitioners 
are  aggrieved  the  law  afifords  them  adequate  remedy  for  relief. 

The  petition  herein  is  dismissed. 


5287 
Roland  W.  Pattee  and  others  from  an  assessment  levied  by  school  district  no. 

10,  town  of  Greece,  county  of  ]\Ionroe. 
In  certain  instances  the  judgment  of  the  voters  of  a  district  as  to  the  necessity  of  erecting 

an  iron  fence  around  the  school  ground  is  conclusive. 
Decided  October  22,  1906 

Draper,  Commissioner 

The  annual  meeting  of  school  district  no.  10,  town  of  Greece,  county  of 
Monroe,  held  August  7,  1906,  voted  an  appropriation  of  $1000  for  the  erection 
of  an  iron  fence  around  the  school  grounds.     An  appeal  from  such  action  was 


JUDICIAL  decisions:    meetings  311 

filed  at  this  Department  September  29,  1906,  and  a  petition  for  a  restraining 
order  filed  with  such  appeal.  The  order  was  granted  October  loth.  The  answer 
made  by  the  trustee  of  the  district  shows  that  William  Patterson,  one  of  the 
appellants,  was  at  the  annual  meeting  and  voted  in  favor  of  the  appropriation. 
This  being  the  case,  Mr  Patterson  is  estopped  from  raising  an  objection. 
Respondent  also  claims  that  the  appeal  is  brought  too  late  as  the  action  com- 
plained of  took  place  at  the  annual  meeting  held  August  7,  1906,  and  that  the 
appeal  was  not  brought  until  September  29th,  or  more  than  thirty  days  after 
the  appropriation  was  voted.  The  answer  also  shows  that  the  annual  meeting 
appointed  a  committee  of  three  taxpayers  to  let  the  contract  to  the  lowest  bidder 
and  that  such  contract  was  let  on  August  22d  for  the  sum  of  $685.49  or  more 
than  $300  less  than  voted.  It  also  appears  that  the  fence  is  nearly  completed 
and  that  the  district  through  its  action  has  created  a  district  liability. 

The  district  is  a  wealthy  one  having  an  assessed  valuation  of  more  than 
$378,000.  It  also  appears  that  large  corporate  interests  are  heavily  assessed 
in  this  district  and  that  the  expenditure  for  this  purpose  will  not  result  in  a 
burdensome  tax  upon  the  individual  taxpayers  of  the  district.  It  also  appears 
that  the  schoolhouse  is  located  on  Charlotte  boulevard,  the  most  prominent  thor- 
oughfare out  of  Rochester  and  leading  direct  to  Lake  Ontario.  For  this  reason 
it  is  claimed  that  the  children  are  exposed  to  the  dangers  of  automobiles,  electric 
cars  and  all  kinds  of  moving  vehicles.  Under  all  the  conditions  I  think  the 
question  was  one  on  which  the  judgment  of  the  voters  of  the  annual  meeting 
should  be  conclusive.  It  also  appears  that  the  vote  in  favor  of  erecting  such 
fence  was  almost  unanimous.  I  must  therefore  hold  that  sufficient  irre^rularities 
do  not  exist  to  warrant  my  interference  and  that  it  was  clearly  within  the  dis- 
cretion of  the  meeting  to  make  the  appropriation  authorized. 

The  appeal  herein  is  sustained. 

It  is  ordered.  That  the  restraining  orders  made  by  me  on  the  loth  day  of 
October  in  this  proceeding  be.  and  the  same  hereby  are,  vacated. 


5190 

In  the  matter  of  the  appeal  of  David  H.  Allen  from  the  proceedings  of  a  special 
school  meeting  held  in  school  district  no.  12,  town  of  Yates,  Orleans  county, 
on  April  6,  1905. 
That  a  majority  of  the  voters  of  a  district  are  willing  to  assume  an  improper  and  illegal 
claim   against   the    district   does   not   confer   the   power   or   right   to   do   so.     A   small 
minority   might  be   unwilling  to   assume   such   illegal   and   improper   claims   and   in   the 
administration  of  school  affairs  and  the  interpretation  of  school  laws  a  minority  must 
be  given  full  protection. 
Decided  July  10,  1905 

Ryan  &  Skinner,  attorneys  for  appellants 
Edward  Posson,  attorney  for  respondent 

Draper,  Commissioner 

This  appeal  grows  out  of  a  controversy  in  this  district  which  originated  at 
the  annual  meeting  in  1903,  and  a  special  meeting  held  August  11,  1903.     Charles 


312  THE   UXIVERSITY    OF   THE   STATE   OF   NEW   YORK 

Houseman  was  elected  trustee  at  the  annual  meeting  in  August  1903.  It  was 
alleged  that  he  refused  to  serve  and  that  he  publicly  declared  he  would  not  serve. 
At  a  special  meeting  held  August  11,  1903,  RoUin  T.  Bayne  was  elected  trustee. 
Each  of  these  men  claimed  to  be  the  legally  chosen  trustee  of  the  district.  The 
said  Bayne  and  one  Morrison  brought  an  appeal  to  this  Department  for  the 
purpose  of  establishing  Bayne's  title  to  the  office  of  trustee.  The  State  Superin- 
tendent of  Public  Instruction  dismissed  the  appeal  and  decided  Houseman  to  be 
the  trustee  of  the  district. 

Bayne  and  Morrison  employed  Harry  Cooper  as  attorney  to  prepare  the 
papers  in  such  appeal.  At  the  annual  meeting  in  1904  Bayne  was  elected  trustee. 
He  directed  a  special  meeting  of  the  district  to  be  called  for  September  6,  1904, 
to  authorize  the  payment  of  a  claim  of  $30  presented  by  Cooper  for  services 
in  the  appeal  brought  by  Bayne  and  Morrison.  Such  special  meeting 
directed  the  payment  of  Cooper's  bill  for  these  services.  Charles  Houseman  and 
David  H.  Allen  appealed  from  the  action  of  the  special  meeting  in  auditing  the 
claims  of  Harry  Cooper  and  of  the  annual  meeting  in  auditing  certain  other 
claims  against  the  district.  Edward  Posson.  an  attorney,  was  em.ploved  by 
Trustee  Bayne  in  defending  such  appeal.  In  decision  no.  5163,  rendered  January 
10,  1905,  this  Department  held  as  follows:  "The  appeal  of  Bayne  and  Morrison 
in  1903  was  not  authorized  by  the  district.  It  was  not  brought  to  subserve  or 
protect  any  interest  or  right  of  the  district.  It  was  brought  through  the  influence 
of  Bayne  to  establish  his  title  to  the  office  of  trustee.  The  decision  shows  him 
to  have  been  in  error.  There  are  no  legal  grounds  or  principles  of  equity  upon 
which  Bayne  and  IJorrison  can  properly  ask  the  district  to  pay  the  expenses  of 
an  appeal  brought  to  gratify  their  personal  desires.  Such  expenses  are  not  a 
legal  charge  against  the  district  and  the  district  meeting  could  not  legally  vote 
to  pay  such  expenses." 

This  Department  also  issued  an  order  restraining  Trustee  Bayne  or  his 
successors  in  office  from  paying  to  Cooper  or  any  other  person  the  $30  claimed 
for  services  or  any  portion  thereof. 

Bayne  called  a  special  meeting  of  the  district  April  6,  1905,  and  that  meeting 
authorized  the  payment  of  a  bill  of  $55  to  Edward  Posson  for  professional 
serA'ices  in  defending  the  appeal  of  Houseman  and  Allen  from  the  action  of  the 
district  meeting  in  auditing  the  Cooper  claim.  As  shown  above,  this  Department 
held  that  the  Cooper  claim  was  not  a  district  liability.  If  the  claim  of  Cooper 
for  his  sersdces  to  Ba3me  and  Morrison  was  not  a  district  obligation  the  claim 
of  $55  in  question,  presented  by  Posson  for  services  in  an  attempt  to  compel 
the  district  to  pay  an  unjust  claim  is  certainly  not  chargeable  to  the  district.  The 
special  meeting  of  April  6,  1905  in  authorizing  the  payment  of  $55  to  Edward 
Posson  for  professional  services  in  defending  the  appeal  brought  by  Houseman 
and  Allen  exceeded  its  authority.  The  following  principle  laid  down  in  deciding 
that  appeal  applies  to  the  appeal  under  consideration:  "That  a  majority  of  the 
voters  of  the  district  were  willing  to  assume  such  expense  does  not  confer  the 
power  to  do  so.    A  small  minority  might  be  unwilling  to  assume  such  illegal  and 


JUDICIAL  decisions:    meetings  313 

improper  charges  and  in  the  administration  of  school  affairs  and  the  interpre- 
tation of  school  laws  a  minority  must  be  given  full  protection." 

It  is  claimed  by  respondents  that  questions  other  than  the  Cooper  claim  were 
involved  in  the  appeal  of  Houseman  and  Allen.  This  is  true.  However,  the 
principal  question  involved  in  that  appeal  was  the  Cooper  claim.  It  may  well 
be  doubted  whether  such  appeal  would  have  been  brought  had  it  not  been  for  the 
action  of  the  district  meeting  in  authorizing  the  payment  of  Cooper's  bill. 

The  appellant  herein  alleges  that  Posson's  bill  of  $55  is  excessive  for  the 
services  rendered.  He  also  alleges  that  an  understanding  has  been  reached  by 
which  Cooper's  claim  of  $30  is  to  be  paid  out  of  the  $55  provided  it  is  paid  to 
Posson.  The  proof  on  this  point  is  not  conclusive  but  is  sufficient  to  lead  to  the 
belief  that  such  is  the  case.  However,  this  is  unimportant  as  the  services  of 
Posson  were  not  to  protect  or  defend  the  interests  of  the  district  and  not  charge- 
al)le  thereto. 

The  appeal  herein  is  sustained. 

It  is  ordered,  That  RoUin  T.  Bayne,  the  trustee  of  district  no.  12,  town  of 
Yates,  Orleans  county,  and  his  successor  or  successors  in  office,  be,  and  they  are, 
hereby  enjoined  and  restrained  from  paying  to  Edward  Posson  or  any  other 
person  from  the  funds  of  said  district  no.  12,  town  of  Yates,  the  sum  of  $55  or 
any  portion  tliereof,  for  legal  services  rendered  by  the  said  Edward  Posson  in 
the  appeal  of  Charles  Houseman  and  David  H.  Allen  from  the  proceedings  of 
the  annual  school  meeting  held  on  August  2,  1904.  and  a  special  meeting  held 
September  6,  1904,  in  said  school  district,  and  decided  by  this  Department 
January  10,  1905;  that  if  said  Rollin  T.  Bayne  had  already  paid  the  said  $55 
or  any  portion  thereof  to  the  said  Edward  Posson  or  to  any  other  person,  he 
shall  refund  the  same  to  district  no.  12,  town  of  Yates,  Orleans  county,  on  or 
before  July  20,  1905. 

It  is  also  ordered,  That  the  said  school  district  no.  12,  town  of  Yates, 
Orleans  county,  be,  and  it  hereby  is,  enjoined  and  restrained  from  authorizing 
the  payment  of  any  amount  whatever,  or  raising  any  tax  therefor,  to  Edward 
Posson  or  any  other  person  for  the  services  rendered  by  said  Posson  in  defend- 
ing this  appeal. 


3304 

Reimbursing  the  collector's  bondsmen  for  money  lost  by  the  collector 
The  district  can  not  vote  a  tax  to  reimburse  the  bondsmen  of  a  collector  for  moneys  lost 

by  the  collector  and  paid  by  them. 
Decided  January  16,  1884 

Ruggles,  Superintendent 

At  the  annual  meeting  in  October  1882,  Robert  J.  Martin  was  elected  col- 
lector of  the  district,  and  he  duly  qualified  by  giving  his  bond  with  F.  J.  Heath 
and  George  D.  Bement  as  sureties.  The  collector  thereafter  collected  certain 
jmoneys  upon  a  tax  list  and  warrant  duly  placed  in  his  hands,  which  moneys  were 


314  THE   UNIVERSITY    OF   THE   STATE   OF    NEW    YORK 

deposited  by  the  collector  with  F.  J.  Heath,  one  of  his  bondsmen.  Eight  hundred 
and  seventy-five  dollars  of  this  money  was  deposited  by  the  said  Heath  in  the 
bank  of  William  C.  Moore  in  the  village  of  Victor,  and  in  the  name  of  Heath. 
On  the  25th  of  November,  $165  of  this  money  was  withdrawn  from  the  bank 
to  pay  an  order  in  favor  of  R.  A.  Kneeland.  On  or  about  the  i8th  of  December 
1882,  the  bank  suspended  payment,  and  the  said  Moore  made  a  general  assign- 
ment for  the  benefit  of  his  creditors,  and  his  assets  are  now  in  the  hands  of  his 
assignee  unsettled.  Since  the  failure  of  the  bank  whenever  the  collector  received 
orders  for  moneys  from  the  trustees,  he  brought  them  to  Messrs  Heath  and 
Bement,  his  bondsmen,  and  they  furnished  the  money  to  pay  them,  and  continued 
to  do  so  until  the  sum  of  $710  had  been  paid  by  them. 

The  annual  meeting  held  October  9,  1883,  adopted  the  following  resolution : 

kesolved,  That  the  trustees  of  school  district  no.  i,  raise  the  sum  of  $710 
in  addition  to  the  sum  already  voted  to  be  raised  for  the  ordinary  expenses; 
the  said  sum  of  $710  to  be  paid  to  George  D.  Bement  and  Frank  J.  Heath, 
bondsmen  for  Robert  J.  Martin,  collector  of  said  district,  to  reimburse  them  for 
money  lost  by  said  collector  by  the  failure  of  Moore's  bank,  in  the  village  of 
V^ictor,  December  19,  1882." 

The  trustees  issued  a  tax  list  with  the  amount  included. 

The  appeal  is  taken  from  the  action  of  the  meeting  adopting  the  resolution, 
and  asking  that  all  proceedings  thereunder  .be  restrained. 

It  does  not  appear  from  the  evidence  in  this  case  that  the  bondsmen  did 
anything  more  or  less  than  would  be  legally  required  of  them  by  their  bond, 
and  I  know  of  no  principle,  either  in  law  or  in  equity,  which  would  justify  a 
tax,  the  purpose  of  which  is  to  relieve  the  bondsmen  and  the  collector  from  the 
obligations  they  have  assumed. 

The  action  of  the  annual  meeting  is  set  aside,  and  the  issuing  of  a  tax  list 
and  warrant  for  the  $710  restrained. 


5192 

In  the  matter  of  the  appeal  of  L.  A.  Havens  and  C.  Southard  from  the  acts  and 
proceedings  of  a  special  school  meeting  of  the  inhabitants  of  school  district 
no.  12,  tovv'n  of  North  Hempstead,  Nassau  county,  held  on  the  27th  day  of 
March  1905. 

This  Department  will  not  interfere  with  the  action  of  a  district  meeting  where  such  action 
appears  to  have  been  legal  and  regular  and  when  good  cause  is  not  shown  to  demand 
such  action. 

Decided  July  15,  1905 

George  B.  Stoddard,  attorney  for  appellants 
John  Lyon,  attorney  for  respondents. 

Draper,  Commissioner 

A  special  meeting  of  district  no.  12,  North  Hempstead,  Nassau  county,  held 
on  the  27t-h  day  of  March  1905,  voted  an  appropriation  of  $8000  for  the  erection 


JUDICIAL  decisions:    meetings  315 

of  a  new  sclioolhouse  and  directed  the  trustees  to  issue  bonds  for  that  amount 
and  providing  that  the  last  instalment  of  such  bonds  shall  be  payable  in  1925. 

The  appellants  allege  several  irregularities  of  procedure.  They  allege  that 
the  vote  by  which  this  appropriation  was  made  and  authorizing  the  issuance  of 
bonds,  was  not  made  in  accordance  with  the  provisions  of  law  governing  the 
same.  Subdivision  18  of  section  14  of  title  7  of  the  Consolidated  School  Law 
provides  that  the  v^ote  on  all  propositions  at  school  district  meetings  involving 
an  expenditure  of  money  shall  be  by  ballot  or  by  taking  and  recording  the  ayes 
and  noes.  Section  18  of  title  7  provides  that  the  vote  on  a  proposition  to  raise 
by  instalments  appropriations  for  the  erection  of  a  school  building  shall  be  by 
taking  and  recording  the  ayes  and  noes.  The  certified  records  of  the  proceedings 
of  the  meeting  in  question  show  that  such  meeting  adopted  a  resolution  providing 
for  an  appropriation  of  S8000  to  be  raised  in  16  annual  instalments.  The  method 
by  which  the  vote  was  taken  was  as  follows:  Each  voter  came  to  the  desk  at 
which  the  clerk  and  chairman  were  seated  and  stated  that  he  voted  aye  or  no. 
The  clerk  entered  the  name  of  each  voter  as  he  came  to  the  desk  and  if  he  voted 
"  aye  "  the  figure  "  i  "  was  placed  opposite  his  name  and  in  a  column  having 
"  ayes  "  at  its.  head.  If  a  voter  voted  "  no  "  the  figure  "  i  "  was  placed  opposite 
his  name  and  in  a  column  having  "  noes  "  at  its  head.  After  all  persons  had 
voted  the  clerk  counted  the  several  marks  in  the  column  headed  "  aye "  and 
recorded  the  number  as  the  number  voting  "  aye."  The  clerk  entered  a  record 
in  the  same  manner  for  those  voting  "  no."  Appellants  object  to  this  method  of 
taking  the  ayes  and  noes.  Their  objection  is  not  valid.  The  records  clearly 
show  who  voted  and  how  each  voter  voted  on  the  resolution.  It  was  a  full  and 
complete  compliance  with  the  law. 

Appellants  also  claim  that  inspectors  or  tellers  were  not  appointed  and  that 
the  recording  of  the  names  of  those  voting  was  done  by  John  Lyon  who  was 
not  a  resident  of  the  district.  There  was  no  necessity  for  appointing  tellers  or 
inspectors.  The  vote  on  the  question  before  the  meeting  was  not  taken  by  ballot. 
The  vote  on  such  questions  was  taken  by  the  "  ayes  "  and  "  noes  "  and  the  clerk 
of  the  district  was  the  proper  person  to  keep  a  record  of  the  names  of  the 
voters  and  the  record  of  how  each  person  voted.  The  pleadings  show  that  the 
clerk  of  the  district  was  present  and  discharged*  his  duty  in  this  respect.  It 
appears  that  for  a  portion  of  the  time  while  the  voting  was  occurring  John  Lyon 
who  sat  at  the  side  of  the  clerk  entered  on  the  records  the  names  of  some  of 
the  voters.  The  clerk  had  a  lame  wrist  and  Mr.  Lyon  did  the  work  to  relieve 
said  clerk.  The  entering  which  he  did  was  under  the  immediate  direction  and 
supervision  of  the  district  clerk.  A  practice  of  this  kind  is  not  to  be  encouraged. 
If  the  clerk  was  physically  unable  to  perform  such  work  he  should  have  so 
stated  to  the  meeting  and  have  permitted  that  body  to  select  a  suitable  person 
to  assist  him.  It  was  not  proper  to  permit  ]\Ir  Lyon  to  do  such  work,  but  it  is 
not  an  irregularity  sufficient  to  set  aside  the  action  of  the  meeting  providing 
the  other  proceedings  were  regular. 

It  is  also  claimed  by  appellants  that  the  schoolhouse  is  not  centrally  located 
^nd  will  thus  operate  a  hardship  upon  a  portion  of  the  residents  of  the  district. 


3l6  THE   UXIVERSITY    OF   THE    STATE   OF    NEW    YORK 

The  schoolhouse  is  to  be  erected  on  the  old  site.  The  proof  offered  by  appellants 
on  this  point  is  not  sufficient.  The  respondents  contend  that  the  schoolhouse  is 
centrally  located  and  easily  accessible  from  all  parts  of  the  district. 

The  principal  object  of  this  appeal  appears  to  be  for  the  purpose  of  pre- 
venting a  bond  issue.  A  portion  of  this  district  desires  to  be  formed  into  a 
new  district  or  transferred  into  an  adjoining  district.  A  school  district  having 
an  outstandin.g  bonded  indebtedness  can  not  be  divided.  If  appellants  could 
prevent  a  bond  issue  those  favoring  a  division  of  the  present  district  would 
institute  proceedings  for  the  erection  of  a  new  district  or  to  be  transferred  to 
an  adjoining  district.  Vacating  the  action  of  the  meeting  in  question  would  not 
enable  appellants  to  accomplish  the  result  desired.  These  bonds  have  already 
been  sold  and  the  purchasers  of  such  bonds  have  an  interest  and  claim  which 
they  could  undoubtedly  enforce  in  the  courts.  If  valid  reasons  existed  for 
preventing  the  district  from  issuing  bonds  appellants  should  have  filed  a  petition 
for  an  order  restraining  the  trustees  of  the  district  from  issuing  such  bonds. 

A  petition  for  this  relief  was  not  filed. 

The  necessity  of  a  new  schoolhouse  is  not  denied.  The  proceedings  appealed 
from  appear  to  have  been  proper  and  legal  in  every  respect.  There  does  not 
appear  to  be  any  good  cause  which  demands  action  from  this  Department. 

The  appeal  herein  is  dismissed. 


5i38 

In  the  matter  of  the  appeal  of  certain  residents  of  union  free  school  district 
no.  I,  town  of  Hadley,  Saratoga  county,  and  town  of  Luzerne,  Warren 
county,  from  the  decision  of  a  meeting  of  the  electors  of  said  district  in 
selecting  a  schoolhouse  site. 

This  Department  has  uniformly  refused  to  interfere  with  the  action  of  a  district  meeting 
legally  and  regularly  taken  unless  it  is  clearly  shown  that  such  action  is  detrimental  to 
educational  interests  or  imposes  a  hardship  upon  a  resident  of  tlie  district  requiring 
relief  through  the  action  of  this  Department. 

Decided  June  13,  1905 

William  T.  Moore,  attorney  for  appellants 
Frank  Gick,  attorney  for  respondents 

Draper,  Coiniuissioncr 

At  a  special  meeting  of  union  free  school  district  no.  i,  towns  of  Hadley 
and  Luzerne,  regularly  held  on  the  26th  day  of  September  1904,  the  voters  of 
such  district  legally  designated  a  new  site  for  the  schoolhouse.  Such  site  is 
known  as  the  Riverv-iew  site. 

This  appeal  is  brought  for  the  purpose  of  setting  aside  the  action  of  tbe 
district  in  selecting  such   site.     Rule   5   of  the  Rules  of  Practice   Relating  to 


JUDICIAL    DECISIONS  I      MEETINGS  317 

Appeals  to  the  Conunissioner  of  Education  provides.  "  Such  original  appeal 
and  all  papers  etc.  annexed  thereto  with  proof  of  service  of  copies,  as  required 
by  rules  3  and  4,  must  be  sent  to  the  Education  Department  within  thirty  days 
after  the  making  of  the  decision  or  the  performance  of  the  act  complained  of 
or  within  that  time  after  the  knowledge  of  the  cause  of  complaint  came  to  the 
appellant,  or  some  satisfactory  excuse  must  be  rendered  in  the  appeal  for  the 
delay."  The  acts  herein  complained  of  occurred  nearly  nine  months  ago.  Appel- 
lants have  had  knowledge  of  such  acts  since  their  occurrence.  No  excuse  is 
given  for  failing  to  bring  this  appeal  within  the  time  prescribed  by  the  rule 
above  quoted.  This  itself  is  sufficient  ground  for  dismissing  the  appeal.  See 
decision  of  this  Department  rendered  March  3,  1905,  in  Henderson  v.  the  Board 
of  Education  of  New  York  City. 

The  grounds  on  which  appellants  ask  that  the  action  of  this  district  in 
selecting  the  site  in  question  be  set  aside  are  that  such  site  is  unsafe  for  school 
purposes  and  that  the  price  paid  is  exorbitant.  The  burden  of  proof  on  these 
questions  rests  upon  the  appellants.  They  must  sustain  affirmatively  their  allega- 
tions in  this  respect.  This  they  have  failed  to  do.  This  Department  has 
uniformly  refused  to  interfere  with  the  action  of  a  district  meeting  legally  and 
regularly  taken  unless  it  is  clearly  shown  that  such  action  is  detrimental  to 
educational  interests  or  imposes  a  hardship  upon  a  resident  of  the  district  requir- 
ing relief  through  the  action  of  this  Department.  These  conditions  are  not  shown 
to  exist  in  this  case. 

The  appeal  herein  is  dismissed. 


5208 

In  the  matter  of  the  appeal  of  William  Hulse  et  al.  from  the  action  of  the  annual 

meeting  of  school  district  no.  i,  town  of  Islip,  Suffolk  county,  in  the  election 

of  trustees   and   in   increasing  the   number   of  members   of   the   board   of 

education. 

An  annual  meeting  will  be  set  aside  when  the  proceedings  are  characterized  by  confusion 

and  irregularities. 
An  annual  meeting  of  a  union  free  school  district  whose  boundaries  do  not  coincide  with 
the  boundaries  of  an  incorporated  village  or  city  can  not   change  the  number   of   its 
trustees  unless   the  notice  of  such   meeting  states   that  the  proposition   to   change   the 
number  of  trustees  will  be  voted  upon  at  such  meeting. 
Decided  October  24,  1905 

W.  H.  Robbins,  attorney  for  appellants 
Ackerley  &  Miles,  attorneys  for  respondent 

Draper,  Commissioner 

School  district  no.  i  of  the  town  of  Islip,  Suffolk  county,  is  a  union  free 
school  district   whose  boundaries   do   not   coincide   with   the   boundaries   of   an 


3l8  THE    UNREKSITV    OF   THE   STATE   OF    NEW    YORK 

incorporated  village  or  city.  Section  31  of  title  8  of  the  Consolidated  School 
Law  of  1894  as  amended  by  chapter  463  of  the  Laws  of  1903  provides  that  the 
number  of  trustees  in  a  union  free  school  district  whose  boundaries  do  not 
coincide  with  those  of  an  incorporated  village  or  city  shall  not  be  changed  unless 
notice  is  given  in  the  notice  of  the  annual  meeting  that  the  proposition  to  change 
the  number  of  trustees  will  be  presented  to  the  annual  meeting  for  consideration. 
The  pleadings  herein  show  that  the  notice  of  the  annual  meeting  did  not  contain 
any  notice  whatever  of  a  proposition  to  be  presented  to  such  meeting  to  change 
the  number  of  trustees.  The  annual  meeting  could  not,  therefore,  legally  increase 
the  number  of  trustees  in  this  district.  It  appears,  however,  that  such  action  was 
taken  at  the  annual  meeting  of  the  district  on  August  i,  1905,  and  the  number 
of  trustees  increased  from  five  to  nine.  This  action  being  illegal  the  election  of 
four  additional  members  was  void. 

It  appears  that  the  term  of  office  of  Dr  E.  S.  Moore  expired  at  the  time  of 
the  annual  meeting.  The  chair  announced  that  nominations  were  in  order  to 
fill  this  vacancy.  Arthur  Dominy  was  placed  in  nomination  but  before  other 
nominations  were  made  Mr  Dominy  moved  that  the  number  of  members  on  the 
board  be  increased  from  five  to  nine.  This  motion  was  then  considered  and 
adopted.  Three  other  nominations  for  trustee  for  a  term  of  three  years  were 
then  made  as  follows:  W.  A.  Hulse,  J.  M.  Howell  and  L.  G.  Homan.  The 
chair  announced  that  each  voter  could  vote  for  three  trustees  for  three  years.  It 
was  not  determined  by  the  meeting  that  any  one  of  these  four  nominees  should 
be  regarded  as  being  the  successor  of  Doctor  Moore. 

It  is  to  be  presumed  that  one  trustee  was  chosen  to  succeed  Doctor  Moore 
and  two  to  fill  additional  offices  created  by  the  action  of  the  annual  meeting  in  vot- 
ing to  increase  the  number  of  trustees.  It  is  not  shown  that  those  at  the  meeting 
generally  regarded  Mr  Dominy  as  being  the  trustee  chosen  to  succeed  Doctor 
^loore.  There  does  appear  much  doubt  that  such  was  the  understanding.  It  is 
also  impossible  to  determine  which  one  of  these  nominees  would  have  been 
chosen  had  there  been  but  one  trustee  to  be  elected. 

The  meeting  then  proceeded  to  nominations  for  trustees  for  two  years. 
Several  nominations  were  made.  The  four  members  of  the  board  of  education 
whose  terms  had  not  expired  then  presented  their  resignations.  These  resigna- 
tions were  accepted.  Three  trustees  were  elected  for  two  years  and  three  for 
one  year.  It  does  not  clearly  appear  which  of  these  trustees  w^ere  chosen  to  fill 
the  additional  offices  created  or  which  were  chosen  to  fill  the  vacancies  caused  by 
the  resignation  of  the  four  members  whose  terms  had  not  expired. 

It  is  contended  by  respondents  that  the  Consolidated  School  Law  distributed 
by  the  State  Superintendent  of  Public  Instruction  in  1903  does  not  contain 
the  amendment  to  section  31,  title  8  of  the  Consolidated  School  Law  made  by 
chapter  463  of  the  Laws  of  1903.  requiring  that  notice  shall  be  given  of  the 
intention  to  bring  a  proposition  to  increase  the  number  of  members  on  a  board 
of  education  before  the  annual  meeting.  It  is  alleged  that  the  board  of  educa- 
tion relied  upon  that  law  as  distributed  by  the  former  Department  of  Public 


JUDICIAL  decisions:    meetings  319 

Instruction  for  their  guidance  and  that  failure  to  give  such  notice  should  not 
therefore  vitiate  the  proceedings  of  the  annual  meeting.  This  contention  is  not 
well  founded.  Neither  the  ignorance  of  the  provisions  of  law  on  the  part  of  a 
board  of  education  nor  the  negligence  or  carelessness  of  Department  officials  is 
sufficient  to  excuse  a  school  district  meeting  from  fulfilling  the  requirements  of 
the  law.  If  the  district  meeting  could  be  regarded  as  excusable  from  the  law 
requiring  the  notice  in  question,  other  irregularities  and  illegal  procedure  occurred 
in  the  conduct  of  the  annual  meeting  sufficient  to  warrant  an  order  from  this 
Department  to  vacate  the  proceedings  of  such  meeting.  Section  31  of  title  8  of 
the  Consolidated  School  Law,  since  its  enactment  in  1894,  has  provided  that  the 
vote  authorizing  an  increase  in  the  number  of  members  on  a  board  of  education 
in  a  union  free  school  district  of  this  class  shall  be  by  taking  and  recording  the 
ayes  and  noes.  The  proceedings  of  the  annual  meeting  of  this  district  do  not 
show  that  the  vote  on  such  proposition  was  taken  by  this  method.  Such  pro- 
ceedings show  such  vote  to  have  been  taken  by  ballot  which  was  not  a  compliance 
with  the  provisions  of  law  (See  decision  no.  4465  of  the  State  Superintendent 
of  Public  Instruction,  also,  decision  no.  4487).  The  same  section  of  law  also 
provides  that  when  a  district  meeting  shall  elect  such  additional  number  it  shall 
divide  such  number  into  three  several  classes,  the  first  to  hold  office  for  one  year; 
the  second  two  years  and  the  third  three  years.  No  such  action  was  taken  at  this 
meeting.  This  is  also  sufficient  ground  for  setting  aside  the  election  in  question. 
(See  decisions  above  cited.) 

The  whole  proceeding  is  characterized  by  confusion  and  irregularity.  This 
is  due  to  the  illegal  action  of  the  meeting  in  voting  to  increase  the  number  of 
trustees.  The  inhabitants  of  this  district  are  entitled  to  have  a  board  of  trustees 
chosen  in  accordance  with  the  provisions  of  law  by  a  majority  of  the  legal  voters 
of  the  district.  It  is  necessary  to  set  aside  the  action  of  the  annual  meeting  in 
voting  to  increase  the  number  of  trustees  and  in  electing  four  additional,  trus- 
tees. Since  it  is  not  clearly  shown  which  of  the  trustees  elected  at  the  annual 
meeting  were  elected  to  fill  these  additional  places  created  and  which  to  fill 
vacancies,  it  appears  for  the  interest  of  all  concerned  to  set  aside  the  entire 
election  and  direct  the  district  to  hold  a  special  election  for  the  purpose  of  elect- 
ing five  trustees.  This  action  will  also  afford  the  voters  of  the  district  an  oppor- 
tunity to  elect  in  a  legal  manner  an  entire  new  board  of  education. 

I  decide,  That  the  election  of  all  trustees  chosen  at  such  meeting  was  illegal 
and  therefore  void ;  that  under  the  provisions  of  the  Consolidated  School  Law 
and  the  decisions  of  this  Department  the  trustees  of  a  district  or  the  members 
of  a  board  of  education  hold  office  until  their  successors  are  legally  elected  or 
appointed;  that  as  the  election  in  question  was  illegal  it  operates  as  though  an 
election  had  not  been  held  and  the  trustees  of  the  district  at  the  time  of  the 
annual  meeting  are  hold-over  trustees  except  such  as  have  resigned ;  and  that 
as  all  of  such  trustees  or  members  of  the  board  of  education,  except  Dr  E.  S. 
Moore,  resigned,  the  said  Dr  E.  S.  Moore  is  at  the  present  time  the  only  legal 


320  THE   UNIVERSITY    OF   THE   STATE    OF    NEW    YORK 

trustee  or  member  of  the  board  of  education  of  said  school  district  no.  i,  town 
of  Ishp,  Suffolk  county. 

The  appeal  herein  is  sustained. 

It  is  ordered,  That  all  proceedings  taken  at  the  annual  meeting  of  union 
free  school  district  no.  I,  town  of  Islip,  Suffolk  county,  held  August  i,  1905, 
in  relation  to  increasing  the  number  of  members  of  the  board  of  education 
of  said  district  be,  and  the  same  are,  hereby  vacated;  that  all  proceedings  of 
said  annual  meeting  by  which  Arthur  Dominy,  John  M.  Howell,  Leander  G. 
Homan,  William  S.  Downs,  Fred  C.  Hendrickson,  George  W.  Abrams,  Clarence 
A.  Wicks,  George  C.  White  and  William  H.  \'ail  are  alleged  to  have  been 
elected  trustees  or  members  of  the  board  of  education  of  said  district  be,  and 
the  same  are,  hereby  vacated. 

It  is  further  ordered.  That  Dr  E.  S.  Moore,  a  trustee  of  said  district,  shall 
without  unnecessary  delay  and  in  accordance  with  the  provisions  of  section  10, 
title  8  of  the  Consolidated  School  Law,  call  a  special  meeting  to  elect  one  trustee 
for  the  remainder  of  the  current  school  year  and  the  ensuing  two  school  years 
to  fill  a  vacancy  caused  by  the  expiration  of  the  term  of  office  of  Dr  E.  S.  Moore, 
and  to  elect  two  trustees  for  the  remainder  of  the  current  school  year  and  the 
•ensuing  school  year  to  fill  the  two  vacancies  caused  by  the  resignations  of  the 
two  trustees  whose  terms  would  not  have  regularly  expired  until  the  annual 
meeting  of  1907,  and  to  elect  two  trustees  for  the  remainder  of  the  current 
school  year  to  fill  the  two  vacancies  caused  by  the  resignations  of  the  two 
trustees  whose  terms  would  not  have  regularly  expired  until  the  annual  meeting 
of  1906. 


3910 

In  the  matter  of  the  appeal  of  John  Van  Buren,  from  the  proceedings  of  the 
annual   school  meeting,   held   in   district  no.    12,   of   the   town   of   Volney, 
county  of  Oswego. 
A  chairman  of  a  district   meeting,   if  he  is   a   qualiiied  voter,  is   entitled  to  vote   when   a 
ballot  is  taken  upon  any  question  before  the  meeting.     He  has  no  right  to  vote  after 
the  result  has  been  ascertained,  for  the  purpose  of  breaking  a  tie  vote. 
Decided  September  23,  1890 

^lead,   Stranahan   &   Spencer,  attorneys   for  appellant 
Piper  &  Rice,  attorneys  for  respondent 

Draper,  Superintendent 

At  the  annual  school  election  for  trustee,  held  in  district  no.  12,  of  the 
town  of  Volney,  Oswego  county,  the  voting  was  by  ballot.  There  were  two 
candidates  voted  for.  The  ballot  resulted  in  a  tie  vote  whereupon  the  chair- 
man voted  for  one  of  the  candidates,  the  respondent  herein,  and  declared  him 
elected.  From  this  result  this  appeal  is  taken.  The  chairman  of  the  meeting,  if 
he  was  a  qualified  elector  of  the  district,  was  entitled  to  one  vote  upon  the 


JUDICIAL  decisions:    meetings  321 

question,  but  that  vote  should  have  been  cast  when  the  vote  was  being  received, 
and  before  the  poll  was  closed,  the  ballots  counted,  and  the  result  ascertained. 
Whether  he  voted  at  that  time,  and  then  again,  to  break  the  tie,  does  not  appear, 
but  in  any  event,  his  ballot  or  vote  after  the  result  was  ascertained,  was 
improper.     It  follows  that  there  was  no  choice  of  trustee. 

The  appeal  is  sustained.     The  district  clerk  will  forthwith  give  notice  of 
a  special  meeting  to  be  held  for  the  selection  of  a  trustee. 


3909 

In  the  matter  of  the  appeal  of  DeEtte  Adsit  from  the  proceedings  of  the  annual 
school  meeting,  held  in  school  district  no.  5,  towns  of  Hanover  and  Sheridan, 
county  of  Chautauqua. 

The  Department  must  not  be  expected  to  grant  relief  to  persons  who,  through  their  own 
neglect  or  indifference,  do  not  attend  school  meetings  until  long  after  the  hour 
designated. 

Decided  September  22,  1890 

Draper,  Superintendent 

Appeal  from  the  proceedings  of  the  annual  meeting,  held  August  5th,  last,  in 
school  district  no.  5,  of  the  towns  of  Hanover  and  Sheridan  in  the  county  of 
Chautauqua. 

The  appellant  alleges  that  the  custom  in  the  district  has  been  to  hold  the 
annual  meeting  at  8  o'clock  p.  m. ;  that  on  this  occasion  the  meeting  was  held 
at  about  7  o'clock,  in  consequence  of  which  but  three  voters  were  in  attendance, 
and  at  which  the  respondent  was  chosen  trustee,  with  the  several  other  officers. 
Some  evidence  is  presented  of  persons  intending  to  be  present  at  the  meeting, 
that  the  meeting  was  held  before  7.30  o'clock. 

The  respondent  shows  by  the  affidavit  of  all  three  of  the  persons  who 
participated  in  the  meeting  that  the  organization  was  not  perfected  until  nearly 
8  o'clock,  and  the  meetisg  was  not  concluded  until  after  that  hour.  It  does  not 
appear  that  notice  of  the  meeting  w^as  given.  The  law  designates  the  hour,  7.30 
o'clock  p.  m.  Each  side  of  the  controversy  presents  a  communication  signed 
by  about  an  equal  number  of  alleged  voters  favoring  one  side  or  the  other,  the 
respondent,  with  those  who  actually  attended  the  meeting,  showing  the  greatest 
number. 

But  this  informal  way  of  testing  the  question  is  not  at  all  concluding.  If 
I  were  convinced  that  any  undue  haste  characterized  the  meeting,  and  it  occurred 
before  the  legal  "hour  of  meeting,  I  should  sustain  the  appeal,  but  such  does  not 
seem  to  be  the  fact. 

Electors  who  do  present  themselves  at  school  meetings  upon  time  are  not 
expected  to  be  subjected  to  unnecessary  delay  to  accommodate  persons  who  are 
II 


322  THE    UNIVERSITY    OF   THE   STATE   OF    NEW    YORK 

SO  dilatory  or  indiflcrent  as  to  attend  meetings  more  than  a  half  hour  after  the 
designated  time.     Such  persons  come  to  the  Department  and  expect  relief  for 
their  own  neglect.     I  do  not  fell  warranted  in  granting  it. 
The  ap])eal  is  overruled. 


3908 

In  the  matter  of  the  appeal  of  John  R.  Archibald  and  others  v.  school  district  no. 
4,  in  the  town  of  Portville,  in  the  county  of  Cattaraugus. 

Failure  to  give  public  notice  of  the  time  and  place  ifor  holding  the  annual  school  meeting 

would  not  vitiate  the  proceedings  of  the  meeting. 
Decided  September  18,  i8yo 

Draper,  Superintendent 

This  appeal  is  brought  to  set  aside  the  action  of  the  last  annual  school  meet- 
ing, on  the  ground  of  irregularity  in  proceedings.  It  is  alleged  that  there  was  no 
sufficient  notice  given  of  the  meeting,  and  that  votes  were  cast  for  trustee  and 
collector  by  persons  who  were  not  entitled  to  vote,  and  that  the  person  elected 
collector  of  the  district  was  not  eligible  to  the  office. 

As  it  was  the  annual  school  meeting,  failure  to  give  notice  would  not  vitiate 
its  proceedings.  I  have  examined  the  papers,  and  find  that  the  allegation  that 
persons  voted  who  were  not  entitled  to  vote,  is  not  well  sustained.  It  was 
alleged  that  eight  persons  not  qualified  to  vote  participated  in  the  election  of 
trustee.  This  certainly  was  not  the  fact.  It  is  not  shown  that  enough  illegal 
votes  were  cast  to  change  the  result.  It  is  admitted  that  the  collector  who  was 
elected  was  not  eligible  to  the  office.  There  is  not  enough  in  the  case  to  justify 
me  in  sustaining  the  appeal.     It  is  dismissed. 


3905 

In  the  matter  of  the  appeal  of  W.  A.  Cleveland  v.  the  trustees  of  district  no.  3, 
Middletown  and  Southfield,  in  the  county  of  Richmond. 

Refusal  of  trustees  to  call  a  special  meeting  when  requested,  sustained,  when  it  is  made 
to  appear  that  the  trustees  are  acting  in  good  faith,  and  no  apparent  benefit  would 
come  to  the  district  by  such   meeting. 

Decided  September  5,  1890 

Draper,  Superintendent 

A  new  schoolhouse  is  now  in  process  of  erection  in  the  above-named  dis- 
trict. The  appellant  is  a  builder  by  occupation,  and  with  other  builders  sub- 
mitted proposals  in  July  last  for  the  construction  of  such  building.  He  was  not 
the  lowest  bidder  and  the  contract  was  awarded  to  another.  Since  that  time  he 
has  raised  objections  to   the   size  and  character  of   the  school  building  to  be 


JUDICIAL  decisions:    meetings  323 

erected,  and  has  demanded  that  a  special  meeting  of  the  district  be  held  to 
consider  the  matter.  This  appeal  is  from  the  refusal  of  the  trustees  to  call  a 
special  meeting. 

This  Department  will  ordinarily  require  trustees  to  call  a  special  meeting  in 
a  school  district,  where  there  seems  to  be  any  general  desire  for  such  a  meet- 
ing. Even  where  a  respectable  minority  in  the  district  makes  known  a  desire 
for  a  special  meeting  it  should  be  accorded,  unless  circumstances  are  such  as 
to  justify  the  belief  that  the  persons  demanding  a  meeting  are  not  altogether 
disinterested  or  well  disposed.  It  is  true  that  the  appellant  in  this  case,  with 
several  others,  requested  that  a  meeting  be  called.  Some  of  those  who  joined 
with  him  in  this  request  have  since  withdrawn  their  request.  At  the  annual 
school  meeting,  held  August  6th,  the  appellant  made  a  statement  to  the  meeting, 
setting  forth  his  complaint  for  grievances,  but  no  action  was  taken.  I  have 
carefully  examined  the  records  of  the  proceedings  of  the  trustees  touching  the 
work  in  hand.  It  seems  to  me  that  they  have  proceeded  with  due  deliberation 
and  much  caution.  The  plans  of  the  building  were  submitted  to  no  less  than 
six  builders  who  presented  proposals.  Time  was  taken  for  investigating  the 
business  qualifications  and  financial  standing  of  the  lowest  bidder.  When 
satisfied  of  his  responsibility  the  contract  was  awarded  to  the  lowest  bidder.  I 
am  unable  to  see  why  the  trustees  have  not  exercised  every  care  in  the  discharge 
of  their  duties.  The  building  is  now  in  process  of  erection,  except  that  a  stay 
of  proceedings,  granted  on  the  4th  day  of  August  last,  was  granted.  I  find  no 
sufficient  ground  for  further  interrupting  the  work  of  the  trustees.  Indeed,  there 
would  seem  to  be  every  reason  why  it  should  be  facilitated.  The  appeal  is  dis- 
missed and  the  stay  of  proceedings  heretofore  granted  is  revoked  and  set  aside. 


3855 

George  E.  Soper  v.  John  H.  Smith,  sole  trustee  of  school  district  no.  5,  of  the 
town  of  Smithtown,  county  of  Suffolk. 

Appeal  from  the  neglect  or  refusal  of  a  trustee  to  call  a  special  meeting  of  the  electors 
of  the  district  for  the  purpose  of  considering  the  advisability  of  building  a  new  school- 
house,  and,  if  deemed  necessary,  to  consider  a  change  of  site  upon  request  of  a  large 
number  of  inhabitants.  No  reason  for  such  neglect  or  refusal  appearing,  appeal  sus- 
tained, and  district  clerk  ordered  to  give  notice  for  meeting,  as  requested. 

Decided  February  8,  1890 

Draper,  Superintendent 

This  is  an  appeal  by  a  resident  elector  of  school  district  no.  5,  of  the  town 
of  Smithtown  in  the  county  of  Suffolk,  from  the  refusal  of  the  trustee  of  said 
district  to  call  a  special  district  meeting  upon  the  request  of  a  large  number  of 
the  inhabitants  of  said  district,  for  the  purpose  of  considering  the  advisability 
of  building  a  new  schoolhouse,  and,  if  deemed  necessary,  to  consider  a  change 
of  site.     The  request,  a  copy  of  which  I  find  among  the  appellant's  papers,  was 


324  THE    UXIVKKSITV    OF   THE   STATE   OF   IsEW    YORK 

served  upon  the  trustee  on  the  i6th  day  of  September  1889.  This  appeal  was 
taken  by  service  of  a  copy  of  the  same  upon  the  trustee  of  said  district  on  the 
6th  day  of  December  1889,  and  although  sufficient  time  has  elapsed  for  the 
trustee  to  answer  the  same,  no  answer  has  been  received. 

I  must,  therefore,  conclude  that  the  grounds  of  appeal  are  truly  stated,  and 
that  a  special  meeting  of  the  inhabitants  should  have  been  called  as  prayed 
for  by  the  petitioners.  The  appeal  is  sustained  and  the  district  clerk  of  district 
no.  5,  of  the  town  of  Smithtown  in  the  county  of  Suftolk,  is  hereby  directed 
to  give  notice  of  a  special  meeting  of  the  electors  of  the  district,  to  consider  the 
questions  proposed  in  the  petition  above  referred  to  within  ten  days  from  the 
service  of  a  copy  of  this  decision  upon  him. 


4327 

In  the-  matter  of  the  appeal  of  Reuben  Britten  from  proceedings  of  special 
meeting  held  on  October  9,  1894,  in  school  district  no.  10.  town  of  Still- 
water, Saratoga  county. 

This  Department,  when  asked  to  set  aside  proceedings  of  school  meetings,  will  always 
inquire  into  the  bans  fides  thereof.  Were  the  things  done,  such  as  it  was  proper  to  do 
at  said  meeting?  Has  any  one  been  misled,  imposed  upon  or  wronged?  If  mistakes 
and  irregularities  have  occurred,  will  the  greater  hardship  be  imposed  upon  individuals 
bj'  setting  aside  or  sustaining  such  acts?  Notices  of  special  meetings  in  common  school 
districts,  unless  any  such  district  at  its  annual  meeting  shall,  by  resolution,  prescribe 
some  other  method,  is  by  reading  said  notice  in  the  hearing  of  each  inhabitant  of  the 
district  qualified  to  vote  at  its  meetings  or  in  case  of  his  or  her  absence  from  home,  by 
leaving  a  copy  thereof  or  so  much  thereof  as  relates  to  the  time,  place  and  object  of 
the  meeting,  at  the  place  of  his  or  her  abode  at  least  five  days  before  the  day  of  the 
meeting.  No  district  meeting  shall  be  held  illegal  for  want  of  a  due  notice  to  all 
persons  qualified  to  vote  thereat  unless  it  shall  appear  that  the  omission  to  give  such 
notice  was  wilful  and  fraudulent. 

Decided  February  21,  1895 

J.  F.  Terr)',  attorney  for  appellant 

George  B.  Lawrence,  attorney  for  respondent 

Crooker,  Superin  tendent 

The  above-named  appellant  appeals  from  the  proceedings  of  a  special  meet- 
ing held  on  October  9,  1894,  in  school  district  no.  10,  town  of  Stillwater,  Sara- 
toga county,  upon  the  grounds  in  substance:  That  the  notice  of  said  meeting 
was  not  duly  and  legally  given,  and  that  said  meeting  could  not  legally  elect  a 
treasurer  of  said  district.  An  answer  to  said  appeal  has  been  interposed  by 
Joseph  Holmes,  who  claims  to  have  been  elected  as  trustee  of  said  district  at 
such  special  meeting. 

The  following  facts  are  established.  In  August  1894.  an  appeal  was  brought 
by  Joseph  Holmes  and  another  from  the  election  of  school  district  officers  at 


JUDICIAL    DECISIONS  :     MEETINGS  325 

the  annual  school  meeting  held  in  said  district  on  August  7,  1894,  upon  the 
ground  that  none  of  said  officers  were  elected  hy  ballot  as  required  by  the  school 
law,  but  were  elected  by  a  viva  voce  vote ;  that  no  answer  was  made  to  the 
appeal,  and  on  September  24,  1894,  the  appeal  was  sustained  by  me;  that  in 
and  by  my  decision  I  held  and  decided  that  no  one  was  legally  elected  at  said 
annual  meeting  as  trustee,  district  clerk  or  collector,  and  so  much  of  the  action 
and  proceedings  of  said  annual  meeting  had  and  taken  in  the  election  of  district 
officers  was  vacated  and  set  aside ;  that  in  said  decision  I  ordered  Wilson 
Wylie,  a  qualihed  voter  in  said  district,  and  then  acting  clerk  thereof,  to  forth- 
with call  a  special  meeting  of  the  inhabitants  of  said  school  district,  entitled  to 
vote  at  school  meetings  in  said  district,  in  the  manner  prescribed  in  sections  2 
and  6  of  article  i,  title  7,  of  the  Consolidated  School  Law  of  1894,  for  the 
purpose  of  electing  a  trustee,  district  clerk  and  collector  of  said  district,  said 
election  to  be  conducted  in  the  manner  provided  in  subdivision  4  of  section  14, 
article  i,  title  7,  of  the  Consolidated  School  Law  of  1894;  that  said  decision 
was  filed  with  said  Wylie  on  October  i,  1894,  and  on  that  date  said  Wylie 
posted  in  a  conspicuous  place  in  five  public  places  in  said  school  district  a 
written  notice,  signed  by  him  as  acting  clerk  of  said  district,  that  a  special  meet- 
ing of  the  inhabitants  of  said  district,  qualified  to  vote  at  school  meetings  therein, 
would  be  held  at  the  schoolhouse  in  said  district  on  October  9,  1894,  at  7.30  p.  m., 
for  the  purpose  of  the  election  of  a  trustee,  district  clerk  and  collector  of  said 
district,  that  said  Wylie  did  not  notify  every  other  inhabitant  of  said  district 
qualified  to  vote  at  the  meeting,  by  reading  said  notice  of  said  meeting  in  his 
hearing,  or  in  case  of  his  absence  from  home,  by  leaving  a  copy  thereof,  or 
so  much  thereof  as  relates  to  the  time,  place  and  object  of  the  meeting,  at  the 
place  of  his  abode,  at  least  six  days  before  the  time  of  the  meeting ;  but  it  is 
not  alleged,  nor  does  it  appear,  that  the  omission  on  the  part  of  said  Wylie, 
to  so,  as  aforesaid,  give  notice  of  said  special  meeting,  was  wilful  and  fraudulent; 
that  said  special  meeting  was  held  on  said  October  9,  1894,  at  which  there  were 
present  and  voting  two-thirds  of  the  qualified  voters  of  said  district,  and  a 
trustee,  district  clerk  and  collector  of  said  district  were  elected  in  the  manner 
prescribed  by  section  14,  article  i,  title  7  of  the  Consolidated  School  Law;  that 
said  special  meeting  went  through  the  form  of  electing  treasurer  of  said  district, 
although  the  election  of  such  treasurer  was  not  specified  in  the  notice  of  said 
special  meeting  as  one  of  the  purposes  for  which  said  meeting  was  called ;  that 
the  appellant  herein  was  present  at  and  took  part  in  the  proceedings  of  said 
special  meeting. 

It  is  also  established  by  the  proofs  herein  that  Joseph  Holmes  and  Jacob 
Snyder  were  each  candidates  for  the  office  of  trustee  of  said  district,  and  that 
both  of  them  canvassed  said  district  for  support  by  the  qualified  voters 
thereof  for  said  office;  that  said  Holmes  personally  saw  and  consulted  with 
every  qualified  voter  in  said  district,  except  fifteen,  in  relation  to  said  special 
meeting,  the  time  and  place  when  the  said  meeting  was  to  be  held,  and  the 
object    and   purpose   of    said    meeting,    and    urged    said    voters    to    be   present 


326  THE   UNIVERSITY    OF   THE   STATE   OF   NEW    YORK 

thereat;  that  of  the  fifteen  persons  that  he  did  not  see  personally,  seven  of 
them  were  present  and  took  part  in  the  proceedings  of  said  meeting;  that 
of  the  remaining  eight,  at  least  three  of  them  had  notice  of  said  meeting, 
but  purposely  absented  themselves  therefrom,  and  of  the  others,  who  were 
married  women,  the  husband  of  each  was  present  at  such  meeting;  that  the 
said  \Vylie  saw  fully  two-thirds  of  the  qualified  voters  of  said  district  prior 
to  said  meeting  and  personally  informed  them  of  the  said  meeting,  the  time 
when  and  the  place  where  the  same  was  to  be  held,  and  the  object  and  purpose 
thereof,  and  also  personally  called  the  attention  of  many  of  them  to  the  notice 
posted  by  him ;  that  the  fact  that  a  special  meeting  in  said  district  was  to  be  held 
and  the  purposes  for  which  it  was  to  be  held  was  printed  in  a  newspaper  pub- 
lished in  the  village  of  Stillwater,  about  two  and  one-half  miles  from  said 
school  district. 

In  the  direction  to  Wylie  to  call  a  special  meeting  of  said  district  no.  10 
of  Stillwater,  as  contained  in  my  decision  in  appeal  no.  4265,  and  in  the  manner 
prescribed  in  sections  2  and  6,  of  article  i,  title  7  of  the  Consolidated  School 
Law  of  1894,  it  was  a  direction  that  said  notice  be  served  in  the  manner  pro- 
vided by  the  school  law,  and  the  citation  of  the  sections,  article  and  title,  was 
to  inform  him  where  the  law  upon  the  subject  could  be  found.  Wylie  in  his 
affidavits  stated  that  he  was  ignorant  of  the  law.  and  was  not  in  possession  of  a 
copy  of  the  school  laws.  A  copy  of  the  Consolidated  School  Law  of  1894  was 
printed  in  the  appendix  to  volume  2  of  my  rejiort  for  1894  and  a  copy  of  that 
report  was  sent  to.  and  should  have  been  in  the  possession  of,  the  school  district. 
Besides,  he  could  have  applied  to  this  Department  for  information.  Had  he 
exercised  due  diligence  to  inform  himself  as  to  the  law  and  his  duties  in  the 
matter,  the  appeal  herein  would  not  have  been  taken. 

Under  the  provisions  of  the  school  law,  the  service  of  all  notices  of  special 
meetings  in  common  school  districts,  unless  any  such  district  at  its  annual  meet- 
ing shall,  by  resolution,  prescribe  some  other  method,  is  by  reading  said  notice 
in  the  hearing  of  each  inhabitant  of  the  district  qualified  to  vote  at  the  meeting, 
or  in  case  of  his  or  her  absence  from  home,  by  leaving  a  copy  thereof,  or  so 
much  thereof  as  relates  to  the  time,  place  and  object  of  the  meeting,  at  the  place 
of  his  or  her  abode,  at  least  five  days  before  the  day  of  the  meeting. 

Said  school  law  also  contains  the  provision  that  the  proceedings  of  no 
district  meeting,  annual  or  special,  shall  be  held  illegal  for  want  of  a  due  notice 
to  all  persons  qualified  to  vote  thereat  unless  it  shall  appear  that  the  omission  to 
give  such  notice  was  wilful  and  fraudulent.  It  is  clear  that  the  qualified  voters 
of  said  school  district  did  not  receive  due  notice  of  said  special  meeting  of 
October  9,  1894,  under  the  school  law ;  but  it  is  not  claimed  or  proved  that  the 
omission  to  give  such  due  notice  was  wilful  and  fraudulent. 

I  am  of  the  opinion,  from  the  proofs  established  herein,  that  all  of  the 
qualified  voters  of  said  district  had  notice  of  said  special  meeting,  and  the  pur- 
poses for  which  it  was  called,  and  that  if  any  voter  failed  to  attend  said  meeting 
it  was  for  some  other  reason  than  that  he  or  she  had  no  notice  thereof.    Indeed, 


JUDICIAL  decisions:    meetings  327 

the  appellant  herein  has  failed  to  show  that  a  single  voter  of  said  district  did 
not  have  notice  of  said  meeting,  his  contention  being  that  the  notice  of  said 
meeting  was  not  served  in  accordance  with  the  provisions  of  the  school  law, 
and  hence  the  meeting  was  illegal.  It  is  clear  that  the  appellant  herein  has  not 
been  injured  by  reason  of  a  failure  to  serve  notice  of  the  meeting  as  required 
by  the  school  law,  as  he  was  present  at  such  meeting  and  took  part  in  the 
proceedings. 

This  Department,  when  asked  to  set  aside  the  proceedings  of  school  meet- 
ings, will  always  inquire  into  the  bo)icc  fides  thereof.  Were  the  things  done 
such  as  it  was  proper  to  do?  Has  any  one  been  misled,  imposed  upon  or 
wronged?  If  mistakes  and  irregularities  have  occurred,  -will  the  greater  hard- 
ship be  imposed  upon  individuals  by  setting  aside  or  sustaining  such  acts? 

I  find  and  decide  that  the  contention  of  the  appellant,  that  said  special 
meeting  was  not  legally  held  for  the  reason  that  the  notice  of  said  meeting 
was  not  served  in  the  manner  provided  by  the  school  law,  is  not  tenable, 
it  appearing  that  the  omission  to  give  such  notice  was  not  wilful  and  fraudulent, 
and  it  further  appearing  that  all  the  qualified  voters  of  said  district  received 
in  some  manner  a  notice  thereof. 

The  election  at  such  special  meeting  of  a  treasurer  of  said  district  was 
clearly  void,  for  two  reasons:  First,  because  in  the  notice  of  the  meeting  it 
was  not  stated  therein  that  said  meeting  would  be  called  upon  to  act  relative 
to  the  election  of  a  treasurer;  and,  second,  that  under  the  school  law  no  school 
district  can  elect  a  treasurer  of  the  district  unless  at  the  first  meeting  of  the 
district  after  it  shall  have  been  formed,  or  at  any  subsequent  annual  meeting 
thereof,  or  at  any  special  meeting  duly  called  for  that  purpose,  a  resolution  shall 
be  adopted  to  elect  such  treasurer.  It  does  not  appear  that  any  such  resolution 
has  been  adopted. 

I  find  and  decide,  That  the  special  meeting  held  on  October  9,  1894,  in 
school  district  no.  10,  town  of  Stillwater,  Saratoga  county,  was  legally  held; 
that  the  election  at  said  special  meeting  of  a  trustee,  district  clerk  and  collector 
of  said  district  was  legal  and  valid;  that  the  election  at  said  special  meeting 
of  a  treasurer  of  said  district  was  illegal  and  void. 

The  appeal  herein  is  sustained  as  to  so  much  thereof  as  appeals  from  the 
action  and  proceedings  of  said  special  meeting  in  the  election  of  a  treasurer  of 
said  district ;  and  that  as  to  all  other  matters  therein,  said  appeal  is  dismissed. 


3810 

In  the  matter  of  the  appeal  of  Henry  W.  Wolf  and  others  v.  school  district 

no.  4,  town  of  Westfield,  county  of  Richmond. 
Proceedings  of   a  district  school  meeting  will  not  be  disturbed  when  regularly  and   fairly 

taken  at  the  proper  time  only   for  the  reason  that  absent  voters  did  not  attend  at  the 

time  designated. 


328  THE   UXIVERSITi'    OF   THE   STATE    OF    NEW    YORK 

Appropriations   of  a  district  meeting  set  aside,  the   meeting  having   failed  to   indicate   the 

purpose  money  was  to  be  raised  for. 
Decided  September  21,  1889 

Draper,  Superintendent 

The  appellants  allege  that  the  proceedings  of  the  annual  meeting  in  the 
above-named  district  were  very  irregularly  taken.  It  seems  that  John  J.  \  aughan 
was  elected  trustee  over  the  appellant  Wolf  by  a  vote  of  14  to  9.  Mr  Wolf 
claims  that  there  was  not  sufficient  time  afforded  to  permit  the  qualified  voters 
of  the  district  to  vote.  There  were  but  23  votes  cast.  The  district  is  small.  He 
admits  that  15  or  20  minutes  of  time  were  occupied  in  taking  the  ballot.  This 
would  seem  to  be  sufficient.  There  is  no  pretense  that  the  meeting  was  held 
before  the  proper  time.  Residents  of  the  district  should  have  been  on  hand 
when  the  time  arrived,  if  they  desired  to  vote.  It  is  not  shown  that  any  one 
desiring  to  vote  was  prevented  from  doing  so.  I  think  no  sufficient  ground 
appears  to  invalidate  the  election  of  Vaughan. 

There  is  a  claim  set  forth  in  one  of  the  affidavits  presented  that  Vaughan 
is  not  eligible  to  the  position  of  trustee,  on  the  ground  that  his  name  does  not 
appear  upon  the  assessment  rolls.  But  he  may  be  eligible  for  other  reasons, 
and  it  is  not  shown  that  he  is  not. 

The  election  of  ISlr  A'aughan  must  therefore  be  sustained. 

The  appellants  claim  that  the  sum  of  $350  was  appropriated  at  the  annual 
meeting  for  general  expenses  of  the  district,  without  indicating  precisely  what 
it  was  to  be  used  for.  This  is  not  denied  by  the  respondents.  If  this  allegation 
be  true,  the  action  of  the  meeting  was  irregular.  Such  action  is  therefore  set 
aside,  and  the  trustees  are  advised  to  call  a  special  meeting  for  the  purpose  of 
acting  upon  estimates  for  the  year's  expenses. 

The  appeal  is  dismissed  so  far  as  it  relates  to  the  election  of  a  trustee,  but 
sustained  so  far  as  it  refers  to  the  appropriation  of  $350,  without  indicating  the 
specific  purpose  for  which  it  is  to  be  used. 


3699 

In  the  matter  of  the  appeal  of  Samuel  A.  Childs  v.  the  action  of  a  joint  meeting 

of  residents  of  districts  nos.  2  and  5,  town  of  Scott,  Cortland  county. 
Proceedings  of  a  district  meeting  involving  important  matters,  marked  by  riotous  conduct 

and  consequent  confusion,  set  aside. 
Decided  July  24,  1888 

Draper,  Superintendent 

It  appears  that  on  the  25th  of  April  1888,  a  meeting  was  held  in  the  town 
of  Scott,  Cortland  county,  at  which  were  present  numerous  qualified  electors 
of  school  districts  nos.  2  and  5,  of  said  town,  for  the  purpose  of  taking  action 
relative  to  the  formation  of  a  union  free  school  district.  The  meeting  was 
organized  by  the  election  of  F.  O.  Burdick  as  chairman,  and  Jared  E.  Babcock 
and  William  N.  Babcock  as  secretaries.     The  appellant  states  that  immediately 


JUDICIAL    DECISIONS  :     AIEETINGS  329 

following  the  organization,  the  chairman  announced  that  the  meeting  would  pro- 
ceed to  ballot  upon  the  question,  without  giving  any  person  an  opportunity  for 
an  expression  of  opinion  relative  to  the  merits  of  the  proposition.  It  is  manifest 
that  there  was  great  disorder  at  the  meeting.  At  one  time  during  its  progress, 
it  was  announced  that  there  w^as  great  danger  of  the  floor  of  the  hall  breaking 
do%vn.  The  appellant  claims  that,  in  consequence  of  this  statement,  thirty  per- 
sons left  the  hall  and  that  manv  of  them  did  not  return.  Two  constables 
were  called  in  to  preserve  the  peace,  and  two  persons  were  arrested  by  them. 
The  respondents  claim  that  the  riotous  conduct  was  on  the  part  of  the  appel- 
lants ;  that  they  precipitated  turmoil  and  confusion  upon  the  meeting  for  the 
purpose  of  breaking  it  up.  The  vote  as  declared  by  the  chair  was  strongly  in 
favor  of  establishing  a  union  free  school  district,  and  it  seems  reasonably  clear 
that  the  larger  part  of  the  persons  present  were  in  favor  of  that  course. 

But  I  have  determined,  after  considerable  reflection  upon  the  matter,  to 
take  that  course  which  will  necessitate  another  meeting.  If  I  should  uphold  the 
proceedings  which  are  appealed  from,  the  result  would  unquestionably  be  that 
antagonisms  in  the  district  of  the  fiercest  character  would  continue  indefinitely. 
]\Ioreover,  an  action  of  so  much  importance  ought  to  be  determined  upon 
deliberately  after  full  opportunity  for  discussion,  and  by  the  free  and  untram- 
meled  judgment  of  the  people  interested.  The  people  of  these  two  districts 
ought  to  be  sufficiently  advanced  in  the  ways  of  organized  and  civilized  society 
to  enable  them  to  meet  in  a  public  gatherin-;,  compare  views,  treat  each  other 
decently,  although  they  may  differ  in  opinion,  and  finally  reach  a  conclusion 
through  the  vote  of  a  majority  of  their  number;  and  it  would  furthermore  seem 
that,  when  that  has  been  done,  the  minority  must  submit  to  the  determination 
in  good  spirit.     In  the  hope  that  such  may  be  the  case,  I  sustain  the  appeal. 


3710 

In  the  matter  of  the  appeal  of  Thornton  A.  Niven  v.  school  district  no.  t.  town 

of  Thompson,  county  of  Sullivan. 
A  district   voted  at   its   annual   meeting  to   appropriate   money  for  the   purpose   of   adding 

instruction  in  vocal  music  to  the  school;   held,  the  proceeding  was  regular  and  will  not 

be  set  aside. 
The   fact  that  many  voters   were  not  present  at  the   meeting;   held,  to   be   no   ground   for 

setting  aside  the  proceedings  of  an  annual  meeting. 
The  law  fixes  the  time  and  place   for  the   annual   meeting;   those  who   attend  can  legally 

transact  the  business  of  the  district. 
Decided  October  i,  1888. 

Draper,  Superintendent 

At  the  annual  school  meeting  held  in  district  no.  i  of  the  town  of  Thomp- 
son, Sullivan  county,  in  1888,  the  following  resolution  was  adopted: 

"Resolved,  That  an  additional  appropriation  of  $300  be  added  to  the 
required  appropriation  for  the  purpose  of  adding  instruction  in  vocal  music  to 
ilie  school." 


330  THE   UXIVERSITY   OF  THE   STATE   OF   NEW    YORK 

The  appellant  objects  to  this  resolution,  and  in  his  appeal  raises  the  question 
whether  a  school  district  has  the  right  to  raise  money  by  tax  for  the  purpose 
specified  in  the  resolution.  He  also  alleges  that,  while  there  are  more  than  250 
qualified  electors  in  the  district,  there  were  not  more  than  25  or  30  present  at 
the  meeting  at  which  the  resolution  was  adopted,  and  insists  that  the  majority 
of  the  people  of  the  district  are  opposed  to  it. 

The  law  gives  no  direction  as  to  what  studies  shall  be  pursued  in  the  com- 
mon schools.  It  has  always  been  left  discretionary  with  the  people  of  each  dis- 
trict or  with  the  trustees  in  each  case.  Of  course,  if  it  should  be  attempted  to 
raise  a  tax  for  the  purpose  of  employing  teachers  to  teach  branches  of  subjects 
incompatible  with  the  work  of  the  common  schools,  the  Department  would  be 
obliged  to  hold  that  such  action  was  irregular  and  could  not  be  upheld.  What- 
ever is  done  in  the  schools  must  be  done  with  a  view  to  subserving  and  pro- 
moting the  general  purposes  for  which  the  schools  are  operated.  It  is  not 
possible  for  me  to  say  that  the  teaching  of  vocal  music  is  inconsistent  with  the 
general  purposes  of  the  schools.  I  am,  therefore,  of  the  opinion  that  the  district 
had  the  legal  right  to  take  the  action  appealed  from  if  it  chose  to  do  so.  The 
fact  that  not  one-tenth  of  the  voters  of  the  district  were  present,  is  of  no  conse- 
quence. The  action  was  taken  at  the  annual  meeting,  of  which  all  had  notice. 
No  special  notice  of  such  action  was  required  to  be  given  in  advance  of  the 
annual  meeting. 

For  these  considerations  I  am  obliged  to  dismiss  the  appeal. 


Where  the  clerk  names  a  wrong  hour  in  his  notice  of  an  annual  meeting,  and  part  of  the 
inhabitants  assemble  at  that  hour  and  transact  business,  and  part  assemble  at  the  hour 
of  adjournment,  and  also  transact  business,  both  meetings  may  be  set  aside,  and  a  new 
one  ordered. 

Decided  November  30,  1857 

Van  Dyck,  Superintendent 

It  appears  that  an  annual  meeting  in  1856  adjourned  to  October  5,  1857,  at 
7  o'clock,  and  the  same  is  so  recorded.  By  error,  the  clerk  in  the  written  notices 
of  the  meeting  named  6  o'clock  as  the  hour.  A  part  of  the  inhabitants  met  at 
that  hour,  and  transacted  the  ordinary  business;  a  part,  relying  upon  the  adjourn- 
ment, met  at  7  o'clock,  organized,  and  proceeded  to  business.  The  latter  appeal 
from  the  action  of  the  former. 

Held,  that  7  o'clock  was  the  proper  hour  for  meeting,  but,  a  part  of  the 
inhabitants  having  been  misled  by  the  written  notices,  no  advantage  should  be 
taken  of  such  an  othcial  error,  to  deprive  a  considerable  number  of  the  inhabitants 
of  a  voice  in  the  regular  proceedings. 

The  proceedings  of  both  meetings  are  therefor  set  aside,  and  the  clerk  of 
last  year  is  directed  to  give  notice  of  a  new  meeting  within  ten  days  after  the 
receipt  of  this  decision. 


JUDICIAL  decisions:    meetings  331 


3726 


In  the  matter  of  the  appeal  of  Eugene  H.  Tiffany  from  the  proceedings  of  a 
school  district  meeting  held  in  district  no.  8,  town  of  Martinsburgh,  county 
of  Lewis,  on  the  5th  day  of  June  1888. 

At  the  time  and  place  designated  in  the  call  for  a  special  school  district  meeting  the  inhab- 
itants assembled  and  after  waiting  a  reasonable  time  for  the  presence  of  the  trustee 
and  district  clerk,  organized  and  adjourned,  and  many  left  for  their  homes,  when  later 
the  officers  of  the  district  appeared  and  with  those  remaining  organized  and  proceeded 
to  transact  business  of  importance  to  the  district;  held,  that  the  action  of  the  school 
meeting  can  not  be  upheld. 

Decided  November  14,  1888 

Draper,  Superintendent 

This  is  an  appeal  brought  by  a  legal  voter  of  school  district  no.  8  of  the  town 
of  Martinsburgh,  county  of  Lewis,  from  the  proceedings  of  a  district  meeting 
held  under  the  following  circumstances : 

The  trustee  of  the  district  had  given  notice  of  a  special  meeting  to  consider 
a  change  of  schoolhouse  site,  to  be  held  on  the  5th  day  of  June  1888,  at  7.30 
o'clock  p.  m.,  at  the  schoolhouse  in  said  district;  that  at  the  time  mentioned  in 
said  notice,  a  large  number  of  the  inhabitants  and  voters  of  said  district  assem- 
bled at  the  place  designated  and  remained  until  after  8  o'clock ;  that  neither  the 
trustee  nor  the  district  clerk  was  then  present;  that,  after  8  o'clock,  the  meeting 
was  organized  by  the  election  of  a  chairman  and  a  clerk  pro  tern.,  and  subse- 
quently adjourned,  and  most  of  the  inhabitants  left  the  building  and  departed 
for  their  homes.  Subsequent  to  such  adjournment  the  trustee  and  district  clerk 
appeared,  and,  with  the  persons  who  remained,  proceeded  to  organize  a  meeting 
and  transact  business  of  considerable  importance  to  the  voters  of  the  district. 
It  is  claimed  and  can  not  very  well  be  denied,  that,  at  the  time  the  second  meet- 
ing was  organized,  the  trustee  and  the  persons  present  were  well  aware  of  the 
previous  meeting  and  of  the  adjournment,  and  that  many  of  the  voters  had  left 
the  building.  With  this  state  of  facts  before  me,  I  can  not  uphold  the  action  of 
the  second  meeting. 

The  appeal  is  sustained  and  the  proceedings  of  the  second  district  meeting 
held  on  the  night  of  June  5,  1888,  are  set  aside,  and  any  action  there  taken  is 
declared  null  and  void. 


3563 

In  the  matter  of  the  appeal  of  J.  W.  Rood  v.  John  Latimer,  as  trustee  of  school 

district  no.  16,  town  of  Pomfret,  Chautauqua  county. 
A  sole  trustee  should  call  a  special  meeting  when  requested  by  a  reasonable  number  of  the 

voters  of  his  district,  to  consider  plans  for  building  etc.,  even  after  a  site  has  been 

secured  and  plans  adopted. 
Decided  February  10,  1887 


332  THE   UXIVERSITY    OF   THE   STATE   OF    NEW    YORK 

Draper,  Superintendent 

This  is  an  appeal  by  a  taxpayer  and  resident  of  school  district  no.  i6,  town 
of  Pomfret,  Chautauqua  county,  N.  Y.,  from  the  action  of  the  sole  trustee  of 
•  said  district,  in  refusing  to  call  a  special  meeting  of  the  inhabitants  when 
requested  by  a  reasonable  number  of  the  same,  for  the  purpose  of  considering 
a  change  of  site  and  plans  for  building  a  schoolhouse  in  the  district,  and  the 
manner  of  building  the  same. 

The  trustee,  answering  the  appeal,  seeks  to  justify  such  refusal  by  the  alle- 
gation that  a  site  has  already  been  purchased,  a  deed  accepted  and  plans  secured 
and  adopted  in  pursuance  of  authority  conferred  by  a  meeting  held  in  the  district. 

My  opinion  is  that  the  trustee  should  have  granted  the  prayer  of  the  peti- 
titioners  and  called  a  special  meeting  in  accordance  therewith.  Of  course,  lia- 
bilities incurred  by  the  trustee  for  the  district  in  pursuance  of  such  authority, 
can  not  now  be  evaded,  but  if  a  majority  of  the  electors  desire  to  give  expression 
to  their  wishes  as  to  the  work  still  to  be  done,  or  if  they  desire  to  make  changes 
which  they  can  properly  make,  and  are  willing  to  pay  the  expense  involved,  they 
should  be  accorded  that  privilege. 

I  sustain  the  appeal  and  order  the  trustee  to  call  a  special  meeting  of  the 
inhabitants  for  the  consideration  of  any  question  in  relation  to  the  building  of  a 
new  schoolhouse  not  already  disposed  of. 


3919 

In  the  matter  of  the  appeal  of  John  Decker  v.  the  Port  Richmond  union  free 

school  district. 

Annual  meeting  sustained  which  was  held  at  the  schoolhouse  (the  place  designated  by  law), 
and  at  the  established  time,  although  some  irregularity  about  the  notice  of  the  meeting 
is  shown.  It  does  not  appear  that  a  sufficient  number  of  electors  were  misled  by  the 
notice,  or  that  a  sufficient  number  of  illegal  votes  were  cast  to  have  affected  the  result. 

Decided  October  20,  1890 

Robert  G.  Scherer,  Esq.,  attorney  for  appellant 

Draper,  Superintendent 

This  appeal  is  brought  to  set  aside  the  action  of  the  last  annual  school  meet- 
ing in  the  district  above  named.  Two  reasons  are  alleged  in  stipport  of  the 
appeal. 

1  It  is  said  that  the  board  of  education  caused  a  notice  to  be  posted,  that 
the  annual  meeting  would  be  held  at  a  place  other  than  the  schoolhouse,  and 
within  three  or  four  days  prior  to  the  meeting  changed  this  notice  so  as  to  pro- 
vide that  the  meeting  should  be  at  the  schoolhouse.  It  is  claimed  that  this  fact 
misled  voters. 

2  It  is  alleged  that  persons  were  intimidated  from  voting  by  reason  of 
announcements  made  at  the  meeting  concerning  the  alteration  of  the  district. 


JUDICIAL  decisions:    meetings  333 

The  same  rule  applies  to  this  case  as  obtains  in  all  similar  cases.  The  law 
provided  that  the  school  meeting  should  be  held  at  the  schoolhouse.  It  was 
held  there.  It  also  provided  that  it  should  be  held  at  a  given  time.  It  was  held 
at  that  time.  The  presumptions  are,  therefore,  in  favor  of  the  regularity  of  the 
proceedings.  These  presumptions  must  be  overcome  by  positive  proof  on  the 
part  of  the  appellant  before  he  can  succeed  in  his  appeal.  He  must  show  by 
affirmative  evidence  that  a  sufficient  number  of  persons  voted  at  the  meeting 
who  had  no  legal  right  to  vote,  or  that  a  sufficient  number  of  persons  were  mis- 
led as  to  their  rights  and  refrained  from  voting,  or  stayed  away  from  the  meet- 
ing under  a  misapprehension,  to  have  changed  the  result  before  he  can  succeed. 
There  were  304  votes  cast  upon  the  election  of  the  member  of  the  board  of 
education.  The  successful  candidate  received  162  votes.  The  next  candidate 
received  73  votes.  The  appellant  entirely  fails  to  show  a  state  of  facts  which 
would  justify  me  in  setting  aside  this  election.  Nothing  appears  in  the  proofs 
submitted  by  the  appellant  which  is  of  sufficient  consequence  to  invalidate  the 
meeting. 

It  therefore  follows  that  the  appeal  must  be  dismissed. 


3924 

In  the  matter  of  the  appeal  of  Patrick  H.  Ludlow  v.  Michael  Bennett,  trustee  of 

school  district  no.  19,  town  of  Watervliet,  Albany  county. 
Special  school  meeting  called  by  a  notice  of  but  two  days.    Held,  invalid.     Proceeding  taken 

thereat  set  aside. 
Decided  November  13,  1890 

Draper,  Superintendent 

This  appeal  is  taken  by  one  of  the  members  of  the  board  of  trustees  of  school 
district  no.  19,  of  the  town  of  Watervliet,  county  of  Albany,  from  the  action 
of  Michael  Bennett,  another  member  of  said  board  of  trustees,  in  calling  a  special 
meeting  of  the  electors  of  said  district  to  fill  a  vacancy  in  said  board,  caused  by 
the  resignation  of  one  James  J.  Peyton,  to  be  held  on  September  30,  1890. 

The  grounds  upon  which  the  appeal  is  based  are : 

1  That  but  twenty-four  hours'  notice  was  given  of  such  meeting. 

2  That  the  meeting  was  called  by  the  said  Michael  Bennett  without  con- 
sultation with  his  remaining  associate  trustee.     No  answer  has  been  interposed. 

The  appeal  must  be  sustained.  At  least  five  days'  notice  of  a  special  meet- 
ing is  necessary  in  order  to  comply  with  the  statutory  requirement. 

The  calling  of  the  meeting  could  only  be  legally  directed  by  a  majority  of 
the  trustees  in  meeting  duly  assembled.  Any  proceedings  of  the  meeting  held 
September  30,  1890,  are  therefore  of  no  effect,  and  are  hereby  set  aside. 

The  appeal  is  sustained. 


334  THE   UNIVERSITY    OF   THE   STATE   OF   NEW    YORK 

3925 

In  the  matter  of  the  appeal  of  P.  Phelps  and  others  from  the  proceedings  of  a 
special  school  meeting,  held  June  28,  1890,  in  school  district  no.  5,  town  of 
Camden,  county  of  Oneida. 

Proceedings  of  a  special  school  meeting  in  voting  to  rescind  the  action  of  a  former  meeting 
which  had  decided  to  postpone  the  building  of  a  schoolhouse,  will  not  be  set  aside 
because  of  a  failure  to  state  specifically  in  the  notice  of  the  last  meeting  that  a  propo- 
sition to  rescind  the  vote  of  the  previous  meeting  would  be  submitted. 

The  object  stated  in  the  notice  was  "to  take  action  on  building  the  schoolhouse  and  to 
provide  means  to  build  the  same."  Held,  to  be  in  effect  a  proposition  to  rescind,  and 
the  vote  to  build  adopted  at  the  last  meeting  was  a  substantial  rescindment  of  the  vote 
to  postpone  building,  passed  at  first  meeting. 

Decided  November  31,  1890 

Alpha  F.  Orr,  attorne}^  for  appellants 

A.  C.  &  E.  C.  Woodruff,  attorneys  for  respondents 

Draper,  Superintendent 

This  appeal  is  taken  by  electors  of  school  district  no.  5,  town  of  Camden, 
from  the  proceedings  of  a  special  meeting,  held  June  28,  1890.  The  appellants 
also  ask  for  the  removal  of  the  trustee  from  office.  The  grounds  of  the  appeal 
are,  that  at  the  said  meeting,  a  vote  taken  at  a  previous  meeting,  to  postpone  the 
building  of  a  new  schoolhouse  until  fall,  was  rescinded  without  notice  of  such 
proposed  action  in  the  call  for  the  meeting.  It  appears  from  the  proofs  sub- 
mitted, that  the  object  of  the  meeting,  as  stated  in  the  notice,  was  "to  take 
action  on  building  the  schoolhouse  and  to  provide  means  to  build  the  same." 

The  ground  upon  which  the  removal  of  the  trustee  is  sought  is  that  the  trus- 
tee requested  the  district  clerk  to  make  a  false  record  of  the  proceedings  of  the 
meeting  in  the  clerk's  book.  At  the  meeting  of  June  28th,  of  which  due  notice 
had  been  given  to  the  inhabitants,  it  appears  that  the  action  of  the  former  meet- 
ing to  defer  action,  in  regard  to  building  a  new  schoolhouse,  was,  by  a  unanimous 
vote,  rescinded.  It  also  appears  that  the  meeting  directed  the  trustee  to  proceed 
with  the  building  of  the  new  schoolhouse,  and  to  advertise  for  proposals  to  do 
the  work,  and  authorized  him  to  levy  a  tax  to  raise  the  necessary  amount  to  pay 
for  the  construction  thereof.  It  also  appears  that  the  district  clerk  kept  no 
record  of  the  proceedings  of  the  meeting,  and  prepared  his  minutes  afterwards 
from  memory,  and  that  he  omitted  from  such  record  some  part  of  the  proceed- 
ings; that  the  trustee  who  participated  in  the  meeting  and  offered  certain  reso- 
lutions, supplied  the  clerk  with  a  memorandum  of  the  same,  in  order  that  he 
might  perfect  his  minutes. 

It  is  contended  by  the  appellants  that,  because  of  the  fact  that  the  notice  for 
the  special  meeting  of  June  28th,  did  not  state  that  the  action  of  a  former  meet- 
ing at  which  it  was  decided  to  postpone  building,  would  be  reconsidered,  that 
the  vote  to  reconsider  was  in  consequence  illegal.  This  I  can  not  hold  because 
of  the  fact  that  the  vote  of  the  meeting  directing  the  trustee  to  proceed  with  the 


JUDICIAL  decisions:    meetings  335 

construction  of  the  new  building,  and  of  which  action  due  notice  had  been  given, 
was  in  effect  a  rescinding  of  the  action  of  the  previous  meeting.  The  evidence 
shows  that  the  district  was  without  a  schoolhouse,  and  the  action  of  the  meeting 
of  June  28th  directing  the  construction  of  one,  was  justifiable,  and  should  be 
upheld. 

I  am  not  satisfied  that  the  trustee  of  the  district  sought  to  induce  the  district 
clerk  to  insert  in  the  proceedings  of  the  district  meeting,  anything  which  should 
not  have  appeared  therein,  and  in  this  position  I  am  supported  by  the  affidavit 
of  the  district  clerk  himself,  which  is  submitted  by  respondent,  and  which  is 
somewhat  contradictory  of  his  affidavit  presented  by  the  appellants. 

In  view  of  the  foregoing  consideration,  I  dismiss  the  appeal. 


3926 

Plinny  Phelps  and  others  from  the  proceedings  of  the  annual  meeting  held  in 
school  district  no.  5,  town  of  Camden,  county  of  Oneida,  August  5,  1890. 

Proceedings  of  annual  meeting  held  at  the  place  where  the  school  had  been  taught,  and 
where  previous  meetings  of  the  district  had  been  held.  Sustained,  although  a  district 
clerk,  without  authority,  had  posted  notices  for  the  meeting  to  be  held  elsewhere,  in 
which  latter  place  a  few  electors  assembled,  but  transacted  no  business.  Those  as- 
sembled at  the  former  place  greatly  exceeded  the  number  of  those  at  the  latter,  and 
were  unanimous  in  the  selection  of  officers  and  the  transaction  of  business.  It  does 
not  appear  that  the  trustee  and  others  who  attended  the  meeting  at  the  schoolhouse 
were  cognizant  of  the  clerk's  notice. 

Decided  November  21,  1890 

Alpha  F.  Orr,  attorney  for  appellants 
Davies  &  Johnson,  attorneys  for  respondent 

Draper,  Superintendent 

Appeal  by  electors  of  school  district  no.  5,  town  of  Camden,  county  of 
Oneida,  from  the  proceedings  of  the  last  annual  school  meeting. 

The  grounds  of  the  appeal  are  that  the  appellants  were  misled  as  to  the 
place  for  the  holding  of  the  annual  meeting,  by  a  notice  which  the  district  clerk 
had  posted.  It  appears  from  the  evidence  submitted  that  the  schoolhouse  had 
been  destroyed  by  fire;  that  temporary  quarters  for  the  school  had  been  hired 
by  the  trustee  in  order  to  complete  the  school  year ;  tha.t  several  school  meetings 
had  been  held  in  such  temporary  quarters ;  that,  without  any  direction  by  the 
school  trustee,  the  district  clerk  posted  notices  for  the  annual  meeting  at  another 
place  about  a  hundred  yards  distant  from  such  temporary  school  building.  It  is 
claimed  by  the  appellants,  and  denied  by  the  trustee,  that  he  knew  that  the  said 
notice  had  been  given.  Thirteen  of  the  voters  of  the  district  assembled  at  the 
place  at  which  the  school  had  been  held,  and  at  which  previous  meetings  had 
been  called,  on  the  night  designated  for  holding  the  annual  meeting,  and  pro- 
ceeded to  transact  the  business  of  the  annual  meeting.     A  smaller  number  met 


336  THE   UXIVERSITV    OF   THE   STATE   OF    NEW    YORK 

at  the  place  designated  in  the  notice  of  the  district  clerk,  but  it  does  not  appear 
that  they  transacted  any  business,  but  proceeded  to  the  building  in  which  the 
other  thirteen  persons  were  transacting  business. 

It  is  claimed  by  the  appellants  that  they  were  present  at  the  latter  place 
about  half-past  7  o'clock,  and  that  the  business  had  then  been  transacted,  and  the 
meeting  was  about  to  adjourn.  It  is  claimed  by  the  respondents  that  it  was  nearly 
8  o'clock  when  they  came  to  the  meeting.  Immediately  after  the  adjournment 
and  the  retirement  of  the  thirteen  who  had  participated  in  the  meeting,  the  pro- 
ceedings of  which  were  unanimous,  nine  of  the  inhabitants  who  claim  they  were 
misled  by  the  district  clerk's  notice,  proceeded  to  organize  a  meeting  and  elect 
district  officers. 

The  law  makes  it  the  duty  of  the  trustee  of  the  district,  when  the  schoolhouse 
can  not  be  used  for  the  purpose  of  holding  a  district  meeting,  to  designate  the 
l)lace  therefor,  and  it  would  then  become  the  duty  of  the  district  clerk  to  give 
notice  accordingly.  It  does  not  appear  that  the  trustee  designated  any  place,  but 
that  the  district  clerk,  upon  his  own  motion,  named  a  place  in  the  notice,  other 
than  the  place  at  which  the  school  had  been  held,  and  in  which  previous  meetings 
of  the  district  had  been  held. 

I  should  not  sustain  the  proceedings  of  the  first  meeting  if  it  were  made  to 
appear  to  me  that  there  was  any  division  of  sentiment  in  the  action  thereof ;  or, 
if  it  appeared  that  a  larger  number  of  electors  of  the  district  constituted  the 
second  meeting.  If  this  were  the  case,  I  should  set  aside  the  proceedings  of  the 
first  meeting  and  order  a  new  election;  but  it  is  clear  to  me  that  a  majority  of 
the  electors  who  intended  to  participate  in  the  annual  meeting,  participated  in 
the  first  meeting.  I  conclude,  therefore,  to  overrule  the  appeal,  and  sustain  the 
action  of  the  first  meeting. 

The  appeal  is  overruled. 


3569 

In  the  matter  of  the  appeal  of  Henry  Chambers  v.  H.  K.  Salisbury,  school 
commissioner  of  Montgomery  county. 

When  the  commissioners  having  jurisdiction  over  a  joint  district  can  not  agree  to  make 
an  alteration  of  the  district,  the  State  Superintendent  will  not  interfere  unless  the  pro- 
priety of  the  change  is  clearly  manifest,  and  where  a  refusal  to  so  order  would  neces- 
sarily work  injustice. 

Where  an  inhabitant  of  a  joint  district  is  inequitably  assessed,  his  remedy  is  not  by  an 
alteration  of  the  district,  but  by  the  proceeding  provided  by  section  69,  title  7  of  the 
Consolidated  School  Act,  and  then  by  an  appeal  if  he  considers  he  has  not  been 
equitably  dealt  with. 

Decided  February  21,  1887 

Draper,  Superintendent 

The  appellant  owns  and  resides  upon  a  farm  lying  in  joint  school  district 
no.  9  of  the  towns  of  Root  and  Charleston,   Montgomery  county,  and  of  the 


JUDICIAL    decisions:     MEEllNGS  337 

town  of  Carlisle,  Schoharie  county.  He  desires  to  be  set  oft"  from  said  district 
no.  9  and  attached  to  district  no.  6  of  the  town  of  Carlisle.  The  school  com- 
missioners of  Montgomery  county  and  of  the  second  district  of  Schoharie  county, 
within  whose  commissioner  districts  the  school  districts  which  would  be  affected 
by  the  change  are  situated,  met  at  the  house  of  the  appellant  on  the  21st  day  of 
September  1886,  for  the  purpose  of  considering  the  matter.  After  such  con- 
sideration, Commis^ioner  Mann,  of  Schoharie  county,  announced  himself  as  in 
favor  of  the  proposed  change,  but  Commissioner  Salisbury,  of  Montgomery 
county,  refused  to  join  in  an  order  making  the  same.  From  such  refusal  this 
appeal  is  taken. 

The  alteration  of  a  joint  school  district  requires  the  approval  of  at  least 
a  majority  of  all  of  the  school  commissioners  within  whose  districts  the  school 
districts  to  be  affected  are  situated.  The  law  leaves  it  to  their  discretion,  and 
requires  that  their  judgments  shall  concur  in  the  wasdoni  of  the  proposed  change 
before  it  shall  be  made.  This  is  intended  as  a  check  upon  frequent  change  or 
changes  for  slight  reasons.  In  a  case  where  it  appears  that  the  commissioners 
met  and  deliberately  considered  a  proposed  change  and  disagreed  as  to  the  pro- 
priety of  it,  this  Department  will  not  order  the  change  to  be  made  except  where 
the  propriety  of  the  change  is  clearly  manifest,  and  where  a  refusal  to  so  order 
would  necessarily  work  injustice  to  an  individual  or  injury  to  the  school  system. 
In  this  case  the  commissioners  m.et  upon  the  ground,  heard  the  interested  parties, 
examined  the  circumstances  and  configuration  of  the  territory  affected,  deliber- 
ately considered  the  whole  subject,  and  failed  to  agree  as  to  the  wisdom  of  the 
proposed  alteration.  The  trustee  of  one  of  the  districts  aft'ected  also  refused  to 
consent  to  the  change.  After  such  proceedings,  with  the  opportunities  thus 
afforded  the  commissioners  for  observation  and  for  gathering  the  information 
upon  which  to  act  intelligently,  and  with  an  evident  difference  of  opinion  in  the 
locality,  a  clear  and  strong  case  must  be  presented  by  the  appellant  in  order  to 
succeed  in  having  the  refusal  of  one  of  the  commissioners  overruled. 

In  my  opinion,  such  a  case  is  not  here  presented.  The  real  reason  why  the 
appellant  desires  the  alteration  appears  to  be  the  fact  that  he  deems  himself 
inequitably  and  unfairly  taxed  in  joint  district  no.  9.  He  says  he  is  assessed  at 
a  higher  valuation  per  acre  than  any  other  farm  in  the  district,  although  there 
are  several  farms  no  less  valuable  and  some  more  so  than  his.  If  this  is  so  the 
law  provides  a  remedy.  Section  69,  title  7,  of  the  Consolidated  School  Act,  pro- 
vides a  way  for  equalizing  taxes  in  joint  districts,  and  if  the  officers  therein 
charged  with  the  duty  of  correcting  an  unjust  valuation  refuse  to  aft'ord  relief, 
this  Department  will  do  so.  But  the  remedy  for  such  a  wrong  does  not  lie  in  the 
alteration  of  school  districts.  The  appellant  urges  in  addition  to  this  that  his 
residence  is  nearer  the  schoolhouse  in  district  no.  6  than  in  no.  9,  and  that  the 
road  to  the  schoolhouse  in  no.  9  is  steep  and  frequently  blockaded  with  snowdrifts 
in  the  winter;  but  as  it  appears  that  he  has  no  children  of  school  age,  it  would 
hardly  seem  that  this  is  the  real  cause  of  complaint. 

The  appeal  is  dismissed. 


33^  THE    UNIVEKSITV    OF    THE    STATE    OF    NEW    YORK 

3564 

Jn  the  iiiaticr  of  tlic  appeal  of  Kdward  L.  Rikcr,  l'"loyd  Gates  and  Charles  Eaton 
from  the  proceedings  of  a  special  school  meeting  held  in  district  no.  3,  town 
of  Ontario,  county  of  Wayne. 

The  proceedings  of  a  district  mcctiiiy  will  not  be  set  aside  l)ccausc  a  numher  of  voters  who 
knew  of  the  meeting  chose  to  absent  themselves,  nor  because  some  who  attended  did 
not  vole. 

The  fact  tiiat  a  list  of  voters  was  prepared  and  used  at  the  meeting,  which  was  incomplete, 
is  no  suflicient  reason  for  setting  aside  the  action  taken,  particularly  when  an  oppor- 
tunity was  pul)licly  given  to  all  voters  whose  names  had  been  omitted  from  the  list, 
to  vote. 

Action  of  another  district  meeting,  held  six  months  previous  to  the  appeal,  can  not  now 
be  questioned.  Such  action,  if  objected  to,  should  have  been  appealed  from  within 
thirty  days  from  the  date  thereof. 

Decided  February  14,  1887 

Draper,  Superintendent 

This  is  an  appeal  by  residents  of  district  no.  3,  town  of  Ontario,  county  of 
Wayne,  from  the  proceedings  of  the  special  school  meeting  held  September  11, 
1886,  in  said  district,  and  demanding  that  the  same  be  set  aside.  The  following 
are  the  groinids  stated  by  the  appellants :  that  the  trustee  presented  a  list  of 
voters  which  was  only  a  partial  list ;  that  quite  a  number  of  voters  did  not  attend 
the  meeting  because  of  the  narrowness  of  the  call ;  that  several  who  attended  the 
meeting  did  not  vote,  for  the  reason  that  they  considered  the  call  not  sufficiently 
broad  to  admit  them  to  vote  as  they  saw  tit;  that  there  was  a  bill  of  costs  included 
in  the  supplementary  report  of  the  trustee,  incurred  by  said  trustee  in  some  action 
or  proceeding  alTccting  the  flistrict.  The  respondent,  the  trustee  and  other  resi- 
dents of  the  district,  for  answer  to  the  appeal  herein,  allege:  that  the  list  of 
voters  furnished  by  the  trustee  at  such  special  meeting,  were  all  that  he  could 
think  of  at  the  time  and  put  those  on  the  list,  when  the  chairman  announced  that 
if  any  were  present  whose  names  had  been  omitted,  they  were  now  given  an 
opportunity  to  vote;  that  if  any  voters  of  the  district  absented  themselves  from 
the  meeting,  it  was  jirobably  due  to  the  fact  that  the  appellants  had  taken  pains 
to  inform  them  that  no  meeting  would  be  held;  that  only  two  persons  made  this 
claim;  that  no  exceptions  were  taken  to  the  report  of  the  former  trustee  when 
made  at  the  special  meeting ;  that  the  costs  and  expenses  referred  to  were  incurred 
by  the  trustee  while  acting  in  accordance  with  a  resolution  of  a  special  meeting 
held  in  March  last. 

The  following  is  the  call  for  the  special  meeting,  to  which  the  appellants 
object: 

Notice 
By  request  of  the  supervisor  of  the  town,  I,  the  trustee  of  school  district  no. 
3,  order  a  special  sch.ool  meeting  to  be  held  in  the  schoolhouse,  on  Saturday  even- 
ing, September  11,  1S86,  at  seven  o'clock  p.  m.,  for  the  sole  purpose  of  accepting 
the  supplementary  report  of  the  trustee,  Emmet  Teats. 

John  H.  Albright 
Ontario,  X.  ]'.,  September  6,  1886 


JUDICIAL  decisions:    meetings  339 

An  additional  pleading  has  been  filed  by  each  side  to  this  controversy,  but 
the  statements  contained  therein  do  not  materially  change  the  allegations  above 
stated. 

After  a  careful  examination  of  all  the  pleadings,  affidavits  and  exhibits  pre- 
sented, I  do  not  discover  any  sufficient  reason  why  the  proceedings  of  this  district 
meeting  should  be  set  aside.  The  fact  that  several  parties  who  had  notice  of 
the  meeting  saw  fit  to  absent  themselves,  will  certainly  be  no  good  reason,  par- 
ticularly as  it  is  not  claimed  that  these  parties  were  kept  away  through  any  act 
of  the  respondents;  nor  is  the  fact  that  other  residents  of  the  district  who 
attended  the  meeting  and  were  entitled  to  vote  thereat,  declined  to  vote  when 
they  had  an  opportunity.  The  fact  that  a  list  was  prepared  by  the  trustee,  which 
omitted  some  names  of  qualified  voters,  h  not  a  sufficient  ground  to  base  a 
decision  upon,  setting  aside  the  proceedings  of  a  district  meeting,  particularly 
as  the  chairman  of  the  meeting  stated,  after  the  list  so  prepared  had  been  called, 
that,  if  any  present  had  not  voted,  they  then  had  an  opportunity  to  vote.  The 
only  other  point  and  the  real  secret  of  this  appeal,  as  it  appears  to  me,  is  the 
item  presented  by  the  former  trustee  of  between  twenty  and  thirty  dollars  for 
certain  costs  and  disbursements  incurred  by  said  trustee  in  some  proceeding 
relating  to  the  school  district.  It  is  not  claimed  by  the  appellant  and  it  does  not 
appear  from  any  papers  before  me.  that  this  item  of  the  trustee  was  disputed  at 
the  district  meeting,  and  it  does  appear  that  the  trustee  was  authorized  by  a  vote 
of  the  district,  held  several  months  previous  to  this  meeting,  to  defend  a  certain 
action  which  one  Riker  had  brought  against  the  trustee.  It  is  claimed  by  the 
appellant  that  the  meeting  at  which  this  resolution  was  passed  was  not  properly 
called,  a  sufficient  notice  of  the  object  thereof  not  having  been  given,  but  it  is 
too  late  for  me  to  pass  upon  that  question  now,  as  that  meeting  was  held  in 
March  last,  and  it  seems  that  the  trustee  acted  in  accordance  with  such  resolution, 
and  that  no  appeal  was  ever  taken  to  this  Department  from  the  proceedings  of 
that  special  meeting. 

The  conclusion  I  have  reached  is,  that  the  appellants  have  not  shown  suffi- 
cient facts  which  would  justify  me  in  setting  aside  the  proceedings  of  the  special 
meeting  held  in  September  last,  and  I,  therefore,  dismiss  the  appeal. 


3560 

In  the  matter  of  the  appeal  of  Frederick  C.  Plank,  and  others,  from  the  proceed- 
ings of  a  special  school  district  meeting  held  in  district  no.  17,  town  of  May- 
field,  Fulton  county,  N.  Y.,  November  9,  1886. 
Proceedings  of  a  district  meeting  set  aside,  when  it  appears  that  service  of  notice  of  the 
meeting  upon  a  majority  of  the  voters  was  intentionally  omitted,  and  in  consequence 
but  a  minority  attended  the  meeting  and  participated  in  its  deliberations. 
Decided  February  4,  1887 

Draper,  Superintendent 

This  appeal  is  taken  by  residents  and  taxpayers  of  district  no.  17,  town  of 
Mayfield.  county  of  Fulton,  from  the  action  of  a  special  district  meeting  in  vot- 
ing to  purchase  new  seats  for  the  district  school  in  said  district. 


340  THE   UNIVERSITY    OF   THE   STATE   OF    NEW    YORK 

The  grounds  of  the  appeal  are :  That  legal  notice  of  the  meeting  was  never 
given  to  a  number  of  the  legal  voters  in  said  district. 

That  several  received  no  notice  whatever. 

That  several  received  a  verbal  notice  the  day  of  the  meeting,  but  the  object 
of  the  special  meeting  was  not  stated  to  them. 

That  the  failure  to  give  legal  notice  was  wilful  on  the  part  of  the  trustee. 

No  answer  has  been  interposed  by  the  trustee,  although  ample  time  has  been 
allowed  him  to  controvert  the  allegations  of  the  appellants,  if  he  chose  to  do  so. 

It  seems  that  i8  legal  voters  attended  the  meeting,  of  whom  12  favored  the 
resolution  to  purchase  new  seats.  A  majority  of  the  legal  voters  appear  to  be 
opposed  to  the  purchase,  on  the  ground  that  the  present  outfit  is  in  good  repair 
and  suitable  for  the  school. 

With  these  facts  only  before  me,  I  am  compelled  to  sustain  the  appeal.  The 
statute  prescribes  the  notice  to  be  given  and  the  manner  of  giving  it.  It  is  not 
customary  to  set  aside  the  proceedings  of  special  meetings  on  the  ground  of 
insufficiency  of  notice,  where  good  faith  is  evident  or  it  is  shown  that  an  honest 
endeavor  was  made  to  give  notice  to  all,  particularly  not  unless  the  meeting  was 
closely  divided  upon  a  proposition  and  a  sufficient  number  of  legal  voters  were 
absent  for  want  of  notice  to  have  changed  the  result.  But,  I  do  not  think  that 
the  evidence  before  me  shows  sufficient  efifort  to  notify  all  of  the  meeting,  and 
the  action  taken  thereat  can  not,  under  all  the  circumstances  of  the  case,  be 
upheld. 

The  appeal  is  sustained. 


3552 
In  the  matter  of  the  appeal  of  Alva  T.  Decker  and  others,  from  the  proceedings 
of  the  annual  school  meeting  held  in  school  district  no.  6,  town  of  Sanford, 
Broome  county,  N.  Y.,  August  31,  1886. 
Proceedings  of  a  district  meeting  called  to  order  at  the  appointed  time,  and  conducted  in 
an  orderly  manner,  will   not  be   disturbed   because  certain   voters   of   the   district   who 
were  aware  that  the  meeting  had  been  called  to  order,  remained  outside  of  the  room 
for  some  time,  and  until  the  proceedings  objected  to  had  been  concluded. 
Decided  January  18S7 

Draper,  Superintendent 

This  is  an  appeal  taken  by.  residents  and  school  district  electors  of  district 
no.  6,  town  of  Sanford,  Broome  county,  N.  Y.,  from  the  action  of  the  annual 
district  meeting  held  August  31,  1886,  in  the  matter  of  the  election  of  a  trustee 
for  said  district. 

It  is  alleged  as  grounds  for  the  appeal: 

I  That  the  district  has  18  voters;  that  at  the  annual  meeting,  notice  was 
given  that  the  meeting  was  open  and  ready  to  proceed  to  business,  and  that  a 
majority  of  the  voters  were  in-attc:i(lance  (but  not  in  the  room)  ;  that  the  appel- 
lants went  into  the  room  in  less  than  five  minutes  from  the  time  the  meeting  was 
opened,  with  no  knowledge  of  what  had  been  done,  and  one  of  the  appellants 


JUDICIAL    DECISIONS  I      MEETINGS  341 

then  named  a  person  for  trustee,  and  was  told  by  the  chairman  that  one  Benjamin 
H.  Hobart  had  been  elected  by  the  votes  of  two  or  three  persons. 

2  That  the  chairman  would  not  then  entertain  a  motion  to  elect  a  trustee. 

3  That  said  Benjamin  H.  Hobart  is  not  a  resident  of  the  district  or  of  the 
State  of  New  York;  that  he  owns  no  real  estate,  and  sends  no  children  to  school; 
that  appellants  believe  that  said  Hobart  was  declared  elected  trustee  to  insure 
the  employment  of  a  certain  person  as  teacher,  contrary  to  the  wishes  of  a  large 
majority  of  the  district. 

The  appeal  bears  twelve  signatures,  but  is  verified  only  by  one  of  the 
ap])ellants. 

The  respondents,  including  the  said  Benjamin  F.  Hobart  and  14  other 
alleged  voters  of  the  district,  answer  the  appellant's  allegation;  the  answer  on 
the  part  of  the  trustee  being  verified  by  him,  and  the  answer  on  behalf  of  the 
residents  and  voters  being  verified  by  George  L.  Talmage,  who  was  chairman 
of  said  meeting.  The  trustee  denies  that  he  is  a  nonresident  of  the  district; 
alleges  he  owns  real  estate  and  personal  property,  and  pays  taxes  in  the  district, 
and  has  children,  but  not  large  enough  to  attend  school,  and  that  he  has  employed 
a  duly  qualified  teacher,  who  is  conducting  the  school.  The  residents  and  voters 
answer  that  they  were  present  at  the  meeting  in  question.  That  the  meeting 
was  called  to  order  at  8.10  p.  m. ;  that  a  majority  of  the  voters  of  the  district 
were  present;  that  the  meeting  was  orderly,  and  a  majority  of  those  present 
voted;  that  Benjamin  Hobart  was  unanimously  elected  trustee;  that  a  good 
teacher  has  been  employed,  and  is  teaching  a  good  school,  and  that  a  majority 
of  the  patrons  are  well  satisfied  with  the  trustee. 

It  is  singular  that  these  contrary  statements  should,  in  several  instances, 
be  made  by  the  same  persons,  but  such  is  the  fact. 

After  a  careful  examination  of  the  facts  presented,  I  fail  to  discover  any 
reason  why  the  proceedings  of  the  annual  meeting  should  be  disturbed  or  set 
aside.  The  meeting  was  not  called  before  the  usual  hour  of  meeting,  and  appel- 
lants admit  they  knew  the  meeting  had  been  called  to  order,  and  yet  delayed 
to  go  into  the  room  until  considerable  business  had  been  done  and  a  trustee 
chosen.  The  charge  that  the  person  chosen  trustee  is  not  a  resident  and  a  voter, 
is  sufficiently  answered  by  the  verified  answer  of  the  trustee. 

The  appeal  is  overruled. 


4000 

In  the  matter  of  the  appeal  of  William  H.  Huntley  and  others  v.  school  district 
no.  6  of  the  town  of  Williamstown,  in  the  county  of  Oswego. 

Proceedings  of  an  alleged  annual  school  meeting  set  aside  where  a  long  established  custom 
in  the  district  for  calling  the  people  to  assemble  had  been  purposely  and  intentionally 
omitted,  thus  enabling  a  very  small  minority  of  those  intending  to  be  present  at  the 
meeting  to  assemble  and  transact  the  business  of  the  annual  meeting. 

Decided  September  14,  1891 

-V  E.  Dixson.  Esq..  attorney  for  the  respondents 


342  THE   UNIVERSITY    OF   THE   STATE   OF   NEW   YORK 

Draper,  Superintendent 

The  purpose  of  lliis  appeal  is  to  set  aside  the  proceedings  of  an  alleged 
annual  school  meeting  in  the  district  above  named,  on  the  4th  day  of  August 
last.  The  appellants  allege  that  it  has  been  the  invariable  custom  in  the  district 
for  a  great  many  years,  to  ring  the  schoolhouse  bell  in  order  to  call  residents  to 
special  and  annual  school  meetings,  but  that  this  was  not  done  at  the  time  of  the 
last  annual  school  meeting;  that  a  few  interested  parties  assembled  together 
promptly  at  the  time  fixed  by  law  for  the  meeting,  and  that  in  five  or  ten  minutes 
hastened  through  the  forms  of  an  annual  meeting,  receiving  and  acting  upon 
the  report  of  the  trustees,  voting  moneys  for  the  next  year,  and  electing  trustees. 
It  is  alleged  and  not  denied,  that  not  more  than  5  or  6  persons  were  present  at 
the  time  of  these  proceedings;  that  the  great  majority  of  the  people  of  the  dis- 
trict relied  upon  the  bell  being  rung,  and  many  did  not  go  to  the  meeting  at  all 
because  it  was  not  done;  that  others  went  to  the  number  of  15  or  20  at  least,  to 
find  that  the  proceedings  had  been  hurried  through.  It  is  shown  that  there  are 
some  95  voters  in  the  district,  60  of  whom  petition  me  to  order  a  new  meeting, 
and  allege  that  they  were  improperly  and  unfairly  prevented  from  expressing 
their  wishes  at  the  annual  meeting. 

The  respondents  answer  and  present  very  technical  and  some  frivolous 
reasons  why  the  appeal  should  not  be  entertained;  They  allege  that  the  law 
requires  no  notice  of  an  annual  meeting  to  be  posted,  and  that  it  does  not  require 
the  bell  to  be  rung.  They  say  that  the  meeting  was  held  at  the  time  fixed  by  law 
and  that  others  should  have  been  present  at  that  time  if  they  wished  to  participate 
in  the  meeting. 

The  only  dispute  between  the  parties,  as  revealed  by  their  affidavits,  is  in 
relation  to  the  precise  time  at  which  the  meeting  was  called.  The  appellants 
put  it  earlier  than  the  respondents.  There  can  be  no  doubt  upon  the  papers 
presented,  that  because  of  the  circumstances  set  forth  by  the  appellants,  the 
majority  of  people  who  desired  to  attend  and  participate  in  the  school  meeting, 
were  prevented  from  doing  so.  The  respondents  say  that  it  was  their  own  fault ; 
that  they  were  bound  to  know  the  law  and  to  be  on  time.  This  may  be  true, 
generally  speaking,  yet  it  seems  conclusive  upon  the  papers  presented,  that  the 
will  of  the  majority  of  the  district  has  been  thwarted  by  sharp  practice  on  the 
part  of  a  few  who  saw  fit  to  ignore  a  well-settled  custom  in  the  district,  in  order 
to  promote  their  own  purposes.  I  think  that  the  law  intends  that  the  State 
Superintendent  shall  interfere  in  such  a  case,  when  presented  to  him,  and  I  am 
confident  that  in  giving  the  district  another  opportunity  to  hold  an  annual  meet- 
ing, so  that  all  who  wish  may  be  present  and  participate  therein,  I  shall  promote 
the  best  educational  interests  of  the  locality. 

The  appeal  is  therefore  sustained,  the  action  of  the  said  meeting  is  held 
to  be  void  and  of  no  effect,  and  the  clerk  will  post  notices  of  a  special  annual 
meeting  to  be  held  not  less  than  ten  days  nor  more  than  twenty  days  from  the 
date  thereof. 


JUDICIAL  decisions:    meetings  343 

3991 

In  the  matter  of  the  appeal  of  William  H.  Graham  and  others  v.  school  district 
no.  3,  of  the  town  of  Mount  Pleasant,  in  the  county  of  Westchester. 

Certain  proceedings  in  the  nature  of  an  annual  meeting  set  aside  where  it  is  claimed  that 
a  majority  of  the  electors  of  the  district  were  misled  as  to  the  hour  of  meeting  by  the 
notices  posted,  and  in  consequence  were  not  in  attendance  while  the  business  was  bemg 
transacted  by  a  few  specially  interested  persons. 

Special  meeting  ordered. 

Decided  August  31,  1891 

Draper,  Superintendent 

This  appeal  is  brought  for  the  purpose  of  setting  aside  certain  proceedings 
in  the  nature  of  an  annual  school  meeting  in  the  district  above  named,  on  the 
4th  day  of  August  last.  It  is  alleged  on  one  side,  that  a  portion  of  the  notices 
posted  called  for  a  meeting  at  8  o'clock.  On  the  other  side,  it  is  alleged  that  all 
of  the  notices  called  the  meeting  at  7  o'clock.  It  is  admitted  on  both  sides  that 
there  was  no  action  at  the  previous  annual  meeting  fixing  an  hour  for  the  next 
meeting.  The  law  provides  that  in  such  cases  the  meeting  shall  be  held  at  7.30 
o'clock.  It  is  claimed  by  the  appellant  that  a  majority  of  electors  in  the  district 
were  misled  as  to  the  time  of  meeting,  supposing  that  it  would  be  in  the  neighbor- 
hood of  8  o'clock,  and  that  a  few  specially  interested  persons  assembled  at  7.30 
o'clock,  or  earlier,  and  rushed  the  business  of  the  meeting  through  before  the 
electors  arrived ;  and  that  many  arrived  at  8  o'clock  to  find  that  the  annual  busi- 
ness of  the  district  had  been  transacted. 

I  think  the  appellants  make  out  a  pretty  strong  case,  sufficiently  strong  at 
least  to  justify  me  in  setting  aside  the  proceedings  appealed  from,  and  ordering 
another  meeting,  of  which  ample  notice  shall  be  given.  The  best  educational 
interests  of  the  district  require  that  the  substantial  electors  of  the  district  shall 
have  no  good  ground  for  feeling  that  they  have  been  subjected  to  a  trick,  or 
intentionally  misled.  The  appeal  is  therefore  sustained,  and  notices  will  be 
issued  by  the  district  clerk  for  a  special  meeting  to  be  held  at  a  time  and  place 
therein  mentioned,  for  the  purpose  of  transacting  all  the  business  of  the  annual 
meeting.  Notices  of  such  meeting  must  be  posted  in  the  district  for  at  least 
ten  days. 

3953 

In  the  matter  of  the  appeal  of  Charles  C.  Bagg  and  others  v.  union  free  school 
district  no.   5,  town  of   De   Witt,  county  of   Onondaga. 

At  a  special  district  school  meeting,  an  additional  sum  of  money  was  voted  to  complete  a 
new  schoolhouse.  The  vote  upon  the  question  was  close,  it  prevailing  only  by  five 
majority.  Unsatisfactory  and  contradictory  evidence  is  offered  to  the  effect  that  illegal 
votes  were  cast  for  the  proposition.  Held,  that  the  proof  not  being  satisfactory,  the 
action  of  the  meeting  is  sustained. 

Decided  January  8,  iSgi 

Hoyt,  Beach,  Hancock  &  Devine,  attorneys  for  appellants 
"^J.  B.  Brooks,  attorney  for  respondent. 


344  THE   UNIVEKSITY   OF   THE   STATE    OF    NEW    YORK 

Draper,  Superintendent 

On  the  i6th  day  of  June  1890,  the  inhabitants  of  the  district  above  named 
voted  to  erect  a  new  schoolhouse  in  said  district,  and  to  issue  bonds  of  the 
district  for  the  sum  of  $17,000  for  that  purpose.  The  respondents  issued  said 
bonds  and  by  the  sale  thereof  reahzed  their  face  value.  On  the  i8th  day  of 
November  1890,  a  special  meeting  of  the  district  was  held  for  the  purpose  of 
voting  to  raise  the  further  sum  of  $10,000  in  order  to  complete  the  new  school- 
house,  upon  a  plan  adopted  at  a  special  meeting  held  August  19th.  The  vote  to 
raise  the  additional  $10,000  was  close,  there  being  165  votes  cast  in  all,  of  which 
85  were  in  favor  of  the  proposition,  and  80  against  it.  The  appellants  seek  to 
overturn  the  action  of  this  special  meeting  by  means  of  this  appeal. 

Different  reasons  are  assigned  for  this,  the  only  material  one  being  that 
ten  persons  who  are  named,  voted  in  favor  of  the  proposition,  when  they  were 
not  qualified  to  vote  at  school  meetings  in  the  district.  It  turns  out  upon  more 
complete  investigation,  that  two  who  voted  against  the  proposition  were  not 
entitled  to  vote,  and  it  likewise  turns  out  that  several  of  the  others  who  are 
named  were  entitled  to  vote. 

The  proofs  do  not  sustain  the  allegation  that  enough  illegal  votes  were  cast 
in  favor  of  the  proposition  to  have  changed  the  result.  The  appellants  state 
that  other  illegal  votes  were  cast  in  favor  of  it  by  the  persons  they  name,  but 
this  "allegation  is  too  general  to  put  the  respondents  to  the  necessity  of  answer- 
ing it.  It  is  made  to  appear  in  the  papers,  that  just  prior  to  the  holding  of  the 
meeting  referred  to,  a  circular  was  published  and  distributed  in  the  district, 
promising  work  to  residents  in  case  they  would  vote  the  proposition  through. 
The  members  of  the  board  swear  that  they  had  no  knowledge  of  the  authorship, 
and  that  they  themselves  were  in  no  wise  responsible  for  the  publication.  It  is 
shown  that  the  respondents  have  procured  and  paid  for  a  site,  and  that  a  district 
meeting  has  adopted  plans  for  a  new  schoolhouse,  and  that  the  common  under- 
standing in  the  district  was  that  the  new  schoolhouse  would  cost  considerably 
more  than  the  sum 'appropriated  for  it.  Sufficient  ground  is  not  shown  for  setting 
aside  the  action  of  the  meeting  of  November  19th.  That  meeting  was  more 
largely  attended  than  school  meetings  ordinarily  are,  and  while  the  vote  objected 
to  was  close,  there  is  not  sufficient  proof  that  the  majority  in  favor  of  the 
proposition  was  illegal. 

I  have  been  asked  to  send  the  matter  to  the  school  commissioner  for  the 
purpose  of  taking  testimony,  and  have  considered  what  I  ought  to  do  lu^on  that 
request.  The  pleadings  do  not  leave  much  at  issue  between  the  parties,  and  I 
can  see  no  sufficient  ground  for  granting  the  reciucst,  certainly  not,  when  I  con- 
sider the  delay  which  will  be  involved,  the  expense  which  will  be  occasioned, 
and  the  ill-feeling  which  will  inevitably  be  engendered  by  a  contest  over  irrele- 
vant matters  before  the  school  commissioner. 

In  view  of  these  considerations,  I  must  dismiss  the  appeal,  and  revoke  the 
stay  of  proceedings  heretofore  granted  herein. 


JUDICIAL  decisions:    meetings  345 

3593 

In  the  matter  of  the  appeal  of  Smith  Ovitt  v.  school  district  no.  4,  of  the  towii 

of  Day.  Saratoga  county. 
Proceedings  of  an  annual  meeting  vacated  and  set  aside  for  the  reason  that  the  meeting  was 

disorderly  and  disgraceful. 
Decided  December  10,  1887 

Draper,  Superintendent 

This  appeal  is  brought  to  set  aside  the  proceedings  of  an  alleged  annual 
school  meeting  in  district  no.  4,  of  the  town  of  Day,  Saratoga  county,  held  on 
the  30th  day  of  August  1887.  The  papers  are  exceedingly  irregular  and  poorly 
prepared,  but  they  are  sufficient  to  show  that  the  proceedings  at  the  alleged 
^xhool  meeting  were  disgraceful  in  the  extreme.  The  meeting  was  called  to 
order  at  between  7  and  8  o'clock  in  the  evening,  and  was  characterized  by  a 
bitter  quarrel  until  ii  o'clock,  when  a  motion  was  adopted  that  the  district  be 
annulled.  Upon  this,  probably  about  half  of  the  persons  present  went  away,  and 
upon  going  locked  the  door  to  the  schoolhouse  upon  the  outside.  Those  who 
were  left  in  the  building  remained  until  3  or  4  o'clock  in  the  morning,  and  in 
the  meantime  assumed  to  transact  the  business  of  the  annual  meeting,  by  electing 
a  trustee  and  directing  repairs  to  the  schoolhouse.  It  is  not  necessary  further 
to  specify  the  details,  except  to  say  that  the  papers  show  the  whole  proceedings 
from  first  to  last  to  have  been  utterly  disgraceful  to  the  district. 

I  will  not  give  the  sanction  of  this  Department  to  a  district  meeting  char- 
acterized by  such  proceedings,  and  I  hereby  set  aside  and  declare  it  to  be  null. 
The  district  clerk  will  call  a  special  meeting  of  the  district,  to  be  held  not  more 
than  fifteen  days  from  the  date  hereof,  for  the  purpose  of  transacting  the  busi- 
ness which  should  have  been  done  at  the  annual  meeting.  If  repairs  have  been 
made  to  the  schoolhouse  which  have  not  yet  been  paid  for,  the  meeting  will  make 
provision  for  defraying  such  expenses. 


3655 

In  the-,  matter  of  the  appeal  of  William  F.  Andrews,  from  the  proceedings  of  a 
special  meeting  held  in  school  district  no.  16,  town  of  Denmark.  Lewis 
county,  February  9,  1887. 

A  district  meeting  may  adjourn  from  time  to  time  and  may  transact  any  business  at  an 
adjourned  meeting  which  it  could  have  done  at  the  first  meeting  held  under  the  call. 
When  there  was  some  question  as  to  the  regularity  of  an  adjournment,  the  transac- 
tions of  the  adjourned  meeting  were  upheld  upon  it  appearing  clearly  that  the  voters 
of  the  district  very  generally  attended,  and  that  the  action  taken  was  supported  by  a 
large  majority. 

Decided  April  22;  1887 

Draper,  Superintendent 

This  is  an  appeal  taken  by  an  elector  of  school  district  no.  16.  town  of  Den- 
mark, Lewis  county,  from  the  action  of  a  school  meeting  which  voted  to  change 
a  schoolhouse  site  and  construct  thereon  a  new  schoolhouse. 


346  THE   UNIVERSITY    OF   THE   STATE   OF   NEW    YORK 

The  grounds  of  appeal  alleged  by  appellant  are  that  the  meeting  was  an 
adjourned  one,  and  that  at  the  previous  meeting,  when  the  adjournment  was 
agreed  upon,  no  hour  or  place  was  designated,  and  no  time  or  place  recorded  upon 
the  clerk's  minutes,  and  that  consequently  the  adjournment  was  without  day 
and  the  adjourned  meeting  was  illegal. 

The  respondent,  the  trustee,  for  answer  to  the  appeal,  alleges  the  fact  to  be 
that  the  time  and  place  of  adjournment  were  agreed  upon  and  duly  entered  in 
the  minutes,  and  that  the  time  and  place  of  the  meeting  was  well  understood  by 
the  voters,  and  that  the  proposed  meeting  was  the  subject  of  much  talk  in  the 
district  prior  thereto. 

It  appears  that  there  was  a  full  attendance  of  legal  voters  present  at  the 
meeting  and  a  large  majority  voted  in  favor  of  the  change. 

It  is  conceded  by  the  appellants  that  a  majority  of  the  legal  voters  favor  the 
change,  but  claimed  that,  of  the  tax-paying  portion,  the  division  is  nearly  equal. 

It  does  not  appear  that  any  voter  opposed  to  the  change  was  misled  as  to  the 
time  and  place  of  meeting,  and  in  view  of  all  the  facts  I  must  decline  to  find 
that  the  meeting  of  February  9th  was  illegal. 

The  appeal  is  dismissed. 


3841 

In  the  matter  of  the  appeal  of  Lyman  A.  Colson  v.  Calvin  S.  Edwards,  trustee 
of  school  district  no.  6,  town  of  Edinburgh,  Saratoga  county. 

Proceedings  of  an  annual  meeting  will  not  be  disturbed  upon  an  appeal  because  notice 
thereof  was  not  given.  The  statute  fixes  the  time  and  place  for  the  same.  Nor  for 
the  reason  that  a  delay  of  fifteen  minutes  occurred  in  organizing  the  meeting;  nor 
because  the  person  who  acted  as  chairman  was  a  nonvoter;  nor  because  the  person 
elected  to  a  district  office  is  obnoxious  to  voters;  nor  because  illegal  votes  were 
received,  unless  it  is  made  to  appear  that  they  were  cast  for  the  successful  candidate, 
and  in  a  sufficient  number  to  give  him  a  majority,  and  this,  appellant  must  show  by 
competent  proof. 

Decided  December  9,  1889 

Draper,  Superintendent 

The  appellant  preceded  the  respondent  as  trustee  of  school  district  no.  6, 
town  of  Edinburgh,  Saratoga  county,  his  term  of  office  having  expired  x\ugust 
6th  last. 

He  now  appeals  from  the  proceedings  of  the  annual  meeting  and  the  election 
of  respondent,  upon  the  following  grounds,  namely : 

1  That  legal  notice  of  the  meeting  was  not  given. 

2  The  district  clerk  was  absent  and  the  meeting  was  not  called  to  order  until 
long  after  7.30  p.  m. 

3  The  chairman  of  the  meeting  was  not  a  voter;  he  was  under  age. 


JUDICIAL  decisions:    meetings  347 

4  Illegal  votes  were  received  and  counted. 

5  A  full  and  fair  expression  of  the  voters  present  was  not  allowed. 

6  The  respondent  is  obnoxious  to  a  large  majority  of  the  inhabitants  and 
voters  of  the  district. 

From  the  pleadings  of  the  respective  parties,  it  appears  that  the  appellant, 
the  outgoing  trustee,  called  the  meeting  to  order.  A  nonvoter  was  chosen  chair- 
man. Appellant  and  respondent  were  rival  candidates  for  trustee.  The  chair 
appointed  a  representative  of  each  candidate  as  tellers.  A  ballot  was  taken  and 
i6  votes  were  cast.    The  tellers  announced  ii  for  respondent  and  5  for  appellant. 

In  answer  to  appellant's  grounds  of  appeal,  respondent  avers  that  due 
notice  of  the  meeting  was  given  by  appellant's  direction ;  that  any  delay  in  calling 
the  meeting  to  order  appellant  was  responsible  for,  as  he  performed  that  duty; 
that  the  organization  was  effected  about  7.45  p.  m.  He  admits  that  the  chairman 
was  a  minor,  but  made  an  efficient  and  fair  presiding  officer.  He  does  not  deny 
that  illegal  votes  were  cast,  but  attempts  to  excuse  this  by  precedent  in  the  dis- 
trict.   He  denies  all  the  other  charges. 

The  first  and  last  objection  stated  as  grounds  of  appeal  are  not  tenable. 
The  statute  fixes  the  time  for  holding  annual  meetings  in  school  districts,  and 
failure  to  give  notice  does  not  render  the  proceedings  thereat  void.  A  person 
may  be  obnoxious  to  a  majority  of  the  people  and  yet  be  a  legal  school  officer. 

The  delay  of  fifteen  minutes  in  calling  the  meeting  to  order  is  not  an  un- 
usual occurrence  at  school  meetings. 

The  chairman  being  no  voter  and  not  having  attempted  to  vote,  furnishes 
no  sufficient  ground  to  set  aside  the  proceedings  of  the  meeting.  I  believe  persons 
voted  who  were  not  qualified  to  do  so,  but  appellant  seems  to  claim  one  such 
voter,  James  Jones,  whom  he  alleges  was  not  a  qualified  voter.  The  respondent 
insists  that  one  Edwards,  also  claimed  by  appellant,  was  no  more  qualified  than 
Jones. 

The  proofs  before  me  do  not  satisfy  me  that  an  opportunity  for  a  full 
and  fair  expression  of  the  legal  voters  present  was  not  afforded.  The  appellant 
claims  6  votes  were  cast  for  him,  including  a  vote  by  Jones,  whom  he  alleges 
was  not  a  voter,  and  one  by  Edwards,  who  respondent  avers  was  not.  He  men- 
tions the  names  of  three  other  persons  who  voted  who  were  not  legal  voters, 
and  as  he  does  not  claim  their  votes,  they  may  have  voted  for  respondent.  As- 
suming then,  that  of  the  11  ballots  found  for  respondent,  3  were  illegal  ones, 
respondent  would  then  have  8  remaining,  and  as  appellant  claims  but  6  for  him- 
self, a  clear  majority  is  left  respondent  which  would  be  increased  by  deducting 
Jones'  and  Edwards'  votes  from  appellant's  score. 

I  fail  to  see  any  substantial  reason  why  I  should  disturb  the  result  of  this 
election. 

The  appeal  is  overruled. 


3^8  THE    UMXEKSITY    OF   THE   STATE   OF    NEW    VORK 

3741 

In  the  matter  of  the  appeal  of  Oliver  II.  White  and  other  legal  voters  of  school 
district  no.  11.  of  the  town  of  East  Bloomtield,  county  of  Ontario,  from 
the  proceedings  of  the  annual  meeting  held  in  and  for  said  district  on  the 
28th  day  of  August  1888. 

Proceedings  of  an  annual  school  district  meeting  set  aside,  when  it  appears  that  a  large 
number  of  legal  voters  were  unable  to  gain  admisaion  to  the  meeting  and  participate 
therein. 

Decided  Decemlier  15,  18S8 

Draper,  Superintendent 

The  appellants,  to  the  numher  of  23,  allege  that  they  are  taxable  inhabitants 
and  legal  voters  in  school  district  no.  ii,  of  the  town  of  East  Bloomtield,  county 
of  Ontario;  that  the  annual  meeting  was  designated  to  be  held  at  the  school- 
house  on  the  28th  day  of  August  last,  at  7  o'clock  p.  m. ;  that  at  the  time  the 
schoolhouse  was  opened  by  the  trustee,  the  approaches  thereto  were  so  crowded 
with  persons  that  legal  voters,  including  many  of  the  appellants,  were  unable 
to  gain  access  to  the  room  in  which  the  meeting  was  to  be  held ;  that  a  large 
number  of  persons  w^ho  had  gained  access  to  the  room  proceeded  with  great 
haste  to  organize  the  meeting  and  select  different  district  officers  by  acclama- 
tion ;  that  the  appellants  had  no  opportunity  of  voting  at  that  meeting ;  and 
that,  if  they  had  been  able  to  secure  admission  to  the  schoolroom,  they  would 
have  voted  for  other  candidates  than  those  declared  elected  by  the  person 
called  to  the  chair. 

The  respondents  allege  that  the  meeting  was  not  called  until  20  minutes 
after  7  o'clock,  and  that  the  proceedings  were  regularly  conducted  and  different 
officers  elected,  admitting  that  all  but  the  librarian  were  elected  by  acclamation. 
The  respondents  deny  that  the  appellants  were  prevented  from  entering  the 
school  building  and  participating  in  the  meeting  if  they  had  so  desired.  They 
allege  that  the  meeting  was  regularly  conducted  without  undue  haste,  and  that 
district  officers  were  regularly  elected. 

The  allegations  and  proofs  of  the  respective  parties  are  contradictory,  and 
1  do  not  reach  a  conclusion  without  some  misgivings.  But  the  fact  is  apparent 
that  a  large  number  of  legal  voters  of  the  district  did  not  get  into  the  school 
building  and  participate  in  the  election  of  officers,  and  there  is  a  difference  of 
opinion  between  the  appellants  and  respondents  as  to  whom  the  officers  of  the 
district  should  be. 

Every  legal  voter  of  a  school  district  should,  if  he  desires  to  do  so,  have  an 
opportunity  to  participate  in  district  meetings  and  vote  for  persons  of  his  choice 
to  fill  the  several  school  offices.  In  order  that  an  election,  in  the  result  of  which 
all  may  acquiesce,  may  be  had  in  this  district,  I  have  concluded  to  set  aside  the 
proceedings  of  the  last  annual  meeting,  and  do  hereby  order  and  direct  that  a 
special  meeting  be  held  on  the  28th  day  of  December  1888,  at  the  schoolhouse 
in  said  district,  at  7.30  o'clock  p.  m. ;  that  said  meeting  be  called  to  order  bv 


JUDICIAL  decisions:    meetings  349 

A.  C.  Aldridge  Esq.,  school  commissioner  of  the  second  district  of  Ontario  county 
and  that  the  election  he  conducted  by  ballot.  At  that  meeting  I  hereby  direct 
the  officers  of  the  district  whose  terms  expired  at  the  last  annual  meeting,  to 
make  their  annual  reports. 

The  trustee  of  said  district,  whose  term  of  office  would  have  expired  on 
the  28th  day  of  August  1888,  had  his  successor  been  legally  elected,  is  hereby 
ordered,  within  five  days  after  notice  to  him  of  the  filing  of  this  decision,  to  call 
a  special  meeting  of  the  legal  voters  in  the  manner  prescribed  by  law,  for  the 
purpose  of  electing  district  officers  and  receiving  the  reports  of  district  officers. 


3740 

In  the  matter  of  the  appeals  of  John  H.  Albright  v.   district  no.   3.  Ontario, 
Wayne  county,  and  Henry  P.  Brewer,  trustee  of  said  district. 

Where  it  appears  that  although  a  district  contracted  for  wood  by  the  cord,  but  with  the 
understanding  that  a  cord  should  be  4  feet  high,  8  feet  long,  and  the  length  of  the 
stick  should  be  2  feet,  as  required  for  the  stove,  and  this  dimension  was  shown  to 
be  the  customary  requirement  of  the  district,  and  the  price  to  be  paid  therefor  sustains 
such  an  understanding,  the  contract  will  be  upheld. 

Decided  December  14,  1S88 

Draper,  Superintendent 

Two  appeals  are  taken  by  John  H.  Albright,  a  resident  of  school  district 
no.  3,  of  the  town  of  Ontario,  Wayne  county;  one  from  the  proceedings  of  a 
district  meeting  allowing  a  claim  of  $20  for  fuel  and  authorizing  a  tax  to  be 
levied  therefor,  and  one  from  the  action  of  the  trustee  including  such  item  of 
$20  in  a  tax  levy. 

The  ground  of  the  appeal  is  that  the  item  is  for  eight  cords  of  wood  alleged 
to  have  been  furnished,  when,  in  fact,  but  one-half  of  the  quantity  was  fur- 
nished. A  further  ground  is,  that  in  18S7,  a  tax  of  $10  was  collected  to  pay 
for  the  wood. 

As  near  as  I  am  able  to  judge,  there  is  no  merit  in  this  appeal.  The  con- 
tract to  furnish  the  wood  was  let  to  the  lowest  bidder;  to  furnish  wood  2  feel 
long,  ready  for  the  stove,  and  that  it  has  been  the  custom  for  many  years,  in 
this  and  other  districts,  to  consider  wood  cut  as  required  for  use  a  cord  when 
the  load  is  4  feet  high,  8  feet  long  and  the  length  of  the  stick,  required  in  this 
case,  2  feet.  The  contract  to  furnish  the  wood  was  let  upon  this  understanding, 
and  was  so  furnished,  and  the  price,  $2.50  per  cord,  would  sustain  such  theory. 

There  is  no  allegation  that  the  contractor  has  ever  been  paid  for  the  wood. 
A  claim  therefor  now  exists  against  the  district. 

The  district  meeting  has  ratified  the  charge  and  ordered  tax  to  pay  it. 

The  action  of  the  district  meeting  and  of  the  trustees  in  levying  a  tax  to 
pay  for  the  wood  is  sustained,  and  the  appeals  are  dismissed. 


350  THE    UNIVERSITY    OF   THE   STATE   OF   NEW    YOKK 

4406 

In  the  matter  of  the  appeal  of  William  Middlemist  from  proceedings  of  annual 
school  meeting  held  on  August  6,  1895,  in  district  no.  10,  town  of  Andes, 
Delaware  county. 

Tlie  hour  for  holding  the  annual  and  special  school  meetings  must  be  strictlj-  observed.  No 
legal  authority  exists  for  iiolding  such  meeting  before  the  hour  designated  by  the  school 
law,  or  by  or  in  the  notice  of  the  meeting  served,  and  no  legal  obligation  rests  upon  the 
qualified  voters  who  may  have  assembled  at  the  proper  hour  to  wait  for  others  before 
organizing  and  commencing  proceedings.  When  it  is  established  by  the  weight  of 
evidence  presented  that  the  annual  school  meeting  was  organized  and  much  of  its  busi- 
ness transacted  before  the  hour  of  7.30  in  the  evening,  the  action  and  proceedings  of 
said  meeting  will  be  vacated  and  set  aside  as  illegal  and  void. 

Decided  November  25,  1895 

Wagner  &  Fisher,  attorneys  for  appellant 
E,  E.  Conlon,  attorney  for  respondents 

Skinner,  Superintendent 

This  appeal  is  taken  from  the  proceedings  of  the  annual  school  meeting 
held  on  August  6,  i<S95,  in  school  district  no.  10,  town  of  Andes,  Delaware 
county.     The  appellant  alleges,  in  suhstance,  the  following  grounds  of  appeal: 

That  said  meeting  convened  and  much  of  the  business  thereat  was  trans- 
acted before  the  hour  of  7.30  p.  m. ;  that  the  trustee,  who,  it  is  claimed,  was 
elected,  if  elected,  before  7.30  p.  m. ;  that  no  suitable  ballot  box  was  provided 
for  said  meeting  and  no  inspectors  of  election  were  appointed  to  receive  the 
votes  cast  for  district  oflicers,  and  to  canvass  such  votes;  that  a  majority  of  the 
legal  voters  of  the  district  who  attended  at  the  time  and  place  specified  in  the 
notice  of  said  meeting,  were  deprived  of  a  vote  on  accoimt  of  said  meeting  being 
prematurely  called  to  order,  and  the  business  rushed  through  before  the  time 
specified  in  the  notice  of  said  meeting. 

The  ai)pellant,  also,  upon  information  and  belief,  alleges  that  persons  were 
allowed  to  vote  at  such  meeting  who  were  not  ciualified  voters  at  said  meeting. 

The  pleadings  herein  consist  of  the  appeal,  answer,  reply  and  rejoinder, 
to  which  are  annexed  respectively,  affidavits  in  support  of  the  allegations  con- 
tained in  such  pleadings  respectively. 

The  burden  is  upon  the  appellant  to  sustain  his  appeal  by  a  preponderance 
of  proof.  A  preponderance  of  proof  does  not  necessarily  mean  the  greater 
number  of  witnesses.  In  the  consideration  of  the  weight  of  the  evidence  pro- 
duced, due  regard  should  be  given  to  the  kind  and  quality  of  the  evidence,  the 
degree  of  credibility  to  which  the  testimony  of  the  witness  is  entitled,  the  apparent 
probability  or  improbal)ility  of  its  truthfulness,  and  the  interest  of  the  witness 
in  the  matter  at  issue. 

It  appears  from  the  proofs  herein  that  at  the  time  of  said  annual  meeting 
in  said  district,  and  for  some  time  prior  thereto,  dissensions  existed  in  said 
district,  causing  factional  (juarrels  and  litigation,  and  that  the  qualified  voters 


JUDICIAL  decisions:    meetings  351 

therein  were  divided,  about  equally,  into  two  factions,  one  known  as  the  "  Mid- 
dlemist,"  and  the  other  as  the  "  Titch  "  faction  or  party.  It  is  evident  that 
both  of  said  parties  were  deeply  interested  in  the  action  to  be  taken  at  said 
annual  meeting,  and  each  party  intended  to  be  present  in  full  force  for  the 
purpose  of  controlling  the  administration  of  school  affairs  in  said  district  for 
the  present  school  year.  All  of  the  persons  whose  affidavits  have  been  annexed 
to  the  pleadings  herein,  containing  allegations  material  or  relevant  to  the  issues 
presented  for  decision  in  the  appeal  herein,  were  interested  parties  in  this  appeal, 
with  the  possible  exception  of  those  of  Anthony  Huntly,  White  Hanmer,  Wil- 
bur V^oorhees  and  William  Scudder,  each  of  whom  alleges  that  he  attended 
at  the  meeting  only  as  a  spectator  and  had  no  interest  in  the  proceedings.  It 
does,  however,  appear  that  each  of  the  above-named  affiants  came  to  the  meet- 
ing in  company  with  some  of  the  "  Middlemist  party,"  and  it  does  not  affirma- 
tively appear  that  said  affiants  were  wholly  indifferent  as  to  which  party  should 
control  said  meeting,  or  were  impartial  spectators  of  the  action  there  taken, 
or,  in  other  words,  are  disinterested  witnesses  in  this  proceeding. 

I  am  of  the  opinion,  from  the  proofs  presented,  that  the  appellant  has  failed 
to  sustain  the  allegations  made  by  him  in  his  appeal  that  no  suitable  ballot  box 
was  provided  and  used  in  the  election  of  district  school  officers,  and  that  no 
inspectors  of  said  election  were  elected  or  appointed.  There  is  a  conflict  in  the 
proofs  as  to  what  business  was  being  transacted  when  the  persons  belonging  to 
the  "  Middlemist  party,"  or  some  of  them,  entered  the  schoolhouse.  The  wit- 
nesses for  the  respondent  allege  that  a  ballot  was  being  had  for  a  trustee  of 
the  district  and  the  witnesses  for  the  appellant  allege  that  the  result  of  a  ballot 
for  collector  was  being  announced.  The  witnesses  for  the  appellant  state  "  that 
there  was  no  ballot  box,"  "  that  no  ballot  box  was  to  be  seen,"  "  that  no  inspec- 
tors were  canvassing  the  ballot,"  "  neither  were  there  any  inspectors  who  received 
and  canvassed  the  votes."  The  witnesses  for  the  respondents  state  that  a  suit- 
able ballot  box  was  provided  and  used,  and  such  ballot  box  was  placed  and 
kept  on  the  teacher's  platform  in  front  of  the  room;  that  LilHe  D.  Titch  and 
Annie  T.  Gavett  were  appointed  inspectors  of  election  and  had  charge  of  said 
ballot  box,  and  received  the  votes  of  the  persons  present  and  voting,  and  when 
each  ballot  was  closed,  canvassed  the  votes,  received  and  announced  the  result 
to  the  chairman  of  the  meeting,  who  announced  the  result  to  the  meeting;  that 
the  sworn  copy  of  the  record  of  said  meeting  shows  that  two  inspectors  of  elec- 
tion were  appointed  and  that  the  name  of  each  person  who  voted  for  district 
clerk,  trustee  and  collector  was  entered,  as  they  voted  respectively,  by  the  clerk  of 
the  meeting.  The  Consolidated  School  Law  requires  that  the  trustee  or  trustees  of 
each  school  district  shall,  at  all  elections  of  district  officers,  provide  a  suitable 
ballot  box,  and  this  Department  has  held  that  where  the  trustee  has  failed  to 
provide  a  suitable  ballot  box,  a  hat  or  other  receptacle  for  the  ballots  cast,  in 
which  the  ballots  may  be  safely  kept  apart  from  all  other  ballots  and  papers 
until  canvassed  by  the  inspectors  of  election,  will  be  deemed  a  suitable  ballot  box 
under  the  school  law. 


352  THE    UXU'ERSITY    OF   THE   STATE   OF   NEW    YORK 

I  am  also  of  the  o})inion  lliat  the  appellant  herein  has  failed  in  sustaining 
the  allegation  made  in  his  ap])eal,  upon  information  and  belief,  that  persons 
were  allowed  to  vote  at  such  meeting  who  were  not  qualified  voters  at  said 
meeting. 

This  Department  has  uniformly  held  that  it  is  incumbent,  in  the  case  of 
an  appeal  from  the  proceedings  of  a  school  meeting  on  the  ground  that  the 
votes  of  persons  not  qualified  to  vote  were  received,  for  the  appellant,  not 
only  to  allege  the  illegal  voting  or  the  disqualification  of  certain  j^ersons  whose 
votes  were  received,  l)ut  to  show  by  evidence  the  lack  of  qualifications  in  such 
terms  as  necessarily  to  exclude  every  presumption  that  such  voters  could  be 
qualified  under  any  of  the  heads  stated  in  the  section  of  the  school  law  pre- 
scribing the  qualifications  of  voters  at  school  district  meetings.  This  the  ap- 
pellant herein  has  failed  to  do. 

Section  ii,  article  i,  title  7,  of  the  Consolidated  School  Law  of  1894,  pre- 
scribes the  qualifications  necessary  to  be  possessed  by  a  person  to  entitle  him 
or  her  to  vote  at  school  district  meetings.  Every  person,  to  be  entitled  to 
vote  at  school  district  meetings,  must  be  of  full  age,  a  resident  of  the  district 
and  must  have  resided  therein  for  a  period  of  thirty  days  next  preceding  any 
meeting  held  at  which  he  or  she  oflfers  to  vote,  and  a  citizen  of  the  United 
States.  In  addition  to  the  foregoing  qualifications  he  or  she  must  own  real 
property,  or  hire  real  property,  or  be  in  the  possession  of  real  property  under 
a  contract  of  purchase,  which  real  property  must  be  situate  in  the  school  dis- 
trict, and  subject  to  taxation  therein  for  school  purposes;  or  must  be  the  parent 
of  a  child  or  children  of  school  age,  some  one  or  more  of  whom  shall  have 
attended  the  district  school  in  said  district  for  a  period  of  at  least  eight  weeks 
within  one  year  preceding  such  school  meeting,  and  in  such  case  both  the  father 
and  mother  can  vote;  or  must,  not  being  the  parent,  be  a  person  who  shall  have 
permanently  residing  with  him  or  her,  a  child  or  children  of  school  age  some 
one  or  more  of  whom  shall  have  attended  the  district  school  in  said  district 
for  a  period  of  at  least  eight  weeks  within  one  year  preceding  such  school 
meeting,  and  in  such  case  the  words  "  him  or  her  "'  limits  the  right  to  vote  to 
one  person  only,  i.  e.,  the  head  of  the  household ;  or  must  own  personal  property 
assessed  on  the  last  preceding  assessment  roll  of  the  town,  exceeding  $500  in 
value  exclusive  of  such  as  is  exempt  from  execution. 

The  appellant  claims  that  certain  persons  who  were  present  and  voted  at 
said  meeting  were  not  qualified  voters,  for  the  reason  that  their  names  do  not 
appear  upon  the  tax  list  of  the  school  district,  and  that  they  have  not  paid 
school  taxes.  A  person  may  be  a  qualified  voter  in  a  school  district  notwith- 
standing his  or  her  name  is  not  upon  the  tax  list  of  the  district,  and  he  or 
she  has  not  paid  a  school  tax.  If  such  person  owns  real  property  subject  to 
taxation  for  school  puqioses  in  the  district,  or  hires  real  property  subject  to 
taxation,  although  the  trustee  has  omitted  to  place  the  real  property  upon  the 
tax  list,  he  is  qualified  to  vote  in  the  district.  If  A,  a  citizen  of  the  United 
States,   of   full   age,   and   a   resident   of   a   school   district,   owns   real   property 


JUDICIAL  decisions:    meetings  353 

situate  in  said  district,  which  property  is  subject  to  taxation  for  school  pur- 
poses in  said  district,  and  leases  said  property  to  B,  a  citizen  of  the  United 
States,  of  full  age,  and  a  resident  of  the  district,  both  A  and  B  are  qualified 
voters  of  the  district,  A  as  the  owner,  and  B  as  the  lessee  of  real  property  sub- 
ject to  taxation  for  school  purposes  in  the  district,  although  such  real  property 
has  been  omitted  from  the  district  tax  list,  and  neither  has  paid  any  school 
tax  thereon.  The  governing  fact  is  the  ownership  or"  hiring  of  real  property 
subject  to  taxation.  Such  ownership  or  hiring  must  be  bona  fide,  not  a  mere 
colorable  transaction  to  enable  a  person  to  claim  a  right  to  vote  at  a  school 
meeting.  The  appellant  alleges  that  five  persons  who  voted  at  said  school 
meeting  were  not,  nor  was  either  of  them,  a  qualified  voter  at  such  meeting. 

The  courts  of  the  State  have  held  that  an  election  will  not  be- vitiated  by 
illegal  votes  unless  a  different  result  would  have  been  produced  by  excluding 
such  votes. .  It  appears  that  at  the  annual  school  meeting  on  August  6,  1895, 
there  was  but  one  candidate  for  each  of  the  offices  of  district  clerk,  trustee  and 
collector:  that  the  whole  number  of  votes  cast  for  district  clerk  was  8,  for 
trustee  9  and  for  collector  8,  all  being  for  Titch  as  clerk,  Titch  as  trustee  and 
Gavett  for  collector.  Admitting,  for  the  purpose  of  argument  only,  that  said 
annual  meeting  was  duly  and  legally  held,  and  that  five  of  the  persons,  who  voted 
for  said  officers  respectively,  were  not  qualified  voters,  still  Titch  for  clerk 
received  3  legal  votes.  Titch  for  trustee  received  4  legal  votes,  and  Gavett 
for  collector  received  3  legal  votes,  each  respectively  receiving  all  the  legal  votes 
cast,  were  each  elected. 

Under  the  school  law  it  is  the  duty  of  any  qualified  voter  at  a  school  district 
meeting,  when  a  person  offers  to  vote  thereat  whom  such  qualified  voter  knows, 
or  has  good  reason  to  believe,  that  the  person  so  oft'ering  to  vote  is  not  qualified, 
to  challenge  such  person.  When  a  challenge  is  made  it  is  the  duty  of  the  chair- 
man of  the  meeting  to  require  the  person  so  challenged  to  make  the  declaration 
contained  in  the  school  law,  and  if  the  party  makes  the  declaration  his  or  her 
vote  must  be  received;  but  if  such  person  refuses  to  make  the  declaration  his 
or  her  vote  must  be  rejected.  Any  person  so  challenged  who  shall  wilfully 
make  a  false  declaration  of  his  or  her  right  to  vote  at  such  meeting  shall  be 
deemed  guilty  of  a  misdemeanor.  A  party  knowing  or  having  reason  to  believe 
a  person  to  be  unqualified,  and  permitting  him  or  her  to  vote  without  challenge 
will  not  be  allowed,  upon  appeal,  to  object  to  the  proceedings  of  the  meeting 
because  such  unqualified  person  participated  therein. 

The  main  contention  of  the  appellant  herein  is,  that  said  annual  school  meet- 
ing in  said  district,  convened,  and  much  of  the  business  transacted  thereat  was 
had  and  done,  prior  to  the  hour  of  7.30  p.  m. 

By  section  8,  article  i,  title  7,  of  the  Consolidated  School  Law  of  1894, 
it  is  enacted  that  the  annual  meeting  of  each  school  district  shall  be  held  on 
the  first  Tuesday  of  August  in  each  year,  and  unless  the  hour  and  place  thereof 
shall  have  been  fixed  by  a  vote  of  a  previous  district  meeting,  the  same  shall 
be  held  in  the  schoolhouse  at  7.30  o'clock  in  the  evening.     In  the  notice  of  the 

12 


354  THE   UXIVERSITY   OF   THE   STATE   OF   NEW   YORK 

annual  school  meeting  in  district  no.  lo,  Andes,  as  given  by  the  clerk  of  the 
district,  named  the  schoolhouse  in  said  district  as  the  place,  and  the  hour  of 
7.30  in  the  evening  of  August  6,  1895,  as  the  time  for  holding  said  meeting. 

The  hour  for  holding  the  annual  and  special  school  meetings  must  be 
strictly  observed.  Xo  legal  authority  exists  for  holding  such  meetings  before 
the  hour  designated  by  the  school  law  or  by,  or  in,  the  notice  of  the  meeting 
served,  and  no  legal  obligation  rests  upon  the  qualified  voters  who  may  have 
assembled  at  such  time  to  wait  for  others  before  organizing  and  commencing 
proceedings.  The  affidavits  filed  by  the  appellant  and  respondents  relative  to 
this  main  contention  of  the  appellant  are  conflicting  and  contradictory.  The 
appellant  has  filed  the  affidavit  of  himself  and  nine  other  persons,  all  of  wl.om 
claim  to  be  qualified  voters  in  said  school  district,  and  who  allege  that  they 
attended  said  meeting  for  the  purpose  of  participating  in  the  proceedings 
thereof,  that  they  arrived  at  the  schoolhouse  where  the  meeting  was  to  be  held, 
on  said  August  6.  1895.  before  7.30  p.  m.  The  appellant  in  his  affidavits 
alleges  that  he  arrived  at  the  schoolhouse  with  one  George  Shaver  and  others  at 
7.15  p.  m.  and  found  some  nine  persons  therein,  Harvey  Titch,  presiding,  and 
that  as  near  as  he  could  ascertain,  such  persons  there  present  were  electing  a 
collector  of  the  district ;  that  after  he  arrived  there  was  no  action  taken  to  elect 
a  trustee.  One  Edward  B.  Scudder  alleges  in  his  affidavit  that  he  was  the 
clerk  of  said  district  for  the  school  year  1894-95 ;  that  he  left  his  home  on 
the  evening  of  August  6,  1895,  to  attend  the  annual  school  meeting  at  a  quarter 
before  7  and  arrived  at  the  schoolhouse  at  about  7.15  p.  m.,  but  alleges  posi- 
tively that  it  was  before  7.30  p.  m.  when  he  arrived  at  said  schoolhouse;  that 
he  found  eight  or  nine  persons  in  said  scb.oolhouse  and  the  chairman  was  then 
announcing  the  election  of  Jacob  S.  Gavett  as  collector  of  the  district;  that  at 
about  the  time  he  entered  the  schoolhouse,  and  within  five  minutes  thereof, 
some  seven  other  voters  of  the  district  entered  said  schoolhouse,  and  soe:)n  after 
two  other  voters  of  the  district  arrived.  In  the  affidavit  of  John  Smith.  Hiram 
Shaver,  Agnes  Middlemist,  John  Scudder,  Ella  Scudder,  George  Shaver  and 
Calvin  Smith,  it  is  alleged  that  they  are  qualified  voters  of  said  district  and 
each  and  all  of  them  arrived  at  said  schoolhouse  on  the  evening  of  August  6, 
1895,  before  7.30  p.  m. :  that  they  found  the  meeting  had  been  organized  and 
the  persons  present  were  electing  a  collector  of  the  district ;  that  no  election 
of  a  trustee  was  had  after  their  arrival  at  the  schoolhouse ;  that  about  the  time 
said  afiiants  entered  the  schoolhouse,  the  aftiant  George  Shaver  looked  at  his 
watch  and  said,  "  It  is  only  a  quarter  past  seven  now,  you  had  better  hold  on." 
Anthony  Huntley  and  three  others,  in  an  affidavit,  allege  that  they  are  not  voters 
in  said  district,  but  attended  said  meeting  as  spectators  only ;  that  they  weni 
to  the  schoolhouse  with  other  persons,  and  arrived  there  at  about  7.15  and 
found  nine  persons  present ;  that  after  they  arrived  the  election  of  Jacob  Gavett 
as  collector  was  announced  by  Harvey  Titch  as  chairman ;  that  no  election  of  a 
trustee  was  had  by  the  meeting  after  the  affiants  entered  the  schoolhouse;  that 
after  the  affiants  and  others  arrived  at  the  schoolhouse  it  was  stated  by  one 
George  Shaver  that  it  was  only  a  quarter  past  7  o'clock. 


JUDICIAL    DECISIONS  :     MEETINGS  355 

In  answer  to  the  statements  contained  in  the  above-mentioned  affidavits  the 
respondent,  Harvey  D.  Titch,  has  filed  the  affidavits  of  himself  and  seven  others 
present  at  said  schoolhouse  on  the  evening  of  August  6,  1895,  i^^  which  it  is 
alleged  that  they  are  qualified  voters  of  said  district  and  were  present  and  organ- 
ized a  school  meeting  at  7.40  p.  m.  by  the  election  of  said  Titch  as  chairman, 
and  the  district  clerk  being  absent,  Lola  R.  Titch  was  elected  clerk  of  the  meet- 
ing; that  the  report  of  the  trustee  was  read  and  accepted;  that  the  report  of  the 
collector  was  read  and  accepted ;  that  a  ballot  was  taken  for  a  trustee  and  Harvey 
D.  Titch,  having  received  9  votes,  being  all  the  votes  cast,  was  declared  elected ; 
that  a  ballot  was  taken  for  district  clerk  and  Lola  R.  Titch,  having  received  8 
votes,  being  all  the  votes  cast,  was  declared  elected;  that  a  ballot  was  taken  for 
collector  and  Jacob  S.  Gavett,  having  received  8  votes,  being  all  the  votes  cast, 
was  declared  elected.  S'aid  Harvey  D.  Titch  further  alleges  that  he  arrived  at 
the  schoolhouse  at  7.20  p.  m.  and  the  meeting  was  organized  at  7.40  p.  m.  by  his 
watch ;  that  Annie  T.  Gavett  and  Lola  R.  Titch,  present  at  said  meeting,  each 
had  a  v.*atch  and  each  of  said  watches  was  compared  with  the  watch  of  said 
Titch  and  that  said  watches  were  about  three  minutes  faster  than  his ;  that  when 
the  appellant  and  others  entered  the  schoolhouse  it  was  7.50  p.  m.  by  his  watch, 
and  the  ballot  for  a  trustee  was  then  being  taken,  and  that  when  George  Shaver 
said  "  You  are  rushing  things,  it  is  only  half  past  seven  now,"  said  Titch  replied, 
"  You  are  mistaken ;  it  is  ten  minutes  to  eight."  It  is  also  alleged  by  Clarence 
Shaver,  in  an  affidavit  made  by  him,  that  he  went  to  the  schoolhouse  about  7  p.  m. 
on  August  6,  1895,  and  that  all  of  the  Titch  party  were  not  in  the  schoolhouse, 
some  of  them  were  tying  their  teams ;  that  there  were  no  seats  in  the  schoolhouse, 
but  the  persons  there  were  laying  boards  upon  blocks  for  seats ;  that  he  remained 
in  the  schoolhouse  but  a  few  minutes  and  when  he  went  out  a  part  of  the  Middle- 
mist  party  were  on  the  highway  near  the  schoolhouse  coming  to  the  schoolhouse 
from  the  direction  of  Calvin  Smith's  house ;  that  he  went  down  the  road  and  met, 
about  forty  rods  from  the  schoolhorse,  three  more  of  the  Aliddlemist  party  going 
to  the  schoolhouse.  John  G,  and  William  Scudder  and  Wilbur  Voorhees  allege, 
in  an  affidavit,  that  they  went  to  the  said  schoolhouse  near  7  p.  m.  and  found 
said  house  locked;  that  they  went  to  the  house  of  Calvin  Smith,  about  40  rods 
from  said  schoolhouse,  and  waited  for  the  Titch  party  to  come  and  open  the 
schoolhouse;  that  they  saw  the  said  Titch  party  going  past  the  house  of  Smith 
to  the  schoolhouse,  and  the  affiants  started  and  walked  to  the  schoolhouse,  arriv- 
ing there  about  five  minutes  after  the  Titch  party. 

Jacob  S.  Gavett,  on  the  part  of  the  respondent,  alleges  he  saw  Clarence 
Shaver  at  the  schoolhouse  when  he  (Gavett)  and  others  were  fixing  seats  in  the 
schoolhouse  and  saw  said  Shaver  leave  the  schoolhouse  and  start  across  the  fields 
towards  the  house  of  Calvin  Smith;  that  soon  after  said  Shaver  left,  he  saw  a 
number  of  men  and  boys  pass  by  the  schoolhouse,  down  the  highway,  and  he 
recognized  John  G.  Scudder  as  one  of  them. 

In  my  opinion  Harvey  D.  Titch  was  in  error  in  stating  that  he  did  not  arrive 
at- the  schoolhouse  until  7.20  p.  m.,  and  that  the  meeting  was  not  organized  until 
7.40*  p.  m.     It  was,  to  state  it  mildly,  an  unusually  rapid  dispatch  of  business. 


556  THE   UNIVERSITY   OF   THE   STATE  OF   NEW   YORK 

between  7.20  and  7.50  p.  m.  to  arrive  at  the  schoolhouse,  light  up,  arrange  seau-. 
choose  a  chairman  and  clerk,  read  an  act  upon  the  report  of  the  trustee  ant^  col- 
lector, appoint  inspectors  of  election,  and  ballot  for  a  trustee,  a  district  clerk 
and  collector. 

From  a  careful  examination  of  the  papers  presented  herein,  and  a  due 
consideration  of  the  weight  of  the  evidence  presented,  and  its  apparent  proba- 
bilitv.  I  am  of  the  opinion  that  the  appellant  herein  has  sustained  his  contention, 
that  said  school  meeting  on  August  6,  1895,  was  organized  and  much  of  its 
business  transacted  before  the  hour  of  7.30  p.  m.,  and  for  that  reason  the  appeal 
herein  should  be  sustained. 

The  appeal  herein  is  sustained. 

It  is  ordered,  That  the  action  and  proceedings  had  and  taken  at  said  schoo' 
meeting,  held  in  school  district  no.  10,  town  of  Andes,  Delaware  county,  on 
August  6,  1895,  ^e,  and  the  same  are,  and  each  of  them  is,  hereby  vacated  and 
set  aside  as  illesfal  and  void. 

It  is  further  ordered.  That  Edward  B.  Scuddcr,  the  district  clerk  of  said 
school  district  for  the  school  year  of  1894-95,  be,  and  he  hereby  is,  authorized  and 
directed,  without  unnecessary  delay,  to  call  a  special  meeting  of  the  inhabitants 
of  school  district  no.  10,  town  of  Andes,  Delaware  county,  qualified  to  vote  at 
school  district  meetings  therein,  for  the  purpose  of  transacting  the  business  of 
the  annual  meeting  of  said  district;  that  full  six  days'  notice  of  the  time  and 
place  of  said  meeting,  and  of  the  business  to  be  transacted  thereat,  be  given  by 
him  to  each  inhabitant  of  said  district  claiming  to  be  a  qualified  voter  in  said 
district,  as  stated  in  section  2,  article  i,  title  7,  of  the  Consolidated  School  Law 
of  1894. 


4889 

In  the  matter  of  the  appeal  of  Jay  Jackson  and  Artemus  S.  Barton  from  pro- 
ceedings of  a  special  meeting  held  August  21,  1900,  in  union  school  district 
no.  I,  Pine  Plains,  Dutchess  county,  in  the  increase  of  the  number  of  mem- 
bers of  the  board  of  education. 

Notice  of  special  meetings  in  union  school  districts  other  than  those  whose  limits  correspond 
to  those  of  any  incorporated  village  or  city,  must  be  given  by  publishing  such  notice 
once  in  each  week  for  the  four  weeks  next  preceding  the  time  for  holding  such  meeting 
in  two  newspapers  if  there  shall  be  two,  or  in  one  newspaper  if  there  shall  be  but  one, 
published  in  the  district;  but  if  no  newspaper  shall  be  published  therein  said  notice 
shall  be  posted  in  at  least  twenty  of  the  most  public  places  in  said  district  twenty  days 
before  the  time  of  such  meeting.  It  is  only  at  annual  school  meetings,  held  in  a  union 
school  district  whose  limits  do  not  correspond  to  those  of  any  incorporated  village  or 
city,  that  the  qualified  voters  therein  may  determine  by  a  majority  vote,  of  such  voters 
present  and  voting  thereat  to  be  ascertained  by  taking  and  recording  the  ayes  and  noes, 
to  increase  or  diminish  the  number  of  members  of  the  board  of  education  of  such 
district. 

Decided  October  4,  igoo 


JUDICIAL  decisions:    meetings  357 

Skinner,  Superintendent 

.This  is  an  appeal  from  the  proceedings  of  a  special  meeting  held  August 
21,  1900,  in  union  school  district  i,  Pine  Plains,  Dutchess  county,  in  increasing 
the  number  of  members  of  the  board  of  education  from  three  to  nine,  and  elect- 
ing six  members  of  such  board.  x\nnexed  to  such  appeal  is  a  printed  copy  ot 
the  call  for  such  special  meeting,  as  follows : 

notice 
A  special  meeting  of  the  inhabitants  of   school   district   i,  Pine   Plains  is 
hereby  appointed,  to  be  held  at  the  union  free  school  building  in  said  district  on 
the  2ist  of  August  1900,  at  7.30  p.  m.,  to  elect  a  trustee  and  treasurer  for  the 
coming  school  year. 

J.   J.   Jackson 
A.    S.    Barton 
John  Myers,  Clerk  Board  of  Education 

Dated  August  10,  igoo 

Fred  D.  Slingerland  and  six  others,  claiming  to  be  seven  of  the  members 
of  the  board  of  education  of  such  district,  have  answered  the  appeal  herein,  and 
allege  that  the  notice  of  said  special  meeting,  as  posted  in  the  district,  contained 
the  following :  "  and  for  the  transaction  of  such  other  business  as  might  come 
before  the  meeting." 

It  appears  that  at  the  alleged  annual  meeting  held  in  such  district  August  7, 
1900,  William  Jordan,  then  the  supervisor  of  the  town  of  Pine  Plains,  was  voted 
for  the  office  of  trustee  of  the  district  and  was  declared  elected  as  such  trustee, 
and  the  call  for  a  special  meeting  to  be  held  iVugust  21,  1900,  was  merely  to 
elect  a  trustee  in  the  place  of  said  Jordan,  as  under  the  provisions  contained  in 
section  5  of  article  i,  title  8  of  the  Consolidated  School  Law  of  1894,  neither  a 
school  commissioner  nor  a  supervisor  is  eligible  to  be  a  member  of  any  board  of 
education. 

It  further  appears  that  Fred  A.  Slingerland  is  alleged  to  have  been  elected 
a  trustee  of  such  district  in  place  of  said  Jordan;  that  a  motion  was  adopted 
that  the  number  of  members  of  the  board  of  education  be  increased  from  three 
to  six,  and  thereupon  Chester  Lasher,  Jacob  Bowman  and  William  Sadler,  upon 
motion,  were  declared  elected  for  the  term  of  two  years,  and  upon  motion  Wil- 
liam Bostwick,  Frank  Eno  and  Charles  S.  Wilber  were  declared  elected  for  the 
term  of  three  years. 

In  section  13,  article  3,  title  8  of  the  Consolidated  School  Law  it  is  enacted 
that  the  board  of  education  of  union  school  districts  other  than  those  whose 
limits  correspond  to  those  of  any  incorporated  village  or  city,  shall  have  power 
to  call  special  meetings  of  the  inhabitants  of  their  respective  districts  whenever 
they  shall  deem  it  necessary  and  proper,  in  the  manner  prescribed  in  section  10 
of  said  title.  Section  10,  article  2,  title  8  of  said  law  enacts  that  such  notices 
of  meetings  shall  be  published  once  in  each  week  for  the  four  weeks  next  preced- 
ing such  meeting  in  two  newspapers  if  there  shall  be  two,  or  in  one  newspaper 


358  THE   UXIVERSITV   OF   THE   STATE   OF   NEW   YORK 

if  there  shall  be  but  one,  published  in  such  district;  but  if  no  newspaper  shall 
then  be  published  therein,  the  said  notice  shall  be  posted  in  at  least  twenty  of  the 
most  public  places  in  said  district  twenty  days  before  the  time  of  such  meeting. 
It  appears  in  proof  of  the  appeal  of  Walter  T.  Wiltsie  from  the  proceedings 
of  the  alleged  annual  meeting  held  in  such  district  August  7,  1900,  that  two 
newspapers  are  published  in  said  district.  It  is  not  alleged  that  the  notice  of  the 
special  meeting  called  for  August  21,  1900,  was  published  at  all  in  cither  of  the  two 
newspapers.  As  the  notice  is  dated  August  10,  1900.  and  the  meeting  called  for 
August  21,  1900,  it  is  clear  that  the  notice  could  not  have  been  posted  in  at  least 
twenty  of  the  most  public  places  in  said  district  twenty  days  before  the  time  of 
the  meeline^. 

Due  and  legal  notice  of  such  special  meeting  called  for  August  21,  1900, 
not  having  been  given,  the  meeting  claimed  to  have  been  held  August  21.  1900, 
was  without  authority  of  law,  and  hence  the  proceedings  taken  thereat  have  no 
legal  force  or  effect  whatever. 

In  section  31  of  article  5,  title  8  of  the  Consolidated  School  Law  of  1894, 
It  is  enacted  that  at  any  annual  meeting  held  in  any  union  school  district  whose 
limits  do  not  correspond  to  those  of  any  incorporated  village  or  city,  the  qualified 
voters  may  determine  by  a  majority  vote  of  such  voters  present  and  voting,  to  be 
ascertained  by  taking  and  recording  the  ayes  and  noes,  to  increase  or  diminish 
the  number  of  members  of  the  board  of  education  of  such  district. 

Taking  and  recording  the  ayes  and  noes  of  the  voters  present  and  voting 
upon  the  cjuestion  of  increasing  or  diminishing  the  number  of  menibers  of  a 
board  of  education,  means  that  the  clerk  of  the  meeting  shall  record  the  name 
of  each  person  whose  vote  is  received  and  set  opposite  to  each  name  whether 
such  person  votes  aye  or  no. 

Admitting,  for  the  purpose  of  argument  only,  that  said  alleged  meeting, 
held  August  21,  1900,  was  duly  and  legally  called  and  held,  the  proceedings  taken 
thereat,  relative  to  the  election  of  said  Slingerland  as  trustee,  and  in  increasing 
the  number  of  trustees  of  the  district  from  three  to  six,  and  the  election  of  six 
trustees,  were  not  in  conformity  with  the  requirements  of  the  school  law,  and 
the  uniform  rulings  of  this  Department,  Slingerland  was  not  elected  a  trustee 
in  the  manner  required  by  the  school  law.  A  proposition  to  increase  or  diminish 
the  number  of  members  of  the  board  of  education  of  such  district  can  only  be 
presented  and  acted  upon  at  an  annual  meeting  of  the  district,  that  is,  on  the 
first  Tuesday  of  August  in  each  year.  The  vote  upon  the  proposition  to  increase 
the  number  of  members  of  such  board  was  not  ascertained  as  required  by  the 
school  law,  and  the  alleged  election  of  the  six  persons  was  not  in  accordance 
with  the  provisions  of  the  school  law. 

I  decide  that  the  special  meeting  held  August  21,  1900,  in  union  school  dis- 
trict I,  Pine  Plains,  Dutchess  county,  was  not  a  legally  called  special  school  meet- 
ing under  the  provisions  of  title  8  of  the  Consolidated  School  Law  of  1894,  and 
the  acts  amendatory  thereof. 


JUDICIAL    DECISIONS  :     MEETINGS  359 

That  a  proposition  to  increase  the  number  of  members  of  the  board  of 
education  of  said  district  can  not  be  legally  acted  upon  until  the  annual  meeting  to 
be  held  therein  for  the  school  year  of  1501. 

The  appeal  herein  is  sustained. 

It  is  ordered  that  all  proceedings  taken  at  the  meeting  held  in  such  union 
school  district  i,  Pine  Plains,  Dutchess  county,  August  21,  1900,  be,  and  the 
same  are,  hereby  vacated  and  set  aside. 


5094 

In  the  matter  of  the  appeal  of  Henry  E.  Town  and  others  from  proceedings  of 
annual  meeting  held  August  4,  1903,  in  school  district  no.  6,  Nunda,  Civ- 
ingston  county. 

Section  8  article  i  title  7  of  the  Consolidated  School  Law  of  1894  enacts  that  the  annual 
meeting  of  each  school  district  shall  be  held  on  the  first  Tuesday  of  August  in  each 
year,  and,  unless  the  hour  and  place  thereof  shall  have  been  fixed  by  a  vote  of  a  pre- 
vious district  meeting,  the  same  shall  be  held  in  the  schoolhouse  at  7.30  o'clock  in  the 
evening.  Where  there  is  no  proof  that  at  a  previous  district  meeting  any  other  time  for 
holding  the  annual  meeting  of  the  district  than  at  7.30  in  the  evening  was  fixed,  the 
hour  designated  for  holding  such  annual  meeting  in  common  school  districts  must  be 
strictly  observed  and  no  authority  exists  for  holding  such  meeting  before  the  hour 
designated. 

Decided  October  9,  1903 

Skinner,  Superintendent 

This  is  an  appeal  from  the  proceedings  of  an  annual  meeting  claimed  to 
have  been  held  August  4,  1903,  in  school  district  6,  Nunda,  Livingston  county. 

The  principal  grounds  alleged  by  the  appellants  for  bringing  their  appeal 
is  that  the  entire  alleged  meeting  was  held  and  such  meeting  adjourned  prior  to 
7.30  o'clock  in  the  evening  on  August  4,  1903. 

No  answer  has  been  made  to  such  appeal  and  the  material  allegations  con- 
tained in  the  appeal  are  deemed  admitted. 

It  appears  that  notice  was  given  calling  the  annual  meeting  in  said  school  dis- 
trict to  be  held  August  4,  1903.  at  7.30  p.  m.  On  August  4,  1903,  and  prior  to  7.30 
o'clock  p.  m.  a  few  of  the  inhabitants  of  said  district,  including  ]Mr  and  Mrs  E.  O. 
Brainard,  Mr  and  Mrs  F.  A.  Seager,  O.  B.  Brainard  and  Thomas  Turbush, 
assembled  at  the  schoolhouse  in  district  6.  Nunda  and  organized  by  the  choice  of 
E.  O.  Brainard  as  chairman  and  O.  B.  Brainard  as  clerk.  Mrs  E.  O.  Brainard 
and  Mrs  F.  A.  Seager  were  appointed  inspectors ;  the  trustee's  report  was 
approved;  voted  that  F.  A.  Seager  be  trustee  of  1903-4;  Tom  Turbush  was 
elected  collector  and  W.  E.  Petteys  clerk,  and  it  was  voted  that  the  expenses 
for  the  year  1903-4  be  left  to  the  judgment  of  the  trustee,  and  such  meeting 
adjourned.  The  entire  proceedings  of  such  alleged  meeting  took  place  and  the 
meeting  adjourned  prior  to  7.30  p.  m.,  August  4,  1903.  At  7.30  p.  m.  of  said 
August  4,  1903,  the  appellant  herein,  and  other  qualified  voters,  arrived  at  the 
schoolhouse  and  were  informed  that  such  annual  school  meeting  had  been  held. 


5<^0  THE    LXIVERSITY    OF   THE   STATE   OF   NEW    YORK 

In  section  8,  article  i,  title  7  of  the  Consolidated  School  Law  of  1894,  it  is 
enacted  that  the  annual  meeting  of  each  school  district  shall  be  held  on  the  first 
Tuesday  of  August  in  each  year,  and,  unless  the  hour  and  place  thereof  shall 
have  been  fixed  by  a  vote  of  a  previous  district  meeting,  the  same  shall  be  held  in 
the  schoolhouse  at  7.30  p.  m. 

There  is  no  proof  that  at  a  previous  district  meeting  any  other  time  for 
holding  the  annual  meeting  of  the  district  than  at  7.30  p.  m.  was  fixed. 

This  Department  has  uniformly  held  that  the  hour  fixed  for  holding  the 
annual  meeting  in  the  common  school  districts  of  this  state  must  be  strictly 
observed ;  that  no  authority  exists  for  holding  such  meeting  before  the  designated 
hour. 

I  decide,  That  no  legal  annual  school  meeting  was  held  in  school  district  6, 
Nunda,  Livingston  county  August  4,  1903. 

The  appeal  herein  is  sustained. 

It  is  ordered,  That  all  proceedings  had  and  taken  at  the  meeting  held  in  the 
schoolhouse  in  school  district  6,  Nunda,  Livingston  county,  on  the  evening  of 
August  4,  1903,  be  and  the  same  are  hereby  vacated  and  set  aside. 

It  is  further  ordered.  That  Henry  E.  Town,  an  inhabitant  of  school  district 
6,  Nunda,  Livingston  county  and  a  qualified  voter  therein,  without  unnecessary 
delay,  call  a  special  meeting  of  the  inhabitants  of  such  district  qualified  to  vote 
at  school  meetings  therein,  in  the  manner  prescribed  in  sections  2  and  6  of  article 
I,  title  7  of  the  Consolidated  School  Law  of  1894  for  calling  special  meetings  in 
such  district  for  the  purpose  of  transacting  the  business  of  the  annual  school 
meeting  of  such  district. 


4922 

In  the  matter  of  the  appeal  of  George  G.  French  and  Jedediah  Hoose  from  pro- 
ceedings of  annual  meeting  held  August  7,  1900,  in  union  school  district  no. 
7,  Mexico,  Oswego  county,  directing  the  board  of  education  not  to  defend 
a  certain  action  brought  against  it  in  the  Supreme  Court. 

The  qualified  voters  present  and  voting  at  an  annual  meeting  in  a  union  school  district 
have  the  authority  to  adopt  a  resolution  directing  the  board  of  education  of  the  district 
not  to  defend  an  action  brought  in  the  courts  against  the  district. 

Decided  December  31,  1900 

Skinner,  Superintendent 

This  is  an  appeal  from  the  action  of  the  annual  meeting  held  August  7. 
1900.  in  union  school  district  7,  Mexico,  Oswego  county,  in  the  adoption  of  the 
following  preamble  and  resolution,  to  wit : 

Whereas,  There  is  an  action  now  pending  in  the  Supreme  Court  of  the  State 
of  New  York,  brought  by  Melzar  C.  Richards  against  the  board  of  education 
of  union  school  district  7,  Mexico,  to  recover  the  amount  of  three  promissory 
notes  for  $300  each  and  interest  thereon  since  the  4th  day  of  September  1895, 


JUDICIAL  decisions:    meetings  361 

made,  executed  and  delivered  by  the  said  board  of  education  on  the  4th  day  of 
September  1895 ; 

And  zvhercas,  It  is  the  sense  of  this  meeting  that  said  notes,  or  the  sum 
represented  by  them,  is  a  just  and  vaUd  claim  against  this  school  district,  it  is 

Resolved,  That  the  board  of  education  of  union  school  district  7,  Mexico, 
N.  Y.,  be,  and  hereby  is,  instructed  and  directed  not  to  defend  said  action. 

The  appellants  herein  allege,  as  the  principal  ground  for  bringing  the  appeal 
herein,  that  said  annual  meeting  had  no  authority,  right  or  jurisdiction  to  instruct 
or  direct  the  board  of  education  of  said  district  not  to  defend  the  action  men- 
tioned in  said  preamble. 

Frederick  A.  Thomas,  a  resident,  voter  and  taxpayer,  has  answered  the 
appeal  herein,  and  to  such  answer  the  appellants  have  made  a  rejoinder. 

The  sole  question  presented  for  my  decision  by  the  pleadings  and  proofs 
filed  herein  is,  Did  the  qualified  voters  present  at  said  annual  meeting,  held  in 
said  district  August  7,  1900,  have  authority  to  adopt  the  preamble  and  resolution 
appealed  from? 

It  is  conceded  that  union  school  district  7,  Mexico,  Oswego  county,  was 
established  in  August  1895,  under  and  pursuant  to  the  provisions  of  title  8  of 
the  Consolidated  School  Law  of  1894,  chapter  556  of  the  Laws  of  1894,  and 
that  the  limits  of  such  school  district  do  not  correspond  to  those  of  any  incor- 
porated village  or  city. 

Section  13,  article  3,  title  8  of  said  Consolidated  School  Law  enacts  that  in 
union  school  districts,  other  than  those  whose  limits  correspond  to  those  of  any 
incorporated  village  or  city,  the  annual  school  meeting  shall  be  held  on  the  first 
Tuesday  of  August;  that  the  boards  of  education  shall  have  power  to  call 
special  meetings  of  the  inhabitants  of  their  respective  districts  whenever  they 
shall  deem  it  necessary  and  proper,  in  the  manner  prescribed  in  section  10  of 
said  title  8,  and  shall  in  like  manner  give  notice  of  the  time  and  place  of  holding 
the  annual  school  meeting. 

Section  10,  article  2,  title  8  of  the  Consolidated  School  Law  of  1894  enacts 
that  notices  by  boards  of  education  of  school  meetings  shall  be  published  once 
in  each  week  for  four  weeks  next  preceding  such  district  meeting,  in  two  news- 
papers if  there  shall  be  two,  or  in  one  newspaper  if  there  shall  be  but  one,  pub- 
lished in  such  district. 

The  appellants  admit  that  on  August  7,  1900,  the  annual  meeting  of  said 
union  school  district  7,  Mexico,  was  held  pursuant  to  a  printed  notice  thereof, 
duly  published  in  the  Mexico  Independent,  the  only  newspaper  published  in  said 
school  district. 

Section  10,  article  2,  title  8  of  the  Consolidated  School  Law  enacts  that  a 
majority  of  the  voters  of  any  union  school  district,  other  than  those  whose  limits 
correspond  to  those  of  an  incorporated  village  or  city,  present  at  an  annual  or 
special  meeting  of  the  district,  duly  convened,  may  authorise  such  acts  and  vote 
^^uch  taxes  as  they  shall  deem  expedient,  for  making  additions  ...  or  for 
such  other  purposes  relating  to  the  support  and  welfare  of  the  school  as  they 
may,  by  resolution,  approve. 


3^2  THE   UNIVERSITY   OF   THE   STATE   OF   NEW    YORK 

This  Department  has  uniformly  held  that  the  inhahitants  of  every  school 
district,  qualihed  to  vote  at  school  meetings  held  therein,  assembled  at  the  time 
and  place  fixed  by  the  school  law,  for  holding  the  annual  school  meeting,  are 
authorized  and  empowered  to  act  upon  all  questions  presented  for  action  thereat, 
relating  to  school  matters  and  the  support  and  welfare  of  the  school  therein, 
except  such  matters  as  are  expressly  forbidden  to  be  acted  upon  by  said  school 
law. 

This  Department  has  also  uniformly  held  that  the  school  law  having  fixed 
the  time  for  the  annual  meeting  in  the  school  districts  the  regularity  of  such 
meeting  does  not  depend  upon  any  call  for,  or  notice  of,  such  meeting  by  trustees 
or  clerks. 

There  is  no  provision  of  the  Consolidated  School  Law  that  requires  any 
statement  in  the  notice  given  of  the  annual  meeting  to  be  held  in  a  union  school 
district  of  the  business  to  be  transacted  thereat,  except  that  contained  in  sub- 
division 3  of  section  13,  article  3,  title  8  as  amended  by  section  i,  chapter  195 
of  the  Laws  of  1897,  that  is,  relating  to  the  tax  for  the  purchase  of  free  text- 
books to  be  used  in  the  schools  of  the  district. 

It  would  seem,  therefore,  that  there  is  no  provision  of  the  school  law  requir- 
ing the  giving  in  the  notice  of  the  annual  meeting  to  be  held  in  a  union  school 
district,  the  presentation  thereat  of  a  resolution  directing  and  instructing  the 
board  of  education  of  the  district  not  to  defend  an  action  brought  in  the  courts 
against  such  board,  that  such  resolution  may  be  properly  presented  at  such  meet- 
ing, and  the  meeting  would  have  the  power  and  authority  to  adopt  or  reject  such 
resolution. 

A  resolution  not  to  defend  an  action  brought  against  a  union  school  district 
or  its  board  of  education  is  clearly  a  matter  relating  to  and  affecting  the  support 
and  welfare  of  the  school  therein.  Whatever  would  relate  to  or  affect  the 
finances  of  the  school,  its  integrity  and  honesty,  is  a  matter  relating  to  and  affects 
its  support  and  welfare.  If  the  annual  meeting  has  not  the  power  and  authority 
to  adopt  a  resolution  directing  the  board  of  education  not  to  defend  an  action 
brought  against  it  then  the  anomalous  condition  is  presented  of  an  action  being 
brought  against  it  rjion  a  claim  which  the  majority  of  the  qualified  voters  therein 
believe  to  be  valid,  and  do  not  desire  to  defend,  and  the  voters  therein  would 
be  helpless  if  the  board,  for  some  reason  of  its  own,  insisted  on  defending:. 

The  board  of  education  of  union  school  district  7,  ^lexico.  has  not  appeared 
in  any  way  in  the  appeal  herein,  or  evinced  any  desire  to  disobey  the  resolution 
adopted  at  the  annual  meeting  therein : 

I  decide  that  the  annual  meeting,  held  August  7,  1900,  in  union  school 
district  7,  Mexico,  Oswego  county,  had  the  power  and  authority  to  adopt  the 
preamble  and  resolution  appealed  from  by  the  appellants  herein. 

The  appeal  herein  is  dismissed. 


JUDICIAL    DECISIONS  :     MEETINGS  363 

4924 

In  the  matter  of  the  appccil  of  Thomas  B.  Chilton  v.  Fred  C.  Loucks  as  trustee  of 
school  district  no.   i8,  Russell,   St  Lawrence  county. 

Under  the  provisions  of  the  Consolidated  School  Law  of  1894  a  school  district  meeting, 
duly  assembled,  has  the  power  to  alter,  repeal  or  modify  its  proceedings  from  time 
to  time  as  occasion  may  require.  A  school  district  meeting  does  not  possess  the  power 
to  direct  how  the  public  money  apportioned  for  teachers'  wages  shall  be  expended. 
When  a  school  district,  at  a  meeting  duly  called  and  held,  has  empowered  the  trustee 
to  enter  into  a  contract  with  the  school  authorities  of  some  other  district  or  districts 
by  which  all  the  children  of  school  age  in  the  district  may  be  taught  in  the  schools 
of  the  other  district,  for  not  less  than  160  days  in  a  school  year,  and  the  sum  con- 
tracted to  be  paid  is  less  than  the  district  quota  of  $100,  received  from  the  state,  the 
trustee  may  expend  any  surplus  in  the  conveyance  of  children,  under  rules  and  regu- 
lations to  be  made  by  him,  to  and  from  the  school  in  the  district  with  which  such 
contract  is  made. 
Decided  December  31,  1900 

D,  R.  P.  Parker,  attorney  for  appellant 
G.  T.  Chaney,  attorney  for  respondent 

Skinner,  Superintendent 

This  is  an  appeal  from  the  refusal  of  Fred  C.  Loucks,  as  trustee  of  school 
district  1 8,  Russell,  St  Lawrence  county,  to  engage  conveyance  for  the  trans- 
portation of  the  children  of  school  district  i8,  Russell,  St  Lawrence  county,  to 
the  school  in  school  district  i,  Hermon,  St  Lawrence  county,  in  conformity  with 
a  resolution  to  that  efifect,  adopted  at  the  annual  meeting  held  in  said  district  i8, 
Russell,  August  7,  1900. 

Trustee  Loucks  has  answered  said  appeal  and  to  such  answer  the  appellant 
has  replied,  and  to  such  reply  the  respondent  has  made  a  rejoinder. 

A  verified  copy  of  the  proceedings  of  the  annual  meeting  in  said  district  18, 
Russell,  and  of  a  special  meeting  held  therein  October  19,  1900,  has  been  filed 
in  the  appeal  herein. 

The  following  facts  are  established  by  the  pleadings  and  proofs  filed  herein : 

The  appellant  is  a  resident  and  qualified  voter  in  school  district  18,  Russell, 
St  Lawrence  county,  and  has  residing  with  him  a  son  of  the  age  of  9  years,  and 
a  grandson  of  the  age  of  5  years  and  upwards ;  that  the  residence  of  appellant 
is  about  two  and  one-half  miles  from  the  schoolhouse  in  district  i,  village  of 
Hermon,  St  Lawrence  county ;  that  in  former  years  the  appellant  sent  two  of 
his  children  to  the  school  in  district  i,  Hermon,  and  paid  tuition  although  a 
school  was  maintained  in  district  18,  Russell;  that  the  appellant  owns  a  horse 
and  his  son  Henry,  who  resides  with  him.  owns  a  horse,  and  the  two  are  engaged 
in  the  business  of  teaming  for  a  livelihood;  that  at  the  annual  meeting  held 
August  7,  1900,  in  school  district  18.  Russell,  at  which  the  appellant  was  chair- 
man, a  resolution  was  adopted  that  Trustee  Loucks  be  empowered  to  enter  into 
ft. written  contract  with  the  trustees  of   school   district   i   of   Hermon  village, 


3^4  THE  UNIVERSITY  OF  THE  STATE  OF  NEW  YORK 

whereby  all  the  children  of  school  age  in  the  district  shall  be  taught  in  the  public 
school  of  district  i  in  Hermon  village  for  the  term  of  not  less  than  i6o  days, 
beginning  with  the  school  year  of  August  i,  1900.  It  was  also  resolved  that  the 
trustee  of  the  district  be  directed  to  engage  conveyance  for  the  transportation  of 
the  children  of  this  district  to  the  school  of  Hermon  village  for  the  year.  Septem- 
ber I,  1900,  a  contract  between  Trustee  Loucks  of  district  18,  Russell,  and  the 
president  and  secretary  of  the  board  of  education  of  the  union  school  of  Hermon, 
was  made  whereby  all  the  children  of  school  age  in  said  district  18  were  to  be 
taught  for  not  less  than  160  days  during  the  school  year  of  1900-1901  in  said 
union  school  district  in  Hermon,  at  the  sum  of  two-thirds  the  amount  of  tuition 
established  in  said  union  school,  and  a  copy  of  said  contract  was  filed  in.  and  duly 
approved  by,  the  Department  November  13,  1900;  that  at  the  date  of  said  con- 
tract there  were  six  children  of  school  age,  including  the  son  and  grandson  of 
the  appellant,  residents  of  district  18.  to  be  taught  in  the  union  school  in  Hermon. 
the  tuition  of  whom  would  cost  about  $50,  and  the  sum  of  $60  of  the  public 
money  would  be  available  for  the  purpose  of  providing  for  the  transportation 
of  such  children  to  and  from  said  school  district  in  the  village  of  Hermon;  that 
Trustee  Loucks  contracted  with  the  parents  and  guardians  of  each  of  such  chil- 
dren, except  the  appellant,  to  carry  such  children  to  and  from  such  school  at 
times  when  it  was  not  fitting  for  them  to  walk,  and  in  consideration  thereof  the 
balance  of  the  public  money  apportioned  to  the  district  after  paying  for  the  tui- 
tion of  such  children  should  be  divided  between  the  respective  parents  or  guardi- 
ans of  such  children  according  to  their  attendance  at  school;  that  the  appellant 
demanded  of  Trustee  Loucks  that  his  son  and  grandson  be  conveyed  from  the 
residence  of  the  appellant,  each  school  day,  to  the  school  in  Hermon  village,  and 
from  said  school  to  his  residence ;  that  said  Trustee,  being  unable  to  make  any 
arrangement  with  the  appellant,  called  a  special  meeting  to  be  held  in  said  dis- 
trict 18  October  19,  1900,  for  the  purpose  of  considering  the  matter  of  convey- 
ing the  children  of  the  district  to  and  from  the  school  in  Hermon  village;  that 
such  special  meeting  was  held  at  which  all  the  parents  of  children  of  school  age 
of  the  district  were  present,  including  the  appellant,  and  various  propositions 
were  made  the  appellant  relative  to  the  conveyance  of  his  son  and  grandson  all 
of  which  he  rejected,  and  thereupon  the  following  resolution  was  adopted, 
to  wit :  "  Resolved,  that  the  trustee  be  instructed  to  use  the  public  money  appor- 
tioned to  the  district,  first,  in  paying  the  tuition  of  the  children  of  school  age 
attending  the  Hermon  school  for  the  present  year;  second,  to  divide  the  balance 
between  the  parents  or  guardians  of  such  children  according  to  their  attendance 
in  said  school  for  getting  them  to  school ;"  that  at  the  time  the  appeal  herein  was 
lirought  there  were  six  children  of  school  age,  including  the  grandson  of  appel- 
lent  in  said  district  18,  all  of  whom  were  attending  the  school  in  Hermon  village, 
and  had  attended  thereat  since  the  contract  of  September  i,  1900,  was  made; 
that  since  the  making  of  the  contract  one  James  Chilton,  having  a  child  of  school 


JUDICIAL  decisions:    meetings  365 

age,  has  become  a  resident  of  district  18,  and  said  child  attends  the  school  in 
Hernion  village. 

Section  14,  article  4,  title  15  of  the  Consolidated  School  Law  of  1894,  as 
amended  by  section  i  of  chapter  294  of  the  Laws  of  1897,  provides,  that  when 
the  qualified  voters  of  a  school  district  duly  empower  the  trustees  of  the  district, 
they  shall  enter  into  a  written  contract  with  the  trustees  or  board  of  education 
of  some  other  district  or  districts,  that  all  the  children  of  school  age  in  such 
district  may  be  taught  in  the  school  of  such  other  district  for  not  less  than  160 
days  in  the  school  year. 

This  Department  has  held  that  when  any  such  contract  shall  be  duly  made 
and  the  sum  paid  for  teaching  such  children  shall  not  amount  to  the  sum  of  the 
district  quota  of  $100,  the  trustee  may  use  the  surplus  in  transporting  the  chil- 
dren to  the  school  in  the  district  in  which  the  children  are  taught. 

Under  subdivision  19  of  section  14,  article  i,  title  7  of  the  Consolidated 
School  Law,  which  subdivision  was  added  to  section  14  by  section  5,  chapter 
264,  Laws  of  1896,  it  is  provided  that  when  a  district  has  contracted  with  another 
district  to  teach  the  children  of  the  district,  the  qualified  voters  of  such  district 
are  authorised  that  is,  permitted,  not  directed,  to  provide  by  tax  or  otherwise  for 
the  conveyance  of  such  children,  etc. 

A  school  district  meeting  does  not  possess  any  power  to  direct  how  the  pub- 
lic money  apportioned  for  teachers'  wages,  shall  be  expended. 

The  resolution  was  adopted  at  the  annual  meeting  in  district  18,  directing 
the  trustee  to  engage  conveyances  for  the  transportation  of  the  children  of  the 
district  to  the  school  in  Hermon  village,  did  not  provide  by  tax  or  otherwise 
for  such  conveyance,  and  was  adopted  prior  to  any  contract  being  made  with  the 
school  in  Hermon  village  and,  hence,  is  but  an  expression  of  opinion  as  to  what 
action  the  trustee  should  take  in  the  event  of  a  contract  being  made. 

The  contention  of  the  appellant  that  by  the  adoption  of  such  resolution  it 
was  mandatory  upon  Trustee  Loucks  to  engage  such  conveyance  at  the  expense 
of  the  district,  and  that  such  resolution  could  not  be  altered,  repealed  or  modified 
at  a  subsequent  district  meeting,  is  not  well  taken. 

Subdivision  13  of  section  14,  article  i,  title  7  of  the  Consolidated  School 
Law  provides  that  a  school  meeting  duly  assembled  has  the  power  to  alter,  repeal 
and  modify  their  proceedings  from  time  to  time  as  occasion  may  require. 

The  resolution  adopted  at  the  special  meeting  held  in  district  18,  October  19, 
1900,  was  an  alteration  and  modification  of  the  second  resolution  adopted  at  the 
annual  meeting  of  such  district  and  an  expression  of  opinion  of  the  persons 
present  as  to  the  action  which  should  be  taken  by  Trustee  Loucks  in  providing 
for  the  conveyance  of  the  children  attending  the  school  in  Hermon  village, 
under  the  said  contract  of  September  i,  1900. 

The  appeal  herein  is  dismissed. 


366  THE   UNIVERSITY   OF  THE   STATE   OF   NEW    YORK 

4445 

In  the  matter  of  the  appeal  of  Thomas  Penney  v.  board  of  education  of  union 
free  school  district  no.  6,  town  of  North  Greenbush.  Rensselaer  county. 

It  is  the  duty  of  trustees  of  school  districts,  when  requested  by  a  respectable  number  of 
the  inhabitants  of  their  respective  districts,  to  call  a  special  meeting  for  the  transac- 
tion of  any  proper  and  legal  business  which  such  petitioners  might  desire  to  bring 
before  it. 

Decided  April  18,  1896 


John  S.  \\'olfe,  attorney  for  appellant 

Charles  J.  Buchanan,  attorney  for  respondents 


Skinner,  Superintendent 

This  is  an  appeal  from  the  refusal  of  the  board  of  education  of  union  free 
school  district  no.  6,  town  of  North  Greenbush,  Rensselaer  county,  upon  tb.e 
applications  of  inhabitants  of  said  school  district  qualified  to  vote  at  school 
meetings  therein,  to  call  a  special  school  meeting  or  meetings  therein  for  the 
purpose  of  considering  and  acting  upon  the  proposition  to  change  the  school- 
house  site,  and  to  designate  a  new  schoolhouse  site  for  said  district  upon  which 
to  construct  a  new  schoolhouse  of  the  district. 

The  appellant  alleges  in  his  appeal  that  during  the  month  of  September 
1895.  s  committee  of  thirteen  duly  appointed  by  the  legal  voters  of  said  school 
district,  presented  to  the  respondents  herein  a  recjuest  that  said  respondents  call 
a  special  meeting  of  the  district  for  the  purpose  of  considering  a  change  of 
schoolhouse  site,  and  the  designation  of  a  new  site,  and  the  question  of  whether 
the  new  schoolhouse  should  be  constructed  on  the  old  site  or  not ;  that  on  or 
about  January  15,  1895,  a  petition  was  presented  to  the  board  of  education, 
signed  by  210  of  the  legal  voters  of  said  school  disn-ict,  of  which  the  following 
is  a  copy:  "To  the  Honorable  Board  of  School  Trustees  of  Union  Free 
School  District  no.  6,  of  the  town  of  North  Greenbush :  Gentlemen : —  We, 
the  undersigned,  would  most  respectfully  request  you  to  call  a  district  meeting, 
at  which  the  subject  of  a  schoolhouse  site  may  be  considered,  or  that  you  call 
an  election  and  submit  the  direct  question.  Shall  the  old  site  be  used  ? "  that  said 
application  of  the  committee  of  thirteen  and  said  petition  of  210  legal  voters 
were,  and  each  of  them,  refused  by  the  respondents. 

The  respondents  in  their  answer  to  the  appeal  herein  deny  that  said  appeal 
states  facts  sufficient  to  constitute  an  appeal  against  any  action  by  the  respond- 
ents, and  that  the  same  is  not  sufficient  and  does  not  in  any  wise  constitute  an 
appeal  from  any  action  by  the  respondents  as  stated  therein.  Said  respondents 
admit  that  said  application  of  said  committee  of  thirteen,  and  the  petition  of 
the  210  legal  voters  were,  and  each  of  them  was,  received,  and  that  they  refused 
to  call  said  meetings  applied  and  petitioned  for.  The  respondents  deny  that 
they  were  obliged  legally  or  otherwise  to  submit  any  of  the  resolutions  referred 
to  in  the  appeal  herein  to  the  voters  of  said  school  district. 

It  appears  that  at  a  special  meeting  of  the  inhabitants  of  said  school  dis- 
trict, held  on  June  17,  1895,  among  other  proceedings  taken  thereat,  a  resolu- 


JUDICIAL  decisions:    meetings  367 

tion  was  adopted  by  a  vote  of  155  in  the  affirmative  and  129  in  the  negative, 
that  the  board  of  trustees  of  the  said  district  raise  by  tax,  to  be  levied  by  instal- 
ments, the  sum  of  825,000,  for  the  purpose  of  building  a  new  schoolhouse  upon 
the  site  then  owned  by  the  district,  provided  no  new  site  is  purchased,  and  that 
bonds  be  issued  and  sold,  as  in  said  resolution  specified.  It  does  not  appear 
that  said  resolution  has  ever  been  rescinded,  reconsidered  or  amended,  or  that 
any  appeal  has  been  taken  to  the  State  Superintendent  of  Public  Instruction 
from  said  action  of  said  meeting. 

Under  the  provisions  of  title  14  of  the  Consolidated  School  Law  of  1B94, 
it  is  enacted  that  any  person  conceiving  himself  aggrieved  in  consequence  of 
any  decision  made  by  any  school  meeting,  by  any  other  official  act  or  decision 
concerning  any  other  matter  under  said  act,  or  any  other  act  pertaining  to  com- 
mon schools,  may  appeal  to  the  Superintendent  of  Public  Instruction. 

This  Department  for  forty  years  has  entertained  and  decided  appeals  from 
the  acts  or  decisions  of  trustees  of  school  districts  in  refusing,  when  requested 
by  a  respectable  number  of  the  inhabitants  of  their  district,  to  call  a  special 
meeting  for  the  transaction  of  any  legal  and  proper  business  which  such  pe'.i- 
tioners  might  desire  to  bring  before  it. 

It  is  clear  from  the  action  of  the  said  special  meeting,  held  in  said  district 
on  June  17,  1895,  authorizing  a  tax  of  $25,000  for  a  new  schoolhouse  upon  the 
site  then  owned  by  the  district,  provided  no  new  site  is  purchased,  thai  the 
changing  of  the  site  and  the  designation  of  a  new  site,  was  being  considered  and 
might  be  made  before  the  construction  of  the  new  schoolhouse  was  commenced. 
In  fact,  it  appears  that  a  proposition  to  designate  the  Wiggins  property  as  a  n-w 
schoolhouse  site  was  acted  upon  at  a  special  meeting  of  the  district  held  on 
August  26,  1895. 

Tb.e  power  to  designate  schooHiouse  sites  is  given  by  the  school  law  to  dis- 
trict meetings  and  such  meetings  can  not  delegate  that  power  to  trustees. 

I  am  clearly  of  opinion  that  the  qualified  voters  of  union  free  school  dis- 
trict no.  6,  North  Greenbush,  have  the  right  and  sliould  have  an  opportunity  to 
fully  discuss  and  consider  the  question  of  a  change  of  the  schoolhouse  site  therein 
and  to  designate  a  new  schoolhouse  site  upon  which  to  construct  their  new 
schoolhouse,  and  it  was  the  duty  of  the  respondents  herein  to  have  granted  the 
petition  presented  to  them  on  January  15,  1896,  and  to  have  called  a  spe:ial 
district  meeting  to  consider  and  act  upon  the  matters  stated  in  said  petition. 

I  decide  that  the  appeal  herein  is  sufficient  under  the  school  law  relating 
to  appeals  and  the  rules  of  practice  of  this  Department  relative  to  appeals,  and 
that  I  have  jurisdiction  to  entertain,  hear  and  decide  the  same;  that  it  was  a 
violation  of  duty  on  the  part  of  the  respondents  herein  in  refusing  to  call 
a  special  district  meeting  for  the  purposes  asked  for  in  the  petition  of  the  legal 
voters  of  the  district  presented  to  them  on  January  15,  1896. 

On  January  29,  1896,  I  made  an  order  herein  enjoining  and  restraining 
the  board  of  education  of  union  free  school  district  no.  6,  town  of  Greenbush, 
Rensselaer  county,  from  advertising  for  bids  to  construct  a  new  school  building 
upon  the  present  schoolhouse  site  of  said  district;  and  from  opening  said  bids 


368  THE   UNIVERSITY   OF   THE   STATE   OF   NEW   YORK 

should  such  advertisement  have  been  made ;  and  from  making  or  letting  any 
contract  for  the  building  of  said  new  schoolhouse  upon  the  present  schooihouse 
site  of  said  district;  and  from  doing  any  act,  matter  or  thing  in  relation  to  the 
construction  of  said  new  school  building  until  the  hearing  and  decision  by  me 
of  the  appeal  herein,  or  until  any  further  order  shall  be  made  by  me  in  the 
premises. 

The  appeal  herein  is  sustained. 

It  is  ordered,  That  the  board  of  education  of  union  free  school  district  no. 
6,  town  of  North  Greenbush,  Rensselaer  county  be,  and  it  is  hereby,  directed, 
without  unnecessary  delay,  to  call  a  special  meeting  of  the  inhabitants  of  said 
union  free  school  district  qualified  to  vote  at  school  meetings  therein,  pursuant 
to  the  provisions  of  section  10,  article  2,  title  8  of  the  Consolidated  School  Law 
of  1894,  chapter  556  of  the  Laws  of  1894,  and  the  acts  amendatory  thereof,  for 
the  purpose  of  considering  the  proposition  whether  the  new  schooihouse  for  said 
district  shall  be  constructed  upon  the  present  schooihouse  site;  and  if  such  prop- 
osition shall  be  decided  in  the  negative,  then  to  consider  the  proposition  of 
changing  the  present  schooihouse  site,  and  the  designation  of  a  new  schooihouse 
site. 

It  is  further  ordered,  That  the  order  made  by  me  herein  on  January  29, 
1896,  enjoining  and  restraining  said  board  of  education  from  advertising  for  and 
opening  bids  for  the  construction  of  the  new  schooihouse,  and  from  letting  any 
contract  for  the  building  of  such  new  schooihouse,  and  from  doing  any  act, 
matter  or  thing  in  relation  to  the  construction  of  said  new  schooihouse  be,  and 
the  same  hereby  is,  continued  in  full  force  and  effect  until  a  further  order  sb.all 
be  made  by  me  in  the  premises. 


4465 

In  the  matter  of  the  appeal  of  John  C.  Runkle  and  Howard  L.  Waldo,  from 
proceedings  of  annual  school  meeting  held  August  4,  1896.  in  union  free 
school  district  no.  3.  town  of  Castleton,  Richmond  countv. 

In  union  free  school  districts  other  than  those  whose  limits  correspond  with  those  of  an 
incorporated  village  or  city,  at  the  annual  school  meeting  thereof,  the  vote  to  make 
appropriation  for  school  purposes  and  to  levy  taxes  therefor,  must  be  taken  by  ballot 
or  ascertained  by  taking  and  recording  the  ayes  and  noes  of  the  qualified  voters  attend- 
ing and  voting  at  such  meeting.  Where  at  any  such  meeting  the  clerk  of  the  meeting 
is  instructed  to  cast  a  ballot  for  or  against  any  such  appropriation,  by  a  viva  voce  vote, 
and  thereupon  the  items  were  read  and  the  clerk  cast  one  ballot  for  each,  such  pro- 
ceedings were  not  in  accordance  with  the  provisions  of  the  school  law;  that  a  vote  to 
increase  or  diminish  the  number  of  members  of  the  board  of  education  of  any  such 
union  free  school  district  can  only  be  taken  at  an  annual  meeting  of  the  district,  and  the 
proposition  must  be  determined  by  a  majority  vote  of  the  qualified  voters  of  the  district 
present  and  voting,  and  such  vote  must  be  ascertained  by  taking  and  recording  the 
aj'es  and  noes.  Where  the  vote  upon  a  motion,  that  the  members  of  the  board  of  educa- 
tion be  increased,  was  taken  viva  voce  or  by  acclamation,  such  proceedings  were  not  in 


JUDICIAL  decisions:    meetings  369 

accordance  with  the  provisions  of  the  school  law.  The  trustees  of  such  union  free 
school  districts  must  be  elected  by  ballot,  and  a  motion  made,  upon  a  vote  taken  viva 
voce  or  by  acclamation,  that  the  secretary  of  the  meeting  be  instructed  to  cast  a  vote  for 
each  of  the  persons  nominated  for  the  office  of  trustees,  is  not  a  compliance  with  the 
provisions  of  the  school  law. 
Decided  September  14,   1896 

J.  L.  Davenport,  attorney  for  appellants 

Skinner,  Superintendent 

The  appellants  in  the  above-entitled  matter  appeal  from  the  following  pro- 
ceedings had  and  taken  at  the  annual  school  meeting  held  on  August  4,  1896, 
in  union  free  school  district  no.  3,  town  of  Castleton,  Richmond  county: 

1  From  the  action  and  proceedings  of  said  meeting,  purporting  to  increase 
the  number  of  members  of  the  board  of  education  of  said  district  from  five  to 
nine. 

2  From  the  action  and  proceedings  of  said  meeting  in  the  alleged  election 
of  six  members  of  said  board  of  education. 

3  From  the  action  and  proceedings  of  said  meeting  in  the  alleged  authoriza- 
tion of  the  levy  of  a  tax  or  taxes  for  the  items  named  in  the  budget  presented  by 
the  board  of  education  as  necessary  to  defray  the  expenses  incident  to  conducting 
the  school  in  said  district,  etc. 

4  From  the  action  and  proceedings  of  said  meeting  in  the  alleged  election  of 
a  clerk  of  said  district. 

Annexed  to  the  appeal  is  a  copy  of  the  minutes  of  the  said  annual  school 
meeting,  and  annexed  to  said  copy  of  minutes  is  the  affidavit  of  Joseph  Quinlan, 
clerk  of  said  district,  in  which  Quinlan  alleges  that  the  said  copy  of  minutes  is 
a  true  copy  of  the  minutes  of  said  meeting  kept  by  Thomas  J.  Fetherstone,  as 
secretary  of  said  meeting,  and  as  copied  by  said  Quinlan  into  the  minute  book 
of  the  district. 

An  answer  to  the  appeal  has  been  made  by  George  Sheridan,  jr,  who  claims 
to  have  been  elected  at  said  annual  meeting  as  one  of  the  trustees  and  one  of 
the  members  of  the  board  of  education  for  said  district  for  the  term  of  two 
years.  Annexed  to  the  answer  are  the  affidavits  of  George  Bowman,  the  chair- 
man, Thomas  J.  Fetherstone,  secretary  of  said  annual  meeting,  and  the  joint 
affidavit  of  Andrew  Fetherstone,  and  Michael  Mahoney,  who  claim  to  have  acted 
as  inspectors  of  election  at  said  annual  meeting. 

From  the  proofs  presented  in  said  appeal  and  answer,  the  following  facts 
are  established: 

That  on  August  4,  1896,  the  board  of  trustees  or  education  of  said  union 
free  school  district  consisted  of  five  members,  the  term  of  office  of  two  of  such 
members  expiring  on  said  August  4,  1896;  that  at  the  annual  school  meetmg  in 
said  district  held  on  August  4,  1896,  George  Bowman  was  elected  chairman  and 
Thomas  J.  Fetherstone  secretar}^ ;  that  the  financial  report  of  the  board  of  educa- 
tion was  read  and  on  motion  w^as  received  as  read;  that  the  statement  of  money 
required  for  the  ensuing  school  year  for  school  purposes,  exclusive  of  public 


3/0  THE   UXIVERSITY   OF   THE   STATE   OF   XEW   YORK 

moneys,  was  read,  and  motion  made  and  seconded  that  the  clerk  be  directed  to 
cast  one  ballot  in  favor  of  each  item  as  read,  which  motion  was  lost,  and  a  motion 
duly  seconded  that  the  said  items  be  voted  on  separately  as  read,  was  adopted ; 
that  a  ballot  was  commenced  to  be  taken  on  voting  a  tax  to  raise  the  sum  of 
$13,000  for  teachers'  salaries  and  66  votes  received,  when  a  motion  that  the 
motion  to  vote  on  appropriations  separately  be  reconsidered  and  the  clerk  b^ 
instructed  to  cast  one  ballot  for  or  against  each  item  of  the  budget  as  read  was 
made,  seconded  and  adopted;  that  the  items  of  said  budget  were  read  and  the 
clerk  cast  one  ballot  for  each  item ;  that  a  motion  was  made  and  seconded  that 
the  board  of  education  be  increased  to  seven  members,  to  which  an  amendment 
was  offered  that  said  board  of  education  be  increased  to  nine  members,  and 
that  the  vote  upon  the  amendment  was  taken  by  dividing  the  house  and  the 
amendment  declared  by  the  chairman  to  have  been  adopted,  and  thereupon  the 
motion  as  amended  was  put  to  a  viva  voce  vote  or  to  a  vote  by  acclamation,  and 
declared  by  the  chairman  to  have  been  carried ;  that  thereupon  a  protest  was 
made  by  one  E.  J.  Schriver  that  the  action  of  the  meeting  in  the  increase  of  the 
number  of  members  of  the  board  of  education  was  illegal;  that  the  following 
persons  were  nominated  for  members  of  the  board  of  education,  namely,  George 
Sheridan,  jr  and  Michael  Smith,  for  two  years;  Dr  J.  J.  \'an  Rensselaer  and 
Charles  Schneider,  for  one  year;  and  James  McNally  and  Timothy  P.  Hurley, 
for  three  years;  and  thereupon  the  chairman  declared  the  nominations  closed, 
and  motion  was  adopted  instructing  the  clerk  to  cast  one  ballot  for  each  of  the 
said  persons  so  nominated ;  the  clerk  cast  one  ballot  for  each  of  said  persons  so 
nominated  and  the  chairman  declared  them  elected  as  members  of  said  board  of 
education;  that  the  following  persons  were  nominated  for  district  clerk,  namely, 
Joseph  Quinlan,  William  J.  BMwards.  James  T.  EUets  and  D.  J.  Donovan ;  that 
a  ballot  was  taken  for  district  clerk,  which  resulted  as  follows :  whole  number 
of  votes  2j'ii>  of  which  Joseph  Quinlan  received  137,  William  J.  Edwards  54, 
James  T.  Ellets  46,  D.  J.  Donovan  30,  and  6  scattering,  and  the  chairman  declared 
said  Quinlan  elected  district  clerk. 

There  is  no  contention  between  the  appellants  and  respondents  as  to  the 
action  and  proceedings  of  said  meeting  upon  authorizing  the  levy  of  a  tax  for 
the  items  contained  in  the  statement  of  the  board  of  education  for  school  pur- 
poses, or  upon  the  proposition  to  increase  the  members  of  said  board  and  the 
election  of  the  members  thereof,  or  in  the  election  of  the  district  clerk. 

The  papers  in  the  appeal  herein  call  for  my  decision  upon  the  following 
matters : 

1  Did  said  annual  school  meeting  legally  authorize  the  board  of  education 
to  levy  a  tax  for  the  items  reported  necessary  to  be  raised  by  tax  for  school 
purposes,  or  any  of  said  items? 

2  Did  said  annual  school  meeting  legally  adopt  a  proposition  or  resolution 
increasing  the  number  of  members  of  the  board  of  education  thereof  from  five 
members  to  nine  members? 

3  Did  said  annual  school  meeting  legally  elect  said  six  persons,  or  any  of 
them,  as  members  of  said  board  of  education? 


JUDICIAL  decisions:    meetings  371 

4  Did  said  annual  school  meeting  legally  elect  Joseph  Quinlan  as  district 
clerk? 

In  section  18,  article  4,  title  8,  of  the  Consolidated  School  Law  of  1894,  it 
is  enacted  that  it  shall  be  the  duty  of  the  board  of  education,  at  the  annual  meet- 
ing of  the  district,  besides  any  other  report  or  statement  required  by  law,  to 
present  a  detailed  statement  in  writing  of  the  amount  of  money  which  shall  be 
required  for  the  ensuing  year  for  school  purposes,  exclusive  of  public  moneys, 
specifying  the  several  purposes  for  which  it  will  be  required,  and  the  amount 
for  each. 

By  section  19,  article  4,  title  8,  of  the  Consolidated  School  Law  of  1894,  it 
is  enacted  that  after  the  presentation  of  such  statem.ent  the  question  shall  be 
taken  upon  voting  the  necessary  taxes  to  meet  the  estimated  expenditures,  and 
when  demanded  by  any  voter  present,  the  question  shall  be  taken  upon  each 
item  separately,  and  the  inhabitants  may  increase  the  amount  of  any  estimated 
expenditure,  or  reduce  the  same,  except  for  teachers'  wages  and  the  ordmary 
contingent  expenses  of  the  school  or  schools. 

In  section  10,  article  2,  title  8,  of  the  Consolidated  School  Law  of  1894,  it 
is  enacted  that  in  union  free  school  districts  other  than  those  whose  limits  cor- 
respond with  an  incorporated  city  or  village,  on  all  propositions  arising  at  the 
meetings  thereof  involving  the  expenditure  of  money,  or  authorizing  the  levy  of 
a  tax  or  taxes  in  one  sum,  or  by  instalments,  the  vote  thereon  shall  be  taken 
by  ballot,  or  ascertained  by  taking  and  recording  the  ayes  and  noes  of  such  quali- 
fied voters  attending  and  voting  at  such  meetings. 

The  board  of  education  presented  to  said  annual  meeting  the  statement 
required  by  section  18.  article  4,  title  8,  of  the  Consolidated  School  Law,  and 
thereupon  it  was  the  duty  of  the  qualified  voters  attending  such  meeting  to  vote 
the  necessary  taxes  to  meet  such  expenditures,  by  ballot,  or  by  the  clerk  or  secre- 
tary of  the  meeting  taking  and  recording  the  name  of  each  qualified  voter  present 
and  voting  and  setting  opposite  the  name  of  each  such  person  voting  whether 
he  or  she  voted  aye  or  no.  Such  vote  could  have  been  taken  upon  the  aggregate 
sum  of  the  items  in  the  statement,  or,  when  demanded  by  any  voter  present,  the 
vote  could  be  taken  upon  each  item  separately.  The  method  prescribed  by  the 
school  law%  as  above  quoted,  was  not  pursued  at  said  annual  meeting.  A  ballot 
was  taken  upon  the  item  of  $13,000  for  teachers'  salaries,  and  after  66  votes  had 
been  received  a  vote  theretofore  taken  to  vote  upon  each  item  separately  was 
rescinded  and  a  motion  instructing  the  clerk  to  cast  a  ballot  for  or  against  each 
item  as  read,  was  adopted  by  a  viva  voce  vote,  or  a  vote  taken  by  acclamation, 
and  thereupon  the  items  were  read  over  and  the  clerk  cast  one  ballot  for  each 
item.  It  is  clear  that  said  proceedings  were  not  in  accordance  with  the  provisions 
of  the  school  law.  Under  the  school  law  every  qualified  voter  present  at  said 
meeting  had  the  right  to  cast  his  individual  ballot  upon  the  question  of  author- 
izing a  tax  for  the  items  contained  in  the  statement  of  the  board  of  education, 
jor  to  have  his  or  her  name  recorded  and  the  fact  set  opposite  to  said  name 
whether  he  or  she  voted  aye  or  no.  The  chairman  or  any  other  ofticer  of  the 
meeting  had  not,  nor  had  the  voters  present  by  a  majority  vote  or  otherwise,  the 


2;j2  THE   UNIVERSITY   OF  THE   STATE  OF   NEW   YORK 

lawful  authority  to  deprive  anv  qualified  voter  of  such  right.  The  hallots  cast 
by  the  clerk  for  such  items  were  not  a  compliance  with  the  provisions  of  the 
school  law. 

1  decide  that  the  action  and  proceedings  of  said  annual  meeting  relative 
to  authorizing  the  levy  of  a  tax  or  taxes  for  the  items  contained  in  said  state- 
ment of  the  board  of  education  re(|uired  for  school  purposes,  were  illegal  and 
void.  That  upon  an  ajipeal  to  me  from  any  tax  levied  by  the  board  of  education 
under  and  pursuant  to  such  proceedings,  said  tax  would  be  set  aside  as  illegal 
and  void  and  not  authorized  under  the  provisions  of  the  school  law. 

In  section  13,  article  5,  title  8,  of  the  Consolidated  School  Law  of  1894,  it 
is  enacted  that  at  any  annual  meeting  held  in  any  union  free  school  district  whose 
limits  do  not  correspond  to  those  of  an  incorporated  village  or  city,  the  qualified 
voters  may  determine  by  a  majority  vote  of  such  voters  present  and  voting,  to 
be  ascertained  by  taking  and  recording  the  ayes  and  noes,  to  increase  or  diminish 
the  number  of  members  of  the  board  of  education  of  such  district.  If  such  board 
shall  consist  of  less  than  nine  members,  and  such  meeting  shall  determine  to 
increase  the  number,  such  meeting  shall  elect  such  additional  number  so  deter- 
mined upon,  the  first  to  hold  office  one  year,  the  second  two  years,  and  the  third 
three  years. 

The  proceedings  to  increase  or  diminish  the  number  of  members  of  the  board 
of  education  of  union  free  school  districts  whose  limits  do  not  correspond  to 
those  of  any  incorporated  village  or  city,  are  provided  by  statute  and  the  statute 
must  be  strictly  complied  with.  Such  proceedings  must  be  taken  at  an  annual 
meeting,  and  the  proposition  must  be  determined  by  a  majority  vote  of  the  quali- 
fied voters  of  the  district  present  and  voting,  and  such  vote  must  be  ascertained 
by  taking  and  recording  the  ayes  and  noes,  that  is.  the  clerk  of  the  meeting  must 
record  the  name  of  each  qualified  voter  who  vo::es  upon  the  proposition,  and 
must  set  opposite  to  the  name  of  such  voter  whether  he  or  she  votes  aye  or  no 
upon  such  proposition. 

It  is  not  claimed,  and  the  facts  established  do  not  show,  that,  in  the  proceed- 
ings had  and  taken  at  said  annual  meeting,  the  vote  upon  the  proposition  to 
increase  the  number  of  the  members  of  the  board  of  education  of  the  district 
was  ascertained  in  the  manner  provided  by  the  school  law  as  above  quoted.  A 
motion  was  made  and  seconded  that  the  number  of  members  of  the  board  of 
education  be  increased  to  seven ;  that  thereupon  motion  was  made  and  seconded 
that  such  motion  be  amended  by  increasing  said  number  to  nine;  that  the  vote 
upon  such  amendment  was  taken  by  dividing  the  house  and  the  amendment 
declared  adopted;  that  the  vote  upon  the  motion  thus  amended  was  not  adopted 
by  a  majority  of  the  voters  present  and  voting  thereon,  ascertained  by  taking 
and  recording  the  ayes  and  noes,  but  was  declared  adopted  by  a  viva  voce  vote, 
or  by  acclamation.  The  said  proceedings  were  not  in  accordance  with  the  pro- 
visions of  the  school  law.  Under  the  provisions  of  the  school  law  every  quali- 
fied voter  of  the  district  present  at  such  annual  meeting  had  the  right  to  vote 
upon  said  proposition,  and  it  was  the  duty  of  the  officers  of  said  meeting  to 


JUDICIAL  decisions:    meetings  373 

ascertain  such  vote  by  taking  and  recording  the  name  of  each  quaHtied  voter 
who  voted  thereon,  and  setting  opposite  to  each  name  so  recorded  whether  such 
person  voted  aye  or  no. 

I  decide  that  the  action  and  proceedings  of  said  annual  meeting  relative  to, 
and  upon,  the  proposition  to  increase  the  number  of  members  of  the  board  of 
education  of  said  district  were  illegal  and  void,  and  that  no  increase  of  the  num- 
ber of  members  of  said  beard  of  education  was  legally  made;  but  the  number  of 
members  of  said  board  remains  as  originally  established,  namely,  to  consist  of 
five  members. 

Under  the  school  law,  members  of  the  board  of  education  of  union  free 
school  districts  must  be  elected  by  ballot,  and  receive  a  majority  of  the  votes  cast 
for  each  of  said  members,  respectively.  At  the  annual  meeting  in  said  district 
no.  3,  Castleton,  it  is  claimed  by  the  respondents  herein  that  six  members  of  the 
board  of  education  were  elected  and  by  ballot,  namely,  two  for  one  year,  two 
for  two  years,  and  two  for  three  years ;  that  the  persons  so  claimed  to  have  been 
elected  were  put  in  nomination  at  said  meeting  and  the  nominations  being  closed, 
and  no  other  persons  being  nominated,  a  motion  was  made  and  adopted  by  a 
vote  of  the  meeting,  taken  viva  voce,  or  by  acclamation,  that  the  secretar}^  of 
the  meeting  be  instructed  to  cast  a  vote  for  each  of  the  persons  so  nominated ; 
that  thereupon  the  secretary  did  cast  such  ballot  for  said  persons,  and  that  said 
persons  were  declared  elected  by  the  chairman  of  the  meeting.  The  records  of 
this  Department  show  that  at  the  meetings  held  at  which  a.  union  free  school 
was  established  the  number  of  persons  fixed  upon  for  members  of  the  board 
of  education  was  five,  and  that  John  J.  Santry  was  elected  a  member  for  the 
term  of  one  year  from  the  first  Tuesday  of  August  1895,  Thomas  H.  Harper 
and  Charles  D.  Freeman  for  two  years  from  the  first  Tuesday  of  August  1895, 
and  John  Seaton  and  John  J.  Travers  for  three  years  from  the  first  Tuesday  of 
August  1895.  If  since  the  election  of  the  aforesaid  persons  as  members  of  said 
board  of  education  and  prior  to  said  annual  meeting  of  the  district,  none  of 
them  has  removed,  died  or  resigned,  said  annual  meeting  had  no  legal  authority 
to  elect  but  one  member  of  said  board  for  a  term  of  three  years,  in  place  of 
Santry,  whose  term  expired  on  the  first  Tuesday  of  August  1896.  If  any  mem- 
ber or  members  of  said  board  have  vacated  liis  or  their  ofiice,  and  such  vacancy 
or  vacancies  have  been  supplied  by  the  board,  the  annual  meeting  had  authority 
to  elect  a  person  or  persons  for  the  balance  of  the  unexpired  term  or  terms  of 
those  removing,  resigning  or  dying.  It  does  not  appear  from  the  papers  filed 
in  this  appeal  whether  or  not  said  annual  meeting  had  authority  to  elect  more 
than  one  member  of  said  board,  namely,  in  the  place  of  Santry.  As  stated 
above,  I  have  decided  that  the  proposition  to  increase  the  number  of  members 
of  said  board  from  five  to  nine  was  not  legally  adopted,  and  hence  the  election 
or  attempted  election  of  four  additional  members  of  the  board  by  said  annual 
meeting  was  illegal  and  void. 

Admitting  for  the  purpose  of  argument  only,  that  the  proposition  to  increase 
the  board  to  nine  members  was  legally  adopted,  and  that  there  were  two  vacancies 


374  THE   UNIVERSITY   OF  THE   STATE   OF   NEW   YORK 

to  be  filled  in  the  five  members,  the  election  of  the  six  persons  was  not  in  accord- 
ance with  the  provision  of  the  school  law. 

At  said  annual  meeting,  after  the  proposition  to  increase  the  number  of 
members  of  the  board  of  education  was  declared  by  the  chairman  to  have  been 
adopted,  the  chairman  stated  that  the  nominations  for  trustees  were  in  order  and 
thereupon  six  persons  were  nominated,  two  to  hold  two,  two  to  hold  one,  and  two 
to  hold  three  years ;  that  no  other  nominations  being  made,  on  motion,  the  chair- 
man declared  the  nominations  closed ;  that  a  motion  was  then  adopted  by  a  viva 
voce  vote  or  acclamation,  that  the  secretary  cast  one  ballot  for  the  six  persons 
so  nominated,  which  was  done,  and  said  persons  declared  elected,  etc.,  etc. 

The  nomination  of  persons  for  school  district  ofikers  at  meetings  at  which 
any  such  officers  are  to  be  elected  is  not  recognized  in  the  school  law,  and  its 
breach  is  more  to  be  honored  than  its  observance.  Such  nominations  have  no 
binding  effect  upon  the  qualified  voters  of  the  district  who  can  vote  lor  whom 
they  desire  for  such  offices  regardless  of  such  nominations ;  and  such  nomina- 
tions furnish  no  evidence  that  a  majority  of  the  qualified  voters  present,  or  any 
considerable  number  of  them,  desire  the  election  of  the  persons  so  nominated, 
or  would  vote  for  them  upon  the  ballot  which  the  school  law  requires  shall  be 
taken.  On  the  contrary,  the  voters  may  have  come  to  the  meeting  prepared  with 
ballots  containing  names  of  persons  either  partially  or  entirely  different  from 
those  put  in  nomination  at  the  meeting.  The  contention  that  as  no  other  than 
the  six  persons  nominated  could  be  voted  for  and  that  the  failure  of  the  meeting 
to  put  in  nomination  other  persons,  was  proof  that  said  persons  were  acceptable 
to  the  voters  present  or  a  majority  of  them,  is  untenable.  The  wishes  of  a 
majority  of  the  voters  present  and  voting  could  only  be  determined  by  a  canvass 
of  the  ballots  cast,  and  every  qualified  voter  present  had  the  legal  right  to  vote 
and  to  have  such  vote  received  and  counted. 

The  method  taken  at  said  annual  meeting  in  the  election  of  members  of  the 
board  of  education  by  which  the  secretary  of  the  meeting,  pursuant  to  a  motion 
adopted  by  a  viva  voce  vote,  cast  one  ballot  for  the  six  persons  nominated  at 
the  meeting,  is  not  approved  and  is  not  deemed  to  be  an  election  of  such  persons 
as  such  members  by  ballot,  as  required  by  the  provisions  of  the  school  law.  The 
school  law  nowhere  authorizes  the  voters  at  a  school  district  meeting  to  delegate 
to  any  one  the  power  to  elect  such  officers,  or  any  of  them,  by  directing  any 
person  to  cast  a  ballot  for  such  officers,  thereby  depriving  all  other  voters  of 
their  right  to  vote  for  such  officers. 

I  decide  that  the  action  and  proceedings  of  said  annual  meeting  relative  to, 
and  had  and  taken  in,  the  election  of  trustees  or  members  of  the  board  of  educa- 
tion of  said  district  were  illegal  and  void;  and  that  the  six  persons  declared  by 
the  chairman  of  the  meeting  to  have  been  elected  as  such  members  were  not,  nor 
was  either  or  any  of  them,  legally  elected,  nor  was  any  person  at  such  meeting 
legally  elected  a  member  of  the  board  of  trustees  or  board  of  education  of  said 
district. 

Under  the  provisions  of  section  7,  article  i,  title  8  of  the  Consolidated  School 


JUDICIAL  decisions:    meetings  375 

Law,  said  district,  at  its  annual  meeting,  had  authority  to  elect  a  clerk  of  said 
district,  who  should  also  act  as  clerk  of  the  board  of  education  of  the  district, 
and  that  such  clerk  shall  be  elected  by  ballot  and  must  receive  a  majority  of  the 
votes  of  the  qualified  voters  of  the  district  present  and  voting.  At  said  annual 
meeting  a  ballot  was  duly  taken  for  clerk  of  the  district  and  Joseph  Quinlan 
received  a  majority  of  the  votes  of  the  qualified  voters  of  the  district  present 
and  voting  for  clerk  of  said  district.  No  proof  is  presented  herein  of  the  ineligi- 
bility of  said  Quinlan. 

I  decide  that  said  Joseph  Quinlan  was  duly  elected  clerk  of  said  district  at 
said  annual  meeting. 

The  said  annual  meeting  of  said  district,  held  on  August  4,  1896,  adjourned 
sine  die.  As  I  decide,  upon  the  appeal  herein,  that  the  action  and  proceedings  of 
said  meeting  relative  to  authorizing  the  levy  of  a  tax  for  the  sum  or  sums  stated 
by  the  board  of  education  of  the  district  as  necessary  to  be  raised  for  school 
purposes  were  illegal  and  void,  a  special  meeting  of  the  inhabitants  of  the  dis- 
trict, qualified  to  vote  at  school  meetings  therein,  should  be  held  for  the  purpose 
of  acting  upon  the  question  of  authorizing  the  levy  of  such  tax  or  taxes. 

As  I  decide  that  the  action  and  proceedings  had  and  taken  at  said  annual 
meeting  of  said  district  upon  the  proposition  to  increase  the  number  of  mem- 
bers of  the  board  of  education  of  said  district  were  illegal  and  void,  and,  as  under 
the  provisions  of  the  school  law,  a  proposition  to  increase  or  diminish  the  mem- 
bers of  said  board  can  only  be  taken  at  an  annual  meeting  of  said  district,  and 
the  annual  meeting  of  said  district  for  the  school  year  commencing  August  i, 
1896,  having  been  held  and  adjourned  sine  die,  no  action  or  proceedings  relative 
to  increasing  or  diminishing  the  number  of  members  of  said  board  of  said  district 
can  be  legally  had  or  taken  until  the  annual  school  meeting,  held  in  said  district 
for  the  school  year,  commencing  August  i,  1897. 

Upon  the  adjournment  sine  die  of  said  annual  school  meeting,  held  on 
August  4,  1896,  the  board  of  education  of  said  district  consisted  of  at  least  three 
members,  and  possibly  four,  and  as  I  decide  that  six  persons,  claimed  to  be 
elected  members  of  said  board,  were  not,  nor  was  either  or  any  of  them,  legally 
elected  as  such  members  of  the  board  of  trustees  of  the  district,  the  special  meet- 
ing of  the  district,  Colled  to  vote  upon  the  question  of  the  levy  of  a  tax  or  taxes, 
should  also  elect  a  member  or  members  of  the  board  of  education  of  the  district 
to  fill  the  vacancy  or  vacancies  existing  therein  at  the  time  said  annual  meeting 
adjourned  sine  die,  to  the  end  that  said  board  shall  consist  of  five  members. 

The  appeal  herein  is  sustained  as  to  all  matters,  except  that  from  the  elec- 
tion of  Joseph  Quinlan  as  clerk  of  the  district,  and  to  such  election  said  appeal  is 
dismissed,  and  his  election  is  sustained. 

It  is  ordered.  That  all  action  and  proceedings  had  and  taken  at  the  annual 
school  meeting,  held  on  August  4,  1896,  in  union  free  school  district  no.  3,  town 
of  Castleton,  Richmond  county,  relative  to  the  following  matters,  namely :  author- 
izing the  levy  of  a  tax  for  the  support  of  the  schools  of  said  district  for  the 


27^  THE   UNIVERSITY   OF   THE   STATE   OF   NEW   YORK 

school  year  coniniencing  August  i,  1896,  as  contained  in  the  statement  of  the 
board  of  education  of  said  district,  presented  to  and  read  at  said  annual  meet- 
ing ;  all  action  and  proceedings  had  and  taken  upon  the  proposition  to  increase  the 
number  of  members  of  the  board  of  education  of  said  district  from  five  mem- 
bers to  nine  members;  all  action  and  proceedings  had  and  taken  in  the  election 
or  alleged  election  of  George  Sheridan,  jr,  Michael  J.  Smith.  Dr  J.  J.  Van 
Rensselaer,  Charles  Schneider,  James  McNally  and  Timothy  P.  Hurley,  or  either 
of  them,  as  trustees  or  members  of  the  board  of  education  of  said  district,  be, 
and  each  and  all  of  said  actions  and  proceedings  of  said  annual  meeting  herein 
specified,  is  and  are,  vacated  and  set  aside  as  illegal  and  void,  and  altogether 
held  for  naught. 

It  is  further  ordered,  That  the  trustees  or  board  of  education  of  said  union 
free  school  district  no.  3  of  Castleton,  Richmond  county,  without  unnecessary 
delay,  call  a  special  meeting  of  the  inhabitants  of  said  district,  qualified  to  vote 
at  school  meetings  in  said  district,  said  notice  to  be  given  in  the  manner  pre- 
scribed by  section  10,  article  2,  and  section  13,  article  3,  title  8,  of  the  Consoli- 
dated School  Law  of  1894,  and  the  amendments  thereof,  for  the  purpose  of 
acting  upon  the  statement  presented  by  the  board  of  education  of  said  district 
to  the  annual  meeting  of  said  district  held  on  August  4,  1896,  of  the  sum  or 
sums  required  to  be  raised  by  a  tax  or  taxes  for  the  support  of  the  schools  of  said 
district,  for  the  school  year  commencing  August  i,  1896,  and  also  to  elect  one  or 
more  trustees  or  members  of  the  board  of  education  of  said  district  to  fill  any 
and  all  vacancies  existing  in  said  board,  to  the  end  that  said  board  shall  consist 
of  five  members. 


4497 

In  the  matter  of  the  appeal  of  W.  D.  Griffin  v.  Henry  L.  Lounsbury  and  Samuel 
D.  Peterson,  trustees  of  school  district  no.  17.  town  of  Cortlandt,  West- 
chester county. 

It  is  the  duty  of  the  trustees  of  a  school  district  to  call  a  special  meeting  of  the  district 
when  requested  to  do  so  by  a  respectable  number  of  the  qualified  voters  of  the  district 
for  a  legitimate  object.  While  the  occasion  for  a  special  meeting  must  be  of  enough 
importance  to  warrant  the  trustees  in  assembling  the  inhabitants,  on  the  other  hand 
the  trustees  should  not  refuse  or  neglect  to  call  a  special  meeting  when  the  interests 
of  the  district  plainly  demand  it,  or  when  petitioned  by  a  respectable  number  of  the 
inhabitants. 

Decided  October  2;^,  1S96 

Skinner,  Superintendent 

On  August  24,  1896,  a  petition  signed  by  twenty-five  residents,  taxpayers 
and  voters  of  school  district  no.  17,  town  of  Cortlandt,  Westchester  county, 
addressed  to  the  school  trustees  of  school  district  no.  17,  town  of  Cortlandt, 
Westchester  county,   requesting  said  trustees   to  call   a   special  school  meeting 


JUDICIAL  decisions:    meetings  377 

within  the  next  ten  days,  for  the  purpose  of  taking  into  consideration  the  selec- 
tion of  a  school  house  site,  and  the  building  of  a  schoolhouse  thereon,  and  all 
things  necessary  for  the  carrying  out  of  the  same,  was  presented  to  said  Henry 
L,  Lounsbury  and  Samuel  D.  Peterson,  trustees  of  said  school  district.  That 
said  Lounsbury  was  willing  to  call  said  meeting,  but  said  Peterson  opposed  the 
calling  of  said  meeting.  That  on  September  24,  1895,  no  special  meeting  of  said 
district  having  been  called  by  said  trustees  pursuant  to  the  prayer  of  said  peti- 
tioners, W.  D.  Griffin,  a  resident  taxpayer  and  voter  in  said  school  district,  and 
one  of  said  petitioners,  appealed  from  the  refusal  of  said  trustees  to  call  said 
meeting.  The  appeal  herein  alleges  that  the  schoolhouse  and  grounds  in  said 
district  are  in  a  deplorable  condition  for  the  accommodation  of  school  children 
and  for  school  purposes,  and  that  a  large  majority  of  the  taxpayers  in  the  school 
district  are  desirous  of  having  a  new  schoolhouse  and  better  accommodations. 
That  there  are  but  two  trustees  acting  in  said  district. 

No  answer  has  been  made  to  the  appeal  herein,  and  under  the  rulings  of 
this  Department  the  facts  alleged  in  said  appeal  are  deemed  admitted  by  the  said 
trustees,  Lounsbury  and  Peterson. 

This  Department  has  uniformly  held  that  it  is  the  duty  of  the  trustees  of  a 
school  district  to  call  a  special  meeting  of  the  district  when  requested  to  do  so 
by  a  respectable  number  of  the  qualified  voters  of  the  district  foi-  a  legitimate 
cfjject.  While  the  occasion  for  a  special  meeting  must  be  of  enough  importance 
to  warrant  the  trustees  in  assembling  the  inhabitants,  on  the  other  hand  the 
trustees  should  not  neglect  or  refuse  to  call  a  special  meeting  when  the  interests 
of  the  district  plainly  demand  it,  or  when  petitioned  by  a  respectable  number 
of  the  inhabitants. 

The  appeal  herein  shows  that  the  interests  of  said  district  plainly  demand 
that  said  special  meeting  petitioned  for  should  be  called,  and  that  said  trustees 
have  been  petitioned  for  said  special  meeting  by  a  respectable  number  of 
the  inhabitants. 

The  appeal  herein  is  sustained. 

It  is  ordered,  That  Henry  L.  Lounsbury  and  Samuel  D.  Peterson,  trustees 
of  school  district  no.  17,  town  of  Cortlandt,  Westchester  county,  without  unneces- 
sary delay,  call  a  special  meeting  of  the  inhabitants  of  said  school  district  qualified 
to  vote  at  school  meetings  therein,  for  the  purpose  of  taking  into  consideration 
and  acting  upon  the  proposition  of  changing  the  schoolhouse  site  and  designating 
a  new  schoolhouse  site,  and  directing  its  purchase  and  authorizing  the  levy  of 
a  tax  to  pay  for  said  site;  and  also  take  into  consideration  the  erection  of  a 
new^  schoolhouse  upon  the  present  school  site  or  upon  a  new  site,  and  to  authorize 
the  construction  of  a  new  schoolhouse,  and  the  levy  of  a  tax  or  taxes  in  one 
sum  or  in  equal  annual  instalments,  to  pay  for  the  erection  of  such  new  school- 
house. 


3/8  THE   UNIVERSITY    OF  THE   STATE   OF   NEW   YORK 

4504 

In   the  matter  of  the  appeal   of   Thomas   H.   IMadi-ran,  Thomas   S.   Ryan   and 
Nicholas  J.  Mahoney  from  proceedings  of  annual  school  meeting  held  on 
August  4,  1896,  in  union  free  school  district  no.  10,  towns  of  Half  Moon 
and   Stillwater,   Saratoga   county;   and   from   district  election  held   August 
5.  t8o6. 
When   at   an   annual   school  meeting  it  became  impossible  to   transact  the  business   of   the 
meeting  by  reason  of  the  noise  and  disorder  existing;  held,  that  the  declaration  of  the 
chairman   adjourning  the   meeting   was   proper;    that   after   such   adjournment  by   the 
chairman  the  powers  of  the  meeting  were  exhausted,  and  neither  the  chairman  of  the 
meeting  nor  any  other  person  or  persons  could  legally  reconvene  said  annual  meeting 
or  organize  a  new  meeting,  and  that  all  proceedings  taken  by  the  persons  remaining  in 
the  building  after  such  adjournment  and  after  the  chairman,  clerk  and  other  persons 
left  the  hall  and  building,  were  illegal  and  void;  that  election  of  trustees  and  clerk  of 
the  district,  held  on  the  Wednesday  following  the  annual  meeting,  not  being  an  adjourn- 
ment of  the  annual  meeting  nor  a  special  meeting  duly  called  and  held,  was  illegal 
and  void. 
Decided  October  31,  1896 

O.  Warner,  attorney  for  appellants 
J.  F.  Terry,  attorney  for  respondents 

Skinner,  Superintendent 

The  appeal  is  taken  from  the  action  of  the  annual  school  meeting  held 
August  4,  1896,  in  union  free  school  district  no.  10,  of  the  towns  of  Half  Moon 
and  Stillwater,  Saratoga  county ;  and  from  an  alleged  election  of  two  trustees  of 
said  district  and  a  clerk  of  said  district,  held  on  August  5,  1896,  in  said  district, 
and  the  declaration  that  Edgar  Holmes  and  W.  B.  Neilson  were  elected  as  tru.s- 
tees.  and  Herbert  R.  Baker  clerk ;  and  from  the  decision  of  the  board  of  educa- 
tion recognizing  said  Holmes,  Neilson  and  Baker  as  such  trustees  and  clerk, 
and  refusing  to  recognize  the  appellants  as  such  trustees  and  clerk. 

\\'ith  the  appeal  herein,  the  joint  affidavit  of  the  appellants  and  eight  other 
persons,  in  support  of  the  allegations  contained  in  the  appeal,  was  filed. 

Messrs  Daniel  E.  La  Dow  and  others,  claiming  to  be  members  of  the  board 
of  education  of  said  district,  have  filed  an  answer  to  the  appeal,  and  with  such 
answer  have  filed  the  joint  affidavit  of  the  respondents  and  sixty  or  more  qualified 
voters  of  the  district  in  support  of  the  allegations  contained  in  the  answer. 

The  main  contentions  of  the  respondents  are  that,  at  the  time  the  chainnan 
of  said  annual  meeting  adjourned  said  meeting,  the  noise  and  disorder  was  of 
such  a  character  as  to  render  it  impossible  to  transact  any  business;  and  that 
the  action  of  the  meeting  upon  the  resolution  to  postpone  the  election  of  trustees 
and  clerk  until  Wednesday,  the  day  following  said  meeting,  and  the  amendment 
thereof  that  said  election  be  then  held,  and  to  reconsider  its  action  upon  holding 
such  election  on  W'ednesday,  were  in  efifect  and  equivalent  to  an  affirmative 
majority  vote  and  determination  of  said  meeting  to  hold  such  election  on  Wednes- 
day, the  next  following  day  after  said  meeting. 


JUDICIAL   bECISIONS:     MEETINGS  379 

The  following  facts  are  established : 

That  the  annual  school  meeting  of  union  free  school  district  no.  10,  towns 
of  Half  Moon  and  Stillwater,  Saratoga  county,  was  held  on  the  evening  of 
August  4,  1896,  and  was  duly  organized  by  the  choice  of  Herbert  O.  Bailey  as 
chairman,  Herbert  R.  Baker,  the  clerk  of  the  district,  acting  as  clerk  of  the 
meeting;  that  after  the  reading  and  adoption  of  reports  of  school  officers  and 
voting  appropriations  for  the  ensuing  year,  the  chairman  announced  that  the 
next  business  in  order  was  the  election  of  two  trustees  and  a  clerk  of  the  district, 
and  thereupon  a  motion  was  made  that  such  election  be  held  on  Wednesday, 
the  next  following  day,  which  motion  was  amended  to  the  effect  that  such  elec- 
tion be  then  held;  that  objection  was  taken  to  the  amendment,  that  it  should  be 
declared  not  in  order,  as  the  election  must  then  be  held  unless  the  meeting  should 
determine  that  it  should  be  held  on  Wednesday,  or,  in  other  words,  that  vote 
in  favor  of  the  original  motion  would  determine  that  the  election  would  be  held 
on  Wednesday  and  a  vote  against  the  motion  would  require  the  election  to  then 
be  held,  and  therefore  the  amendment  was  not  in  order  and  should  not  be 
entertained ;  that  the  chairman  entertained  the  amendment  and  directed  that  all 
persons  in  favor  of  the  amendment  should  take  the  east  side  of  the  hall,  and  those 
opposed,  the  west  side,  and  the  chairman  appointed  two  tellers  to  count  the  per- 
sons on  the  east  side  and  two  other  tellers  to  count  the  persons  on  the  west  side 
of  the  hall ;  that  the  tellers  on  the  west  side  proceeded  to  count  the  persons  on 
that  side  of  the  hall,  and  completed  said  count  without  trouble,  interference  or 
delay ;  that  the  tellers  on  the  east  side,  after  making  several  unsuccessful  attempts 
to  count  the  persons  on  that  side,  informed  the  chainiian  that  many  persons  on 
said  east  side  were  standing  on  the  floor  and  on  chairs,  and  others  moving  about, 
and  that  it  was  impossible  to  count  the  persons  unless  they  were  seated  and  in 
order;  that  the  chairman  requested  said  persons  to  take  their  seats  and  to  keep 
quiet  and  in  order,  but  that  but  few  complied  with  such  request,  but  continued 
to  stand  and  move  about,  and  persons  having  been  counted  by  the  tellers  moved 
ahead  of  the  tellers  and  were  again  counted ;  that  there  were  in  said  hall  at  the 
time  of  said  count  many  persons  not  qualified  to  vote  at  said  meeting  who  were 
counted  by  the  tellers ;  that  by  reason  of  the  noise  and  disorder  prevailing  among 
the  persons  on  the  east  side  of  said  hall,  and  the  crowding  and  pushing  of  the 
persons  moving  about  it  was  impossible  for  the  tellers  to  make  an  approximately 
correct  account  of  such  persons ;  that  the  tellers  of  the  persons  on  the  east  side  of 
the  hall  reported  to  the  chairman  the  number  of  persons  to  be  508,  and  the 
tellers  on  the  west  side  reported  to  the  chairman  the  number  of  persons  to  be 
302.  the  result  of  the  vote  upon  said  amendment  being  508  in  favor  and  302 
against ;  that  upon  the  announcement  of  the  result  by  the  vote  upon  such  am.end- 
ment  the  chairman  then  stated  the  question  was  upon  said  motion  amended,  and 
requested  those  in  favor  to  say  aye  and  the  response  of  aye  was  made  on  the  east 
side,  and  thereupon  those  opposed  were  requested  to  say  no,  and  the  response 
-qf  no  was  made  on  the  west  side,  and  the  chairman  declared  that  the  motion  as 
amended  was  lost;  that  upon  said  declaration  of  the  chairman  the  persons  on 
the  west  side  cheered  and  those  on  the  east  side  screeched  and  hissed,  and  fists 


3S0  THE   UNIVERSITY    OF   THE   STATE    OF   NEW    YORK 

were  shaken  at  the  chairman  and  threats  made  to  throw  him  from  the  platform; 
that  order  was  partly  restored  and  a  motion  was  made  to  adjourn,  whereupon 
shouting  and  yelling  ensued  which  continued  for  some  time,  when  the  motion 
was  put  by  the  chairman  and  declared  lost,  which  declaration  was  followed  by 
shrieks,  yells  and  groans;  that  after  some  effort  the  chairman  succeeded  in 
restoring  partial  order,  and  stated  in  substance  that  it  was  impossible  to  transact 
any  business  on  account  of  the  noise  and  disorder;  that  he  was  unable  to  tell 
who  addressed  him  or  what  they  said,  or  in  all  cases  to  determine  the  result  of  a 
vote,  and  that  if  order  was  not  maintained  he  would  adjourn  the  meeting  of 
his  own  motion,  which  statement  was  received  with  hisses,  shaking  of  fists  and 
threats  to  throw  the  chairman  from  the  platform  and  to  elect  another  chairman 
in  his  place ;  that  a  motion  was  then  made  that  the  vote  on  the  motion  as  amended 
in  relation  to  the  time  for  holding  the  election  be  reconsidered,  which  motion 
was  put  by  the  chairman  and  declared  lost,  and  thereupon  another  scene  of  noise, 
confusion  and  disorder  occurred,  increasing-  in  volume  and  virulence ;  vile  epithets 
were  applied  to  some  of  the  persons  and  to  the  chairman ;  several  persons  rushed 
upon  the  platform  shouting  and  demanding  that  another  chairman  be  chosen, 
several  persons  shaking  their  fists  in  the  face  of  the  chairman,  and  threatening 
two  members  of  the  board  of  education  with  personal  violence;  that  after  this 
scene  of  disorder  had  continued  for  a  period  of  five  to  ten  minutes,  the  chairman 
stated  to  those  present,  in  substance :  "  It  is  impossible  to  transact  any  further 
business  at  this  meeting  on  account  of  the  noise  and  disorder,  and  I  therefore 
declare  this  meeting  adjourned  ",  that  upon  said  adjournment  of  said  meeting 
the  president  of  the  board  of  education  announced  to  the  persons  present  that 
the  election  for  trustees  and  district  clerk  would  be  held  the  next  following  day 
at  the  school  building  in  said  district  from  12  o'clock  noon  until  4  o'clock  in  the 
afternoon,  and  thereupon  the  chairman  and  clerk  of  the  meeting  and  the  persons 
on  the  west  side  of  the  hall  left  the  hall  and  did  not  return  that  night;  that  after 
the  persons  so  as  aforesaid  left  said  hall  the  persons  remaining  therein  organized 
by  electing  a  chairman  and  clerk  and  choosing  inspectors  of  election  and  pro- 
ceeded to  ballot  for  two  trustees  and  a  clerk  for  said  district,  such  balloting 
being  held  open  until  10  o'clock  p.  m. ;  that  the  ballots  received  were  canvassed 
by  said  inspectors  and  the  result  announced  by  them  as  follows :  Whole  num- 
ber of  votes  cast  245,  of  which  the  appellants,  Thomas  H.  Madigan  and  Thomas 
S.  Ryan,  received  245  votes  for  the  office  of  trustee,  and  the  appellant,  Nicholas  J. 
Mahoney,  received  245  for  district  clerk,  and  thereupon  said  meeting  adjourned; 
that  on  the  day  following  said  annual  school  meeting,  to  wit,  on  Wednesday. 
August  5,  1896,  a  meeting  or  election  was  held  in  said  school  building,  conducted 
by  the  board  of  education  of  said  district  as  inspectors  of  election,  for  the  elec- 
tion of  two  trustees  of  said  district  and  for  a  district  clerk ;  that  the  polls  of  said 
election  opened  at  12  o'clock  noon  and  closed  at  4  o'clock  in  the  afternoon  of  said 
day;  that  at  said  election  550  ballots  were  cast  by  an  equal  number  of  qualified 
voters  of  said  district,  and  of  said  ballots  cast.  Edgar  Holmes  and  Willie  B. 
Neilson  each  received  for  trustee  548  votes,  and  Thomas  H.  Madigan  and  Thomas 


JUDICIAL  decisions:    meetings  3S1 

S.  Ryan  each  received  for  trustee,  2  votes,  and  that  Herbert  R.  Baker  received 
for  district  clerk  54S  votes,  and  Nicholas  J.  Alahoney  received  2  votes ;  that  at 
the  organization  of  said  board  of  education,  on  August  11,  1896,  the  said  Holmes 
and  Neilson  were  recognized  and  received  as  members  of  said  board  and  said 
Baker  as  district  clerk,  and  ever  since  have  acted  as  such,  and  that  said  Aladigan 
and  Ryan,  who  claimed  to  have  been  elected  trustees,  and  said  Mahoney,  who 
claimed  to  have  been  elected  district  clerk,  on  August  4,  1896,  were  not  received 
nor  recognized  by  said  board  as  such  trustees  and  clerk. 

It  further  appears  that  besides  the  qualified  voters  in  the  hall  in  the  school 
building  on  the  evening  of  August  4,  1896,  there  were  outside  of  said  building 
a  large  number  of  qualified  voters  of  the  district,  a  majority  of  whom  were 
women,  all  of  whom  were  assembled  for  the  purpose  of  attending  and  voting  at 
the  election  of  district  officers  if  such  election  had  been  held. 

It  is  not  shown  how  many  qualified  voters  there  were  residing  in  said  dis- 
trict on  August  4,  1896.  I  assume  that  said  union  free  school  district  no.  10  is 
one  whose  limits  do  not  correspond  to  those  of  an  incorporated  village  or  city, 
and  that  the  number  of  children  of  school  age  in  said  district  exceeds  300. 

It  was  the  duty  of  the  qualified  voters  of  said  district  at  its  annual  meeting 
held  on  August  4,  1896,  to  elect  the  trustees  and  district  clerk,  unless  said  meet- 
ing, after  transacting  the  other  business  required  by  the  school  law,  legally 
adjourned  said  meeting  to  a  day  named  for  the  purpose  of  completing  its  busi- 
ness and  electing  its  district  officers,  or,  under  the  provisions  of  section  14, 
article  3,  title  8,  of  the  Consolidated  School  Law  of  1894,  the  qualified  voters 
of  such  district,  by  a  vote  of  a  majority  of  those  present  and  voting  at  any  annual 
meeting,  or  any  duly  called  special  meeting,  to  be  ascertained  by  taking  and 
recording  the  ayes  and  noes,  determined  that  the  election  of  the  members  of  the 
board  of  education  and  clerk  of  said  district  shall  be  held  on  the  Wednesday  next 
following  the  day  designated  by  law  for  holding  the  annual  meeting. 

It  is  clear  that  w^hen  the  annual  meeting  of  said  district  was  adjourned  by 
the  chairman  it  was  not  adjourned  to  a  day  certain,  but  sine  die. 

It  is  not  shown  that  the  voters  of  said  district  at  any  annual  meeting,  or  at 
any  duly  called  special  meeting,  ever  determined  under  the  said  provisions  of 
section  14,  article  3,  title  8,  of  the  Consolidated  School  Law  of  1894,  above  cited, 
that  the  election  of  the  members  of  the  board  of  education  and  district  clerk  shall 
be  held  on  the  Wednesday  next  following  the  day  designated  by  law  for  holding 
the  annual  meeting  therein.  The  disgraceful  and  riotous  manner  in  which 
persons  attending  said  annual  meeting  acted  authorized  the  chairman  of  said 
meeting  to  adjourn  the  same.  After  such  adjournment  of  said  annual  meeting 
by  the  chairman,  the  powers  of  said  meeting  were  exhausted,  and  neither  the 
chairman  of  said  meeting  nor  any  other  person  or  persons,  could  reconvene  said 
annual  meeting  or  organize  anew  the  annual  meeting  of  the  district,  and  all 
proceedings  to  that  end  taken  by  the  persons  remaining  in  said  school  building 
-a,fter  said  adjournment  and  after  the  chairman,  clerk  and  other  persons  left  the 
hall  and  building  were  illegal  and  void. 


382  THE   UNIVERSITY   OF  THE   STATE   OF   NEW    YORK 

1  decide:  i  The  chairman  of  said  annual  school  meeting,  held  in  said  district 
on  August  4.  1896,  in  adjourning  said  meeting  acted  properly,  and  his  action  is 
sustained. 

2  That  the  alleged  meeting  organized  and  held  in  said  school  building  in  said 
district  on  August  4,  1896,  after  the  annual  school  meeting  had  been  adjourned 
and  the  chairman,  clerk  and  others  had  left  the  hall  and  building,  was  neither 
the  annual  meeting  nor  a  special  meeting  duly  called,  and  was  illegal  and  void; 
that  all  proceedings  had  and  taken  thereat  were  illegal  and  void. 

3  That  the  appellants  Thomas  H.  Madigan  and  Thomas  H.  Ryan  were  not 
legally  elected  as  trustees  of  said  school  district,  and  that  the  appellant  Nicholas 
J.  Mahoney  was  not  legally  elected  district  clerk  of  said  district. 

4  That  the  meeting  or  election  held  in  said  district  on  Wednesday,  August 
5,  1896,  not  being  an  adjournment  of  the  annual  meeting  nor  a  special  meeting 
duly  called  and  held,  was  not  duly  and  legally  called  or  held,  and  that  Edgar 
Holmes  and  Willie  B.  Neilson  were  not  legally  elected  trustees  of  said  district, 
and  that  Herbert  R.  Baker  was  not  legally  elected  district  clerk  of  said  district. 

The  appeal  herein  is  sustained  as  to  so  much  thereof  as  is  taken  from  the 
election  of  ]\Iessrs  Holmes  and  Neilson  as  trustee  of  the  district,  and  said  Baker 
as  district  clerk,  and  dismissed  as  to  all  other  matters. 

It  is  ordered.  That  all  proceedings  had  and  taken  at  the  alleged  annual 
school  meeting  held  in  said  school  district  on  August  4,  1896,  after  the  adjourn- 
ment of  the  annual  school  meeting  held  therein  on  said  date,  by  the  chairman,  be, 
and  the  same  are,  and  each  of  them  is,  vacated  and  set  aside  as  illegal  and  void. 

It  is  further  ordered.  That  all  proceedings  had  and  taken  at  the  alleged 
meeting  or  election  held  in  said  district  on  Wednesday,  August  5,  1896,  be,  and 
the  same  are,  and  each  of  them  is,  vacated  and  set  aside  as  illegal  and  void. 

It  is  further  ordered.  That  the  board  of  education  of  union  free  school  dis- 
trict no.  10,  towns  of  Half  Moon  and  Stillwater,  Saratoga  county,  without 
unnecessary  delay,  call  a  special  meeting  of  the  inhabitants  of  said  district 
qualified  to  vote  at  school  meetings  therein  for  the  purpose  of  electing  two  trus- 
tees of  said  district,  and  a  district  clerk  of  said  district,  in  place  of  the  two 
trustees  and  of  said  district  clerk,  whose  respective  terms  of  office  expired  on 
August  4,  1896. 


3513 

Alonzo  B.  Wright,  appellant,  v.  Edward  Bleeker,  A.  C.  Graham.  Robert  A\'illcts, 
R.  S.  ]Munson,  I.  J.  Merritt,  composing  the  board  of  education,  and  Thomas 
A.  Harris.  S.  DeWitt  Smith  and  David  R.  Fowler,  inspectors  of  election, 
district  no.  3,  town  of  Flushing. 

Notice  of  a  special  district  school  meeting;  what  is  srfficicnt.  District  organized  under 
special  acts  of  the  Legislature  subject  to  supervision  by  State  Superintendent  of 
Public  Instruction. 


JUDICIAL  decisions:    meetings  383 

To  appropriate  money  for  the  improvement  of  a  school  building,  the  vote  need  not  be  by 

ballot,  unless   the   statute  specihcally   requires   it. 
In  such  a  case,  although  the  vote  is  taken  by  ballot,  chapter  366,  Laws  of  1880,  known  as 

the  "  uniform  ballot  act,"  does  not  apply. 
Quaere,  whether  said  act  is  applicable  to  any  school  district  election. 
Vote  by  ballot  at  school  meetings,  when  necessary. 
Decided  August  4,  1886 

Draper,  Superintendent 

School  district  no.  3  of  the  town  of  Flushing  is  subject  to  the  operation  of  a 
special  act  of  the  Legislature,  being  chapter  638  of  the  Laws  of  1857,  as  amended 
by  chapter  367  of  the  Laws  of  1873,  and  chapter  559  of  the  Laws  of  1875,  and 
chapter  434  of  the  Laws  of  1885.  A  special  school  meeting  was  held  in  said 
district  on  Monday,  the  12th  day  of  July,  1886,  pursuant  to  the  following  notice: 

Notice. — A  special  school  meeting  of  the  electors  of  school  district  no'.  3,  town  of  Flushing, 
is  hereby  called  on  Monday,  July  12,  1886,  between  the  hours  of  two  o'clock  and 
seven,  p.  m.,  at  the  village  hall,  Whitestone,  with  a  view  of  submitting  plans,  specifica- 
tions and  cost  for  the  enlargement  of  the  present  school  building  in  said  district. 

(Signed)  Edward    Bleeker,    President 

D.  R.  Fowler,  Clerk 
Whitestone,  June  30,  1886 

At  such  meeting  the  plans  and  specifications  and  proposed  cost  for  the 
enlargement  of  the  school  building  in  said  district  were  submitted  to  the  electors, 
and  election  held  with  a  view  to  determine  whether  or  not  said  electors 
would  appropriate  the  sum  of  $7500  to  meet  the  expense  of  said  improvement, 
and  whether  or  not  bonds  should  be  issued  for  the  purpose  of  raising  the  said 
sum.  The  vote  was  taken  by  ballot,  printed  ballots  being  used  different  in  color 
and  in  size.  The  polls  remained  open  from  two  in  the  afternoon  until  seven  in 
the  evening,  and  the  voting  was  supervised,  and  the  count  made  by  three 
inspectors  of  election  appointed  by  the  board  of  education  for  that  purpose.  The 
inspectors  of  election  reported  at  the  conclusion  of  the  voting  that  124  ballots 
had  been  cast,  of  which  loi  were  in  favor  of  appropriating  the  sum  named,  3 
against  such  appropriation,  6  in  favor  of  issuing  bonds  and  13  against  the  same, 
with  I  blank  ballot.  From  this  action  the  appellant  appeals  to  the  Superintendent 
of  Public  Instruction  upon  the  following  grounds : 

1  That  the  call  for  such  meeting  did  not.  as  the  notice  shows,  refer  to  the 
statute  or  authority  by  which  such  call  could  be  or  was  made,  and  did  not  fully 
and  fairly  set  forth  the  object,  intent  and  purpose  of  the  election  or  special 
meeting. 

2  That  the  ballots  used,  as  shown  by  such  report,  w^ere  illegal  and  void  inas- 
much as  they  did  not  conform  to  the  provisions  of  chapter  366  of  the  Laws  of 
1880. 

3  That  at  the  closing  of  the  polls  the  inspectors  did  not  openly  and  before 
the  meeting  declare  the  result  of  such  election,  but  reported  to  the  president  of 
the  board,  who,  in  that  capacity,  announced  and  declared  the  result. 


384  THE   UXIVEKSITV   OF   THE   STx\TE   OF    XEW   YORK 

4  Tliat  only  124  votes  were  cast  and  that  there  were  over  300  legal  voters 
in  the  district,  and  that,  therefore,  the  loi  votes  cast  in  favor  of  the  appropria- 
tion did  not  show  the  sentiment  of  the  majority  of  the  voters  in  the  district  in 
favor  thereof. 

5  That  said  election  was  held  pursuant  to  a  special  statute,  and  hence  is 
without  the  jurisdiction  of  the  State  Superintendent  of  Public  Instruction. 

6  It  is  insisted  that  if  the  Superintendent  holds  that  such  election  is  within 
his  jurisdiction  and  supervision,  he  must  determine  whether  the  election  was 
legal  or  illegal,  whether  or  not  the  result  was  binding  upon  the  district,  and  in 
the  event  of  finding  that  it  is  not  binding,  then  he  must  decide  that  no  other 
election  can  be  held  in  said  district  for  a  similar  purpose  within  the  ensuing  six 
months. 

In  consequence  of  the  foregoing  objections,  the  Superintendent  is  prayed 
to  set  aside  such  election  and  declare  the  results  thereof  illegal  and  of  no  effect. 

The  board  of  education  was  proceeding  in  this  matter  under  section  ii  of 
chapter  434  of  the  Laws  of  1885,  which  provides  as  follows :  "  Whenever  the 
said  board  of  education  shall  deem  it  necessary  to  erect  one  or  more  schoolhouses 
in  said  district,  or  to  enlarge  the  schoo'house  or  schoolhouses,  or  to  purchase  sites 
or  lots  for  said  buildings,  in  said  district,  before  they  shall  proceed  to  levy  any 
tax  for  the  same,  they  shall  prepare  an  estimate  and  plan  showing  the  location 
proposed,  cost  of  ground  and  plans  and  estimated  cost  of  buildings ;  and  shall 
submit  the  same  to  the  electors  of  said  district  at  its  annual  meeting,  or  at  a 
special  meeting  to  be  called  for  that  purpose;  and  if  a  majority  of  the  electors 
voting  at  such  election  shall  vote  in  favor  of  the  same,  then  the  said  board  of 
education  may  proceed  to  acquire  title  to  such  sites  or  lots,  and  to  erect  or  enlarge 
said  schoolhouse  or  schoolhouses  in  the  manner  proposed  in  said  estimate  and 
plan."  This  section  did  not  require  that  the  notice  of  the  special  meeting  should 
refer  to  the  statute  or  authority  by  which  such  call  could  be  made.  It  only 
required  that  before  proceeding  to  levy  any  tax  for  such  purpose,  the  board 
should  prepare  an  estimate  and  plan  showing  the  location  proposed,  cost  of 
ground  and  plans  and  estimated  cost  of  improvement,  and  that  they  should  sub- 
mit the  same  to  the  electors  at  an  annual  or  special  meeting.  Section  12  of  the 
original  act  provides  that  notices  of  special  meetings  shall  be  posted  in  eight  or 
more  public  places  and  published  in  a  county  paper  at  least  one  week  previous 
to  such  meeting.  There  is  no  suggestion  that  the  provisions  of  the  statute  relative 
to  the  posting  and  publishing  of  said  notice  were  not  literally  complied  with,  and 
I  am  of  the  opinion  that  the  requirements  of  the  law  in  relation  to  the  notice  of 
the  proposed  action  were  satisfied.  The  appellant  objects,  secondly,  to  the  ballot 
on  the  ground  that  the  provisions  of  chapter  366  of  the  Laws  of  1880.  commonly 
known  as  the  "uniform  ballot  act,"  were  not  observed.  The  first  section  of  this 
act  is  as  follows : 

"  Section  t  At  all  elections  hereafter  held  within  the  limits  of  this  State  for 
the  purpose  of  enabling  electors  to  choose  by  ballot  an  officer  or  of^cers  under 
the  laws  of  this  State,  or  of  the  L^nited  States,  or  to  pass  upon  any  amendment, 


JUDICIAL  decisions:    meetings  385 

law  or  public  act,  or  proposition  submitted  to  tbe  electors,  to  vote  by  ballot  under 
any  law,  each  and  all  ballots  used  at  any  such  election  shall  be  upon  plain  white 
printing  paper,  and  without  any  impression,  device,  mark  or  other  peculiarity 
whatsoever  upon  or  about  them  to  distinguish  one  ballot  from  another  in  appear- 
ance, except  the  names  of  the  several  candidates;  and  they  shall  be  printed  in 
plain  black  ink." 

It  is  conceded  by  the  respondents  that  the  ballots  used  were  not  in  compli- 
ance with  the  provisions  of  this  act.  They  varied  in  color,  in  size,  they  were 
without  the  prescribed  captions,  and  they  were  not  printed  in  the  prescribed 
size  of  type. 

Whether  or  not  it  was  the  intention  of  the  Legislature  that  the  provisions 
of  the  "uniform  ballot  act"  should  apply  to  elections  held  at  school  meetings, 
is  a  question  which  is  by  no  means  free  from  doubt.  It  is  not  necessary  to 
determine  that  question,  however,  in  order  to  dispose  of  the  present  case.  Section 
I  of  the  "  uniform  ballot  act,"  above  set  forth,  limits  the  operation  of  that  act, 
and  to  cases  where  an  ot^cer  is  to  be  elected  or  an  act  or  proposition  to  be 
determined,  is  "  submitted  to  the  electors  to  vote  by  ballot  under  any  lazv." 

There  is  nothing  in  the  provisions  of  the  statutes  governing  this  meeting 
which  required  that  the  question  here  at  issue  should  be  determined  by  ballot. 
It  was  only  required  of  the  board  of  education  that  they  "  shall  submit  the  same 
to  the  electors  of  said  district  at  an  annual  or  at  a  special  meeting  to  be  called 
for  that  purpose."  It  is  true  that  section  3  of  the  special  act,  as  amended,  does 
provide  that  "  all  elections  shall  be  by  ballot,"  but  this  unquestionably  refers  to 
elections  for  members  of  the  board  of  education,  and  I  can  see  no  requirement 
of  the  statute  which  necessitated  the  taking  of  the  vote  in  this  instance  by  ballot, 
however  proper  and  perhaps  desirable  that  it  should  be  done  in  that  way. 
Furthermore,  if  the  "uniform  ballot  act"  does  apply  to  school  meetings,  and  if 
the  law  had  required  that  the  vote  in  the  present  case  should  have  been  taken  by 
ballot,  and  if  said  law  as  to  uniformity  of  ballots  had  not  been  observed,  the 
result  would  not.  on  that  account,  have  been  rendered  void.  Any  person  who 
knowingly  or  wilfully  violates  or  attempts  to  violate  the  statute  relating  to  uni- 
formity of  ballots  would  be  subject  to  a  fine  or  imprisonment;  but  there  is  noth- 
ing in  the  law  which  would  have  set  aside  the  results  of  an  election  held  in  vio- 
lation of  its  provisions.  The  objection  that  the  result  of  the  balloting  was  not 
announced  by  the  inspectors,  but  rather  by  the  president  of  the  board  of  educa- 
tion, has  no  force.  They  canvassed  tl#e  vote,  made  and  signed  the  certificate  of 
the  result,  and  passed  it  to  the  president  of  the  board,  who  announced  the  result 
in  their  presence  and  at  the  proper  time ;  and  the  act  must  be  deemed  to  have 
been  their  own  act.  The  fourth  objection  of  the  appellant,  namely,  that  there 
were  not  a  majority  of  all  the  votes  in  the  district  cast  in  favor  of  the  improve- 
ment, and  that,  consequently,  the  sentiment  of  the  district  is  not  shown  to  have 
favored  the  same,  is  likewise  without  force.  All  had  notice  and  should  have 
attejided,  and  the  votes  of  those  who  did  attend  preponderated  heavily  in  favor  of 
the  expenditure.     The  fifth  objection,  that  the  question  is  not  within  the  juris- 

13 


386  THE   UNIVEKSITV    OF   THE   STATE   OF   NEW    YORK 

diction  of  the  Superintendent  of  Public  Instruction,  can  not  be  sustained.  It 
was  undoubtedly  the  intention  of  the  Legislature  to  permit  tliis  district  to  operate 
its  schools  upon  a  system  peculiarly  its  own ;  but  to  concede  that  it  was  thereby 
removed  from  the  suj)ervision  of  the  State  authorities  would  be  destructive  ot 
the  educational  system  of  the  State. 

In  view  of  the  foregoing  considerations  the  appeal  must  be  dismissed. 


3534 

Warren  J.  Alfred  and  others  v.  the  trustees,  etc.,  of  school  district  no.  5,  town 

of  Waverly,  Franklin  county. 

This  Department,  when  asked  to  set  aside  the  proceedings  of  a  school  meeting  will  always 

inquire  into  the  bonac  fides  thereof. 
A  notice  to  "  taxable  inhabitants,"  while  irregular,  will  not  be  considered  sufficient  ground 

to  set  aside  the  business  of  an  important  special  meeting,  unless   it  is  made  to  appear 

that  some  one  has  been  misled  by  it. 
Bad  spelling  in  a  notice  of  a  meeting  will  not  invalidate  the  proceedings  thereof.     Failure 

to  give  notice  of   a  meeting  to   every  person   entitled  thereto   will   be   excused   unless 

done  wilfully,  or   it  appears   that  the   failure  prevented   such   persons    from   attending, 

and  their  attendance  would  have  changed  a  declared  result. 
No  one  is  bound  by  tb.e  trustee's  announcement  of  what  qualities  a  school  district  voter, 

particularly  as  no  one  was  deterred   from  participating  in  a  meeting  thereby. 
Decided  November  10,  1886 

Draper,  Superintendent 

This  is  an  appeal  from  the  action  of  a  special  meeting  of  district  no.  5,  town 
of  Waverly,  Franklin  county,  held  on  the  14th  day  of  November  1885,  in  voting 
to  build  a  new  schoolhouse  and  levy  a  tax  to  pay  for  the  same,  and  from  the 
action  of  the  trustee  and  collector  in  levying  and  collecting  such  tax.  It  seems 
that  a  special  meeting  was  first  called  to  be  held  on  the  31st  day  of  October 

1885,  at  I  o'clock  in  the  afternoon,  which  was  not  called  to  order  until  about 
4.30  o'clock,  and  then,  without  any  material  action,  was  adjourned  to  meet  on 
the  14th  day  of  November  1885,  at  6  o'clock,  p.  m.,  and  at  the  latter  time  the 
meeting  reconvened  and  voted  to  purchase  a  site  and  build  a  schoolhouse.  It  was 
resolved  to  let  the  work  to  the  lowest  bidder,  and  bids  were  received  at  this 
meeting,  the  lowest  of  which  was  by  one  Frank  Trim,  for  the  sum  of  $405. 
The  work  was  let  to  him  and  a  tax  ordered  levied  for  the  amount.  Mr  Trim 
went  on  and  erected  the  building,  the  trustee  accepted  it,  and  the  tax  was  levied 
and  the  collector  was  engaged  in  raising  the  sum  when,  about  the  ist  of  June 

1886,  this  appeal  was  brought. 

The  appellants  allege  various  irregularities.  They  say  the  special  meeting 
of  October  31st  had  no  jurisdiction,  and  that  consequently  an  adjourned  meet- 
ing thereof  had  none;  that  the  notice  of  such  meeting  was  defective,  as  it  was  a 
notice  only  to  "  taxable  inhabitants,"  while  others  were  entitled  to  vote  at  school 
meetings,  and  that  it  contained  misspelled  words  and  some  abbreviations  ;  that 
such  notice  was  not  served  upon  persons  entitled  to  notice,  as  the  law  provides ; 
that  while  the  meeting  was  called  at  i  p.  m..  it  did  not  convene  until  4.30  p.  m.. 


JUDICIAL  decisions:    meetings  387 

and  that  some  persons  left  in  the  meantime,  and  that  when  the  meeting  did  con- 
vene the  trustee  announced  that  only  real  estate  owners  and  taxpayers  could  vote, 
etc.  There  are  other  objections  urged,  but  these  are  the  essential  ones,  and  if 
they  are  not  availing,  none  set  up  can  be. 

This  Department  when  asked  to  set  aside  the  acts  of  school  meetings  or 
school  officers  always  inquires  into  the  honae  fides  of  such  acts.  Were  the  things 
done  such  as  it  was  proper  to  do?  Did  they  undertake  to  do  them  properly 
according  to  such  knowledge  as  they  had?  Has  any  one  been  imposed  upon  or 
wronged?  If  irregularities  have  occurred,  will  the  greater  hardship  be  imposed 
upon  individuals  and  greater  help  be  given  to  the  cause  of  education  by  setting 
aside  or  sustaining  such  acts? 

In  the  present  case  there  is  absence  of  proof  of  bad  faith.  The  notice  of 
the  special  meeting  should  have  called  all  legal  voters  of  the  district  rather  than 
"  taxable  inhabitants,"  but  there  is  no  proof  that  anybody  was  misled  by  it. 
Indeed  the  appellants,  nearly  if  not  quite  all  of  them,  attended  the  meeting. 
There  was  some  bad  spelling  in  the  notice,  but  to  hold  that  this  invalidated  it 
would  be  so  far  reaching  in  its  consequences  that  the  result  would  be  appalling. 
The  notice  may  not  have  been  served  on  every  person  entitled  to  notice  as  it 
should  have  been,  but  it  does  not  appear  that  this  was  wilful,  or  that  any  were 
without  actual  notice.  There  is  absence  of  evidence  that  the  meeting  was  held 
without  the  knowledge  of  persons  who  desired  to  be  present,  unless  in  a  single 
instance  which  is  too  isolated  to  be  of  weight.  If  this  person  had  been  present 
the  result  would  not  have  been  changed.  If  the  trustee  did  announce  his  legal 
opinion  as  to  who  could  vote,  no  one  was  bound  by  it.  It  does  not  seem  to  have 
deterred  any  person  entitled  to  vote  from  doing  so. 

The  adjournment  from  October  31st  to  November  14th  seems  to  have  been 
regular.    It  indicates  deliberation  and  absence  of  any  purpose  to  deceive. 

But  other  facts  are  to  be  taken  into  consideration.  The  district  had  no 
schoolhouse,  and  sorely  stood  in  need  of  one.  The  undertaking  to  erect  one  was 
commendable.  The  building  had  been  erected  before  the  appeal  was  taken. 
To  set  aside  the  acts  pursuant  to  which  it  has  been  constructed  would  be  to 
deprive  the  builder  of  his  pay,  or  to  throw  the  expense  upon  a  portion  only  of 
the  district,  and  then  they  would  have  on  their  hands  a  building  which  would 
not  be  the  district  schoolhouse. 

I  have  not  lost  sight  of  the  fact  that  there  are  separate  settlements  in  this 
school  district,  and  that  the  location  of  a  school  in  either  one  does  not  meet  the 
convenience  of  the  other.  But  this  fact  can  not  be  allowed  to  have  much  weight 
in  the  determination  of  the  pending  case.  Perhaps  it  would  be  well  if  the  two 
settlements  were  separated  into  two  school  districts,  which,  should  the  population 
continue  to  increase,  might  appropriately  be  done  after  a  schoolhouse  shall  have 
been  erected  at  the  other  settlement.  It  seems  that  a  school  is  now  being  sus- 
tained there.  If  this  is  to  be  continued,  a  house  is  needed.  If  this  should  be 
etected,  the  tax  should  be  borne  by  both  settlements,  as  in  the  present  case. 

In  view  of  the  foregoing  considerations,  I  feel  compelled  to  dismiss  the 
appeal,  and  discontinue  the  stay  of  proceedings  heretofore  issued  by  me  herein. 


388  THE   UMVKKSITV    OF   THE    STATE   OF    NEW    YORK 

3539 

Cyrus  Collins  and  others,  from  the  action  and  proceedings  of  the  annual  school 
meeting  held  August  31,  1886,  in  district  no.  8,  town  of  Whitehall,  Wash- 
ington county. 
Proceedinjrs  of  an  annual  meeting  will  be  set  aside,  and  a  special  meeting  will  be  ordered 
when   it  seems   that   the  trustee  who   called   it   to   order   arbitrarily   prevented   it   from 
selecting   whomsoever   it   would   for   presiding  officer,   and    where   the   proceedings   are 
shown  to  have  been  so  turbulent  and  disorderly  as  to  prevent  a  free  expression  of  the 
will  of  the  legal  voters  present. 
Decided  November  20,  1886 

Draper,  Superintendent 

This  is  an  appeal  by  Cyrus  Collins  and  others,  residents  and  taxpayers  in 
school  district  no.  8,  town  of  Whitehall,  Washington  county.  New  York,  from 
the  proceedings  of  the  annual  school  meeting  held  in  said  district  August  31, 
1886. 

The  appellants'  allegations  are  substantially  as  follows : 

That  the  meeting  was  called  to  order  by  the  trustee  whose  term  of  office 
would  expire  by  the  election  of  a  successor  at  such  annual  meeting;  that  said 
person  nominated  his  brother  for  chairman;  that  many  persons  not  qualified  to 
vote  at  school  district  meetings  were  in  attendance  at  said  annual  meeting;  that 
duly  qualified  voters  demanded  that  the  house  be  divided  to  ascertain  who  were 
qualified  voters  before  a  vote  for  chairman  was  taken;  that  this  was  refused 
by  the  trustee,  who  called  for  the  "  ayes  "  on  the  selection  of  the  chairman,  but 
did  not  call  for  "  noes,"  and  thereupon  declared  his  brother  elected  chairman ; 
that  this  action  precipitated  great  confusion,  tumult  and  disorder,  and  that  it 
became  impossible  to  secure  an  intelligent  vote  in  consequence;  that  Charles 
Chapman  was  nominated  for  trustee,  and  the  nomination  was  seconded,  and  the 
chair  refused  to  put  the  nomination  to  a  vote;  that  subsequently  the  nomination 
of  the  present  incuinbent  was  made  for  trustee,  and  amidst  confusion  and  excite- 
ment, the  chair  took  a  vote  by  ayes  and  noes,  and  declared  him  elected ;  that 
appeals  from  the  decision  of  the  chair,  calls  for  a  ballot  and  for  a  division  of 
the  house  were  disregarded  and  not  heeded;  that  in  the  exciteinent  the  district 
clerk,  who  was  engaged  in  keeping  the  minutes  of  the  meeting,  abandoned  his 
post,  and  left  the  meeting;  that  before  the  close  of  the  ineeting  at  least  two-thirds 
of  the  taxpayers,  voters  in  said  district,  withdrew. 

The  respondent,  Warner  MacFarran,  answers  and  alleges  as  defects  in  the 
appellants'  case,  as  presented,  that  appellants  ask  for  no  specific  relief ;  that 
because  of  the  allegations  of  appellant  the  appeal  should  be  dismissed;  that  there 
is  no  allegation  that  illegal  votes  were  cast  at  the  meeting,  nor  did  any  unquali- 
fied persons  take  part  in  the  proceedings  of  the  meeting;  that  there  is  no  allega- 
tion that  respondent  did  not  receive  a  majority  of  the  votes  of  legal  voters  of 
the  district  present  at  the  meeting;  that  respondent  was  properly  declared  elected 
trustee;  that  there  is  no  allegation  that  the  confusion  was  created  by  friends  of 


JUDICIAL  decisions:    meetings  389 

the  chairman  and  respondent ;  that  it  is  the  practice  of  the  Department  of  PubHc 
Instruction  to  dismiss  appeals  when  allegations  of  appellant  are  vague  and 
uncertain;  that  there  is  no  allegation  of  any  grievance  or  injury  whatever;  that 
certain  of  the  appellants  are  not  taxpayers,  although  some  of  them  are. 

The  respondent  admits  that  he  called  the  annual  school  meeting  to  order, 
but  denies  that  he  nominated  his  brother,  Seth  MacFarran,  for  chairman,  but 
avers  that  a  legal  voter  did,  and  that  the  nomination  was  duly  seconded,  and 
that  respondent  put  the  nomination  to  a  vote;  that  he  called  for  the  ayes,  and 
that  there  seemed  to  be  an  almost  unanimous  response ;  that  he  then  called 
"  contrary,"  and  there  being  no  negative  votes,  he  declared  Seth  MacFarran 
elected  chairman.  He  denies  that  there  was  a  call  for  a  division  of  the  house 
at  the  time  stated,  as  alleged  by  appellants,  and  that  such  demand  was  not  made 
until  after  the  election  of  chairman  and  trustee ;  he  denies  that  any  other  person 
than  himself  was  nominated  for  trustee  at  said  meeting.  He  claims  that  on 
the  vote  by  ayes  and  noes,  the  ayes  had  a  decided  majority,  and  he  was  declared 
elected;  and  that  certain  of  the  appellants  made  the  disturbance  by  walking, 
shouting  and  calling  for  a  division  of  the  meeting  on  chairman,  trustee  and 
clerk ;  that  soon  after  certain  of  the  appellants  left,  and  order  was  restored ;  that 
the  confusion  had  become  so  great  that  the  respondent,  although  he  attempted 
to  do  so,  could  not  read  his  report  as  trustee  until  said  parties  had  left  the 
meeting;  that  as  respondent  is  informed  and  believes,  none  but  legal  voters  took 
part  in  the  meeting;  that  the  proceedings  were  regular  and  in  order,  except  as 
interrupted  by  the  appellants. 

Respondent  asks  that  the  appeal  be  dismissed. 

This  appeal  presents  a  state  of  affairs  which  should  never  exist  at  any 
school  meeting.  It  is  surprising  that  orderly  school  meetings  can  not  be  held, 
particularly  as  the  principal  ofificers  to  be  elected  are  chosen  to  fill  positions  of 
trust  and  without  compensation.  From  all  the  statements  before  me  on  this 
appeal,  I  find  many  direct  contradictions.  On  the  side  of  the  appellants  I  have 
the  sworn  statements  of  thirteen  persons.  On  the  other  side,  the  sworn  state- 
ment of  the  acting  trustee  and  of  the  person,  the  validity  of  whose  election  and 
acts  are  questioned  by  this  appeal.  But  I  do  not  allow  this  single  fact  to 
determine  the  case.  It  is  clear  from  the  statements  on  both  sides,  that  the 
annual  meeting  was  disorderly ;  that  no  vote  was  taken  by  which  a  fair  decision 
could  be  arrived  at,  either  by  ballot,  division  of  the  meeting  or  by  a  roll  call  of 
the  legal  voters.  The  respondent  called  the  meeting  to  order,  and  if  he  and 
his  friends  were  in  such  an  undoubted  majority  as  he  avers,  it  would  at  least 
have  been  wise  (as  some  opposition  was  manifested)  to  have  taken  such  a  vote 
as  would  have  shown  the  sense  of  the  meeting  clearly  and  beyond  dispute. 

If  the  respondent  and  the  other  officers  who  are  alleged  to  have  been  elected 
are  the  choice  of  the  voters  entitled  to  vote  at  school  meetings,  they  can  establish 
the  fact  at  another  meeting  called  for  that  distinct  purpose.  A  school  meeting, 
held  under  the  circumstances  as  above  set  forth,  should  not  be  upheld. 


390  THE    LXIVlikSlTY    OF   THE   STATE   OF    NEW    YORK 

I,  tlRTcforc,  set  aside  the  i)rocceclings  of  said  annual  meeting,  and  direct 
that  a  special  meeting  he  held  to  transact  the  business  of  the  annual  meeting, 
within  fifteen  days  from  the  date  of  this  order,  and  that  the  last  acting  district 
clerk  shall  proceed  to  give  the  notices  of  such  meeting,  as  provided  by  law. 

It  is  further  directed  that  School  Commissioner  William  H.  Cook,  of  com- 
missioner district  no.  2,  of  Washington  county,  attend  such  meeting,  call  the 
meeting  to  order  and  preside  until  a  chairman  is  elected. 


4201 

In  the  matter  of  the  appeal  of  Nathan  Johnson  and  Theodore  D.  Rich,  from 
proceedings  of  a  special  meeting  held  on  July  5,  1893,  in  union  free  school 
district  no.  r,  town  of  East  Chester,  Westchester  county. 

Where  a  special  meeting  of  a  district,  duly  called,  was  held,  meeting  duly  organized,  a 
motion  was  made  to  adjourn  sine  die,  such  special  meeting,  under  the  call  of  the 
trustees  had  been  duly  held  and  no  legal  meeting  of  the  inhabitants  of  the  district 
could  be  held  except  in  pursuance  of  a  legal  call  therefor  as  required  by  the  school  law. 
IJoards  of  education  of  union  free  school  districts  have  no  authority,  under  the  school 
law,  to  decide  whether  or  not  the  special  meeting  or  the  annual  meeting  of  their 
respective  school  districts  had  been  legally  conducted  or  not,  nor  whether  or  not  the 
proceedings  thereof,  furnished  to  them  Iiy  the  clerk  or  secretary  of  the  meeting  are 
correct,  or  whether  the  action  and  proceedings  had  and  taken  at  said  meetings  are 
legal  or  not.  'Ihe  power  to  deci;le  such  matters  is  given  l)y  the  school  laws  only  to  the 
Superintendent  of  Pul)lic  Instruction  in  an  appeal  taken  from  the  action  and  proceed- 
ings of  such  meetings. 

Decided  November  16,  1893 

Herbert  D.  Lent,  attorney  for  appellants 
Stephen  J.  Stihvell,  attorney  for  respondents 

Crooker,  Superintendent 

The  above-named  appellants,  two  of  the  members  of  the  board  of  educa- 
tion of  union  free  school  district  no.  i,  town  of  LZast  Chester,  Westchester 
county,  appeal  from  the  action  and  i)roceedings  of  an  alleged  special 
meeting  helil  in  said  district  on  July  5,  1893,  at  which  it  was  claimed  it  was 
voted  to  raise  $8000  for  the  purchase  of  a  site  and  the  building  of  a  new 
schoolhouse  thereon,  and  the  bonding  of  said  district  therefor.  Also,  from 
the  action  of  the  majority  of  the  board  of  education  of  said  district  in  refusing 
to  record  the  proceedings  of  a  special  meeting  duly  held  in  said  district  on  said 
July  5,  i8<>3,  and  in  recording  the  proceedings  of  said  alleged  special  meeting; 
also,  from  the  refusal  of  said  board  to  record  the  proceedings  of  the  annual 
meeting  of  said  district,  held  on  August  22,  1893. 

An  answer  to  the  appeal  has  been  filed  by  Messrs  Roedel,  Tolles,  Reid  and 
Yale,  four  of  the  members  of  said  board. 

From  the  papers  presented  upon  said  appeal,  it  appears  that  a  special  meet- 
ing of  the  legal  voters  of  union  free  school  district  no.  i,  town  of  East  Chester, 


JUDICIAL  decisions:    meetings  391 

to  be  held  at  the  primary  schoolhouse,  Garden  avenue,  between  Fourth  and 
Fifth  streets,  Mount  Vernon,  on  Wednesday,  July  5,  1893,  at  7  o'clock,  p.  m., 
for  the  purpose  of  appropriating  the  sum  of  $8000  for  the  purchase  of  a  site 
and  the  erection  of  a  suitable  schoolhouse  thereon,  in  the  upper  end  of  the  dis- 
trict, and  making  provision  for  the  payment  of  said  sum,  was  duly  called  by  the 
board  of  education  of  said  district.  That  at  the  time  and  place  above  mentioned 
a  large  number  of  the  inhabitants  of  said  district  assembled,  and  said  meeting 
was  called  to  order  by  Nathan  Johnson,  president  of  the  board  of  education, 
who,  on  motion  of  John  H.  Davis,  was  elected  chairman  of  the  meeting,  and 
William  F.  Johnson  was  elected  secretary;  that  the  chairman  stated  the  call 
for  the  meeting,  and  after  some  discussion  a  motion  was  made  and  adopted 
that  the  meeting  adjourn  sine  die,  and  thereupon  a  large  number  of  persons 
left  the  room.  That  after  the  adjournment  of  said  meeting  and  such  persons 
had  left  the  room,  those  remaining  in  the  room  organized  a  meeting  by  the  elec- 
tion of  S.  J.  Stilwell  as  chairman  and  J.  M.  Reid,  clerk;  that  a  resolution,  stating 
in  substance  that  a  meeting  had  been  legally  called  for  the  purpose  of  raising 
funds  for  the  purchase  of  a  site  and  the  erection  of  a  schoolhouse  in  the  district, 
and  whereas  a  certain  number  of  persons  forcibly  entered  the  schoolhouse,  and 
in  a  violent  and  boisterous  manner,  interfered  with  the  object  for  which  the 
meeting  was  called,  and  whereas  said  body  of  people  have  declared  the  meeting 
adjourned  sine  die,  without  legally  organizing  the  same;  therefore,  be  it  resolved, 
that  we  now  proceed  to  organize  the  meeting  in  accordance  with  said  call,  was 
then  adopted ;  that  two  tellers  were  appointed  and  a  resolution  was  made  and 
seconded  that,  in  accordance  with  the  call  for  this  meeting,  an  appropriation  of 
$8000  be  made  for  the  purchase  of  a  site  and  the  erection  of  a  schoolhouse 
thereon,  in  this  section,  appropriation  to  be  obtained  at  once  by  the  issue 
of  interest-bearing  bonds  of  the  district,  a  portion  of  which,  not  exceeding  $1000, 
to  be  retired  each  }  ear  until  the  whole  sum  is  paid,  and  that  we  now  proceed 
to  a  ballot,  which  was  adopted;  that  a  ballot  was  had  at  which  59  votes  were 
cast,  of  which  55  were  for  the  resolution  and  4  against;  that  a  motion  was 
adopted  that  the  poll  list  and  ballots  be  kept  under  seal  by  the  secretary  of  the 
meeting  for  future  reference,  and  that  the  minutes  of  the  meeting  be  signed  by 
the  chairman  and  secretary  and  forwarded  to  the  board  of  education,  and 
thereupon  the  meeting  adjourned.  That  at  a  special  meeting  of  the  board  of 
education  held  on  July  25,  1893,  the  proceedings  of  the  two  meetings  held  on. 
July  5,  1893,  duly  signed  by  the  chairman  and  clerk  of  the  respective  meetings 
were  presented  and  said  board,  by  a  vote  of  4  to  i,  adopted  a  resolution  that  the 
minutes  of  the  meeting  at  which  Mr  Stilwell  was  chairman  be  received  and 
approved  as  minutes  of  said  meeting,  the  board  deeming  said  meeting  to  be  the 
regular  and  lawful  meeting  held  in  response  to  the  call  for  a  special  meeting  to 
be  held  on  said  July  5,  1893,  ^^^  the  minutes  of  the  meeting  at  which  Nathan 
Johnson  was  chairman  and  W.  F.  Johnson  was  secretary  were,  as  the  clerk  of 
.5aid  board  states  in  his  fetter,  under  date  of  July  26,  1893,  to  W.  F.  Johnson, 
''ignored."     That  said  board  refused  by  a  majority  vote  to  enter  the  minutes 


392  Till-:  iNixKKsnv  of  nil-;  siatk  of  new  mikk 

of  the  annual  school  meeting,  held  in  said  district  on  August  22,  1893,  as  signed 
by  the  chairman  and  secretary  of  tlie  meeting,  upon  the  minute  book  of  the  dis- 
trict, for  tlie  reason  that  they  were  incomplete  and  were  improper. 

That  no  appeal  has  been  taken  from  the  action  and  proceedings  had  and 
taken  at  the  s|)ecial  meeting  of  said  district,  held  July  5,  1893,  at  which  Nathan 
Johnson  was  chairman,  and  W.  I"".  Johnson  was  secretary. 

The  allegations  in  the  appeal  relative  to  the  proceedings  at  the  special  meet- 
ing held  on  July  5.  1893.  at  which  Nathan  Johnson  was  chairman,  are  supported 
by  a  copy  uf  the  miiuites  of  the  meeting,  signed  by  tlie  chairman  and  secretary, 
and  the  affidavits  of  nine  ciualified  voters  who  were  present  at  said  meeting. 
Each  of  said  aftiants  states  that  said  meeting  was  duly  organized  at  the  time 
and  place  appointed,  and  was  properly  conducted,  and  that  the  minutes  of  the 
meeting  are  a  true  record  of  the  proceedings  of  said  meeting. 

The  respondents  allege  in  their  answer  that  a  certain  number  of  persons 
forcibly  entered  the  schoolhouse  antl  in  a  violent  and  boisterous  manner  inter- 
fered with  th.c  ol)ject  for  which  the  meeting  was  called;  as  soon  as  said  boisterous 
persons  could  be  gotten  from  the  meeting  the  secretary  of  the  board  called  the 
meeting  to  order,  etc.  The  respondents  allege  as  grounds  of  the  invalidity  of 
the  first  meeting  that  no  secretary  was  elected  or  tellers  appointed,  neither  was 
any  call  read  nor  any  vote  taken  on  said  call.  Three  of  the  respondents,  Messrs 
Roc'.lel,  Toiles  and  Reid,  deny  that  they  were  present  at  said  first  meeting, 
and  therefore  can  not  know  of  their  own  knowledjre,  whether  their  allegations 
are  true.  Annexed  to  the  answer  and  in  support  thereof,  are  the  affidavits  of 
James  M.  Reid  and  George  S.  Yale,  each  of  whom  avers  that  he  was  present 
at  the  first  meeting.  Mr  Reid  admits  that  a  chairman  was  elected  and  that  a 
motion  was  made  to  adjourn  sine  die.  and  that  said  meeting  adjourned;  he 
alleges  no  secretary  was  elected,  no  minutes  taken,  no  tellers  appointed,  and 
no  call  read;  no  discussion  was  had  relative  to  the  raising  of  funds;  and  that 
everybody  was  shouting  and  that  his  request  to  be  heard  was  refused.  Mr 
Yale  alleges  that  the  meeting  was  not  duly  organized  and  Vv'as  illegally  conducted ; 
but  does  not  aver  that  the  meeting  was  boisterous  or  noisy.  He  avers  no  minutes 
were  taken,  no  tellers  apj)ointed,  no  call  read ;  but  admits  a  chairman  was  elected 
and  a  motion  made  to  adjourn  sine  die,  which  was  adopted. 

The  allegations  contained  in  the  appeal,  that  said  board  of  education 
refused  to  record  the  proeeec'.ings  of  the  meeting  held  on  July  5,  1893.  at 
which  Nathan  Joh.ison  was  chairman,  and  W.  F.  Johnson  secretary,  and  the 
minutes  of  the  annual  school  meeting,  held  on  August  22,  1893.  are  admitted 
by  the  respondents. 

I  am  clearly  of  opinion  that  the  appellants  have,  by  a  preponderance  of 
proof,  established  that  the  meeting  held  in  said  district  on  July  5,  1893,  of 
which  S.  J.  Stilwell  was  chairman  and  James  M.  Reid,  secretary,  was  not  a 
valid  and  legal  meeting  of  the  voters  of  said  district..  At  the  time  and  place 
named  in  the  call  issued  and  served  by  the  board  of  education,  a  large  number 
of  the  inhabitants  assembled;  the  appellants  say  "between   100  and   150,  and 


JUDICIAL  decisions:    meetings  393 

all  the  room  could  hold,"  and  respondents  do  not  controvert  said  statement.  The 
hour  of  holding  the  meeting  must  be  strictly  observed  and  there  is  no  allegation 
that  anything  was  done  prior  to  the  hour  at  which  the  meeting  was  called.  No 
authority  exists  for  holding  the  meeting  before  the  designated  hour,  and  no 
legal  objection  rests  upon  the  inhabitants  who  may  have  assembled  at  such 
time  to  wait  for  others  before  organizing  and  commencing  the  proceedings.  The 
duty  to  call  a  meeting  to  order  is  not  enjoined  upon  any  particular  person,  and 
any  voter  of  the  district  may  do  this.  Nathan  Johnson  called  the  meeting  to 
order  and  he  had  the  legal  right  to  do  so.  The  school  law  directs  that  such  dis- 
trict meetings  shall  appoint  a  chairman,  and  such  district  meeting  has  the 
legal  right  to  elect  their  chairman.  Nathan  Johnson  was  duly  elected  chair- 
man, and  the  meeting,  having  authority,  elected  W.  F.  Johnson  as  secretary. 
As  soon  as  a  chairman  and  secretary  of  the  meeting  were  elected  said  meeting 
was  duly  organized  and  was  in  a  position  to  transact  any  business  pertaining 
to  the  matter  for  which  the  meeting  was  called  to  act  upon.  It  was  not  neces- 
sary to  the  legality  of  the  meeting  that  the  call  by  virtue  of  which  the  inhabit- 
ants had  assembled,  should  be  read.  It  must  be  assumed  that  the  board  of 
education  had  given  legal  notice  of  the  meeting  and  the  objects  for  which  it 
was  called,  and  the  inhabitants  present  were  fully  informed  thereof ;  but  it 
is  established  by  a  preponderance  of  proof  that  the  chairman  stated  the  call  for 
the  meeting.  There  being  no  provisions  of  law  nor  code  of  rules  to  regulate 
the  proceedings  of  district  meetings ;  that  must  be  held  to  be  in  order  to  which 
a  majority  consents.  The  office  of  the  chairman  is  to  facilitate  the  ascertaining 
of  the  wishes  of  the  majority.  If  their  determination  is  illegal  the  remedy  is 
by  appeal.  It  appears  that  some  discussion  wac  had  relative  to  the  business 
stated  in  the  call,  but  that  no  motion  or  resolution  relating  thereto  was  made, 
but  that  a  motion  to  adjourn  sine  die  was  made  and  upon  a  vote  taken  thereon 
was  adopted  and  thereupon  the  said  meeting  was  declared  adjourned  sine  die. 
It  is  the  duty  of  a  chairman  to  put  every  question  to  vote  which  is  made  and 
seconded.  A  motion  for  adjournment  takes  precedence  of  all  others.  Suth 
motion,  however,  can  not  be  received  after  another  question  is  actually  put  and 
while  the  meeting  is  engaged  in  voting  upon  it;  but  in  such  case  the  vote  must 
be  concluded  and  tlie  result  announced.  No  allegation  is  made  or  proof  pre- 
sented that,  when  the  motion  was  made  to  adjourn,  another  question  had 
been  put,  nor  that  the  meeting  was  engaged  in  voting  upon  it.  The  special 
meeting,  under  the  call  of  the  board  of  education,  having  been  duly  held, 
organized  and  adjourned  sine  die,  no  legal  meeting  of  the  inhabitants  of  the 
district  could  be  held  except  in  pursuance  of  legal  call  therefor,  as  required  by 
the  school  laws. 

In  refusing  to  record  the  proceedings  of  said  special  meeting  of  July  5, 
1893,  and  the  proceedings  of  the  annual  meeting,  held  on  August  22,  1893,  upon 
the  records  of  the  district,  the  said  board  of  education  acted  without  authority 
•of  law  and  in  violation  of  its  duty.  No  authority  is  given  by  the  school  law  to 
boards  of  education  to  decide  whether  or  not  the  special  meeting  or  the  annual 


394  THE   UNIVERSITY    OF  THE   STATE   OF    XE\V   YORK 

meeting,  of  their  respective  school  districts,  liave  hcen  legally  conducted  or 
not ;  nor  wlicthcr  or  not  the  proceedings  thereof,  furnished  to  them  by  the 
clerk  or  secretary  of  the  meetings,  are  correct  or  not,  or  whether  the  action 
and  proceedings  had  and  taken  at  said  meetings,  are  legal  or  not.  Neither 
district  meetings  nor  district  officers  have  any  authority,  under  the  school  laws, 
to  decide  or  declare  that  a  special  or  annual  meeting  was  not  legally  held, 
nor  that  the  action  and  proceedings  had  and  taken  at  such  meetings  are  irregu- 
lar, incorrect  or  illegal.  The  power  to  decide  such  matters  is  given,  by  the 
school  laws,  only  to  the  Superintendent  of  Public  Instruction,  in  an  appeal 
taken  from  the  action  and  proceedings  of  such  meetings.  It  was  the  plain  duty 
of  the  board  of  education  of  district  no.  i  of  East  Chester  to  have  directed 
the  record  of  the  proceedings  of  the  special  meeting  held  July  5,  1893,  P''^" 
sented  to  it  by  Mr  W.  V  Johnson,  the  secretary  of  said  meeting,  and  also  the 
proceedings  of  the  annual  meeting  held  on  August  22,  1893. 

The  respondents  ask  that  the  appeal  herein  be  dismissed  on  the  ground 
that  it  was  not  brought  until  more  than  sixty  days  after  the  performance  of  the 
acts  complained  of,  or  the  appellants  had  knowledge  of  said  acts,  and  allege  that 
the  board  of  trustees  have  been  misled,  and  has  allowed  the  board  to  obligate 
the  school  district  by  the  purchase  of  property,  etc..  etc..  which  was  not  done 
until  after  the  time  for  an  appeal  had  expired. 

Assuming,  for  the  sake  of  argument,  that  the  alleged  meeting  of  which 
Mr  Stilwell  was  chairman  was  legal,  no  action  was  had  and  taken  that  author- 
ized the  board  of  trustees  to  purchase,  or  to  contract  for  the  purchase,  of  any 
property  whatever  without  further  action  of  the  qualied  voters  of  the  district,  duly 
and  legally  assembled.  Such  alleged  meeting  voted  an  appropriation  of  $8000  be 
made,  for  the  purciiase  of  a  site  and  the  erection  of  a  schoolhouse  thereon,  in 
that  section,  appropriation  to  be  obtained,  etc.  Under  the  school  laws  the 
authority  to  designate  a  school  site  is  given  only  to  the  qualified  voters  of  the 
district  in  meeting  assembled,  and  the  said  district  can  not  delegate  the  power 
to  select  and  designate  such  site  to  the  trustees,  or  a  committee,  or  any  person 
or  persons.  No  site  was  designated  at  such  alleged  meeting,  and  hence  the 
trustees  had  no  authority  in  law  to  purchase,  or  contract  to  purchase,  a  site, 
and.  hence,  had  no  authority  in  law  to  contract  for  the  erection  of  a  school- 
house  anywhere  in  said  district,  at  least  until  a  site  had  been  legally  designated. 
If  said  trustees  have  entered  into  contracts  for  the  purchase  of  a  site  or  the 
erection  of  a  schoolhouse.  the  district  is  in  no  wise  bound  by  such  action,  and 
hence  the  delay  in  bringing  this  appeal  in  no  way  affects  the  district. 

The  ai)pellants  allege  "  that  the  reason  the  appeal  was  not  taken  before  was 
an  error  of  judgment  on  the  part  of  the  appellants  and  their  advisors."  The 
alleged  meeting  of  which  Mr  Stilwell  was  chairman  was  so  clearly  illegal  and 
void,  and  the  action  of  the  trustees,  or  a  majority  of  them,  in  refusing  to  permit 
the  proceedings  of  the  special  meeting  of  July  5,  1893,  and  the  annual  meeting 
of  August  22,  1893.  to  be  recorded  in  the  records  of  the  district,  was  so  clearly 
a  violation  of  duty  on  tlie  part  of  said  trustees,  that  the  appellants  might  well 


JUDICIAL  decisions:    meetings  395 

have  believed  that,  upon  reflection  and  consideration,  the  said  trustees  would 
agree  with  the  appellants,  and  reverse  their  action.  In  such  judgment  the  appel- 
lants erred.  The  appellants  have  rendered  a  satisfactory  excuse  for  their  delay- 
in  bringing  the  appeal. 

The  appeal  herein  is  sustained. 

I  do  find  and  decide  that  the  meeting  held  on  July  5,  1893,  in  union  free 
school  district  no.  i,  town  of  East  Chester,  Westchester  county,  of  which 
meeting  S.  J.  Stilwell  was  chairman  and  J.  M.  Reid  was  secretary,  and  alleged 
to  be  the  special  meeting  of  said  district,  held  under  the  call  of  the  board  of 
education  of  said  district,  issued  by  said  direction  of  said  board  at  its  regular 
monthly  meeting,  held  on  June  i,  1893,  was  not  a  legal  valid  special  meeting 
of  said  district.  That  the  action  and  proceedings  alleged  to  have  been  had  and 
taken  at  said  meeting  are,  and  each  of  them  is,  illegal,  invalid  and  void,  as  the 
action  and  proceedings  of  a  legal  and  valid  called  and  held  special  meeting  of 
said  district. 

It  is  ordered  that  the  action  and  proceedings  of  said  meeting  be  and  they 
are  hereby  vacated,  set  aside  and  altogether  held  for  naught,  as  the  action  and 
proceedings  of  a  legally  called  and  held  special  meeting  of  said  district. 

It  is  further  ordered  that  the  board  of  education  of  union  free  school  dis- 
trict no.  I,  town  of  East  Chester,  Westchester  county,  forthwith  cause  to  be 
recorded  in  the  records  of  said  district  the  minutes  of  proceedings  of  a  special 
school  meeting  of  said  district,  held  on  July  5,  1893,  of  which  meeting  Nathan 
Johnson  was  chairman  and  William  F.  Johnson  was  secretary,  and  which  said 
minutes  were  duly  delivered  to  said  board ;  and  that  said  board  also  forthwith 
cause  to  be  recorded  in  the  records  of  said  district  the  minutes  of  proceedings 
of  the  annual  meeting  of  said  district,  held  on  August  22,  1893,  of  which  meeting 
Nathan  Johnson  was  chairman  and  W.  E.  Hayward  was  secretary,  and  which 
said  minutes  were  duly  delivered  to  said  board. 


4204 

In  the  matter  of  the  appeal  of  Albion  Norris  Fellows  from  action  and  decision 
of  David  Fox  and  Theodore  F.  Clay,  trustees  of  school  district  no.  3. 
town  of  Ramapo,  Rockland  county,  and  from  proceedings  of  a  special 
meeting  of  said  district,  held  September   19,   1893. 

Where,  in  a  school  district  at  the  annual  meeting,  a  trustee  and  other  district  officers  were 
elected  and  the  business  of  the  annual  meeting  transacted,  and  after  said  meeting  the 
trustees  of  the  district  learned  that  there  were  over  300  children  of  school  age  reported 
in  the  district,  and  a  special  meeting  was  called  for  the  election  of  district  officers, 
trustees  assuming  that  the  election  of  officers  at  the  annual  meeting  was  invalid,  and 
at  such  special  meeting  a  person  other  than  the  one  elected  trustee  at  the  annual  meeting 
was  elected  trustee.  Held,  that  said  trustees  had  no  power,  under  the  school  laws,  to 
hold  and  declare  the  election  of  the  trustee  at  the  annual  meeting  as  illegal  and  void, 
and  that  so  much  of  the  special  meeting  as  related  to  the  election  of  a  trustee  be  vacated 
and  set  aside  as  illegal,  invalid  and  void. 

Decided  November  24,  1893 


2^Ui  THE  UNIVERSITY   OF   THE   STATE   OF   NEW   YORK 

Cruokcr,  Supcr'mtcndcnl 

The  above-named  appellant  ajipeals  from  the  action  and  decision  of 
Messrs  l-'ox  and  Clay,  two  trustees  of  school  district  no.  3.  town  of  Ramapo, 
coimty  of  Rockland,  in  refusing  to  recognize  the  appellant  as  a  duly  elected 
trustee  of  said  district,  and  in  refusing  to  permit  him  to  act  as  such  trustee; 
and  also  from  the  proceedings  of  a  special  meeting  of  said  district  held  therein 
on  September  19,  1893. 

An  answer  has  been  made  by  said  I'^ox  and  Clay  to  said  appeal. 

It  appears  that  an  annual  meeting  of  said  district  was  held  on  the  fourth 
Tuesday  of  August  1893,  to  wit,  August  22,  1893;  that  at  said  meeting  the 
business  of  the  annual  meeting  was  transacted;  that  the  appellant  was  duly 
elected  a  trustee  of  said  district,  in  place  of  James  M.  Cookson,  whose  term  of 
office  as  a  trustee  of  said  district  expired  on  said  fourth  Tuesday  of  August 
1893,  38  votes  having  been  cast,  of  which  the  appellant  received  20,  and  said 
meeting  adjourned;  that  at  two  meetings  of  said  trustees,  held  shortly  after 
said  annual  meeting,  of  each  of  which  meetings  the  appellant  received  notice 
from  the  clerk  of  the  district.  The  appellant  attended  at  the  first  of  said  meet- 
ings and  the  rcsi)ondents  expressed  doubts  as  to  the  legality  of  the  appellant's 
election  as  a  trustee ;  that  at  the  second  of  said  meetings  the  respondents  still 
refused  to  recognize  the  ai)pellant  as  a  trustee,  and  thereupon  called  a  special 
meeting  to  be  held  in  said  district  on  Tuesday,  September  19,  1893,  at  7.30 
p.  m.,  for  the  purpose  of  electing  a  trustee  in  place  of  James  Cookson,  and 
appropriating  the  sum  of  $2500  to  meet  the  expenses  for  maintaining  the  school 
during  the  current  year.  That  said  special  meeting  was  held  on  said  September 
'9.  1893,  and  II.  C.  Wanamaker  was  elected  chairman;  that  Peter  D.  Johnson 
and  the  appellant  herein  were  nominated  for  trustee;  that  a  ballot  was  taken, 
107  votes  being  cast,  of  which  said  Johnson  received  66  and  the  appellant  41 ; 
that  an  appropriation  of  $24CX3  was  voted  by  ballot,  the  whole  number  of  votes 
cast  being  33,  of  which  29  were  in  favor  and  4  against  the  appropriation;  that 
thereupon  the  meeting  adjourned. 

That  on  September  25,  1893,  a  meeting  of  said  trustees  was  held  at  which 
the  appellant  was  jiresent  and  made  formal  effort  to  obtain  recognition  by  the 
respondents  as  a  trustee  of  said  district,  which  was  refused,  and  that  said  Peter 
D.  Johnson  was  recognized  by  the  respondents  as  such  trustee. 

No  appeal  has  been  taken  from  the  action  and  proceedings  had  and  taken 
at  the  annual  meeting  of  -^aid  district,  held  on  the  fourth  'iuesday  of  August 
1893. 

The  respondents  allege  that  after  the  annual  meeting  in  said  district,  on 
August  22,  i8«>3.  it  was  discovered  by  them  that  there  had  been  over  300  chil- 
dren of  school  age  reported,  and  that  the  meeting  for  the  election  of  district 
officers  had  been  held  upon  an  improper  day.  and  that  they  thereupon  concluded 
that  the  election  for  officers  which  had  taken  place  was  void ;  that  the  respond- 
ents, acting  upon  the  advice  of  the  school  commissioner  of  the  commissioner 
district  in  which  the  said  school  district  is  situate,  ordered  the  calling  of  the 


JUDICIAL  decisions:    meetings  397 

said  special  meeting  that  was  held  on  September  19,  1893,  as  hereinbefore 
stated. 

The  respondents  deny  the  claim  of  the  appellant  that  the  meeting  at  which 
he  was  elected  a  trustee  was  a  lawful  meeting  for  the  election  of  district  officers; 
and  allege  that  the  meeting  for  that  purpose  should  have  been  held  on  the  last 
Wednesday  next  following  the  last  Tuesday  of  August,  "  as  demanded  by  the 
Code  of  Public  Instruction  of  the  State  of  New  York,  at  section  of  chapter  248 
of  the  said  code."  They  further  state  that  the  mistake  was  made  inadvertently, 
and  that  they,  on  finding  out  said  mistake,  proceeded  in  good  faith,  and  the 
advice  of  said  school  commissioner,  to  remedy  the  same  by  calling  a  special 
meeting  for  the  purpose  expressed  by  them. 

From  the  papers  presented  in  this  appeal,  it  is  clear  that  the  respondents, 
as  trustees  of  said  school  district,  have  acted  under  a  misapprehension  of  their 
powers  and  duties  as  such  trustees,  under  the  laws  of  the  State  relating  to  com- 
mon schools,  and  under  a  misapprehension  of  the  laws  of  the  State  in  force 
at  the  time  of  the  two  meetings  mentioned  in  said  appeal  papers,  relating  to  the 
election  of  school  district  officers. 

Trustees  of  school  districts  have  no  power,  under  the  school  laws,  to  set 
aside  or  invalidate  the  proceedings  of  a  district  meeting  upon  the  assumption 
by  them  that  such  proceedings  are  or  were  illegal  and  void.  The  respondents 
herein  had  no  power  to  hold  or  declare  the  election  of  a  trustee  at  the  annual 
meeting  of  said  district,  held  on  August  22,  1893,  as  illegal  and  void;  nor  that 
the  election  of  said  trustee  was  had  upon  the  wrong  day;  nor  to  set  aside  or 
invalidate  the  proceedings  of  said  meeting  in  such  election,  nor  to  call  a  special 
meeting  to  elect  a  trustee  upon  the  assumption  that  the  election  at  said  annual 
meeting  was  invalid  and  void. 

The  respondents  as  such  trustees  have  acted,  in  the  matters  stated  in  the 
appeal  papers,  under  a  misapprehension  of  the  laws  of  the  State  in  force  in  the 
time  said  annual  and  special  meetings  were  held,  relative  to  the  election  of  dis- 
trict officers.  Under  the  school  laws  in  force  on  July  i,  1893,  the  annual  meeting 
of  each  school  district  (except  where  the  Legislature  by  a  special  act  has  desig- 
nated a  different  day)  shall  be  held  on  the  fourth  Tuesday  of  August  in  each 
year,  and  to  choose  one  or  three  trustees,  as  hereinafter  stated,  a  district  clerk, 
collector  etc.  In  districts  that  have  three  trustees,  one  trustee  shall  be  elected 
at  each  annual  meeting  to  fill  the  office  of  the  outgoing  trustee.  (See  sections 
16  and  27  of  title  7  of  the  Consolidated  School  Laws  of  1864,  and  the  amend- 
ments thereof.) 

By  chapter  248,  of  the  Laws  of  1878,  and  acts  amendatory  thereof,  in  force 
on  July  I,  1893.  being  "An  act  in  relation  to  the  election  of  officers  in  certain 
school  districts  "  (said  chapter  not  forming  any  part  of  the  Consolidated  School 
Laws  of  1864)  it  is  enacted:  "  Section  i.  In  all  school  districts  in  this  State 
in  which  the  number  of  children  of  school  age  exceeds  300,  as  shown  by  the  last 
^annual  report  of  the  trustees  to  the  school  commissioner,  all  district  officers, 
except  the  treasurer  and  collector  of  union  free  school  districts,  shall  be  elected 


398  THE   UMVKKMM     t'F   THE   STATK   OV    NKW    YORK 

by  ballot."  This  section  remains  the  same  as  when  adopted  on  May  13,  1878.  It 
has  always  been  the  law  that  trustees  of  union  free  school  districts  should  be 
elected  by  ballot.  Since  April  29,  1893,  it  has  been  the  law  that  all  district  officers 
in  common  school  districts  shall  be  elected  by  ballot.  (See  section  5,  chapter 
500,  I^aws  of  1893.)  When  the  annual  school  meeting  was  held  in  district  no. 
3,  town  of  Ramapo.  on  August  22,  1893,  assuming  that  the  trustees  of  the  dis- 
trict and  the  (|ualilied  voters  thereof  had  knowledge  that  the  number  of  children 
of  school  age  in  the  district  exceeded  300,  the  method  of  electing  one  of  its 
district  officers,  namely,  a  trustee,  required  by  section  i,  above  quoted,  was 
complied  with,  that  is,  he  was  elected  by  ballot. 

Section  2  of  said  chapter  248  of  the  Laws  of  1878,  as  amended  by  section 
II  of  chapter  245  of  the  Laws  of  1889,  and  as  said  section  has  stood  since  May 
6,  i8«^^.  provides  such  election  (that  is,  district  officers  in  school  districts  where 
the  number  of  children  of  school  age  exceeds  300)  shall  be  held  on  the  Wednes- 
day next  following  the  first  Tuesday  in  August  in  each  year  (not  on  the  Wednes- 
day next  following  the  last  Tuesday  of  August,  as  assumed  by  the  respondents), 
between  the  hours  of  12  o'clock  midday  and  4  o'clock  in  the  afternoon,  at  the 
principal  schoolhousc  in  the  district,  or  at  such  other  suitable  place  as  the 
trustees  may  designate.  When  the  place  of  holding  such  election  is  other  than 
at  the  principal  schoolhousc,  the  trustees  shall  give  notice  thereof,  etc.  The 
trustees  may.  by  a  resolution,  extend  the  time  of  holding  the  election  from  4 
o'clock  until  sunset.  Section  3  of  said  chapter  provides  that  the  trustees  or 
board  of  education,  or  such  of  them  as  may  be  present,  shall  act  as  inspectors 
of  election,  and  immediately  after  the  close  of  the  polls  shall  proceed  to  canvass 
the  votes  and  declare  the  result;  if  any  such  district  shall  have  but  one  trustee, 
the  district  clerk  shall  be  associated  with  him  as  inspector;  if  a  majority  of  the 
trusteeii  shall  not  be  present  at  the  time  of  opening  the  polls,  those  in  attendance 
may  appoint  any  of  the  legal  voters  present  to  act  as  inspectors  in  place  of  the 
absent  trustees;  if  none  of  the  trustees  shall  be  present  at  the  time  for  opening 
the  polls,  the  legal  voters  may  choose  those  of  their  number  to  act  as  inspectors. 
Section  4  enacts,  that  the  trustees  shall,  at  the  expense  of  the  district,  provide 
a  suitable  ballot  box,  in  which  the  ballots  shall  be  deposited  as  they  are  received; 
such  ballots  shall  contain  the  names  of  the  persons  voted  for,  and  shall  desig- 
nate the  office  for  which  each  one  is  voted,  and  the  ballots  may  be  either  written 
or  printed,  or  partly  written  and  partly  printed.  Section  5  enacts  that  the  dis- 
trict clerk  or  clerk  of  the  board  of  education  shall  attend  the  election,  and  record 
in  a  book  to  be  provided  for  that  purpose,  the  name  of  each  elector  as  he 
deposits  his  ballot ;  the  method  of  counting  the  ballots,  etc.  Section  6  provides 
for  the  challenging  of  voters  and  states  the  declaration  to  be  made  by  a  voter  so 
challenged,  etc.  Section  7  enacts  that  disputes  concerning  the  validity  of  any 
such  election,  etc.,  shall  be  referred  to  the  Superintendent  of  Public  Instruc- 
tion, whose  decision  shall  be  final,  and  authorizes  such  Superintendent,  in  his 
discretion,  to  order  a  new  election.  Section  8  enacts  that  the  persons  having 
the  highest  number  of  votes  respectively  for  the  several  offices  shall  be  declared 


JUDICIAL  decisions:    meetings  399 

elected,  and  in  the  case  of  a  tie,  how  a  decision  shall  be  made.  Section  9  enacts 
that  the  annual  meeting,  in  the  several  districts,  shall  be  held  as  now  provided 
by  law,  for  the  purpose  of  transacting  all  business,  except  the  election  of  officers. 

In  the  enactment  of  said  chapter  248  of  the  Laws  of  1878,  the  intent  of  the 
l-egislature  seems  to  have  been  to  provide  to  school  districts  having  more  than 
300  children  of  school  age  a  method  of  holding  elections  for  their  school  oflicers 
on  the  next  day  after  their  annual  meeting,  and  that  a  plurality  of  votes  should 
elect.  The  Legislature,  assuming  that  in  said  districts  the  number  of  qualified 
voters  residing  therein  would  be  largely  in  excess  of  those  residing  in  the 
ordinary  districts,  containing  a  less  number  of  children,  and  that  the  ordinary 
business  of  the  annual  meeting  and  election  of  officers  could  not  be  disposed  of 
between  7.30  p.  m.  and  a  proper  hour  of  adjournment;  and  that  a  full  repre- 
sentation of  the  district  could  be  had  in  the  selection  of  district  officers  by 
keeping  the  polls  of  said  election  open  for  at  least  four  hours  during  the  day 
following  such  annual  meeting  than  could  be  obtained  in  the  time  usually  allowed 
for  a  ballot  at  the  annual  meeting.  At  the  time  of  the  enactment  of  said  chapter 
248,  common  school  districts  were  not  required  to  elect  their  district  ofticers  by 
ballot.  Last  winter  the  Consolidated  School  Law  of  1S64  was  amended,  re- 
quiring such  election  to  be  by  ballot.  As  now,  all  school  districts,  whether 
common  or  union  free  school  districts,  are  required  to  elect  their  district  officers 
by  ballot,  and  said  districts,  in  the  absence  of  specific  enactments  as  to  the  method 
of  taking  such  ballots  or  the  length  of  time  the  polls  may  be  open,  can  adopt  its 
own  method  in  that  regard,  and  if  unable  to  finish  the  transaction  of  its  business 
at  the  annual  meeting  can  adjourn  to  the  next  day  or  any  subsequent  day,  the 
provisions  contained  in  said  chapter  248  do  not  seem  to  be  necessary,  as  the 
intent  of  the  Legislature,  in  its  enactment,  can  be  carried  out  under  the  provisions 
of  the  Consolidated  School  Act  of  1864  as  amended  and  now  in  force. 

The  time  of  holding  the  annual  meetings  in  the  school  districts  having  been 
fixed  last  winter  on  the  fourth  Tuesday  of  August  in  lieu  of  the  first  Tues- 
day, it  was  by  inadvertence  that  section  2  of  said  chapter  248  of  the  Laws  of 
1878  was  not  also  amended  by  inserting  the  fourth  instead  of  the  first  Tuesday 
of  August,  therein. 

It  is  apparent  that  the  special  meeting  held  in  said  district  on  September  19, 
1893,  was  not  an  election  of  school  district  officers,  nor  were  the  action  and 
proceedings  then  and  there  had  and  taken  under  and  in  accordance  with  the  pro- 
visions contained  in  said  chapter  248  of  the  Laws  of  1878  and  the  amendments 
thereto.  The  meeting  or  election  was  not  held  on  the  day  named  in  section  2 
of  said  chapter  248.  and  there  does  not  appear  to  be  any  provision  in  said 
chapter  for  an  election  on  any  other  day  than  the  one  named  therein;  there 
was  no  attempt  to  elect  any  school  district  officers  ihereat,  except  a  trustee;  the 
trustees  did  not  act  as  inspectors  of  election,  nor  were  the  polls  of  said  election 
kept  open  from  12  o'clock  midday  until  4  o'clock  in  the  afternoon ;  business  was 
transacted  that  should  have  been  transacted  at  the  annual  meeting. 

As  the  respondents  allege  that  they  did  not  discover,  until  after  the  annual 
meeting  of  the  district,  that  the  number  of  children  of  school  age  in  the  district 


400  THE   UMVliKSlTY    OF   Tllli   STATK    (»l     XliU     VDKK 

exceeded  300,  and  it  does  not  appear  tliat  the  voters  of  the  district  had  such  knowl- 
edge, the  (hstrict  could  not,  if  it  desired,  avail  itself  of  the  provisions  contained 
in  said  cha])ter  248  of  the  Laws  of  1878  until  the  next  annual  meeting  of  the 
district  after  such  knowledge  was  discovered. 

I  find  and  decide  that  as  no  appeal  has  been  taken  from  the  said  annual 
meeting,  held  in  said  district  on  August  22,  1893,  ^'^'^t  said  meeting  was  a  legal 
and  valid  meeting,  and  that  the  action  and  proceedings  had  and  taken  at  said 
meeting  are.  and  each  of  them  is,  legal  and  valid.  That  the  respondents,  as 
trustees  of  said  district,  had  no  legal  authority  lo  hold,  declare  or  decide  that 
the  election  of  ajjpcllant  as  a  trustee  of  said  district,  at  said  annual  meeting  of 
said  district,  was  either  illegal,  invalid  or  void.  That  the  action  and  proceedings 
had  and  taken  at  said  special  meeting  of  said  district,  held  on  September  19, 
1893.  so  far  as  they  relate  to  the  eleclicm  of  a  trustee,  arc,  and  each  of  them 
is,  invalid  and  void. 

The  appeal  herein  is  sustained. 

It  is  ordered  that  the  action  and  proceedings  had  and  taken  at  a  special 
meeting  of  school  ilistrict  no.  3.  town  of  Ramapo.  county  of  Rockland,  on  Sep- 
tember J 9,  1893,  so  far  as  they  relate  to  the  election  of  a  trustee  of  said  district, 
are.  and  each  of  tliLUi  is.  hereby  vacated  and  set  aside  as  illegal,  invalid  and 
void. 

It  is  further  ordered  that  the  resjjondcnls  herein,  as  trustees  of  school  dis- 
trict no.  3,  town  of  Ramapo,  county  of  Rockland,  be,  and  they  are,  hereby 
directed  to  recogm'ze  the  apjKdlant  herein.  Albion  Norris  Fellows,  as  the  legally 
elected  trustee  of  said  district  and  as  duly  elected  as  such  trustee  in  place  of 
James  H.  Cookson,  whose  term  of  oflice  expired  on  August  22,  1893. 


4240 

\\\  the  matter  nf  the  api)cal  of  Elias  Bryant  v.  school  district  no.  3.  Mount 
I'leasant,   Westchester   county. 

Where  four  resolutions  are  sul.initted  to  a  meeting  of  a  school  district,  the  first  directing 
the  hoard  of  education  to  purchase  a  new  schoolhouse  site,  the  second  empowering  the 
board  to  build  a  new  schoolhouse  on  said  site  at  a  cost  not  to  exceed  $4500,  the  third 
that  an  amount  of  $6000  he  raised  by  tax,  payable  in  ten  annual  instalments,  and  the 
fourth  empowering  the  sale  of  the  present  schoolhouse  and  site,  and  said  four  resolu- 
tions are  voted  not  separately,  but  in  gross  and  by  vive  voce  vote.  Held,  that  the 
action  of  the  meeting  was  illegal  and  invalid. 

Decided  April  24,  i8<74 

W.  H.  H.  Ely,  attorney  for  appellant 
L.  T.  Yale,  attorney  fur  respondent 

Crooker,  Snpcr'xnicndcnt 

This  is  an  apjieal  from  the  action  and  decision  of  a  special  meeting  of  school 
district  no.  3,  town  of  Mount  Pleasant,  held  on  March  4,  1893,  in  the  alleged  adop- 
tion of  four  resolutions,  as  follows: 


JUDICIAL  decisions:    liketings  401 

Resolved,  That  the  board  of  education  be  empowered  and  instructed 
to  purchase  a  new  school  site  as  follows:  A  tract  of  land  on  the  south  corner 
of  Dayton  and  Highland  avenues,  with  a  frontage  of  125  feet  on  Highland 
avenue  and  262  feet  on  Dayton  avenue,  containing  two-thirds  of  an  acre,  more  or 
less,  and  to  pay  for  the  same  the  price  of  $1500. 

Resolved,  That  the  board  of  education  be  further  empowered  and  instructed 
to  build  a  new  schoolhouse  upon  said  site,  according  to  such  plans  and  specifi- 
cations as  the  said  board  may  approve,  at  a  cost  not  to  exceed  $4500. 

Resolved,  That  the  amount  of  $6000  required  for  the  foregoing  purposes 
be  raised  by  taxation  in  ten  annual  instalments  of  $600  each. 

Resolved,  That  the  board  of  education  is  hereby  empowered  to  sell  the 
present  schoolhouse  and  site  for  an  amount  not  less  than  $1500,  said  amount 
to  be  disposed  of  as  may  be  determined  by  the  annual  meeting  of  the  district 
next  succeeding  such  sale. 

The  appeal  is  supported  by  the  affidavit  of  the  appellant  and  a  large  number 
of  voters  in  said  school  district. 

The  appellant  alleges  several  grounds  of  appeal,  the  principal  ones  being 
that  the  vote  was  taken  upon  the  four  resolutions  together  and  by  a  viva  voce 
vote. 

The  respondent  has  answered  the  appeal,  and  which  answer  is  supported 
by  the  affidavit  of  the  clerk  of  the  district,  and  a  copy  of  the  proceedings  of  said 
special  meeting  as  kept  by  the  secretary  thereof. 

It  appears  that  on  or  about  February  9,  1893,  a  call  for  a  special  meeting 
of  said  district,  to  be  held  on  March  4,  1893,  was  made  and  signed  by  four  of 
the  members  of  the  board  of  education,  to  act  upon  the  resolutions  hereinbefore 
stated,  and  which  notice  was  duly  and  legally  given  to  the  voters  of  said  district ; 
that  about  sixty  persons  assembled  at  the  time  and  place  named  in  said  notice 
and  organized  by  the  election  of  a  chairman,  the  clerk  of  the  district  acting  as 
secretary;  that  the  call  for  the  meeting  was  read,  whereupon  statements  were 
made,  both  for  and  against  the  resolutions  set  forth  in  the  call  for  the  meeting, 
by  persons  present;  that  a  motion  was  made  that  the  resolutions  as  read  be 
adopted,  and  the  chairman  asked  if  the  motion  referred  to  one  or  all  of  such 
resolutions,  and  the  reply  was  made  that  the  motion  referred  to  all  of  the  reso- 
lutions as  read ;  that  the  chairman  then  put  the  motion  by  stating :  "  You  have 
heard  the  motion.  All  in  favor  say  aye,"  upon  which  there  was  a  response  of 
"  aye,"  and  upon  the  chairman  calling  for  the  noes  there  was  no  response ;  that 
a  Mr  Acker  thereupon  handed  a  paper  to  the  secretary  of  the  meeting  which 
the  secretary  handed  to  the  chairman,  and  while  the  chairman  was  examining  the 
paper  a  motion  was  made  that  the  meeting  adjourn,  which  motion  was  put  by 
the  chairman  and  declared  by  him  as  carried  and  the  meeting  adjourned. 

In  the  affidavits  presented  by  the  appellant  it  is  alleged  that  there  were  no 
statements  made  upon  the  matters  embraced  in  the  resolutions;  that  the  vote 
taken  at  the  meeting  was  not  that  the  resolutions  be  adopted,  but  that  "  the  call 
be  adopted  as  read  "  ;  that  no  "  nay  "  vote  was  asked  for  by  the  chairman. 

I  am  of  the  opinion  that  motion  voted  upon  was  that  the  resolutions  as  read 
b'e  adopted.  It  clearly  appears  that  the  resolutions  were  not  voted  upon  sepa- 
rately, but  in  gross,  and  that  the  vote  was  a  viva  voce  one.     The  first  resolution 


402  Till".    LM\1.KM1V    l>i'     111!.    .^lATK    OF    NEW    YORK 

was  one  changing  the  site  and  designating  a  new  site,  and  directing  its  purchase 
by  the  board  of  education. 

Section  20,  title  7  of  the  school  law  requires  that  the  site  of  the  schoolhouse 
"  shall  not  be  changed  unless  a  majority  of  all  the  legal  voters  of  said  district, 
present  and  voting,  to  be  ascertained  by  taking  and  recording  the  ayes  and  noes, 
at  a  sjiecial  meeting  called  for  this  purpose,  shall  be  in  favor  of  such  new  site." 
The  intention  of  the  statute  is  to  preserve  the  record,  not  merely  of  the  majority, 
but  of  those  who  constituted  the  majority  of  the  legal  voters  of  the  district  who 
were  present  and  took  part  in  the  proceedings ;  the  names  of  the  voters,  as  well 
as  the  way  they  voted,  must  be  recorded.  This  Department  has  held  that  the 
provisions  of  section  20,  title  7,  above  cited,  apply  to  action  taken  to  change  a 
site  in  a  union  free  school  district. 

Aside  from  action  to  change  a  schoolhouse  site,  the  voters  at  a  meeting  in  a 
union  free  school  district,  may  determine  the  method  of  voting  upon  questions 
coming  before  the  meeting.  This  Department  does  not  favor  a  viva  voce  vote 
upon  any  important  question,  and  especially  any  question  involving  the  expendi- 
ture of  money  or  authorizing  a  tax.  At  a  school  meeting  in  any  school  district 
none  but  qualified  voters  should  be  permitted  to  participate  in  any  manner  in  the 
deliberations  had,  and  upon  all  important  question  the  vote  should  be  taken 
either  by  ballot  or  ascertained  by  taking  and  recording  the  ayes  and  noes. 

The  adoption  by  the  meeting  of  the  four  resolutions,  namely,  one  changing 
a  school  site  and  designating  a  new  site ;  one  authorizing  the  construction  of  a 
new  schoolhouse ;  one  authorizing  a  tax  of  $6000,  and  one  authorizing  the  sale 
of  the  school  site  and  house  in  gross,  and  the  failure  to  have  such  meeting  pass 
upon  each  resolution  separately  was  improper  and  such  action  was  invalid  and 
void. 

The  appeal  herein  is  sustained. 

It  is  ordered.  That  so  much  of  the  action  and  proceedings  of  a  special  meet- 
ing, held  on  March  4,  i<S93,  '"  school  district  no.  3,  town  of  Mount  Pleasant. 
Westchester  county,  alleged  to  have  been  had  and  taken,  as  relates  to  the  change 
of  a  school  site  and  designation  of  a  new  site ;  the  building  of  a  new  schoolhouse : 
the  raising  of  $6000  by  taxation  in  instalments,  and  authorized  the  sale  of  the 
present  schoolhouse  and  site,  are,  and  each  of  them  is,  hereby  vacated  and  set 
aside  as  invalid  and  void. 

4271 

In  the  matter  of  the  appeal  of  Charles  Lamoreaux  and  others,  from  proceedings 
of  annual  meeting  held  in  district  no.  7,  town  of  Schoharie,  Schoharie  county, 
on  August  7,  1S94. 

Where,  at  the  annual  meeting  in  the  school  districts  of  the  State,  the  election  of  school 
district  officers  was  not  held  in  accordance  with  the  provisions  of  section  14,  article  I, 
title  7  of  the  Consolidated  School  Law  of  1894,  and  an  appeal  is  taken  from  the  pro- 
ceedings of  such  meeting  relative  to  such  election,  such  action  and  proceedings  will  be 
vacated  and  set  aside  and  a  special  meeting  ordered  for  the  transaction  of  the  business 
of  the  annual  meeting  of  the  district. 

Decided  October  5,  1894 


JUDICIAL  decisions:    meetings  403 

Crocker,  Superintoident 

This  appeal,  taken  from  the  proceedings  of  the  annual  school  meeting,  held 
on  August  7,  1894,  in  district  no.  7,  town  of  Schoharie,  county  of  Schoharie. 
The  principal  irregularities  related  in  the  appeal  are :  That  a  suitable  ballot  box 
was  not  provided  by  the  trustee ;  that  in  the  election  of  district  ofiicers  only  one 
office,  that  of  trustee,  was  elected  by  ballot;  that  the  result  of  the  vote  for  said 
trustee  was  not  announced  by  the  chairman  of  the  meeting,  but  by  one  of  the 
inspectors  or  tellers ;  that  the  ballots  were  defective  in  this,  that  said  ballots  con- 
tained only  the  name  of  the  person  voted  for  and  not  designating  the  office ;  that 
illegal  votes  were  received,  and  that  one  person  who  was  challenged  was  per- 
mitted to  vote  without  making  the  declaration  required  by  the  school  law,  such 
challenge  not  having  been  withdrawn ;  that  no  poll  list  was  kept ;  that  the  person 
who  was  elected  collector  of  the  district  was  also  elected  treasurer  of  the  dis- 
trict, without  any  resolution  having  been  adopted  by  the  meeting  to  elect  a  treas- 
urer; that  the  vote  to  raise  money  by  tax,  or  making  appropriations,  was  not 
taken  as  rec[uired  by  the  school  law.  The  appeal  is  verified,  and  a  copy  thereof 
duly  served  upon  Daniel  Waterbury,  the  person  alleged  to  have  been  elected 
trustee  of  the  district  at  said  annual  meeting.  No  answer  has  been  made  to  the 
appeal,  and  I  am  in  receipt  of  a  letter  written  for  said  Waterbury,  submitting 
the  appeal  to  me  for  examination  and  decision. 

The  allegations  contained  in  the  appeal  are  deemed  by  me  to  be  admitted  by 
said  Waterbury. 

Subdivision  4  of  section  14,  article  i,  title  7  of  the  Consolidated  School  Law 
of  1894,  provides  that  all  district  officers  shall  be  elected  by  ballot;  that  at  elec- 
tions of  district  officers  the  trustees  shall  provide  a  suitable  ballot  box;  two 
inspectors  of  election  shall  be  appointed  in  such  manner  as  the  meeting  shall 
determine,  who  shall  receive  the  votes  cast,  and  canvass  the  same  and  announce 
the  result  of  the  ballot  by  the  chairman ;  a  poll  list,  containing  the  name  of  every 
person  whose  vote  shall  be  received,  shall  be  kept  by  the  district  clerk  or  the 
clerk  for  the  time  of  the  meeting;  the  ballots  should  be  written  or  printed,  or 
partly  written  and  partly  printed,  containing  the  name  of  the  person  voted  for, 
and  designating  the  office  for  which  each  is  voted  for ;  the  chairman  shall  declare 
to  the  meeting  the  result  of  each  ballot,  as  announced  to  him  by  the  inspectors, 
and  the  persons  having  a  majority  of  votes,  respectively,  for  the  several  offices, 
shall  be  elected. 

By  the  provisions  of  law  above  cited,  a  suitable  ballot  box  shall  be  provided 
by  the  trustee.  The  law  does  not  describe  the  kind  of  ballot  box  which  shall  be 
used,  but  the  same  shall  be  suitable  for  the  purpose.  Such  ballot  box  should.be, 
during  the  election  of  officers,  in  the  possession  of  the  inspectors  of  election,  and 
each  voter  should  deliver  his  or  her  ballot  to  such  inspectors,  or  one  of  them, 
and  when  the  name  of  the  voter  is  recorded  upon  the  poll  list  by  the  clerk,  and 
the  vote  is  not  challenged,  should  be  deposited  in  the  ballot  box  by  the  inspector. 
.The  ballot  should  be  written  or  printed,  or  partly  written  and  partly  printed, 
containing  the  name  of  the  person  voted  for  and  designating  the  office  for  which 


404  THE    UNIVERSITY    Ol-     llli;    STATE    OF    NI'.W    YORK 

each  is  voted  for.  This  latter  provision  has  especial  reference  to  where  all  the 
district  ofticers  are  elected  uf^on  one  ballot.  When  each  district  office  is  balloted 
for  separately,  the  ballot  will  be  valid,  having  thereon  only  the  name  of  the  person 
voted  for.  as  each  voter  has  knowledge  of  the  office  for  which  the  1)all()t  is  being 
taken,  and  the  ballot  is  for  that  office  only. 

.^^cction  1 1,  article  I,  title  7  of  the  Consolidated  School  Law  of  1894  specifies 
the  qualifications  which  a  resident  of  any  school  district  of  the  State  must  possess 
to  entitle  such  resident  to  vote  in  the  district  in  which  he  or  she  resides.  Any 
person  to  be  entitled  to  vote  must  possess  at  least  one  of  the  qualifications 
specified  in  said  section.  Section  12.  article  i,  title  7  of  said  school  law  provides 
that  any  person  offering  to  vote  at  any  district  meeting  may  be  challenged  by 
any  qualified  voter  of  such  district,  as  unqualified,  and  when  so  challenged,  such 
person  shall  be  required  by  the  chairman  of  the  meeting  to  make  the  declaration 
specified  in  said  section  12,  and  if  said  person  makes  such  declaration  he  or  she 
shall  be  permitted  to  vote;  but  if  such  person  refuses  to  make  such  declaration 
his  or  her  vote  shall  be  rejected. 

The  treasurer  of  a  common  school  district  is  a  new  officer  provided  for 
under  the  new  Consolidated  School  Law  of  1894.  Under  the  provisions  of  sub- 
division 5  of  section  14,  article  i,  title  7  of  said  law,  at  the  annual  meeting  of 
any  such  district,  or  at  any  special  meeting  called  for  that  purpose,  the  qualified 
voters  therein  are  authorized  to  adopt  a  resolution  by  a  majority  of  such  voters 
present  and  voting,  such  vote  to  be  ascertained  by  taking  and  recording  the  name 
of  the  voter  and  whether  such  voter  votes  aye  or  nay  upon  said  resolution  to 
elect  a  treasurer  of  said  district.  If  said  resolution  is  adopted  the  meeting  shall 
thereupon  elect  by  ballot  a  treasurer.  No  person  shall  be  eligible  to  the  office 
of  treasurer  unless  he  is  a  qualified  voter  in  and  a  taxable  inhabitant  of  said 
district.  Xo  district  meeting  can  legally  elect  a  treasurer  of  the  district  until 
a  resolution  shall  be  adopted  to  elect  such  treasurer  in  the  manner  above  stated. 

Under  the  school  law  no  person  can  legally  hold  two  district  offices  at  one 
and  the  same  time. 

Under  subdivision  18  of  section  14.  article  i,  title  7  of  the  Consolidated 
School  Law  of  1894,  it  is  enacted  that  in  all  propositions  arising  at  said  district 
meeting  involving  the  expenditure  of  money  or  authorizing  the  levy  of  a  tax  or 
taxes,  the  vote  thereon  shall  be  by  ballot  or  ascertained  by  taking  and  recording 
the  names  of  the  -.vicrs  and  ho7i-  each  said  rater  votes,  that  is,  either  aye  or 
no  upon  each  proposition. 

Under  section  86,  article  7,  title  7  of  the  Consolidated  School  Law  of  1894 
the  collector  of  a  district  shall  keep  in  his  possession  all  moneys  received  or  col- 
lected by  him.  and  the  same  shall  not  be  paid  out  by  him  except  upon  the  written 
orders  of  a  trustee  or  trustees,  or  a  majority  of  said  trustees ;  and  any  moneys 
remaining  in  his  hands  when  his  successor  in  office  shall  be  elected  and  shall  have 
executed  a  bond,  shall  be  paid  by  him  to  his  successor.  He  shall  report  in  writ- 
ing at  the  annual  meeting  his  receipts  and  disbursements. 


JUDICIAL  decisions:    meetings  405 

Under  section  55,  article  6,  title  7  of  said  Consolidated  School  Law  of  1894 
the  trustee  or  trustees  of  a  district  shall,  at  the  annual  meeting,  render  a  just, 
full  and  true  account  in  writing  under  his  or  their  hand  or  hands,  of  all  moneys 
received  for  the  use  of  the  district,  or  raised  or  collected  by  tax  the  preceding 
year,  and  the  manner  in  which  the  same  has  been  expended,  etc. 

At  an  annual  school  meeting  the  order  of  business  shall  be  as  follows: 

To  appoint  a  chairman  of  the  meeting,  and  if  the  district  clerk  is  absent, 
to  appoint  a  clerk  for  the  meeting ;  the  trustee  or  trustees  should  present  to  the 
meeting  his  or  their  report,  which  should  then  be  acted  upon  by  the  meeting ;  then 
the  report  of  the  collector  should  be  presented  and  acted  upon;  then  the  trustee 
should  present  a  statement  of  the  amount  of  money  needed  for  payment  of 
teachers'  wages,  fuel,  repairs,  insurance,  furniture,  books  for  school  library, 
hiring  janitor,  etc.,  etc.,  and  the  items  should  be  voted  upon  and  taxes  ordered 
to  be  assessed  in  the  manner  hereinbefore  stated;  the  meeting  should  then  pro- 
ceed to  elect  its  district  officers  in  the  manner  hereinbefore  stated.  Every  district 
officer  must  be  a  resident  of  his  or  her  district  and  qualified  to  vote  at  its  meet- 
ings, and  no  person  shall  be  eligible  to  hold  any  district  office  who  can  not  read 
and  write ;  but  a  treasurer  of  a  district  must  also  be  a  taxable  inhabitant  of  said 
district. 

It  is  clear  that  the  actions  and  proceedings  at  the  annual  meeting,  held  on 
August  7,  1894,  in  district  no.  7,  town  of  Schoharie,  were  not  in  accordance  with 
the  provisions  of  the  school  law'.  I  have  stated  thus  fully  what  can  be  legally 
done  at  an  annual  school  meeting,  in  order  that  there  should  be  no  want  of  infor- 
mation as  to  the  action  and  proceedings  which  shall  be  taken  at  the  special 
meeting  which  I  shall  direct  to  be  called  in  said  district,  to  transact  the  business 
of  the  annual  meetinpf. 

The  appeal  herein  is  sustained. 

It  is  ordered,  That  the  action  and  proceedings  had  and  taken  at  the  annual 
school  meeting  held  on  August  7,  1894,  in  district  no.  7,  town  of  Schoharie, 
county  of  Schoharie,  be  and  the  same  hereby  are,  and  each  of  them  is,  vacated 
and  set  aside.  , 

It  is  further  ordered,  That  Daniel  \\'aterbury,  a  qualified  voter  of  said  dis- 
trict, is  hereby  authorized  and  directed  to  forthwith  call  a  special  meeting  of  the 
inhabitants  of  said  school  district  no.  7,  town  of  Schoharie,  county  of  Schoharie, 
entitled  to  vote  at  school  meetings  in  said  district,  in  the  manner  prescribed  in 
sections  2  and  6  of  article  i,  title  7  of  the  Consolidated  School  Law  of  1894,  for 
the  purpose  of  transacting  the  business  of  the  annual  meeting;  such  business  to 
be  conducted  in  the  manner  provided  in  title  7  of  the  Consolidated  School  Law 
of  1894,  and  as  stated  in  this  decision;  but  no  business  shall  be  done  or  per- 
formed at  such  special  meeting,  other  than  that  which,  under  said  school  law, 
could  have  been  done  or  performed  at  said  annual  meeting  on  the  first  Tuesday 
of  August  1894. 


4O0  THE    LM\1£KS1TV    Ul"   THE    STATE   OF    .\F.\V    YORK 

4293 

In  the  matter  of  the  ajipeal  of  Joseph  Secry  from  proceedings  of  a  special  meet- 
ing held  September  4,  1894,  in  joint  school  district  no.  8,  towns  of  Lorraine 
and  W'orth.  Jefferson  county,  in  the  election  of  a  trustee. 

At  an  annual  school  meeting  when  a  vote  is  being  taken  upon  the  election  of  officers  or 
motion  or  resolution  and  the  right  of  a  person  offering  to  vote  is  challenged,  it  is  the 
duty  of  the  chairman  of  the  meeting  to  require  said  person  to  make  the  declaration 
prcscrilicd  in  section  12,  article  i,  title  y  of  the  Consolidated  School  Law  of  1894,  and 
said  chairman  has  no  right  or  authority  to  require  said  person  to  take  an  oath  or 
answer  any  questions  relative  to  his  or  her  qualifications  as  a  voter.  Said  chairman 
must  entertain  every  challenge  that  is  made;  that  in  voting  upon  all  resolutions  involving 
the  expenditure  of  money  and  authorizing  the  levy  of  taxes  the  vote  thereon  must  be  by 
ballot,  or  ascertained  by  taking  and  recording  the  ayes  and  noes  of  such  qualified  voters 
attending  and  voting  at  such  meeting. 

Decided  November  5,  1894 

A  T.  &  F.  T.  Saunders,  attorneys  for  appellants 
E.  F.  Ramsdcll.  attorney  for  respondent 

Crooker,  Superintendent 

The  appellant  in  the  above-entitled  matter  appeals  from  the  proceedings  of 
a  special  meeting  held  on  September  4.  1894,  in  joint  school  district  no.  8,  towns 
of  Lorraine  and  Worth,  Jefferson  county,  in  the  election  of  a  trustee  for  said 
district. 

The  appellant  alleges  as  grounds  of  api)eal  that  legal  notice  of  the  time, 
place  and  object  of  such  special  meeting  was  not  given  to  the  inhabitants  of  said 
school  district ;  that  the  person  declared  elected  as  chairman  of  said  special  meet- 
ing did  not  receive  a  majority  of  the  votes  given  or  cast;  that  two  inspectors  of 
election  were  not  appointed  to  receive  the  votes  cast  and  to  canvass  the  same,  and 
announce  the  result  of  the  ballot  to  the  chairman ;  that  a  correct  list  of  the  per- 
sons whose  votes  were  received  was  not  kept  by  the  clerk  of  the  meeting ;  that  the 
ballots  for  the  appellant  had  his  name  thereon  with  the  words  "  for  trustee,"  while 
the  ballots  for  his  opponent  for  said  office  had  the  name  of  his  opponent  only ; 
that  the  ballots  for  the  appellant  were  wider  than  those  of  his  opponent,  and 
folded,  and  that  the  chairman,  when  such  folded  ballots  were  handed  to  him, 
opened  and  read  them;  that  when  the  balloting  was  completed  the  chairman 
alone  counted  the  ballots  and  announced  the  result;  that  the  chairman,  when 
the  right  to  vote  by  friends  of  the  opponent  of  appellant  was  challenged,  except 
in  one  instance,  refused  to  entertain  such  challenge,  and  required  the  person  so 
challenged  to  make  the  declaration  required  by  the  school  law;  but  when  the 
friends  of  the  appellant  offering  to  vote  were  challenged,  such  challenges  were 
entertained;  that  in  no  instance  where  the  right  of  a  person  to  vote  was  chal- 
lenged, did  the  chairman  require  such  person  to  make  the  declaration  required 
by  the  school  law.  but  required  said  persons  in  substance  to  swear  that  he  or  she 
would  make  true  answers  touching  his  or  her  right  to  vote,  and  would  then 
interrogate  such  person  as  to  his  or  her  qualifications  as  a  voter;  that  certain 
persons  were  permitted  to  vote  who  were  not  qualified  voters  in  the  district. 


JUDICIAL  decisions:    meetings  407 

The  appeal  is  supported  by  the  affidavits  of  a  large  number  of  persons.  An 
answer  to  the  appeal  has  been  made  denying  most  of  the  allegations  in  the  appeal, 
which  answer  is  supported  by  a  large  number  of  affidavits.  A  reply  has  been 
made  to  the  answer.    The  papers  are  quite  voluminous  and  very  contradictory. 

The  following  facts,  however,  are  admitted:  that  two  inspectors  of  elec- 
tion, to  receive  the  votes  cast  and  canvass  the  same,  and  announce  the  result 
to  the  chairman,  were  not  appointed;  that  a  correct  list  of  the  names  of  every 
person  whose  vote  was  received  was  not  kept  by  the  clerk  of  the  meeting;  that 
when  the  right  of  a  person  offering  to  vote  was  challenged,  the  chairman  did  not 
require  such  person  to  make  the  declaration  required  by  the  school  law. 

In  subdivision  4  of  section  14,  article  i,  title  7  of  the  Consolidated  School 
Law  of  1S94,  it  is  enacted  that  "  two  inspectors  of  election  shall  be  appointed  in 
such  manner  as  the  meeting  shall  determine,  who  shall  receive  the  votes  cast, 
and  canvass  the  same,  and  announce  the  result  of  the  ballot  to  the  chairman. 
.  .  .  The  chairman  shall  declare  to  the  meeting  the  result  of  each  ballot,  as 
announced  to  him  by  the  inspectors,  and  the  persons  having  the  majority  of 
votes  respectively  for  the  several  offices  shall  be  elected." 

The  provision  relating  to  the  appointment  of  two  inspectors  of  election,  of 
the  school  law,  is  mandatory  upon  school  district  meetings  in  the  election  of  dis- 
trict officers.  It  is  not  optional  with  a  meeting  to  appoint  such  inspectors  or 
not,  nor  can  such  meeting  refuse  or  neglect  to  appoint  such  inspectors,  but  on 
the  contrary  the  meeting  viust  appoint  them.  At  an  election  of  district  officer 
or  officers,  the  chairman  of  the  meeting  has  no  authority,  under  the  school  law, 
to  receive  a  single  ballot  cast  by  any  voter,  nor  to  canvass  the  ballots  cast  for 
district  officers. 

It  is  admitted  that  when  the  polls  of  the  election  were  closed  and  the  votes 
counted  there  were  44  votes  cast,  and  the  names  of  but  36  persons  upon  the  poll 
list,  an  excess  of  8  votes.  This  is  a  remarkable  showing  in  a  poll  of  but  44  votes, 
and  to  my  mind  is  conclusive  evidence  of  carelessness,  at  least,  upon  the  part  of 
the  clerk  of  the  meeting. 

Section  12,  article  i,  title  7  of  the  Consolidated  School  Law  of  1894  enacts: 
"  If  any  person  offering  to  vote  at  any  school  district  meeting  shall  be  challenged 
as  unqualified  by  any  legal  voter  in  such  district,  the  chairman  presiding  at  such 
meeting  sJiall  require  the  person  so  offering  to  vote  to  make  the  following 
declaration :  '  I  do  declare  and  affirm  that  I  am,  and  have  been  for  thirty  days 
last  past,  an  actual  resident  of  the  school  district,  and  that  I  am  qualified  to  vote 
at  this  meeting";  and  any  person  making  siicJi  declaration  shall  be  pcniiitfcd  to 
vote  on  all  questions  proposed  at  such  meeting;  but  if  any  person  shall  refuse  to 
make  such  declaration,  his  or  her  vote  shall  be  rejected." 

The  statute  above  quoted  is  perfectly  plain,  and  is  mandatory  upon  the 
chairman  at  every  district  meeting.  When  at  a  school  district  meeting,  the  right 
to  vote  of  any  person  offering  to  vote  is  challenged  by  any  legal  voter  of  said 
"district,  the  chairman  must  entertain  such  challenge.  The  chairman  must,  upon 
such  challenge    require  the  person  offering  to  vote  to  make  the  declaration  stated 


4o8  THE   UNIVEKSITV    UE   THE   STATE   OF   NEW    YORK 

ill  the  school  law,  aiul  if  such  person  makes  such  declaration  the  inspectors  of 
election  must  receive  the  vote  of  such  person;  but  if  the  person  challenged 
refuses  to  make  the  said  declaration  the  vote  of  such  person  can  not  be  received 
by  said  inspectors  of  election.  The  chairman  of  a  district  meeting,  when  a 
person  offering  to  vote  is  challenged,  has  not  the  right  or  authority,  nor  has  any 
other  person  the  riglit  or  authority,  to  administer  to  such  person  or  to  require  such 
person  to  take  any  oath  whatever,  nor  to  ask  any  person  so  challenged  any  ques- 
tions whatever,  relative  to  his  or  her  qualilications  as  a  voter,  but  solely  and  simply 
to  require  the  person  to  make  the  declaration  required  by  the  school  laws. 

The  record  of  the  proceedings  of  the  meeting  kept  by  the  district  clerk 
should  show  the  names  of  every  person  challenged  and  the  fact  as  to  whether 
such  person  made  the  declaration  required  by  the  school  law. 

It  is  clear,  from  the  admitted  facts  in  this  appeal,  that  in  the  matter  of 
chcillenges  as  to  the  right  to  vote  at  such  special  meeting,  the  action  of  the  chair- 
man was  unauthorized  and  illegal. 

Sul'ticient  cause  has  been  established  by  facts  admitted  in  this  appeal,  rela- 
tive to  the  manner  in  which  said  special  meeting,  held  on  September  4,  1894, 
was  conducted  to  make  it  imperative  upon  me  to  vacate  and  set  aside  the  pro- 
ceedings had  and  taken  at  said  meeting  in  the  election  of  a  trustee  and  to  order 
that  a  special  meeting  be  called  to  elect  a  trustee  for  said  district. 

School  district  officers  and  the  qualified  voters  in  school  districts  should 
understand,  that  in  the  calling  of  special  school  meetings,  the  organization  of 
such  meetings,  when  duly  assembled,  and  in  the  action  and  proceedings  had  and 
taken  at  such  annual  or  special  meetings  in  the  election  of  district  officers,  the 
voting  upon  resolutions  involving  the  expenditure  of  money  and  authorizing 
the  levy  of  taxes,  the  provisions  of  the  Consolidated  School  Law,  relative  to 
such  matters,  must  be  obeyed,  or  upon  appeal  such  action  and  proceedings  had 
and  taken  not  in  accordance  with,  or  in  obedience  to,  the  provisions  of  said  law. 
will  be  vacated  and  set  aside. 

trom  the  view  taken  by  me  in  this  appeal,  it  is  not  necessary  for  me  tc 
attempt  to  reconcile  the  contradictory  statements  contained  in  the  affidavits  pre- 
sented, in  relation  to  the  other  various  grounds,  alleged  by  the  appellant  herein, 
for  his  appeal. 

I  will,  however,  state  for  the  information  of  the  voters  in  said  district 
that  under  the  Consolidated  School  Law,  when  a  special  meeting  of  a  district  is 
called,  the  notice  of  such  meeting  must  state  the  purposes  for  zvhieh  it  is  called^ 
and  no  business  shall  be  transacted  at  such  special  meeting,  except  that  which 
is  specified  in  the  notice.  That  the  qualified  voters  of  any  district  may,  at  any 
annual  meeting,  adopt  a  resolution  prescribing  some  mode  of  giving  notices  of 
special  meetings.  If  no  such  resolution  shall  be  adopted  at  an  annual  meeting, 
such  notice  of  such  special  meeting  must  be  made  as  prescribed  in  section  2, 
article  i.  title  7  of  the  Consolidated  School  Law  of  i''94,  namely:  The  clerk  or 
inhabitant  shall  notify  every  inhabitant  of  the  district  qualified  to  vote,  by 
reading  the  notice  in  his  or  her  hearing,  or  in  case  of  his  or  her  absence  from 


juiJiLiAL  decisions:    meetings  409 

home,  by  leaving  a  copy  thereof,  or  so  much  thereof  as  relates  to  the  time,  place 
and  object  of  the  meeting,  at  the  house  of  his  or  her  abode  at  least  six  days 
before  the  time  of  the  meeting. 

The  method  of  electing  a  chairman  of  a  district  meeting  by  a  viva  voce  vote, 
or  the  uplifted  hand,  except  where  there  is  no  opposition  to  the  person  placed 
in  nomination,  is  not  approved.  By  such  methods  of  election  persons  not 
qualified  may  vote.  The  election  should  be  by  ballot  or  by  taking  and  recording 
the  names  of  the  persons  voting  and  setting  opposite  to  each  how  he  or  she  votes. 

As  heretofore  stated  by  me,  a  chairman  of  a  district  meeting  at  which  an 
officer  or  officers  of  the  district  is  or  are  elected,  can  not  receive  the  ballots  from 
the  persons  voting,  but  such  ballots  must  be  presented  to,  and  be  received  by,  one 
of  the  two  inspectors  of  election.  No  chairman  of  such  meeting,  nor  any 
inspector  of  election  has  any  legal  right  or  authority  to  open  a  ballot  handed  to 
him  by  any  voter,  nor  to  examine  or  read  such  ballot,  nor  to  open  such  ballots 
for  the  purpose  of  ascertaining  whether  two  or  more  votes  are  folded  together. 
After  the  polls  at  the  election  are  closed  said  inspectors  should  proceed  to  can- 
vass the  votes,  first  counting  the  ballots  found  in  the  ballot  box  tvithout 
unfolding  them,  except  so  far  as  to  ascertain  that  each  ballot  is  single,  and 
then  comparing  the  bahots  found  in  the  ballot  box  with  the  number  shown  by 
the  poll  list  to  have  been  deposited  therein.  If  the  ballots  found  in  the  box 
shall  be  more  than  the  number  of  ballots  shown  by  the  poll  list  to  have  been 
deposited  therein,  such  ballots  shall  be  replaced,  zvithout  being  unfolded,  in  the 
box  from  which  they  were  taken  and  one  of  the  inspectors  shall,  without  seeing 
the  same,  publicly  draw  out  as  many  ballots  as  shall  be  equal  to  such  excess  and, 
without  unfolding  them,  destroy  them.  If  two  or  more  ballots  shall  be  found 
in  the  ballot  box  so  folded  together  as  to  present  the  appearance  of  a  single 
ballot,  tlicy  shall  be  destroyed  if  the  ivhole  number  of  ballots  in  such  box  exceeds 
the  zvhole  number  of  ballots  sliozvn  by  the  poll  list  to  have  been  deposited  therein, 
and  not  otherwise. 

This  Department  has  uniformly  held  that  any  qualified  voter  of  a  district, 
present  at  a  meeting,  knowing  a  person  at  such  meeting  to  be  unqualified,  and 
permitting  him  or  her  to  vote  without  challenge,  will  not  be  allowed  to  object 
to  the  proceedings  of  the  meeting  because  such  unqualified  person  participated 
in  such  proceedings.  It  is  also  well  settled  that  proceedings  of  a  meeting  will 
not  be  vitiated  by  illegal  votes  unless  a  different  result  would  have  been  pro- 
duced by  excluding  such  votes.  To  warrant  setting  aside  an  election  on  the 
ground  that  illegal  votes  were  received,  it  must  affirmatively  appear  that  the 
successful  ticket  received  a  number  of  illegal  votes  which,  if  rejected,  would 
have  brought  it  down  to  a  minority.  It  is  incumbent,  in  case  of  an  appeal,  upon 
the  appellant  not  only  to  allege  the  illegal  voting  or  the  disqualification  of  cer- 
tain persons,  but  to  show  by  evidence  the  lack  of  qualifications  of  certain  persons 
in  such  terms  as  necessarily  to  exclude  every  presumption  that  the  voter  could 
.he  qualified  under  any  of  the  heads  stated  in  section  11,  article  i,  title  7  of  the 
Consolidated  School  Taw  of  1894. 

The  appeal  herein  is  sustained. 


4IO  THE    UNlVliKSlTY    OF   Tllli   STATli   OF    XEW    YORK 

It  is  ordered,  That  all  action  and  proceedings  had  and  taken  at  the  special 
school  meeting  held  on  September  4,  i8(j4,  in  joint  school  district  no.  8,  towns 
of  Lorraine  and  Worth,  Jefferson  county,  in  the  election  of  a  trustee  for  said 
district,  be,  and  the  same  are,  and  each  of  them  is,  hereby  vacated  and  set  aside. 

It  is  further  ordered,  That  the  district  clerk  of  said  joint  school  district 
no.  iS,  towns  of  J^orraine  and  Worth,  Jefferson  county,  be  and  he  hereby  is, 
authorized  and  directed  to  forthwith  call  a  special  meeting  of  the  inhabitants 
of  said  school  district,  qualified  to  vote  at  the  school  meetings  in  said  district, 
for  the  purpose  of  electing  a  trustee  of  said  district.  That  notice  of  the  time, 
place  and  object  of  said  special  meeting  be  served  upon  each  of  the  inhabitants 
of  said  district  qualified  to  vote  at  said  special  meeting,  at  least  six  days  before 
the  time  of  such  meeting,  in  the  manner  prescribed  by  section  2,  article  i,  title 
7  of  the  Consolidated  School  Law  of  1894.  That  the  proceedings  had  and  taken 
at  such  special  meeting,  when  assembled,  shall  be  in  accordance  with,  and  pur- 
suant to,  the  provisions  of  section  14,  article  i,  title  7  of  the  Consolidated  School 
Law  of  1894. 

It  is  further  ordered.  That  immediately  upon  the  organization  of  said  special 
meeting  said  district  clerk  shall  read  this  decision  and  order  to  said  meeting,  or 
cause  the  same  to  be  read  to  said  meeting. 


4370 

In  the  matter  of  the  appeal  of  Truman  H.  Cox  from  proceedings  of  annual 
school  meeting  held  on  August  6,  1895,  in  union  free  school  district  no.  i, 
town  of  Lee,  Oneida  county,  in  voting  a  tax. 

Where  in  a  union  free  school  district  at  the  annual  meeting  the  vote  to  appropriate  the  sum 
of  $450  and  authorizing  a  tax  to  be  levied  to  collect  the  same,  the  vote  was  taken  viva 
voce  and  not  by  ballot  or  ascertained  by  taking  and  recording  the  ayes  and  noes  of  such 
qualified  voters  attending  and  voting  at  such  meeting;  held,  that  the  action  of  the  meet- 
ing was  illegal  and  void,  and  in  direct  contravention  of  the  provisions  of  section  10, 
article  2,  title  8  of  the  Consolidated  School  Law  of  1894, 

Decided  September  20,  i8<;5 

W.  L.  Wilson,  attorney  for  appellant 

A.  T.  Wilkinson,  attorney  for  respondent 

Skinner.  Superintendent. 

This  appeal,  although  taken  from  the  ruling  of  the  chairman  of  the  annual 
meeting  held  on  August  6.  1895,  in  union  free  school  district  no.  i,  town  of  Lee, 
Oneida  county,  is  in  fact  from  the  action  and  proceedings  of  said  meeting  in 
voting  a  tax  upon  the  said  district  by  a  viva  voce  vote.  , 

An  answer  to  the  appeal  has  been  made  by  Henry  S.  Hall,  the  chairman  of 
said  meeting.  The  uncontroverted  facts  established  by  the  papers  filed  herein 
are: 

That  at  the  annual  meeting  of  said  union  free  school  district  no.  i,  town 
of  Lee,  Oneida  county,  Henry  S.  Hall  was  chosen  chairman;  that  a  statement 


JUDICIAL    DFXISIONS:      MEETINGS  4I.I 

made  by  the  president  and  clerk  of  the. board  of  education  of  said  district  of  the 
receipts  and  disbursements  for  conducting  the  schools  in  said  district  for  the 
school  year  of  1895-96  was  presented  to  the  meeting  by  the  president  of  the  board, 
by  which  it  appeared  that  it  was  necessary  to  raise  the  sum  of  $450  by  tax  upon 
the  taxable  property  in  said  district  for  school  purposes  for  said  school  year; 
that  a  viva  voce  vote  being  about  to  be  taken  by  said  meeting  to  authorize  the 
levy  of  a  tax  for  said  sum  of  $450  the  appellant  herein  demanded  that  the  vote 
directing  or  authorizing  the  levy  of  a  tax  must  be  taken  by  ballot  or  ascertained 
by  taking  and  recording  the  ayes  and  noes  of  the  qualified  voters  attending  and 
voting  at  such  meeting,  but  no  action  was  taken  thereon,  and  subsequently  a 
resolution  was  adopted  that  a  viva  voce  vote  be  taken  upon  appropriating  said 
S450  and  authorizing  a  tax  to  be  levied  to  collect  the  same,  which  was  done. 

In  section  10,  article  2,  title  8,  of  the  Consolidated  School  Law  of  1894, 
which  became  operative  on  June  30,  1894,  relative  to  annual  or  special  school 
meetings  in  union  free  school  districts  other  than  those  whose  limits  correspond 
with  an  incorporated  village  or  city,  it  is  enacted  that  "  on  all  propositions  arising 
at  said  meetings  involving  the  expenditure  of  money  or  authorizing  the  levy  of  a 
tax  or  taxes  in  one  sum  or  in  instalments,  the  vote  thereon  shall  be  by  ballot, 
or  ascertained  by  taking  and  recording  the  ayes  and  noes  of  such  qualified  voters 
attending  and  voting  at  such  meetings." 

The  action  of  the  annual  school  meeting  in  union  free  school  district  no.  i, 
town  of  Lee,  Oneida  county,  by  a  viva  voce  vote,  appropriating  the  sum  of  $450 
for  school  purposes  or  authorizing  the  levy  of  a  tax  of  $450,  was  illegal  and  void, 
and  in  direct  contravention  of  the  provisions  of  the  school  law.  Such  action  by 
said  meeting  conferred  no  authority  upon  the  board  of  education  of  said  school 
district  to  assess,  levy  and  collect  any  tax  for  said  $450  or  any  part  thereof,  and 
any  tax  list  and  assessment  for  said  sum,  made  and  issued  by  said  board,  upon 
an  appeal  would  be  vacated. 

The  board  of  education  should  call  a  special  meeting  of  the  ciualified  voters 
of  the  district  for  the  purpose  of  voting  in  accordance  with  said  provisions  of 
law,  an  appropriation  of  money  for  school  purposes  and  authorizing  the  assess- 
ment and  levy  of  tax  to  raise  the  sum  so  appropriated. 

The  appeal  herein  is  sustained. 


4399 

In  the  matter  of  the  appeal  of  Delos  Wentworth,  A.  M.  Bliss  and  Peter  Hess 

from  proceedings  of  special  school  meeting  held  on  September  6,  1895,  in 

district  no.  6,  town  of  German  Flats,  Herkimer  county. 

Where  the  clerk  of   a  school   district  did   not   serve  or  attempt  to   serve  the  notices   of   a 

special  meeting  called   for   September  6,   1895,   until   September  2,   1805 :   held,  that   no 

-  ,      lawful  notice  of  said  meeting  was  served  upon  the  qualified  voters  of  said  district,  and 

'     said  special  meeting  was  illegal  and  void. 
Decided  October  31,  1895 


412  THE   UNIVERSITY    OF   THE   STATE    OF   NEW   YORK 

Skinner,  Superintendent 

This  appeal  is  taken  from  the  action  of  a  special  school  meeting  held  on 
September  6,  1895,  in  school  district  no.  6,  town  of  German  Flats,  Herkimer 
county,  in  the  election  of  a  trustee  of  said  district. 

Two  grounds  are  alleged  in  said  appeal  as  reasons  why  said  appeal  is 
brought,  namely,  first,  that  said  school  meeting,  being  a  special  school  meeting, 
was  not  legally  called,  and  that  notice  of  said  meeting  was  not  legally  served 
upon  the  inhabitants  of  said  district  cjualified  to  vote  at  its  school  meetings;  and 
second,  that  persons  not  (jualified  voters  of  said  district  voted  at  said  meeting. 

An  answer  has  been  made  by  Thomas  Muldoon  to  said  appeal,  and  to  the 
answer  the  appellants  have  filed  a  reply,  and  to  the  reply  the  respondent  has 
filed  a  rejoinder. 

The  following  facts  are  established : 

That  at  the  aimual  school  meeting  held  in  said  district  on  August  6,  1895, 
one  James  Golden  was  elected  trustee;  that  subsequently  and  prior  to  August  31, 
1895,  said  Golden  sent  his  resignation  of  said  office  of  trustee  to  Ellis  D.  Elwood, 
School  Commissioner,  and  said  Elwood  accepted  said  resignation  and  sent  to 
one  James  M.  Petrie,  the  district  clerk  of  said  district,  an  order  to  call  a  special 
meeting  of  said  district  to  be  held  on  the  evening  of  September  6,  1895,  for  the 
election  of  a  trustee  to  fill  the  vacancy  in  said  office  by  reason  of  the  said  resig- 
nation of  Golden;  that  said  order  was  received  by  said  Petrie  on  August  31, 
1895,  but  (as  Petrie  alleges)  too  late  for  him  to  write  out  said  notices  and 
serve  them  on  said  August  31,  1895;  that  on  September  2,  1895,  said  Petrie,  as 
said  district  clerk,  served  notice  of  said  special  meeting  to  be  held  on  September 
6.  1895,  upon  the  inhabitants  of  said  district  qualified  to  vote  at  the  school  meet- 
ings in  said  district. 

It  clearly  appears  that  said  Petrie  did  not  serve  said  notice  of  said  special 
meeting  for  September  6,  1895,  or  attempt  to  serve  said  notice  until  Septem- 
ber 2,  i8<j5. 

Under  section  6,  of  article  i.  title  7,  of  the  Consolidated  School  Law  it  is 
enacted  that  a  notice  of  a  special  school  meeting  shall  be  served  upon  each  inhab- 
itant of  the  district  qualified  to  vote  at  the  school  meetings  therein  in  the  manner 
prescribed  in  section  2,  of  said  article  and  title  at  least  five  days  before  the  day 
of  meeting.  In  computing  said  time  of  five  days  the  first  day,  that  is,  the  day 
on  which  the  time  begins  to  run,  is  to  be  excluded.  Petrie,  if  he  could  not  serve 
said  notice  on  August  31,  1895,  should  have  at  once  notified  School  Commis- 
sioner Elwood  so  that  said  Elwood  could  have  fixed  a  later  date  for  said  special 
meeting. 

The  provisions  of  section  7,  article  i.  title  7,  of  said  school  law  enacting 
that  the  proceedings  of  no  district  meeting,  annual  or  special,  shall  be  held 
illegal  for  want  of  a  due  notice  to  all  the  persons  qualified  to  vote  thereat,  unless 
it  shall  appear  that  the  omission  to  give  such  notice  was  wilful  and  fraudulent, 
is  applicable  only  where  an  attempt  is  made  to  give  the  notice  required  by  law 


JUDICIAL   DECISIONS  :     MEETINGS  4I3 

to  any  of  the  inhabitants,  and  through  accident  or  mistake  said  legal  notice  was 
not  served  upon  all  of  said  inhabitants.  In  the  appeal  at  bar  Petrie  made  no 
attempt  whatever  to  serve  notice  of  said  meeting  until  September  2,  1895. 

It  appears  that  Golden  resigned  the  office  of  trustee  and  forwarded  such 
resignation  to  Commissioner  Elwood,  who  accepted  the  same.  Commissioner 
Elwood  should  have  forwarded  such  resignation  and  his  acceptance  thereof  to 
the  district  clerk  Petrie  whose  duty  it  was  to  have  filed  the  same  in  his  office, 
and  then,  under  subdivision  10,  of  article  4,  title  7,  of  the  Consolidated  School 
Law,  to  call  a  special  meeting  of  said  district  for  the  purpose  of  electing  a  trus- 
tee to  fill  such  vacancy  in  said  office. 

I  am  clearly  of  the  opinion  that  said  special  meeting  of  said  district  was 
illegal  and  void  for  the  reason  that  no  legal  notice  of  such  meeting  was  served 
upon  the  inhabitants  of  said  district  qualified  to  vote  at  such  school  meetings 
therein. 

I  do  therefore  find  and  decide  that  said  special  meeting  held  on  September 
6,  1895,  in  said  district  was  not  a  legal  school  meeting  for  the  reason  that  there 
was  no  legal  service  of  a  notice  of  said  meeting  upon  the  legal  voters  in  said 
district,  and  that  proceedings  had  and  taken  at  said  meeting  were  illegal  and 
void. 

In  the  view  taken  by  me  in  the  disposition  of  this  appeal  it  is  not  necessary 
that  I  should  examine  or  decide  as  to  the  second  ground  of  appeal. 

For  the  information  and  guidance  of  the  voters  of  said  district  I  state  that 
section  11,  of  article  i,  title  7,  of  the  Consolidated  School  Law  prescribes  the 
qualifications  necessary  to  entitle  a  person  to  vote  at  school  district  meetings. 

By  the  provisions  of  said  section,  there  are  four  classes  of  persons  entitled 
to  vote  at  school  district  meetings  in  this  State.  First,  every  person  of  full  age 
who  is  a  citizen  of  the  United  States  and  a  resident  of  the  district,  and  who  has 
resided  therein  for  a  period  of  thirty  days  next  preceding  the  meeting  at  which 
he  or  she  oft'ers  to  vote,  and  who  owns  or  hires,  or  is  in  the  possession  under  a 
contract  of  purchase,  of  real  property  in  such  district  liable  to  taxation  for  school 
purposes.  Second,  every  resident  of  the  district,  and  who  has  resided  therein 
for  a  period  of  thirty  days  next  preceding  the  meeting  at  which  he  or  she  offers 
to  vote,  who  is  a  citizen  of  the  United  States,  21  years  of  age,  and  who  is  a 
parent  of  a  child  of  school  age,  provided  such  child  shall  have  attended  the  dis- 
trict school  (in  the  district  in  which  the  meeting  is  held),  for  a  period  of  at 
least  eight  weeks  within  one  year  preceding  such  school  meeting.  Third,  every 
resident  of  the  district,  and  who  has  resided  therein  for  a  period  of  thirty  days 
next  preceding  the  meeting  at  which  he  or  she  offers  to  vote,  who  is  a  citizen 
of  the  United  States,  21  years  of  age,  not  being  a  parent,  who  shall  have  perma- 
nently residing  with  him  or  her  a  child  of  school  age,  which  shall  have  attended 
the  district  school  in  said  district  for  a  period  of  at  least  eight  weeks  within  one 
.^ear  preceding  such  school  meeting.  Fourth,  every  resident  of  the  district,  and 
wVio  has  resided  therein  for  a  period  of  thirty  days  next  preceding  the  meeting 


414  THE  l-nivi:ksity  of  the  state  of  new  york 

at  whicli  he  or  slic  offers  to  vole,  who  is  a  citizen  of  the  United  States,  21  years 
of  age.  wlio  owns  any  personal  property,  assessed  on  the  last  preceding  assess- 
ment roll  of  the  town,  exceeding  $50  in  value,  exclusive  of  such  as  is  exempt 
from  execution. 

In  either  of  said  classes  the  voter  may  he  male  or  female.  In  the  first,  third 
and  fourth  classes,  the  voter  may  he  either  married  or  single.  In  the  second 
class,  hoih  father  and  mother  are  entitled  to  vote.  In  the  third  class  (cases  of 
children  residing  with  others  than  their  parents),  the  phrase  "him  or  her"  in 
the  statute  must  he  held  to  limit  the  suffrage  to  one  person  only  and  that  the 
head  of  the  household.  Therefore,  where  hushand  and  wife,  living  together. 
have  such  a  child  or  children  residing  with  them,  and  are  not  the  parents  of 
such  child  or  children,  the  wife  is  not  on  that  account  entitled  to  vote,  although 
she  may  he  a  voter  hy  reason  of  possessing  one  or  more  of  the  other  qualitica- 
tions  mentioned  in  the  statute.  Any  person  qualified  as  aforesaid  to  vote  at 
any  school  meeting  can  vote  upon  all  questions  brought  before  the  meeting  for 
consideration  including  propositions  to  raise  money  by  tax,  etc.,  etc. 

I  further  state  that  it  is  the  duty  of  any  legal  voter  at  any  school  meeting 
when  any  person,  whom  he  knows  or  has  reason  to  believe,  is  not  a  legal  voter, 
offers  his  or  her  vote,  to  challenge  such  vote;  that  it  is  then  the  duty  of  the 
chairman  of  the  meeting  to  require  the  person  so  offering  to  vote,  to  make  the 
declaration  contained  in  section  12  article  i,  title  7  of  said  Consolidated  School 
Law  of  1894.  If  the  person  makes  the  declaration  his  or  her  vote  must  be 
received;  but  if  the  person  refuses  to  make  the  declaration  his  or  her  vote  must 
be  rejected.  Any  person  who  wilfully  makes  a  false  declaration  shall  be 
deemed  guilty  of  a  misdemeanor. 

It  does  not  appear  from  the  papers  herein  that  any  person  offering  to  vote 
at  such  special  meeting  was  challenged.  This  Department  has  held  that  a  party 
knowing  a  person  to  be  unqualified  and  permitting  him  or  her  to  vote  without 
challenge  will  not  be  allowed  upon  appeal,  to  object  to  the  proceedings  of  the 
meeting  because  said  unciualified  person  or  persons  participated  in  them. 

The  apijcal  herein  is  sustained. 

It  is  ordered.  That  the  special  meeting  held  on  September  6,  1895,  in  school 
district  no.  6.  town  of  German  Flats,  Herkimer  county,  and  all  action  and  pro- 
ceedings had  and  taken  thereat  be,  and  the  same  are,  and  each  of  them  is,  hereby 
vacated  and  set  aside  as  illegal  and  void. 

It  is  further  ordered.  That  the  district  clerk  of  said  district  call  a  special 
meeting  of  the  inhabitants  of  said  school  district,  qualified  to  vote  at  school 
meetings  therein,  and  that  personal  service  of  the  notice  of  the  time  and  place 
and  object  of  said  meeting,  upon  each  qualified  voter  of  said  district  be  made 
at  least  .six  days  prior  to  the  time  of  said  meeting,  the  business  to  be  transacted 
at  said  special  meeting  being  to  elect  a  trustee  of  said  district  to  fill  the  vacancy 
created  l)y  the  resignation  of  said  James  Golden. 


JUDICIAL  decisions:    meetings  415 

It  does  not  follow  of  course  that  a  petitiori  to  the  trustees  for  a  special  meeting,  however 

numerously  signed,  is  to  be  granted. 
Decided  June  15,  1861 

Keyes,  Acting  Superintendent 

On  appeal  from  the  refusal  of  the  trustee  to  call  a  special  meeting,  on  the 
application  of  a  majority  of  the  voters  of  the  district,  it  appears  that  the  object 
of  a  new  meeting  is  to  rescind  the  action  of  a  previous  meeting  changing  the  site 
and  voting  a  tax  to  build  a  new  house.  The  meeting  which  took  this  action  was 
well  attended,  every  voter  in  the  district  being  present  but  one,  and  the  vote  in 
favor  of  the  resolution  to  change  the  site  was  confirmed  by  21  to  7. 

The  petition  to  call  a  new  meeting  bears  date  more  than  two  months  after 
the  above  decisive  action  had  been  taken.  Meantime,  the  trustees  had  com- 
pleted their  tax  list,  and,  at  the  least,  had  entered  into  negotiations  concerning 
the  sale  of  the  old  house  and  site.  It  is  remarked  by  the  counsel  for  the  appel- 
lants that  it  would  seem  as  though  an  application  for  a  school  meeting,  made  by 
a  clear  majority  of  the  legal  voters  of  the  district,  ought  upon  the  face  of  it  to 
be  granted.  The  general  principle  enunciated  is,  doubtless,  in  its  broad  and 
unrestricted  sense,  true ;  but.  in  its  application  to  individual  instances,  it  may, 
in  a  majority  of  cases,  be  found  imwise  and  unjust,  for  the  reason  that  it  is 
scarcely  possible  to  recognize,  in  the  statement  of  such  general  principles,  the 
thousand  and  one  conditions  that  render  it  inapplicable. 

I  can  conceive  of  no  good  resulting  from  an  effort  at  so  late  a  day  to  dis- 
turb what  has  been  so  deliberately  and  fairly  and  decisively  determined.  If  it 
is  true  that  so  large  a  number  of  the  voters  have  changed  their  minds,  it  betrays 
a  fickleness  and  instabilitv  of  purpose  that  give  little  assurance  that  proceedings 
had  at  any  future  meeting  will  be  permitted  to  rest. 

I  regard  the  discretion  of  the  trustee  as  judiciously  exercised,  and  the  appeal 
is,  therefore,  dismissed. 


4203 

In  the  matter  of  the  appeal  of  Owen  Mathews,  from  proceedings  of  the  annual 
meeting,  held  in  union  free  school  district  no.  2,  Flatbush,  Kings  county. 

A  person  present  at  a  school  meeting,  knowing  a  person  offering  to  vote  not  to  be  qualified 
and  permitting  him  to  vote  without  challenge,  will  not  be  allowed  to  object  to  the 
proceedings  of  the  meeting,  because  such  unqualified  person  participated  therein.  Where 
an  appeal  is  brought  from  the  action  of  a  meeting  in  the  election  of  trustees,  on  the 
ground  that  the  persons  are  not  eligible  to  the  office,  the  appellant  must  show  by  com- 
petent legal  proof  that  the  persons  alleged  by  him  not  to  be  qualified  voters  did  not 
possess  such  qualification  in  such  terms  as  necessarily  to  exclude  every  presumption  that 
such  voters  could  not  be  qualified  under  section  12  of  title  7  of  the  school  law. 

Decided  November  18,   1893 

John  E.  Simpson,  attorney  for  respondents 

Grooker.  Superintendent 

This  appeal  is  taken  from  the  action  and  proceedings  of  the  annual  meeting 
held  in  union  free  school  district  no.  2,  Flatbush.  Kings  county,  on  August  22, 


4l6  Till-:    UNIVKKSITY    OF   THE   STATli    OF   NEW    YORK 

• 

1893,  in  the  election  of  Edward  R.  I'.ennett  and  Oscar  L.  Steves,  as  trustees  of 
said  district. 

The  a])])eal  contains  thirteen  alleji^ations  as  e^rounds  for  appeal,  the  principal 
ones  being  that  the  meeting  was  conducted  without  any  regard  to  the  rights  of 
the  (lualified  voters  of  the  district ;  that  the  chairman  was  not  elected  by  a 
majority  of  the  qualified  voters  present  and  voting;  that  the  chairman  refused 
to  entertain  the  challenges  duly  made ;  that  the  chairman  threatened  to  expel, 
and  instructed  a  police  officer  to  expel,  from  the  meeting  a  qualified  voter  foi 
challenging  a  person  offering  to  vote,  and  accepted  the  vote  of  such  person  with- 
out re(|uiring  him  to  make  the  declaration  required  by  law;  that  illegal  votes 
were  cast,  and  that  neither  the  said  Bennett  nor  the  said  Steves,  declared  to  be 
elected  trustees,  was  a  qualified  voter  in  the  district.  Affidavits  of  a  large  num- 
ber of  persons  have  been  filed  in  support  of  the  appeal. 

An  answer  to  the  appeal  has  been  interposed  by  Messrs  Bennett  and  Steves 
and  the  affidavits  of  a  large  number  of  persons  filed  in  support  of  the  answer. 

It  appears  that  the  annual  meeting  held  in  said  district  on  August  22,  1893, 
was  largely  attended  and  much  feeling  in  the  result  of  the  election  of  trustees 
was  manifested,  and  while  the  meeting  was  not  as  quiet  as  one  would  desire,  it 
was  not  riotous  or  boisterous  and  no  qualified  voter  was  obstructed  in  the  exer- 
cise of  his  right  or  prevented  from  voting  at  the  meeting.  That  said  meeting 
was  called  to  order  by  John  W.  Buckley,  then  one  of  the  trustees  of  said  dis- 
trict, and  one  Evans  and  one  Graham  were  each  nominated  for  chairman,  and 
upon  a  viva  voce  vote  Evans  was  declared  elected,  whereupon  an  appeal  was 
taken  and  a  division  of  the  house  demanded  and  had,  and  upon  a  count  Evans 
received  98  votes  and  Graham  90  votes.  That  Edward  R.  Bennett  and  Joseph 
Neltleton  were  nominated  for  trustees  for  three  years  and  ballot  taken,  which 
resulted  in  Bennett  receiving  86  votes  and  Nettleton  receiving  84  votes.  That 
dunng  said  ballot  the  appellant  herein  occupied  a  position  at  which  he  could  see 
each  i)erson  offering  to  vote  and  challenged  the  vote  of  two  persons,  namely :  W. 
Hurst  and  I'atrick  Cassidy,  and  that  tw^o  persons  were  challenged  by  the  sup- 
porters of  Bennett,  and  after  the  attention  of  the  chairman  of  the  meeting  was 
called  to  the  qualifications  of  each  of  the  persons  challenged  in  the  presence  of 
the  person  making  the  challenge,  the  said  challenges  w^ere  not  pressed.  That 
Oscar  L.  Steves  and  Edward  Levine  were  nominated  as  trustee  for  one  year 
and  a  ballot  taken,  which  resulted  in  Steves  receiving  107  votes  and  Levine  49. 

The  main  grounds  upon  which  this  appeal  is  brought  are,  that  Bennett  and 
Steves  are  not,  nor  is  either  of  them,  eligible  to  the  office  of  trustee,  and  that 
they  were  elected  by  the  votes  of  persons  not  qualified  voters  of  the  district. 

Section  24  of  title  7  of  the  Consolidated  School  Laws  of  1864,  as  amended, 
provides :  "  Every  district  and  neighborhood  officer  must  be  a  resident  of  his 
district  or  neighborhood  and  qualified  to  vote  at  its  meetings."  Section  12  of 
title  7  contains  the  qualifications  necessary  to  qualify  a  person  to  vote  at  school 
district  meetings.  Section  13  of  title  7  provides  that  if  any  person  offering  to 
vote  at  any  school  district  meeting  shall  be  challenged  as  unqualified  by  a  legal 


JUDICIAL  decisions:    meetings  417 

voter  of  the  district,  the  chairman,  presiding  at  such  meeting,  shall  require  the 
person  so  offering,  to  make  the  declaration  stated  in  said  section,  and  if  the  per- 
son makes  the  declaration,  he  or  she  shall  be  permitted  to  vote;  but  if  he  or  she 
refuse  to  make  the  declaration,  his  or  her  vote  shall  be  rejected. 

The  appellant  alleges  in  his  appeal  that  Bennett  and  Steves  were  ineligible 
to  hold  the  office  of  trustee  because  they  were  not  qualified  voters  in  the  district, 
and  that  they  were  elected  as  trustees  by  illegal  votes. 

The  burden  is  upon  the  appellant  to  sustain  his  appeal  by  the  preponderance 
of  proof. 

The  respondents,  Bennett  and  Steves,  are  not  required  to  show  affirmatively 
that  they  are  eligible  to  the  oBice  of  trustee,  and  that  the  persons  who  voted  for 
theui  are  qualitied  voters  of  the  district;  but  the  appellant  must  show  by  com- 
petent legal  proof  that  the  persons  alleged  by  him  not  to  be  qualified  voters,  did 
not  possess  such  qualifications  in  such  terms  as  necessarily  to  exclude  every  pre- 
sumption that  such  voters  could  not  be  qualified  under  section  12  of  title  7  of 
the  school  law. 

It  appears  that  the  appellant  challenged  but  two  persons,  and  it  appears  by 
the  proofs  that  he  did  not  insist  upon  such  challenges.  He  alleges  that  many 
other  persons  who  voted  were  not  qualified  voters ;  but  it  does  not  appear  that 
he  challenged  any  of  them.  A  party  knowing  a  person  to  be  unqualified,  and 
permitting  him  to  vote  without  challenge,  will  not  be  allowed  to  object  to  the 
proceedings  of  the  meeting  because  such  unqualified  person  participated  in  them. 

The  appellant,  in  addition  to  establishing,  as  above  stated,  that  the  persons 
chimed  by  him  were  not  qualified  voters,  must,  in  order  to  set  aside  the  election 
of  said  Bennett  and  Steves  as  trustees,  also  show  that  said  unqualified  persons 
voted  for  said  Bennett  and  Steves,  and  that  had  their  votes  been  excluded  said 
Bennett  and  Steves  would  not  have  been  elected. 

In  my  opinion  the  appellant  has  failed  to  sustain  his  appeal  herein  by  a 
preponderance  of  proof,  and  the  appeal  should  be  dismissed.. 

Appeal  dismissed. 
14 


NORMAL  SCHOOLS 

3994 

In  llie  matter  of  the  appeal  of  Abraham  M.  Hasbrouck  v.  school  district  no.  i 
of  the  town  of  New  Paltz,  in  the  county  of  Ulster. 

The  relations  between  district  no.  i,  New  Paltz,  Ulster  county,  and  the  New  Paltz  Normal 
School.  The  trustee  directed  as  to  his  duty,  under  the  provisions  of  chapter  54, 
Laws  of  1891. 

Decided  September  7,  1891 

Linson  &  Van  Buren,  attorneys  for  appellants 

Draper,  Superintendent 

Chapter  54  of  the  Laws  of  1891  provides  for  the  admission  of  all  children 
of  school  age  in  district  no.  i,  of  the  town  of  New  Paltz,  as  pupils  in  the  practice 
department  of  the  New  Paltz  State  Normal  School,  and  for  discharging  the 
indebtedness  and  winding  up  the  affairs  of  said  district.  It  forbids  any  future 
alteration  of  the  boundaries  of  the  district,  except  by  the  Legislature,  and  directs 
that  State  school  moneys  apportioned  to  the  district  in  1891  and  thereafter,  shall 
be  paid  to  the  board  of  managers  of  the  normal  school.  In  section  5  the  act 
provides  that  "  the  present  district  officers,  shall  continue  in  their  respective 
offices  and  discharge  their  duties  pertaining  thereto  until  any  and  all  present 
indebtedness  of  said  district  shall  be  licjuidated,  and  thereafter  no  school  district 
Hieeting  shall  be  held  nor  school  district  officers  chosen,  and  all  school  moneys 
remaining  to  the  credit  of  said  district  after  the  liquidation  of  said  indebtedness 
shall  be  paid  over  to  the  local  board  of  managers  of  the  State  Normal  School 
located  at  New  Paltz." 

The  reason  of  this  legislation  is  obvious.  It  was  necessary  in  order  to  pro- 
vide the  needed  practice  department  for  a  State  normal  school  which  has  been 
located  in  a  small  country  village.  Without  it  a  nonnal  school  at  that  point 
must  apparently  be  discontinued.  On  the  other  hand,  it  would  provide  a  better 
school  for  the  children  of  the  district  than  had  previously  been  afforded,  and 
that  without  any  cost  whatever  to  the  people  of  the  district.  The  arrangement 
was  mutually  advantageous.  It  is  within  the  official  knowledge  of  the  Superin- 
tendent that  the  great  majority —  probably  four-fifths  or  nine-tenths  —  of  the 
substantial  residents  of  the  district  so  regarded  it,  petitioned  for  its  enactment 
and  earnestly  desire  its  complete  execution. 

Indeed,  several  years  prior  to  the  passage  of  the  act  above  referred  to,  the 
district  at  its  annual  school  meeting  authorized  substantially  the  same  arrange- 
ment as  that  provided  in  the  act  with  the  authorities  of  the  normal  school,  and 
it  had  been  consummated  and  was  in  satisfactory  operation,  when  through  the 
failure  of  any  general  attendance  at  the  annual  meeting  in  1890,  John  Clingan, 
a  man  whose  correspondence  with  this  office  shows  him  to  be  of  very  limited 

[418] 


JUDICIAL  decisions:  normal  schools  419 

intelligence  and  education,  was  chosen  trustee  and  at  once  set  about  defying  the 
wishes  of  the  district  and  overturning  the  agreement  referred  to.  Although  the 
district  school  had  been  closed  for  several  years  he  proceeded  to  employ  teachers 
and  reopen  it.  This  rendered  legislation  necessary,  and  the  will  of  the  district 
was  manifested  so  strongly  in  its  favor  that  the  Legislature  acted  promptly  and 
emphatically  in  the  matter. 

The  duty  imposed  upon  the  district  officers  and  particularly  upon  the  trus- 
tee, by  this  act,  is  plain.  It  was  to  forthwith  wind  up  the  affairs  of  the  district, 
settle  the  debts  accrued  or  binding  upon  the  district  at  the  time  of  its  passage, 
March  10,  1891,  and  pay  any  moneys  remaining  on  hand  to  the  managers  of  the 
normal  school.  Their  offices  were  continued  only  long  enough  to  enable  this  to 
be  done. 

Instead  of  doing  this  the  trustee  has  continually  delayed  and  prevented  the 
statute  from  having  its  intended  effect.  He  has  unreasonably  delayed  the  col- 
lection of  taxes  necessary  to  the  payment  of  the  indebtedness  of  the  district. 
Then  pretending  to  move  in  the  matter  he  has  included  in  his  tax  list  sums  which 
he  had  no  right  to  collect  and  which  were  no  legal  charge  against  the  district, 
even  attempting  to  raise  money  to  pay  himself  for  services.  When  given  direc- 
tions from  this  Department  as  to  how  he  should  proceed  he  has  ignored  them. 
While  the  statute  hereinbefore  referred  to,  contemplated  that  no  more  district 
meetings  should  be  held  unless  in  the  possible  contingency  of  a  vacancy  in  the 
office  of  trustee  before  the  affairs  of  the  district  should  be  closed  up,  Clingan 
and  a  few  adherents  assumed  to  hold  an  annual  meeting  August  4,  1891,  at  which 
he  was  reelected  and  other  officers  were  chosen.  It  was  also  assumed  at  this 
meeting  that  the  district  school  was  to  be  continued.  Taxes  were  pretended  to 
be  authorized  to  pay  teachers'  wages  for  the  next  year,  and  other  things  were 
done  indicating  a  clear  intention  to  ignore  and  overthrow  the  legislative  act. 

From  the  proceedings  of  this  pretended  school  meeting  this  appeal  is  taken. 
The  papers  were  served  upon  the  trustee  August  12th,  and  although  the  rules 
required  him  to  answer  within  ten  days,  he  has  made  no  answer.  In  acting  upon 
the  matter  I  have  felt  justified  in  placing  upon  the  record  a  somewhat  full  state- 
ment of  the  whole  matter,  as  not  only  set  forth  in  the  appellant's  papers  but 
derived  from  my  official  knowledge  of  the  circumstances  as  they  have  transpired. 

There  is  no  argumentative  reasoning  necessary  in  the  premises.  A  mere 
statement  of  the  case  carries  its  own  conclusion.  The  trustee  was  bound,  at 
once  upon  the  passage  of  the  act,  to  proceed  to  determine  the  amount  of  the 
legal  indebtedness  of  the  district  and  to  raise  the  money,  by  legal  process,  for 
discharging  the  same.  He  had  no  power  to  create  any  new  indebtedness.  No 
meetings  were  to  be  held  and  no  new  officers  were  to  be  chosen.  His  unlawful 
course  has  been  tolerated  longer  than  it  would  have  been  if  there  had  not  been 
uncertainty  as  to  whether  it  was  due  to  viciousness  more  than  ignorance,  and  if 
there  had  not  been  a  desire  to  guide  and  aid  him  if  ignorance  was  the  cause  of 
his  strange  action.  It  can  be  tolerated  no  longer  on  any  ground.  He  must  forth- 
Vvith  proceed  to  execute  the  provisions  of  the  statute  or  be  removed  from  office, 
that  one  mav  be  named  who  can  and  will. 


420  Tin-:  im\i:ksity  of  thk  statk  of  new  york 

The  appeal  is  sustained.  The  proceedings  of  the  pretended  school  meeting 
held  in  the  district  August  4,  i8yi,  and  all  acts  in  pursuance  thereof  are  declared 
to  be  unlawful,  void  and  of  no  effect.  The  trustee  is  ordered  to  take  no  steps 
looking  to  the  continued  maintenance  of  a  district  school  in  the  district  and  to 
enter  into  no  agreement  entailing  any  obligation  upon  the  district.  He  will 
forthwith  proceed  to  determine  the  amount  of  the  indebtedness  of  the  district 
due  or  incurred  upon  the  10th  day  of  March  1891,  and  to  apply  any  moneys  now 
standing  to  the  credit  of  the  district  to  the  payment  of  the  same,  so  far  as  the 
same  may  be  legally  applicable  thereto.  If  there  are  not  sufficient  moneys  on 
liand  for  that  purpose  he  will  forthwith  issue  his  tax  list  and  warrant  for  the 
collection  of  the  deficiency  and  as  soon  as  collected  he  will  fully  and  comi)letely 
pay  antl  discharge  the  indebtedness  of  the  district.  The  said  John  Clingan. 
trustee,  will  also  show  before  me  at  the  Department  of  Public  Instruction  at  the 
Capitol  in  the  city  of  Albany,  on  Tuesday,  September  29,  1891,  at  10  o'clock  in 
the  forenoon  of  said  day  what  proceedings  he  has  taken  in  fulfillment  of  the 
terms  of  this  order  and  if  it  shall  then  appear  that  he  has  not  proceeded  promptly, 
intelligently  and  in  good  faith  to  obey  the  same,  he  will  show  cause  at  said  time 
and  place  why  he  should  not  be  removed  from  the  office  of  trustee.  The  ai)pel- 
lant  or  his  attorneys  may  also  attend  at  said  time. 


3998 

In  the  matter  of  the  appeal  of  Abraham  M.  Hasbrouck  v.  John  Clingan.  trustee 

of  school  district  no.  i,  in  the  town  of  New  Paltz.  in  the  county  of  Ulster. 

The  relations  of  district  no.  i,  New  Paltz,  Ulster  county,  and  the  New  Paltz  normal  school. 
Wages  of  teachers  employed  by  trustee  in  disregard  of  agreement  between  district 
and  normal  school  prior  to  passage  of  chapter  54,  Laws  of  1891.  Held,  to  be  a  legal 
charge  against  the  district. 

Decided  September  11,  1891 

Draper,  Superintendent 

On  the  19th  day  of  December  1890,  this  appeal  was  taken  for  the  purpose 
of  testing  the  right  of  the  respondent  to  employ  teachers  and  continue  the  opera- 
tion of  a  public  school  under  his  auspices  in  the  district  above  named.  The 
ground  upon  which  the  appellant  proceeds  is  that  at  the  annual  school  meeting 
held  in  the  district,  in  August  1887,  it  was  determined  to  pass  the  control  of  the 
district  school  over  to  the  managers  of  the  State  normal  and  training  school 
located  in  the  district.  This  proposition  was  accepted  by  said  managers  who. 
with  the  approval  of  the  State  Superintendent  of  Public  Instruction,  agreed  to 
assume  charge  of  the  school  and  furnish  all  needed  instruction  therein.  The 
district  was  also  to  pay  to  the  State  normal  school  the  sum  of  $800  annually, 
including  in  said  sum  the  amount  of  State  school  moneys  apportioned  to  said 
district.  The  arrangement  here  outlined  was  entered  upon;  the  trustee  relin- 
(juishing  his  authority  and  control  over  the  school  and  the  managers  of  the  nor- 
mal  school    assuming   the   same.      The   arrangement   was    considered    mutually 


JUDICIAL   decisions:    NORiMAL    SCHOOLS  421 

advantageous,  because  it  furnished  a  practice  department  for  the  normal  school, 
without  which  it  was  impossible  for  the  normal  school  to  proceed,  and  it  supplied 
local  school  facilities  to  the  district  better  than  it  had  previously  enjoyed.  At 
the  annual  school  meetings  in  1888,  1889  and  1890  the  arrangement  was  ratified 
and  continued  by  the  district  meetings.  From  the  time  the  agreement  was  made  in 
18S7  up  to  the  close  of  the  school  year  of  1889  and  1890,  the  managers  of  the 
normal  school  conducted  a  school  in  the  schoolhouse  in  said  district,  pursuant 
to  said  agreement.  The  agreement  referred  to  was  ratified  and  continued  by  a 
unanimous  vote  at  the  school  miceting  held  xA-ugust  5,  1890.  Upon  the  day  fol- 
lowing said  school  meeting  the  respondent,  John  Clingan,  was  elected  trustee  of 
the  district.  In  disregard  of  the  action  of  the  several  district  meetings  referred 
to,  the  appellant  alleges  that  the  said  Clingan  proceeded  to  employ  teachers  and 
incur  other  expenses  for  the  maintenance  of  said  school,  and  on  or  about  the 
28tJi  day  of  November  1890,  issued  his  tax  list  and  warrant  for  the  collection  of 
said  expenses. 

■  From  this  tax  list  and  warrant  this  appeal  is  taken.  The  respondent  served 
his  answer  to  said  appeal  on  the  13th  day  of  January  1891.  He  admits  the 
statements  of  the  appellant  to  be  true  in  all  essential  particulars,  but  claims  that 
the  agreement  made  between  the  district  and  the  managers  of  the  normal  school 
was  not  authorized  by  law  and  is  therefore  void ;  and  that  his  contracts  in  the 
employment  of  teachers  for  said  district  are  valid  and  binding  thereon. 

Chapter  54  of  the  Laws  of  1891,  has  largely  disposed  of  the  matter.  As 
has  been  stated  by  me  in  another  appeal  relating  to  the  same  subject  and  decided 
upon  the  /th  day  of  September  1891,  said  chapter  54  provides  that  all  pupils  of 
school  age  in  said  district  shall  be  eligible  to  the  privileges  of  the  practice  depart- 
ment of  said  State  normal  school,  free  of  tuition ;  that  the  local  board  of  man- 
agers of  the  normal  school  shall  make  a  statistical  report  to  the  school  commis- 
sioner in  whose  school  commissioner  district  said  school  district  is  located ;  and 
that  school  moneys  shall  be  apportioned  to  said  school  district  upon  the  basis  of 
said  statistical  report,  and  paid  to  the  managers  of  said  normal  school;  that  the 
boundaries  of  said  district  shall  not  thereafter  be  altered  except  by  act  of  the 
Legislature ;  that  the  present  district  officers  of  said  district  shall  continue 
for  the  purpose  of  liquidating  the  indebtedness  which  existed  or  had  been 
incurred  at  the  time  of  the  passage  of  said  act,  March  10,  189 1 ;  and  that  there- 
after no  district  meetings  should  be  held  and  no  officers  chosen  in  said  district; 
and  that  all  moneys  remaining  to  the  credit  of  the  district  after  the  liquidation 
of  said  indebtedness  shall  be  paid  over  to  the  board  of  managers  of  said  normal 
school.  The  effect  of  this  act  is  to  take  the  management  and  control  of  the 
affairs  of  the  district,  as  well  as  the  custody  of  the  property  of  the  district,  from 
the  trustee  thereof  and  vest  the  same  in  the  managers  of  the  State  normal  school. 
The  time  has  now  passed  within  which  the  trustee  of  said  district  could,  in  any 
event,  have  properly  been  in  possession  of  district  property  and  could  have 
"ftroperly  continued  to  maintain  a  district  school  therein,  because  any  agreement 
for  the  employment  of  teachers  entered  into  prior  to  the  passage  of  said  act, 
would  by  operation  of  law  have  by  this  time  expired  and  terminated. 


422  Tin-:    L'NUKKSITV    OF    TllK    STATI-;    OF    X  liW     NOKK 

The  main  (|iK-sti()ii  raised  in  lliis  ai)i)cal,  however,  remains  to  be  determined, 
and  that  is.  Wiiether  the  aj^neenienls  between  the  (Hstrict  and  the  normal  school 
prior  to  the  passai^e  of  the  statute  above  referred  to,  were  valid  and  binding 
upon  the  district  and  its  trustee;  or  in  other  words,  whether  the  act  of  the  trus- 
tee in  employing  teachers  and  in  otherwise  incurring  expense  for  the  mainte- 
nance of  a  district  school,  during  the  school  year  of  1890  and  1891  in  disregard 
of  said  agreement,  was  binding  upon  the  district. 

The  law  of  tliis  State  jealously  guards  the  authority  of  trustees  touching 
the  employment  of  teachers.  So  careful  is  it  in  this  particular,  that  a  trustee 
may  employ  any  duly  licensed  teacher,  regardless  of  the  wishes  of  his  district, 
and  he  may  also  agree  with  said  teacher  as  to  the  amount  of  compensation  for 
his  services,  regardless  of  the  wishes  of  the  district.  While  it  is  apparent  that 
the  trustee  in  this  case  pursued  a  course  which  the  district  meeting  in  four  suc- 
cessive years  had  determined  he  should  not  pursue ;  while  in  the  employment 
of  teachers  and  the  opening  of  the  school  he  overthrew  an  arrangement  which 
was  actually  in  operation  and  satisfactory  to  the  people  of  the  district,  I  am 
nevertheless  of  the  oi)inion,  that  he  had  legal  authority  for  so  doing,  and  that 
his  act  must  be  upheld.  It  therefore  follows  that  the  district  must  pay  for  the 
services  of  the  teachers  employed  by  him,  prior  to  the  passage  of  chapter  54  of 
the  Laws  of  1891. 

For  the  purpose  of  promoting  the  speedy  settlement  of  the  affairs  of  said 
district,  it  is  determined  : 

First,  that  the  authority  to  maintain  a  school  in  said  district,  or  to  make  con- 
tracts relating  thereto  and  the  custody  of  the  property  thereof,  has  passed  from 
the  trustee  and  become  vested  in  the  managers  of  the  normal  school. 

Second,  that  the  only  remaining  duty  of  the  trustee  is  to  determine  the 
indebtedness  existing  or  incurred  on  the  loth  day  of  March  1891,  and  to  raise 
the  money  by  tax  and  pay  the  same. 

Third,  that  in  said  indebtedness  the  trustee  may  include  the  wages  of 
teachers  and  necessary  expenses  incurred  by  him  prior  to  March  10,  1891. 

Fourth,  that  public  moneys  apportioned  to  the  district  and  paid  to  the  man- 
agers of  the  normal  school  under  chapter  54,  Laws  of  1891,  can  not  be  used  to 
pay  any  portion  01  the  wages  of  teachers  or  other  indebtedness  of  said  district. 

Without  passing  upon  the  several  items  included  in  the  tax  list  appealed 
from,  or  considering  the  precise  form  thereof,  it  is  manifest  that  the  same  can 
not  include  an  amount  sufficient  to  discharge  all  of  the  indebtedness  of  said  dis- 
trict. If  It  was  to  be  upheld,  another  would  become  necessary  and  at  once. 
There  should  not  be  two  outstanding  tax  lists  at  the  same  time. 

The  appeal  is  therefore  dismissed  so  far  as  the  validity  of  the  employment 
of  teachers  or  the  payment  of  their  wages  may  be  concerned,  but  the  trustee  is 
directed  to  withdraw  the  tax  list  appealed  from,  restore  any  moneys  collected 
thereunder  to  the  persons  from  whom  collected,  cancel  and  destroy  the  same  and 
issue  a  new  tax  list  and  warrant,  as  directed  by  my  order  of  September  7,  1891, 
which  order  will,  in  all  particulars,  continue  to  have  full  force  and  effect. 


OFFICERS 

3958 

In  the  matter  of  the  appeal  of  David  S.  Kirkpatrick  and  others  v.  Melvin  G. 
Russell  as  trustee  of  school  district  no.  20,  town  of  Queensbury,  county  of 
Warren. 

A  district  trustee  assumed  to  appoint  a  district  collector  in  place  of  the  one  legally  elected, 
declaring  the  office  vacant  without  requiring  the  elected  officer  to  give  bonds ;  held, 
illegal   and   of   no   effect   as   no   vacancy   existed. 

Grounds  of  complaint  stated  in  an  indefinite  manner  will  not  be  considered. 

Decided  February  6,  1891 

Draper,  Superintendent 

The  above-named  appellant,  David  S.  Kirkpatrick,  was  elected  district  col- 
lector at  the  annual  school  meeting  held  in  district  no.  20,  town  of  Queensbury, 
county  of  Warren,  August  5,  1890.  Without  requiring  said  collector  to  file  a 
bond,  the  respondent,  the  trustee,  has  assumed  to  declare  the  office  of  collector 
vacant,  and  appointed  one  Archibald  Tubbs  to  that  position,  thereupon  issuing 
to  said  Tubbs  a  trustee's  warrant  and  tax  list,  and  said  Tubbs  has  assumed  to 
enforce  the  same.  Grounds  are  also  alleged  by  appellants  relative  to  the  illegal 
assessment  of  property  by  the  respondent,  as  trustee,  but  in  an  indefinite  man- 
ner, and  it  does  not  appear  that  appellants  are  in  any  manner  affected  or  injured 
by  such  action. 

The  enforcement  of  the  tax  list  and  warrant  has  been  enjoined  pending  the 
determination  of  this  appeal. 

No  answer  has  been  interposed,  and  upon  the  only  allegation  which  is  pre- 
sented with  clearness,  I  must  find  for  the  appellants.  David  S.  Kirkpatrick  is 
the  legal  collector  of  the  district.  The  appointment  of  Archibald  Tubbs  was 
void,  as  no  vacancy  existed  in  the  office  at  the  time. 

The  trustee  is  hereby  directed  to  withdraw  the  tax  list  and  warrant  which 
was  placed  in  the  hands  of  Archibald  Tubbs,  and  after  correcting  all  errors 
therein,  to  deliver  the  same  to  the  district  collector  for  enforcement. 

The  appeal  is  sustained  as  above  indicated,  and  the  stay  granted  on  this 
appeal,  revoked. 


4024 
In  the  matter  of  the  appeal  of  Peter  Weatherwax  v.  Royal  Harmon,,  trustee  of 

school  district  no.  9  of  the  town  of  Half  Moon,  county  of  Saratoga. 
The  trustee  is  the  officer  to  pass  upon  the  sufficiency  of  a  bond  of  the  collector,  and  if  satis- 
fied therewith,  to  approve  the  same.  The  district  collector  having  neglected  to  furnish 
a  satisfactory  bond,  his  refusal  was  in  effect  a  vacation  of  the  office  to  which  he  was 
elected,  and  the  trustee  had  authority  thereafter  to  appoint  a  qualified  elector  to  fill  the 
vacancy. 
Decided  November  20,  1891  [423] 


4-4  THE   UNUIlKSrrV    OV   THK   state   UK    NEW    YORK 

Draper,  Su/'criittcmicnt 

The  above-named  appellant  was,  at  the  annual  school  meeting  held  August 
4,  1S91,  duly  elected  collector  of  said  district.  Subsequently,  said  collector  was 
requested  to  execute  a  bond  for  the  faithful  performance  of  the  duties  of  such 
collector;  that  soon  thereafter  a  bond  was  executed  by  the  collector  with  one 
Thomas  Lattimer  as  surety.  This  bond  the  trustees  refused  to  approve  of,  and 
returned  the  same  to  the  collector  with  the  request  that  he  secure  anoiher  per- 
son to  sijjjn  as  surety.  This  the  collector  declined  to  do,  whereupon  and  on 
September  2i<,  iS'yi,  the  trustee  declared  the  office  of  collector  vacant  because 
of  the  failure  of  the  collector  to  file  a  satisfactory  bond,  and  appointed  another 
person  district  collector,  who  has  qualified  and  entered  upon  the  performance 
of  his  duty.  The  appellant  takes  this  appeal  from  the  action  of  the  trustee,  and 
insists  that  the  said  Thomas  Lattimer  was  a  sufficient  surety  upon  the  bond. 
A  number  of  affidavits  are  presented  by  the  respective  parties  bearing  upon  the 
question  of  the  sufficiency  of  the  surety.  The  affidavit  of  the  person  offered 
as  surety  is  very  indefinite.  He  admits  therein,  as  claimed  by  the  respondent, 
that  the  farm  which  he  owns  and  is  assessed  for  only  $400,  is  incumbered  by  a 
mortgage  of  $500  as  appears  by  the  county  records,  but  he  insists  that  a  part  of 
this,  he  does  not  state  how  much,  has  been  paid.  He  also  claims  that  he  has 
money  deposited-  in  a  bank  with  which  to  meet  any  obligation  which  became  due 
on  said  mortgage  the  coming  spring.  In  this  instance  he  fails  to  state  the  amount. 
In  support  of  the  appeal  a  number  of  affidavits  are  presented,  of  residents  of 
the  district,  who  swear  that,  in  their  judgment,  the  surety  offered  was  sufficient. 
By  the  law,  the  trustee  is  the  ofticer  to  pass  upon  the  sufficiency  of  a  bond,  and 
if  satisfied  therewith,  to  approve  the  same.  From  the  evidence  submitted  I  am 
unable  to  find  that  the  trustee  did  not  act  with  judgment  and  from  propcr 
motives. 

The  district  collector  having  neglected  to  furnish  a  satisfactory  bond,  his 
refu.sal  was  in  effect  a  vacation  of  the  office  to  which  he  was  elected,  and  the 
trustee  had  authority  thereupon  to  appoint  a  qualified  elector  to  fill  the  vacancy. 

Finding  the  facts  as  above  stated,  I  overrule  the  appeal. 


Collectors  are  the  proper  custodians  of  district  moneys,  and  they  need  not  pay  them  over  to 
trustees.  They  should  pay  only  on  the  written  order  of  one  trustee,  or  a  majority  of  the 
trustees,  which  order  should  state  the  purpose  for  which  the  money  is  to  be  paid. 

Decided  April  23,  1866 

Rice,  Siipcriiitcudcnt 

Collectors  are  now  the  proper  custodians  of  all  the  district  moneys  collected 
by  tax,  and  it  is  not  their  duty  to  pay  over  such  moneys  to  the  trustees.  They 
are  to  pay  it  out  only  on  the  written  order  of  the  trustee,  or  of  a  majority  of 
the  trustees,  which  order  must  specify  for  what  purpose  the  money  is  to  be 
paid. 


JUDICIAL    DECISIONS  :    OFFICERS  425 

Under  no  circumstances  is  a  collector  authorized  to  sell  real  estate.  If  he 
can  not  levy  on  enough  personal  property  at  one  time  to  satisfy  the  warrant 
which  he  holds,  he  can  keep  on  levying  till  he  does  obtain  property  enough  to 
pay  the  tax. 


Where  property  in  the  possession  of   public  officers  has  been  stolen  or  destroyed  by  fire, 

without  negligence  on  their  part,  they  are  not  bound  to  make  good  the  loss. 
Decided  April   17,   1855 

Smith,  Acting  Superintendent 

It  has  been  settled  by  the  Supreme  Court,  in  the  cases  of  Supervisors  of 
Albany  County  v.  Dorr  (25  Wendell  440),  and  Browning  v.  Hanford,  sheriflf 
(5  Hill  558),  that  a  public  officer,  in  whose  possession  property  has  been 
destroyed  by  fire  or  for  want  of  care,  or  from  whom  money  has  been  stolen 
without  negligence  or  any  default  on  his  part,  is  not  bound  to  make  good  the  loss. 


r.OND 

Trustees  must  require  a  bond  of  collector  for  the  faithful  discharge  of  his  duties  etc., 
before  collector  receives  first  warrant  for  collection  of  district  tax.  If  they  neglect  such 
requirement,  said  trustees  are  liable  to  district  for  any  loss  or  damage  resulting  from 
their  neglect. 

Decided  December  28,  1865 

Rice,  Superintendent 

The  law  makes  it  the  duty  of  the  trustees  to  require  the  collector,  before 
receiving-  the  first  warrant  for  the  collection  of  a  district  tax.  to  give  bonds 
for  the  faithful  discharge  of  his  duties,  and  accounting  for  the  moneys  received 
by  him  by  virtue  of  such  warrant.  A  failure  to  comply  with  this  direct  require- 
ment of  the  law  on  the  part  of  the  trustees  would,  in  my  opinion,  constitute 
such  a  case  of  nonfeasance  as  would  render  the  trustees  liable  to  the  district 
for  any  loss  or  damage  resulting  from  their  neglect. 


The  acts  of  trustees,  de  facto  holding  office  under  color  of  an  election,  subsequently  declared 
void  and  set  aside,  are  valid  and  binding  upon  their  successors. 
Decided  June  25,  1841 

Spencer,  Superintendent 

Samuel  S.  Lord  and  John  S.  Panlow  were  elected  trustees  of  district  no.  6. 
Lincklaen,  at  a  meeting  which  was.  on  appeal,  decided  to  be  illegal,  and  the 
proceedings  thereat  void. 


426  THE    UXIVERSITY    OF   THE   STATE    OF   NEW   YORK 

Before  the  decision,  however,  the  trustees  had  contracted  to  build  a  school- 
house,  in  accordance  with  the  proceedings  of  the  meeting  at  which  they  were 
elected,  and  had  hired  a  teacher  for  the  winter  school,  and  agreed  to  pay  him 
$24  of  the  public  money,  and  had  levied  and  partly  collected  a  tax  of  $50  voted 
by  said  meeting  toward  building  the  schoolhouse. 

Their  successors  refused  to  fulfil  their  contracts,  and  they  appealed. 

Held,  that,  until  the  decision  declaring  void  the  proceedings  of  the  meeting 
that  elected  them,  they  were  to  all  intents  and  purposes  the  legal  officers  of  the 
district,  so  far  as  the  public  and  third  persons  were  concerned.  They  acted  in 
their  official  and  not  in  their  individual  capacity,  for  the  district  and  not  for 
themselves.  The  collection  of  the  tax  assessed  by  them  could  not  be  resisted ; 
all  their  contracts  made  within  their  official  jurisdiction  were  legal  and  binding. 
They  were  competent  to  transact  all  the  business  of  the  district.  Their  suc- 
cessors, under  the  decision,  succeeded,  not  merely  to  all  their  rights,  but  also  to 
all  their  legal  liabilities,  and  were  bound  to  execute  all  their  contracts  entered  into 
while  acting  under  color  of  a  legal  election. 


The  trustees  of  school  district  no.  i  in  the  town  of  Middlcfiekl  v.  the  commis- 
missioners  of  common  schools  of  said  town. 

The  acts  of  an  officer  de  facto  are  valid,  so  far  as  the  public  and  third  persons  are  concerned. 
Decided  October  3,  1826 

J'l^gg'  Superintendent 

This  was  an  appeal  from  the  trustees  of  school  district  no.  i  in  the  town 
of  Middlefield,  from  the  proceedings  of  the  commissioners  of  common  schools 
of  said  town  in  setting  oflf  certain  inhabitants  to  other  districts.  The  ground 
of  objection  taken  by  the  appellants  was  that  one  of  the  two  commissioners  by 
whom  the  alteration  was  made,  did  not  file  his  acceptance  of  the  office  of  com- 
missioner until  after  the  expiration  of  fifteen  days  from  his  election  and  until 
after  the  performance  of  the  official  act  from  which  the  appeal  was  brought. 

The  principle  involved  in  this  application  has  been  decided  by  the  Supreme 
Court  in  the  case  of  the  People  v.  Collins,  7th  Johnson's  Reports,  page  549. 
In  that  case  the  court  say,  "  The  allegation  is  not  material  that  the  commis- 
sioners had  not  caused  their  oath  of  office  to  be  filed  in  the  town  clerk's  office. 
If  the  commissioners  of  highways  acted  without  taking  the  oath  required  by 
law,  they  were  liable  to  a  penalty;  or  the  town  upon  their  default,  might  have 
proceeded  to  a  new  choice  of  commissioners.  But  if  the  town  did  not,  the  sub- 
sequent acts  of  the  commissioners  as  such,  were  valid  as  far  as  the  rights  of 
third  persons  and  of  the  public  were  concerned  in  them." 


JUDICIAL  decisions:  officers  427 

The  collector  of  a  school  district  is  answerable  for  moneys  lost  to  the  district  by  his  neglect, 
though  he  may  not  have  given  a  bond  to  the  trustees. 

If  the  term  of  service  of  the  trustees  and  collector  has  expired,  and  a  warrant  for  the  collec- 
tion of  a  school  bill  has  run  out  in  the  hands  of  the  latter,  the  successors  of  such  trustees 
must  renew  the  warrant  and  direct  it  to  the  successor  of  such  collector. 

Decided  September  12,  1836 

■  Dix,  Superintendent 

If  by  the  neglect  of  a  collector,  moneys  which  might  have  been  collected 
by  him  within  the  time  limited,  are  lost  to  the  district,  he  is  liable  for  the  amount, 
whether  he  has  given  a  bond  or  not  to  the  trustees.  The  bond  is  an  additional 
security;  but  if  it  is  not  required  of  him,  he  is  not  released  from  any  obligation 
which  the  law  inpposes  on  him.  The  trustees  may  require  a  bond  of  the  collector 
or  not,  as  they  please.  If  they  do,  they  may,  in  case  of  his  delinquency,  look  to 
his  sureties :  If  they  do  not,  they  must  look  to  him  for  an  indemnity  against 
losses  sustained  by  the  district. 

If  the  term  of  service  of  both  trustees  and  collector  has  expired,  and  a 
warrant  for  the  collection  of  a  school  bill  has  run  out  in  the  hands  of  the  latter, 
the  successors  in  office  of  such  trustees  must  renew  the  warrant,  and  deliver 
it  to  the  successor  of  the  collector ;  but  the  collector  in  whose  hands  the  warrant 
runs  out  is  answerable  if  there  is  any  loss  through  his  neglect. 


4455 
In  the  matter  of  the  appeal  of  Louis  Potter  v.  John  G.  Pavek,  Edward  P.  Clonan 
and  Noah  Brooks,  trustees,  school  district  no.  4,  town  of  Highlands,  Orange 
county. 

Neither  the  trustees  of  a  school  district  nor  the  qualified  voters  therein  have  the  lawful 
authority  to  assume  or  to  decide  that  a  school  district  officer  who  has  been  elected  by 
the  form  or  color  of  an  election  is  not  eligible  to  hold  the  office  to  which  he  was  elected. 
Where  a  person  was  elected  collector  of  a  school  district  and  accepted  the  office  a 
vacancy  in  such  office  can  not  arise  except  by  an  order  of  the  State  Superintendent 
declaring  the  person  ineligible  to  hold  the  office  or  that  he  was  not  duly  and  legally 
elected,  or  where  such  person  files  a  written  resignation  of  such  office.  Any  appoint- 
ment by  the  trustees  of  a  school  district  to  supply  a  vacancy  must  be  in  writing  and 
filed  with  the  clerk  of  the  district. 

Decided  June  8,  1896 

Skinner,  Superintendent 

This  is  an  appeal  by  the  appellant  in  the  above-entitled  matter  from  the 
action  of  the  respondents,  Pavek  and  Clonan,  two  of  the  trustees  of  school  dis- 
trict no.  4,  town  of  Highlands,  Orange  county,  in  appointing  one  John  Weyant 
as  collector  of  said  district,  the  appellant  alleging  in  his  appeal  that  he  was  elected 
collector  of  said  district  at  the  annual  school  meeting  held  therein,  on  August  6, 
'18.95,  ^"d  that  he  duly  accepted  the  office  and  has  been  ready  and  willing  to  file 
his  bond  and  perform  the  duties  thereof,  and  has  never  resigned  said  office. 

Trustees  Pavek  and  Clonan  have  filed  their  answer  to  said  appeal. 


42S  THE   UXIVKRSITV    OF   THE    STATE    OF    NEW    YORK 

It  appears  from  pleadings  and  proofs  filed  herein  that  at  the  annual  school 
meeting,  held  in  said  district  no.  4.  on  August  6,  1895,  the  appellant  was  nom- 
inated by  the  respondent,  Clonan,  for  the  office  of  collector,  and  the  appellant 
being  present  at  said  meeting  stated  that  he  did  not  want  the  office,  but  being 
persuaded  by  said  Clonan,  the  appellant  consented  to  serve,  and  was  thereupon 
elected  at  said  meeting  collector  of  said  district;  that  a  special  meeting  of  said 
district  was  held  on  August  31,  1895,  ^"<^  after  the  business  of  the  meeting  had 
been  transacted,  one  Laurence  Gibney  stated  in  substance  that  the  district  had 
no  collector  as  the  one  elected  at  the  annual  meeting  was  ineligible,  not  being 
able  to  read  and  write,  whereupon  the  appellant  replied  in  substance  that,  at 
the  animal  meeting  he  stated  he  did  not  want  the  office,  but  the  meeting  put 
it  on  him  and  he  accepted;  that  he  did  not  want  the  office  and  to  appoint  their 
man.  that  he  wanted  to  settle  with  the  district;  that  on  September  24,  1895,  ^'^^^^ 
Pavck  and  Clonan,  without  any  notice  to  the  appellant,  appointed  John  Weyant 
collector  of  said  district ;  that  on  or  about  March  4,  1896,  said  trustees  delivered 
to  said  Weyant  the  tax  list  of  the  district,  and  on  or  about  March  18,  1896,  the 
appellant  brought  his  appeal  herein. 

The  principal  contention  in  the  affidavits  filed  are  as  to  what  was  said  by 
the  appellant  at  the  time  of  the  special  school  meeting  on  August  31,  1895,  after 
the  statement  made  by  Gibney.  It  is  not  material  as  to  what  the  appellant  did 
say.  The  meeting  was  a  special  meeting  and  no  business  could  be  legally  done 
except  that  specified  in  the  notice.  The  meeting  had  no  legal  authority  to 
accept  the  resignation  of  the  appellant  or  to  elect  his  successor.  The  appellant 
was  duly  elected  collector  of  the  district  at  the  annual  school  meeting  on  August 
6,  189^1,  and  accejited  the  office,  and  until  he  made  and  delivered  his  resignation 
in  writing  to  the  trustees  of  the  district,  and  such  resignation  was  accepted  by 
them  and  filed  with  the  district  clerk,  or  he  failed  to  make  and  deliver,  when 
notified,  his  bond  as  collector,  as  required  by  the  school  law,  or  he  was  removed' 
from  office  by  the  State  Superintendent  of  Public  Instruction,  he  continued  to 
be  collector  of  the  district,  no  matter  what  he  might  have  stated  orally  subse- 
quent to  the  meeting  ai  which  he  was  elected  about  not  desiring  the  oflice,  or 
that  he  wished  to  resign,  etc.,  etc. 

It  is  not  claimed  that  the  appellant  ever  made  and  delivered  to  said  trustees 
his  resignation  in  writing,  of  the  office  of  collector  nor  that  he  was  ever  reciuested 
by  the  trustees  to  file  a  bond  as  such  collector,  and  neglected  or  refused  to  file 
said  bond,  or  that  he  has  been  removed  from  office  as  collector  by  any  order  or 
decision  of  the  State  Superintendent  of  Public  Instruction.  Hence  the  appellant 
is  still  the  collector  of  said  district,  and  any  action  on  the  part  of  the  trustees 
of  said  district,  assuming  or  deciding  that  the  appellant  had  resigned  as  collector, 
or  that  there  was  a  vacancy  in  the  office  of  collector  in  said  district,  or  in  filling 
such  alleged  vacancy  in  said  oflice  was,  and  were,  without  authority  of  law  and 
void. 

From  the  statements  made  by  Gibney  at  the  time  of  the  special  meeting  of 
Augu.st  31,  1896,  it  would  seem  that  it  was  claimed  that  the  appellant  could 
not   read  and   write,  and  was.  therefore,  ineligible  to  hold  any  school   district 


JUDICIAL  decisions:  officers  429 

office.  Assuming  for  the  purpose  of  argument  that  the  appellant  could  not  read 
and  write,  under  the  school  law,  the  State  Superintendent  of  PuIjUc  Instruction 
is  the  only  person  who  can  determine  the  question  of  the  eligiljilily  of  the  appel- 
lant to  hold  said  office.  The  question  of  such  eligibility  can  be  raised  by  an 
appeal  from  the  election  of  appellant  as  such  collector,  and  the  appellant  having 
been  duly  elected,  can  not  be  removed  from  such  office  except  by  an  order  of  the 
State  Superintendent.  The  voters  of  said  district,  or  the  trustees  thereof,  have 
no  authority  to  decide  or  act  upon  that  question. 

It  also  appears  that  had  there  been  a  vacancy  in  the  office  of  collector,  and 
had  the  trustees  lawful  authority  to  fill  it,  no  appointment  to  fill  such  vacancy 
has  ever  been  filed  in  the  office  of  the  clerk  of  said  district,  as  required  by  the 
school  law. 

Under  tlie  school  law,  the  trustees  of  said  school  district  composed  a  board, 
and  every  power  committed  to  said  trustees  by  the  school  law  must  be  exercised 
by  the  board.  The  board  must  meet  for  the  transaction  of  business  in  accord- 
ance with  notice  of  time  and  place,  and  such  notice  should  not  be  less  than  one 
of  twenty-four  hours.  Said  trustees  should  notify  the  district  clerk  of  every 
meeting  of  the  board,  and  the  clerk  should  be  present  and  keep  a  record  of  the 
proceedings  of  said  meetings  in  a  book  provided  for  that  purpose.  It  would 
seem  that  the  trustees  of  said  district  have  not  complied  with  said  provisions 
of  law.  Trustee  Brooks  alleges  in  his  affidavit  that  he  was  not  notified  or  advised 
of  any  meeting  of  said  trustees  to  take  action  on  the  alleged  resignation  of  the 
appellant  as  collector,  or  the  appointment  of  Weyant  as  a  successor  to  appellant 
as  collector,  or  to  transact  any  other  business  since  August  6,  1895. 

The  appeal  herein  is  sustained. 

It  is  ordered,  That  the  action  and  proceedings  had  and  taken  by  the  respond- 
ents herein,  Messrs  Pavek  and  Clonan,  as  trustees  of  said  district  no.  4,  town 
of  Highlands,  Orange  county,  on  September  24,  1895,  in  appointing  one  John 
Weyant  as  collector  of  said  school  district  to  fill  an  alleged  vacancy  in  said 
office  by  the  alleged  or  assumed  resignation  of  the  appellant  herein,  Louis  Potter, 
as  such  collector,  be,  and  the  same  hereby  are,  vacated  and  set  aside  as  illegal 
and  void. 

It  is  further  ordered,  That  said  trustees  of  said  school  district  forthwith 
demand  of  said  John  Weyant  the  tax  list  and  warrant  issued  to  him  by  them; 
and  that  the  same  be  i:-sued  and  delivered  by  them  to  the  appellant,  Louis  Potter, 
as  collector  of  said  district. 


3954 

In  the  matter  of  the  application  for  the  removal  of  William  A.  Burnham  from 
the  office  of  the  president  of  the  board  of  educaiion  of  union  free  school 
->     district  no.  2,  town  of  Greenburgh,  county  of  Westchester. 

A  manufacturing  corporation  in  which  a  member  of  a  board  of  education  was  a  stock- 
holder and  also  an  officer,  entered  into  a  contract  with  the  district.  The  officer's  removal 
from  the  office  of  trustee  is  sought  because  of  the  contract.     Held,  that  it  is  doubtful 


430  THE    UNIVERSITY    OF   THE    STATE   OF    NEW    YORK 

if  the  case  at  l)ar  is  one  wiiicli  comes  within  the  provisions  of  section  473  of  the  Penal 

Code,    which    forliids    any    school    ofticcr    from    becoming    voluitlarily    interested    in    a 

contract  etc. 
Appeals  not  promptly  taken,  except  when  tlie  delay  may  for  satisfactory  reasons  be  excused, 

will  not  be  entertained. 
Decided  January  23,  i8yi 

Charles  K.  Davidson,  attorney  for  applicant 
L.  T.  Yale,  attorney  for  respondent 

Draper,  Siipcrinlciidoit 

William  A.  Bnrnliain  is  president  of  tlie  board  of  education  in  the  district 
above  named,  and  treasurer  of,  and  a  stockholder  in  a  corporation  known  as 
"  Lord's  Horticultural  Manufacturintj  Company."  This  being  so,  the  board  of 
education  in  the  year  1889,  entered  into  a  contract  with  said  corporation  for 
heating  apparatus  in  one  of  the  schoolhouses  under  its  charge,  for  the  sum  of 
$500.  The  apparatus  was  supplied  and  paid  for.  The  petitioners  now  think 
that  the  relations  of  Mr  Ijurnham  to  the  board  of  education,  and  to  the  manu- 
facturing company,  were  such  as  to  make  it  unlawful  for  the  one  to  enter  into 
a  contract  with  the  other,  and  that  having  permitted  this  to  be  done,  ask  that  he 
should  be  removed  from  office  therefor. 

By  an  amendment  to  section  473  of  tlie  Penal  Code  made  in  1888,  it  was 
provided  that  any  school  t>rticer  "  who  is  authorized  to  make  any  contract  in  his 
official  capacity,  who  voluntarily  becomes  interested  individually  in  such  con- 
tract, directly  or  indirectly,  is  guilty  of  a  misdemeanor." 

Whether  the  act  complained  of  comes  within  the  scope  of  this  statute  is 
somewhat  doubtful.  It  would  be  a  very  stringent  rule  which  would  prohibit 
a  manufacturing  corporation  from  entering  into  a  contract  with  a  board  of 
education  because  one  of  its  stockholders  was  a  member  of  such  board,  and  I 
think  it  may  well  be  questioned  whether  in  that  event,  such  stockholder  would  be 
deemed  to  "  become  voluntarily  interested  indirectly  "  in  such  contract. 

But  whatever  conclusion  might  be  finally  arrived  at  upon  that  question,  I 
am  free  to  say  that  there  are  circumstances  surroimding  the  matter  which  I 
should  take  into  consideration.  It  is  now  many  months  since  the  transactions 
complained  of  occurred.  The  time  far  bringing  the  matter  before  the  Depart- 
ment has  expired.  The  contract  for  heating  apparatus  was  let  only  after  an 
open  competition  therefor.  Four  bids  were  presented  besides  the  one  from 
Lord's  Manufacturing  Company.  That  was  the  lowest.  It  is  in  proof  that  the 
company  derived  little  or  no  profit  from  the  contract.  There  is  no  pretense  that 
there  was  any  unfair  advantage  given  to  the  company  in  letting  the  contract,  or 
that  the  work  was  not  well  and  satisfactorily  performed.  It  is  developed  that 
there  is  considerable  ill-feeling  in  the  district,  and  that  it  has  extended  to  the 
members  of  the  board,  and  it  is  very  manifest  that  it  is  in  consequence  of  this 
unfortunate  ill  will  that  the  present  application  has  been  made. 

For  these  considerations,  I  conclude  that  the  application  should  be  denied. 


JUDICIAL  decisions:  officers  431 

3951 

In  the  matter  of  the  appeal  of  William  A.  Douglass  and  others  v.  school  district 
no.  2,  town  of  Hunter,  county  of  Greene. 

Expenses  of  a  district  collector,  incurred  by  him  defending  an  action  brought  against  him 
in  his  official  capacity,  should  be  allowed  him,  when  a  bill  therefor  itemized  and  verified 
is  presented  to  a  district  meeting.  A  charge  for  the  collector's  personal  services,  how- 
ever, can  not  be  allowed. 

A  note  given  to  tlie  collector  l)y  the  trustee  for  such  expenses,  without  authority  of  a  district 
meeting,  is  invalid  as  a  district  obligation. 

Decided  December  30,  1890 

C.  M.  Cartwright,  attorney  for  appellant 

Draper,  Supcrintenden t 

This  is  an  appeal  from  the  action  of  a  special  meeting  held  in  the  district 
above  named  on  the  27th  day  of  October  1890,  allowing  and  appropriating  the 
sum  of  $48.75,  in  payment  of  a  claim  of  Luman  M.  Coles  for  services  and 
expenses  as  collector  of  said  district,  in  defending  an  action  brought  against 
him  as  such  collector. 

This  district  has  unfortunately  been  involved  in  considerable  controversy. 
The  matter  here  in  dispute  has  been  the  subject  of  contention  for  some  time. 
It  was  passed  over  the  annual  meeting,  when  it  should  have  been  attended  to.  A 
special  meeting  was  called  for  the  purpose  of  acting  upon  it.  Mr  Coles  pre- 
sented a  bill  to  the  special  meeting.  This  bill  included  an  item  of  $45,  being  the 
amount  of  a  note  given  to  him  by  the  trustees  of  the  district,  a  year  or  two  since, 
in  settlement  of  his  claim,  together  with  interest  on  the  amount  of  said  note. 
The  district  voted  to  pay  the  claim  by  a  vote  of  28  to  15.  The  appellants  raise 
all  possible  objections  to  this  action.  Many  of  their  objections  are  frivolous. 
In  one  position,  however,  they  are  entirely  correct.  The  note  in  question  was 
never  authorized  by  the  district.  Indeed,  it  had  no  authority  to  authorize  such 
a  note.  It  was  invalid  as  a  district  obligation.  The  district  was  entitled  to  have 
a  complete  itemized  statement  of  Mr  Coles'  claim  presented  to  it  for  action. 
This  was  not  done. 

Mr  Coles  should  be  reimbursed  for  all  expenses  which  he  incurred  in  the  liti- 
gation referred  to.  He  can  not  be  paid  for  any  services  rendered.  He  should 
make  a  bill  plainly  indicating  what  payments  he  has  made,  and  if  he  has  received 
moneys  from  any  source  in  consequence  of  such  litigation,  he  should  credit  the 
same  upon  his  bill.  The  balance  ought  to  be  paid  by  the  district.  The  matter 
may  readily  be  presented  at  the  next  special  or  general  meeting  in  the  district, 
but  the  action  of  the  special  meeting  in  this  connection,  can  not  be  upheld. 

The  appeal  is  therefore  sustained. 


43-'  TrIE    U.MVEKSITV    OF   THE    STATE    OE    NEW    YORK 

3578 

In  Ibc  matter  of  the  appeal  of  Ilenrv  11.  lirazcc  v.  Jolin  W.  Hogeboom,  trustee 
of  school  district  no.  i,  of  the  town  of  I'lenhcim,  county  of  Schoharie. 

A  person  elected  trustee  of  a  school  district  can  not  then  be  challenged  as  to  his  eligibility 
to  hold  the  oflice  and  required  to  be  sworn  and  show  his  qualifications.  A  challenge  is 
proper  only  at  the  time  a  person  olt'crs  his  vote. 

Decided  March  25,  1887 

Draper.  Stipcrintcndcnt 

This  is  an  appeal  by  Henry  IT.  Rrazce,  a  resident  of  school  district  no.  i, 
of  the  town  of  rilcnheini,  Schoharie  county,  New  York,  against  Johi;  W.  Hoge- 
boom. who  has  assumed  the  oflice  of  trustee  of  said  district  by  reason  of  the 
action  of  the  annUvil  meeting  held  in  said  district  August  31,  1886. 

'J'he  alleged  grounds  of  appeal  are  as  follows : 

'J'hat  at  the  annual  school  meeting  held  in  said  district,  the  appellant  was 
voted  for  for  trustee;  that  he  received  a  majority  of  all  the  votes  cast  for  said 
ofifice;  that  the  chairman  of  the  meeting  declared  said  Brazee  elected  trustee; 
that  subse(|uently,  some  electors  at  said  school  meeting  objected  to  the  election 
of  Brazee  and  challenged  his  right  to  hold  the  office ;  that  the  chairman  thereupon 
requested  said  Brazee  to  be  sworn  as  to  his  qualifications  to  hold  said  office ;  that 
said  Brazee  declined  to  be  sworn  or  make  any  statement  at  that  time;  that  the 
chairman  thereupon  declared  that  said  Brazee  was  not  eligible  and  directed  the 
meeting  to  proceed  to  elect  a  trustee  and  that  thereupon  a  ballot  was  taken  and 
John  W.  Hogeboom  was  declared  elected  trustee  for  the  ensuing  year  and 
assumed  the  duties  of  the  office. 

The  respondents  deny  that  the  appellant  was  elected;  they  deny  that  the 
vote  was  even  counted  upon  the  first  formal  ballot  for  trustee  and  allege  that 
Brazee  is  not  qualified  to  hold  the  office  of  trustee. 

In  order  to  arrive  at  the  facts  of  the  case,  the  matter  was  referred  to  School 
Commissioner  Le- Grand  Van  Tuyl  for  the  purpose  of  taking  the  evidence  of 
the  witnesses  for  the  respective  parties.  From  the  evidence  so  taken  and 
returned  to  me,  I  find  the  facts  are  as  follows : 

1  That  the  appellant  received  a  majority  of  all  the  votes  cast  at  said  annual 
meeting  for  the  office  of  trustee. 

2  That  the  chairman  of  said  meeting  duly  declared  appellant  elected  trustee. 

3  That  the  right  of  said  Brazee  to  hold  the  office  of  trustee  was  challenged 
by  voters  at  that  meeting  and  that  said  Brazee  refused  to  be  sworn  and  to 
state  his  qualifications. 

4  That  subsequently  John  W.  Hogeboom,  the  respondent,  was  voted  for 
and  received  a  majority  of  the  votes  cast  at  said  meeting  for  trustee. 

The  only  question,  then,  which  arises  in  this  case,  is  whether  Mr  Brazee's 
refusal  to  be  sworn  as  to  his  qualifications  to  hold  the  ofifice  of  trustee  after 
his  election  would  disqualify  him.  It  does  not  appear  from  the  pleadings,  or 
from  the  examinations  of  the  witnesses  before  the  commissioner,  that  the  right 


JUDICIAL  decisions:  officers  433 

of  the  appellant  to  vote  was  questioned.     It  does  not  appear  that  any  challenge 
was  offered  when  he  attempted  to  vote  at  said  meeting.     It  does  appear  that  he 
voted   repeatedly   without   any  objection   being  interposed.      In    fact,   he   voted 
after  the  chair  had  decided  that  he  was  not  qualified  to  hold  the  office  of  trustee. 
It  is  provided  by  section  13,  title  7  of  the  general  school  laws,  that  any  person 
offering  to  vote  at  school  meetings  may  be  challenged  as  unqualified  by  any  legal 
voter,  and  that  the  chairman  presiding  at  such  meeting,  shall  require  such  person 
offering  to  vote  to  make  a  declaration  of  his  qualifications  to  vote  and  every  person 
making  such  declaration  shall  be  permitted  to  vote,  and  if  he  refuses,  his  vote  shall 
be  rejected.    By  the  next  section,  it  is  provided  that  any  person  who  shall  make, 
a  false  declaration  of  his  right  to  vote  shall  be  guilty  of  a  misdemeanor,  and 
that  any  person  not  qualified  to  vote,  who  votes  at  such  meeting,  shall  forfeit 
five  dollars,  to  be  sued  for  by  the  supervisor  of  the  town.    There  is  no  provision 
of  law  which  authorizes  a  challenge  of  a  person,  except  when  he  attempts  to 
vote.     It  appears  from  the  evidence  in  this  case  that  the  right  of  Mr  Brazee  to 
vote  was  not  challenged  at  any  time.     The  challenge,  if  any,  was  made  as  to 
his  cjualifications  to  hold  the  office  of  trustee,  and  then,  after  his  election  as 
trustee.     The  appellant  refused  to  comply  with   the   request  of   the   chairman 
of  the  meeting  to  be  sworn,  and  denied  his  right  to  recjuire  him  to  do  so.     I  am 
of  the  opinion  that  the  chairman  of  the  meeting  did  not  possess  the  right  of 
inquiring  into  the  qualifications  of  the  appellant  to  hold  the  office  of  trustee  in 
this  manner.    The  appellant  in  claiming  the  office  of  trustee  by  this  appeal  must 
show,  in  addition  to  the  fact  that  he  was  duly  elected,  that  he  was  and  is  qualified 
to  hold  the  office.     It  very  clearly  appears  from  the  evidence  taken  before  the 
commissioner  that  he  possesses  the  necessary  qualifications.     It  appears  that  he 
is  over  21  years  of  age  and  a  resident  of  the  district  in  question  and  that  he 
rents  real  estate  in  the  district  and  did  at  the  time  of  the  annual  meeting,  and 
that  he  was  and  is  a  duly  qualified  voter  in  said  district  and  therefore  eligible 
to  hold  the  office  of  trustee. 

The  appeal  is  sustained  and  the  appellant  declared  to  be  the  trustee  of  the 
district. 


4340 

In  the  matter  of  the   appeal  of  Azariah  J.   Hathaway  v.   George   N.  Luther, 
trustee  of   school  district  no.  6,  town  of  Otego,   Otsego   county. 

Where  an  action  is  brought  in  the  courts  against  a  collector  of  a  school  district  for  his  official 
acts  in  the  levy  and  sale  of  property  the  school  district  has  authority  to  vote  a  tax  to 
pay  such  collector  for  the  reasonable  expenses  incurred  by  liim  in  defendisjg  said  suit. 

Decided  March  15,  1895 

F.  D.  Shumway,  attorney  for  respondent 

Crooker,  Superintendent 

The  appellant   herein   appeals   from  the  proceedings   of  a  special   meeting 
held  in  school  district  no.  6,  town  of  Otego,  Otsego  county,  on  November  i, 


434  THE    UNUKUSnV    OF    lllli   STATE   OF    NEW     YORK 

1894,  and  from  a  tax  list  and  assessment  made  and  issued  by  George  N.  Luther 
as  trustee  of  said  district.    The  said  trustee  has  answered  said  appeal. 

From  the  i)apers  presented  it  appears:  That  during  the  school  year  com- 
mencing .\ugust  I.  iSy^.  one  Lavelle  Lent  was  the  collector  in  school  district  no. 
6,  town  of  Otego,  Otsego  county ;  that  on  October  i  r,  1893,  the  then  trustee  of  said 
district  issued  and  delivered  to  said  collector  a  tax  list  and  warrant,  in  which 
tax  list  the  appellant  herein  was  taxed  and  assessed  for  the  sum  of  $10.45:  that 
said  appellant  refused  to  pay  said  tax  and  said  collector  levied  upon  two  cows, 
the  property  of  the  appellant,  and  subsequently  sold  one  of  said  cows  for  $15, 
which  amount  covered  said  tax  of  $10.45  '^"d  the  fees  and  expenses  of  the  col- 
lector and  the  other  cow  was  returned  to  the  appellant;  that  in  the  month  of 
November  1893,  the  appellant  commenced  an  action  in  justices'  court  against 
said  Lent  for  the  conversion  of  said  cows,  which  action  was  defended  by  said 
Lent  and  in  such  tlefense  said  Lent  employed  counsel,  and  which  action  was 
decided  in  favor  of  said  Lent ;  that  on  the  same  day  of  the  decision  of  the  afore- 
said action  the  appellant  commenced  a  second  action  before  another  justice 
against  said  Lent  for  the  like  cause  of  action,  in  which  action  said  Lent  employed 
counsel,  and  said  action  was  decided  in  favor  of  said  Lent;  that  on  the  same 
day  that  said  second  action  was  decided  appellant  brought  a  third  action  for 
like  cause  as  the  first  two,  in  which  action  said  Lent  employed  counsel  and 
defended  and  was  successful  in  such  defense.  That  the  aggregate  sum  expended 
by  said  Lent  in  defending  said  three  actions  was  $47.80;  that  in  November 
i8<>4»  the  respondent  called  a  special  meeting  of  said  district  to  be  held  on  Novem- 
ber ]6,  1894,  for  the  purpose  of  considering  the  payment  by  the  district  of  the 
legal  and  other  expenses  of  said  ]>ent  in  defending  said  three  actions  brought 
against  him  by  the  appellant  herein ;  that  every  qualified  voter  in  said  district, 
including  the  appellant  herein,  was  duly  and  legally  notified  of  the  time  and 
place  of  said  special  meeting  and  the  business  to  be  transacted  thereat;  that 
at  said  special  meeting  a  motion  or  resolution  was  duly  adopted  unanimously, 
said  vote  thereon  being  taken  by  ballot,  to  pay  said  Lent  said  sum  of  $47.80, 
and  that  the  sum  be  levied  by  tax  upon  said  district;  that  on  December  18, 
1894,  the  respondent  duly  issued  his  tax  list  and  warrant  for  the  collection  of 
said  sum  of  $47.80,  which  sum  has  been  collected  including  the  tax  levied  in 
said  tax  list  against  the  appellant  herein,  and  said  tax  list  and  warrant  duly 
returned,  and  the  amount  so  collected  paid  over  to  said  Lent. 

The  appeal  herein  was  brought  on  January  14,  1894.  Under  section  14, 
of  article  i,  title  7,  of  the  Consolidated  School  Law,  the  qualified  voters  of  any 
school  district  assembled  at  a  meeting,  duly  called  and  held,  have  the  authority 
to  vote  a  tax  to  pay  the  reasonable  expenses  incurred  by  district  officers  in 
defending  suits  or  appeals  brought  against  them  for  their  official  acts. 

It  is  clear  that  the  aforesaid  three  actions  brought  by  the  appellant  herein 
against  said  Lent  were,  and  each  of  them  was,  brought  against  him  for  his 
official  acts  as  collector  of  the  district,  and  the  district  had  authority  to  vote 


JUDICIAL  decisions:  officers  435 

the  tax  to  pay  Lent  for  reasonable  expenses  incurred  by  him  in  defending  said 
suits. 

The  appellant  herein,  having  failed  to  establish  his  appeal  said  appeal  should 
be  dismissed. 

Appeal  dismissed. 


3793 

In  the  matter  of  the  appeal  of  James  S.  Howard  and  others  v.  union  free  school 
district  no.   2,   of   the   town  of   Westport,   county   of   Essex. 

In  a  union  free  school  district  having  a  board  of  education  of  nine  members,  five  of  whom 
resigned  for  the  obvious  purpose  of  defeating  the  expressed  will  of  the  voters  in  select- 
ing a  schoolhouse  site,  the  remaining  members  of  the  board,  four  in  number,  fill  the 
vacancies  caused  by  such  resignations,  and  the  board  so  newly  organized  continue  to 
exercise  the  functions  of  a  legal  board ;  held,  not  to  be  violative  of  the  authority  and  the 
policy  of  the  law  for  such  four  remaining  members  of  the  board  to  exercise  the  func- 
tions of  such  board,  and  that  the  four  members  of  the  board  exercised  a  power  which  the 
statutes  confer,  and  which  it  was  to  the  interests  of  the  district  to  have  them  exercise. 
They  exercised  it  only  so  far  as  was  necessary  to  maintain  school  administration  in 
the  district  uninterruptedly.  The  persons  appointed  to  fill  vacancies  in  the  board  were, 
if  not  officers  de  jure,  such  de  facto.  They  had  color  of  title  to  their  offices  at  least. 
Their  acts,  taken  in  conformity  with  the  directions  of  a  district  meeting,  are  binding 
upon  the  district. 

Decided  July  29,  1889 

Anthony  B.  Ross,  attorney  for  appellant 
Matthew  Kale,  attorney  for  respondent 

Draper,  Superintendent 

A  special  meeting  of  the  electors  of  the  above-named  district  was  held  on 
the  1 6th  day  of  February  1889,  at  which  it  was  resolved  to  build  a  new  house 
at  a  cost  not  to  exceed  $5000,  and  to  purchase  a  new  site  therefor,  which  was 
designated.  At  an  adjourned  meeting  held  April  20th  the  vote  designating  a 
site  was  rescinded,  and  another  site  selected.  At  another  adjourned  meeting 
held  May  4th  it  was  voted  that  the  title  to  the  last  site  selected  was  unsatis- 
factory, and  that  the  new  building  be  erected  upon  the  site  heretofore  in  use 
by  the  district.  At  a  meeting  held  May  i8th  it  was  voted  not  to  build  on  the 
old  site,  and  still  another  new  site  was  designated.  At  an  adjourned  meeting 
held  June  ist  it  was  voted  to  rescind  the  action  taken  at  the  last  preceding 
meeting,  and  build  upon  the  same  lot  previously  designated  for  a  new  site  by  the 
meeting  held  April  20th,  and  which  is  known  as  the  "  Pollard  "  lot.  At  the 
meeting  held  June  ist  a  communication  was  read,  signed  by  live  of  the  nine 
members  of  the  board  of  education,  resigning  their  places  upon  the  board.  At 
a  meeting  of  the  four  remaining  members  of  the  board  held  June  3d,  they  first 
"elected  one  new  member  to  fill  one  of  the  vacancies,  and  after  he  had  joined 
them,  the  five  chose  four  more  to  fill  the  remaining  vacancies.     At  the  same 


436  THE   UNIVERSITY    OF   THE    STATE    OF    NEW    YORK 

meeting  aiul  another  held  the  following  day,  a  deed  was  i)rocured  of  the  site 
last  designated  by  the  district  meeting,  and  the  members  of  the  board  thus  con- 
stituted, gave  their  note  for  the  purchase  price,  being  the  sum  of  $1200. 

]*"rom  the  action  of  the  district  meeting  designating  the  "  Pollard "  lot, 
and  from  the  action  of  the  board  in  purchasing  the  same,  this  appeal  is  taken. 

I  find  no  allegation  that  the  proceedings  of  the  several  district  meetings 
were  not  regularly  taken,  and  in  the  manner  prescribed  by  the  statute.  It  is 
said  that  they  were  not  all  well  attended  by  the  people  of  the  district.  In  view 
of  the  frequency  with  which  they  were  held,  this  is  not  surprising,  but  it  does 
not  invalidate  the  lawful  action  of  those  who  did  attend. 

It  is  said  that  the  site  last  determined  upon  is  not  suitable  for  a  school  site. 
Thi^  is  as  strongly  disputed.  It  seems  more  than  likely  that  if  it  were  on  tlie 
other  side  of  a  creek  which  divides  the  village,  the  differing  opinions  as  to  its 
suitableness  would  be  exactly  reversed.  There  has  evidently  been  enough  of 
discussion  and  disj)Ute  over  the  matter.  It  seems  to  have  been  regularly  desig- 
nated as  a  new  school  site  by  a  majority  of  the  electors  who  chose  to  attend 
a  meeting,  competent  to  act  upon  the  matter.  This  being  so,  there  is  no  such 
preponderant  proof  of  unsuitableness  as  to  warrant  me  in  interfering  with  that 
action  on  that  account. 

But  the  appellants  say  that  the  site  last  designated  has  not  been  purchased, 
by  reason  of  the  fact  that  the  hoard,  assuming  to  make  the  purchase,  was  not 
a  board,  and  was  powerless  to  bind  the  district.  They  contend  that,  after  the 
resignations  of  five  members,  the  remaining  four,  being  less  than  a  majority  of 
the  whole  number,  had  no  power  to  exercise  any  of  the  functions  of  the  board, 
even  that  of  filling  the  vacant  places. 

Acting  upon  the  theory  that  th.e  vacancies  created  by  the  resignations  have 
not  been  legally  filled,  the  appellants  have  heretofore  applied  to  the  school  com- 
missioner to  fill  the  same,  which  he  has  undertaken  to  do,  and  for  some  reason 
which  does  not  appear,  has  reappointed  the  five  members  who  resigned. 

In  the  meantime,  it  appears  that  the  four  original  members  of  the  board, 
with  the  others  appointed  by  them,  have  exercised  control  over  the  new  site 
which  they  have  assumed  to  purchase;  have  made  some  changes  thereupon, 
and  have  employed  an  architect,  procured  plans  and  taken  other  steps  toward 
the  erection  of  the  new  building. 

The  question  raised  by  the  appellants  as  to  the  right  of  less  than  a  majority 
of  the  whole  number  of  the  board  of  trustees  in  a  union  free  school  district  to 
fill  vacancies  occasioned  by  the  resignations  of  the  majority,  is  a  new  and  grave 
one. 

It  is  the  policy  of  the  school  law  to  guard  against  any  exigency  which  will 
cause  a  break  or  work  a  failure  in  the  administration  of  the  school  system,  and 
it  is  likewise  its  policy  to  provide  officers  for  administering  that  system  through 
the  agency  of  the  district  itself,  or  of  other  district  officers.  Thus,  in  an  ordinary 
school  district,  it  provides  that  a  vacancy  in  the  office  of  trustee  may  be  filled 
by  appointment  by  the  school  commissioner.     The  district  may  act  at  any  time 


JUDICIAL    DECISIONS  :    OFFICERS  437 

within  the  thirty  da3^s,  and  it  is  the  poHcy  of  the  law  to  have  it  act,  if  it  will. 
In  a  union  free  school  district,  vacancies  may  be  iilled  by  the  board.  If  not 
filled  by  the  board  for  thirty  days,  then  the  school  commissioner  may  appoint. 
The  school  commissioner  can  not  act  for  thirty  days.  It  is  the  policy  of  the  law 
to  have  the  board  appoint,  if  it  will.  If  the  four  members  could  not  appoint 
to  fill  the  vacancies  in  the  present  case,  then  they  could  exercise  no  other  func- 
tion of  the  board,  and  there  could  be  no  exercise  of  any  of  the  powers  of  the 
board  for  the  space  of  thirty  days,  except  in  the  event  of  a  special  election  being 
ordered  by  the  State  Sviperintendent.  If  this  theory  be  sound,  then  there  might 
be  entire  failure  of  school  administration  in  the  district  for  a  time,  and  neither 
a  district  meeting  nor  any  officer  or  representative  of  the  district  could  cure 
the  difficulty. 

It  is  provided  by  the  Consolidated  School  Act  of  1864,  in  regard  to  the 
trustees  of  common  schools,  that  while  there  is  one  vacancy  in  the  office  of 
trustee,  the  two  trustees  have  all  the  powers  and  are  subject  to  all  the  duties 
and  liabilities  of  the  three,  and  while  there  are  two  such  vacancies,  the  trustee 
in  office  shall  have  all  the  powers  and  be  subject  to  all  the  duties  and  habilities 
of  the  three  as  though  he  were  a  sole  trustee. 

It  is  true  that  this  clause  relates  to  the  trustees  of  an  ordinary  school  dis- 
trict, but  it  is  provided  in  title  9  of  the  act  relating  to  union  free  schools,  that 
the  members  of  a  board  of  education  of  a  union  free  school  shall  "  Possess  all 
the  powers  and  privileges  and  be  subject  to  all  the  duties  in  respect  to  the 
schools,  or  the  common  school  departments  in  any  union  free  school  in  said 
districts,  which  the  trustees  of  common  schools  now  possess  or  are  subject,  not 
inconsistent  with  the  provisions  of  this  title." 

The  statute  provides  that  a  board  of  education  in  a  union  free  school  dis- 
trict shall  consist  of  not  less  than  three  nor  more  than  nine  persons.  It  is 
therefore  not  violative  of  the  authority  and  the  policy  of  the  law  for  four  persons 
to  exercise  the  functions  of  such  a  board.  I  conclude,  accordingly,  that  the 
four  trustees  in  the  present  case  exercised  a  power  which  the  statutes  confer, 
and  which  it  was  to  the  interest  of  the  district  to  have  them  exercise,  and  it 
would  seem  that  they  exercised  it  only  so  far  as  was  necessary  to  maintain 
school  administration  in  the  district  uninterruptedly. 

If  there  were  any  doubt,  as  I  think  there  is  not,  about  persons  named  by 
the  remaining  members  of  the  board  being  trustees  de  jure,  there  would  seem 
to  be  none  about  their  being  such  de  facto.  They  have  had  color  of  title  to  their 
offices  at  least,  and  have  acted  as  such,  and  been  recognized.  Their  acts,  taken 
in  conformity  with  the  directions  of  the  district  meeting,  would  be  binding  upon 
the  district. 

Arriving  at  this  conclusion,  it  is  unnecessary  to  consider  other  questions 
raised  on  the  argument. 

The  appeal  must  be  dismissed. 


43«^  THE    UNIVEKSITV    OF   THE   STATE   Ul-    NEW    YORK 

4192 

In  the  matter  of  the  petition  of  John  E.  Casey  for  the  removal  of  Adelbert  Case 
as  clerk  of  school  district  no.  6,  town  of  North  Norwich,  Chenango  county. 

Wliere,  upon  application  to  a  district  clerk  by  a  qualified  voter  of  the  district  for  permission 
to  examine  the  minutes  of  the  annual  school  meeting  of  the  district,  the  clerk  refused 
to  permit  such  voter  to  examine  such  minutes,  using  vulgar  and  profane  language  in 
expressing  such  refusal,  held  tliat  the  ckrk  was  guilty  of  a  wilful  viulalion  of  duty  and 
an  order  made  for  his  removal. 

Decided  November  2,  1893 

\\  .  J  I.  .'^ullixan,  attorney  for  petitioner 

Crooker,  Snpcriiitciidoit 

This  is  a  i)roceeding  in  the  nature  of  an  appeal  for  the  removal  of  one 
Adelbert  Case  as  clerk  of  school  district  no.  6,  town  of  North  Norwich,  Che- 
nango county,  for  wilful  violation  and  neglect  of  duty. 

A  petition  of  John  E.  Casey,  a  resident  and  taxpayer  in  said  school  dis- 
trict, duly  verified  on  September  16,  1893,  settiiig  forth  certain  charges  against 
said  Case  with  specifications  of  the  facts  to  establish  such  charges,  and  having 
aime.xed  thereto  the  affidavits  of  said  Casey,  of  one  Perry  Hunt  in  support 
thereof,  and  a  notice  addressed  to  said  Case  that  said  petition  and  affidavits 
would  be  presented  to  me  at  Albany  and  application  thereupon  be  made  to  remove 
said  Case  from  his  said  office  of  clerk  of  said  district,  and  requiring  said  Case 
to  transmit  his  answer  to  said  application  duly  verified,  to  this  Department 
within  ten  days  after  service  of  said  notice,  petition  and  application,  or  the 
charges  contained  therein  would  be  deemed  admitted,  with  proof  of  service  of 
coi)ies  of  said  petition,  afiklavits  and  notice  upon  said  Case  on  September  19, 
1893,  were  filed  in  this  Department  on  September  23,  1893.  No  answer  to  said 
petition  etc.,  has  been  received  or  filed,  and  the  allegations  contained  in  said 
petition  etc..  are  considered  as  admitted  as  true  by  the  said  Case.  The  alle- 
gations contained  in  said  petition  etc.,  so  considered  admitted  as  true,  are  as 
follows : 

That  the  said  Adelbert  Case  was,  in  August  and  September  1893,  the  duly 
elected  and  qualified  clerk  of  school  district  no.  6,  town  of  North  Norwich, 
Chenango  county;  that  on  or  about  August  28,  1893,  about  9  o'clock  in  the 
forenoon  of  that  day,  John  E.  Casey  and  Perry  Hunt,  each  of  whoin  was  a 
resident,  voter  and  taxpayer  of  said  school  district,  went  to  the  premises  of  said 
Adelbert  Case,  the  clerk  of  said  school  district,  and  asked  permission  of  said 
Case,  to  look  at  the  minutes  of  the  school  meeting  of  said  district,  held  on 
August  22,  1893,  and  the  said  Case,  in  wilful  violation  of  his  duty  as  such  clerk, 
refused  to  permit  said  Casey  and  Hunt  to  look  at  and  inspect  .such  minutes, 
using  vulgar  and  profane  language  in  expressing  such  refusal.  That  on  the 
eleventh  day  of  September  1893,  at  about  9  o'clock  in  tlie  forenoon,  said  Casey 
and  Hunt  went  to  the  house  of  said  Case  and  said  Casey  then  and  there  requested 
said  Case  to  allow  him  to  inspect  the  minutes  of  said  school  meeting  of  said 


JUDICIAL    DECISIONS  :    OFFICERS  439 

district  held  on  August  22,  1893,  and  also  asked  for  a  copy  of  said  minutes; 
that  said  Case  told  said  Casey  that  he  would  not  let  him  see  the  mnmtes,  and  to 
get  right  ofif  from  his  premises,  or  he  would  slash  him  right  down  with  a  corn 
knife,  which  said  Case  then  held  in  his  hand.  Said  Case  further  told  said  Casey 
to  get  right  off  from  his  premises  and  to  keep  off,  and  that  he  would  not  furnish 
him  with  a  copy  of  said  minutes. 

The  clerk  of  a  school  district  is  a  school  officer,  and  his  principal  duties 
are  defined  in  section  37  of  title  7  of  the  school  law.  His  duty  is  to  record  the 
proceedings  of  his  district  in  a  book  to  be  provided  for  that  purpose  by  the 
district,  etc.,  etc. ;  to  keep  and  preserve  all  records,  books  and  papers  belonging 
to  his  office  and  to  deliver  the  same  to  his  successor,  and  a  refusal  or  neglect  so 
to  do  subjects  him  to  the  forfeit  of  fifty  dollars  for  the  benefit  of  the  district, 
to  be  recovered  by  the  trustees. 

The  proceedings,  records,  books  and  papers  in  possession  of  saidj  clerk 
are  the  property  of  the  district,  and  not  the  individual  property  of  the  clerk.  It 
is  the  duty  of  the  clerk  to  permit  any  voter  to  freely  inspect  the  records  at  all 
reasonable  times,  and  a  wilful  denial  of  this  right  by  a  clerk  would  subject  him 
to  the  liability  of  removal  from  office.  There  can  be  no  doubt  as  to  the  right 
of  a  voter  of  a  school  district  to  examine  and  copy  the  district  records,  under 
reasonable  provisions. 

Section  18,  of  title  2,  of  the  school  laws  provides  that  whenever  it  shall 
be  proved  to  his  satisfaction  that  any  school  commissioner,  or  other  school 
officer,  has  been  guilty  of  any  wilful  violation  or  neglect  of  duty  under  the 
school  act,  the  Superintendent  of  Public  Instruction  may.  by  an  order  under  his 
hand  and  seal,  which  order  shall  be  recorded  in  his  office,  remove  said  school 
commissioner  or  other  school  officer  from  his  office. 

From  the  facts  established  upon  this  appeal  I  am  satisfied  that  the  said 
Adelbert  Case,  as  clerk  of  school  district  no.  6,  town  of  North  Norwich, 
Chenango  county,  was  guilty  of  wilful  violation  and  neglect  of  duty  under  the 
school  laws,  as  such  clerk,  as  alleged  in  said  petition,  etc. 

The  petition  herein  is  sustained. 

It  having  been  proven  to  my  satisfaction  that  Adelbert  Case,  clerk  of 
school  district  no.  6,  town  of  North  Norwich,  Chenango  county,  has  been  guilty 
of  wilful  violation  and  neglect  of  duty,  under  the  school  laws,  as  such  clerk. 
I  do  therefore,  by  virtue  of  the  power  and  authority  in  me  vested,  order: 

That  the  said  Adelbert  Case  be,  and  he  hereby  is,  removed  from  the  office 
of  clerk  of  said  school  district  no.  6,  town  of  North  Norwich,  Chenango  county. 


OFFICERS  — REMOVAL  OF 

5326 

In  the  matter  of  tlie  application  of  Melvin  H.  Pendleton  et  al.  to  remove  John 
D.  Jones  from  ihe  oflice  of  school  commissioner  and  John  C.  Hyde  from 
the  oflice  of  trustee. 

Where  the  moving  papers  in  a  proceeding  to  remove  a  school  officer  are  legally  defective 
and  do  not  even  allege  an  offense  for  which  such  officer  might  be  removed,  the  proceeding 
should  be  dismissed. 

Decided  August  20,  1907 

Draper,  Commissioner 

The  petitioners  allege  that  respondents  wilfully  misrepresented  the  views 
expressed  by  them  in  an  interview  relating  to  the  dissolution  of  a  school  district. 
The  moving  papers  do  not  allege  that  respondents  have  been  guilty  of  a  wilful 
violation  of  law  or  official  duty  or  of  any  other  offense  for  which  the  statutes 
impose  the  penalty  of  removal  from  office.  Respondents  deny  the  charge  of 
misrepresenting  the  views  of  the  petitioners  expressed  at  the  conference  in 
question  and  offer  evidence  in  proof  of  such  denial.  The  proceeding  should  be 
dismissed  on  the  moving  papers  which  are  legally  defective  and  which  fail  to 
even  allege  an  offense  for  which  respondents  might  be  removed. 

The  petition  herein  is  dismissed. 


5184 

In  the  matter  of  the  petition  of  John  Clark  et  al.  for  the  removal  of  Charles  A. 
Iligley  from  the  office  of  school  commissioner  of  the  first  school  commis- 
sioner district  of  Oneida  county. 

.•\.  school  commissioner  will  not  be  removed  from  office  for  making  an  order  which  was  fair, 
open  and  above  board  in  every  particular  and  in  which  he  exercised  his  discretion  wisely. 

If  a  school  commissioner  exercises  an  unwise  discretion  in  making  an  order,  or  if  he  makes 
an  improper  order,  the  relief  of  an  aggrieved  party  is  an  appeal  from  tlie  action  of  the 
commissioner  in  making  such  order  and  not  a  petition  for  his  removal. 

Decided  April  21,  1905 

James  W.  Watts,  attorney  for  appellants 

Draper,  Commissioner 

The  petitioners  are  residents  of  school  district  no.  8,  town  of  Marcy,  and 
of  the  first  school  commissioner  district  of  Oneida  county.  It  appears  that  one 
William  H.  Kauth  desired  to  have  his  real  property  transferred  from  district 

1440] 


JUDICIAL    DECISIONS  :    OFFICERS  —  REMOVAL    OF  44I 

no.  8,  ]\ Farcy,  to  adjoining  district  no.  i,  Marcy.  At  a  special  meeting  of  district 
no.  8,  Marcy,  to  consider  the  advisability  of  consenting  to  the  transfer  of  Mr 
Kauth's  property  the  voters  present  decided  not  to  consent  to  an  alteration  of 
the  district  boundaries  making  such  transfer.  The  school  commissioner  then  made 
an  order  altering  the  boundaries  of  district  no.  8,  Marcy,  by  transferring  the 
property  of  Mr.  Kauth  to  district  no.  i,  Marcy. 

It  is  alleged  by  petitioners  that  in  making  this  order  the  school  commissioner 
"  acted  in  bad  faith  and  against  the  best  interests  of  said  district,  and  simply  to 
accommodate  said  Kauth."  The  petitioners  do  not  present  any  evidence  what- 
ever in  support  of  this  allegation.  They  do  not  assign  one  specific  act  or  reason 
to  sustain  their  contention.  They  do  not  even  show  that  the  action  of  the  com- 
missioner in  making  such  order  was  unwise.  The  affidavits  of  the  petitioners 
are  to  the  effect  that  upon  "  information  and  belief  "  Commissioner  Higley  acted 
in  bad  faith.  This  is  insufficient  and  in  their  moving  papers  petitioners  have 
failed  to  make  a  case  sufficient  to  have  warranted  them  in  filing  this  petition. 
The  commissioner  possessed  legal  authority  under  sections  3  and  4  of  title  6 
of  the  Consolidated  School  Law  to  make  this  order  even  if  a  majority  of  the  voters 
of  district  no.  8,  Marcy,  were  opposed  to  the  changes  which  would  be  made 
thereby.  The  action  of  Commissioner  Higley  was  regular,  fair  and  open  and 
above  board  in  every  particular.  He  accorded  those  opposed  to  the  order  two 
impartial  hearings.  He  does  not  appear  to  have  exercised  his  discretion  unwisely 
in  making  this  order.  If  such  order  was  improper  or  unwise  the  remedy  of 
any  aggrieved  party  was  an  appeal  from  the  action  of  the  commissioner  therein 
to  this  Department. 

The  petition  herein  is  dismissed. 

A  copy  of  this  decision  must  be  served  by  the  respondent  upon  the  attorney 
for  the  petitioners. 


In  the  matter  of  the  removal  of  George  Turner  Miller  from  the  office  of  school 
commissioner  of  the   sole  commissioner   district  of   Chemung  county. 

The  fact  that  a  school  commissioner  applied  for  and  received  money  from  the  State  to 
settle  an  expense  of  the  teachers  institute  and  that  he  kept  this  money  over  thirteen 
months,  during  which  he  was  in  frequent  contact  with  the  officials  to  whom  it  was  to 
be  paid,  is  sufficient  in  itself  to  constitute  a  wilful  violation  and  neglect  of  duty,  requiring 
the  exercise  of  the  power  of  removal  reposed  by  law  in  the  Commissioner  of  Education. 

Decided  February  27,  1905 

Draper,  Commissioner 

On  February  3,  1905,  the  president  of  the  board  of  education  at  Horseheads, 
N.  Y.,  called  to  my  attention  the  fact  that  a  claim  against  the  State  on  the  part 
of  said  board,  amounting  to  $24.20,  for  coal  consumed  and  for  janitor  service 
in  connection  with  a  teachers  institute  held  in  their  high  school  building  during 
theWeek  ending  December  19,  1903,  had  never  been  settled. 

Investigation  showed  that  the  amount  had  been  paid  to  the  school  commis- 
sioner immediately  after  the  institute  was  held,  for  the  purpose  of  liquidating 


44-'  THE   UNlVKKSri  V    OF   THE   STATE    Ul-    NEW    VURK 

ihc  claim.  A  letter  from  the  elcrk  of  the  school  district  stating  the  amount  of  the 
claim  appeared  among  the  papers,  but  no  receipt  on  the  part  of  the  district  was 
shown. 

On  I-'ebruary  4th  I  addressed  a  letter  to  the  school  commissioner,  calling 
for  an  explanation.  On  February  jth  the  amount  was  paid,  by  post  office  money 
order,  to  the  treasurer  of  the  flistrict.  Nothing  was  heard  from  the  school  com- 
missioner until  February  17th.  when  he  replied  to  my  letter  of  the  4th,  stating 
that  "The  amount  was  paid  the  Chemung  Valley  Bank,  the  treasurer  of  the 
district.  The  matter  is  now  adjusted."'  In  consequence  of  the  delay  in  replying 
to  my  letter  and  because  of  the  unsatisfactory  look  of  the  whole  atTair  an  order 
was  made  on  February  13th  for  the  school  commissioner  to  appear  here  on  Feb- 
ruary 23d  to  show  cause  why  he  should  not  be  removed  from  office. 

On  the  return  of  the  order,  the  school  commissioner  appeared  and  claimed 
that  the  delay  in  answering  my  letter  of  the  4th  of  February  was  because  he 
was  away  from  home.  He  admitted  going  to  his  home  post  office  for  mail  and 
for  the  post  office  money  order  on  February  7th,  but  asserted  that  my  letter  was 
not  received  at  that  office  prior  to  his  leaving  home  for  a  ten  days'  journey  on 
February  8th,  although  my  letter  was  mailed  at  Albany  on  February  4th. 

The  home  of  the  school  commissioner  is  at  Van  Etten,  some  twenty  miles 
from  Horseheads.  He  stated  that  he  paid  the  amoimt  on  February  7th,  because 
when  talking  on  the  telephone  with  his  father,  who  resides  at  Horseheads,  it  was 
suggested  to  him  that  there  was  some  talk  about  the  matter  at  Horseheads  and 
that  it  ought  to  be  settled. 

The  explanation  given  for  the  long  delay  in  paying  the  bill  was  that  he  was 
not  certain  as  to  whom  he  should  pay  it,  and  that  he  was  not  willing  to  pay  it 
except  to  one  entitled  to  legally  receive  the  money.  He  asserted  that  there  was 
some  ill  feeling  between  himself  and  officers  of  the  district  over  trifling  matters. 
He  insisted  that  he  at  all  times  expected  to  pay  over  the  money  and  was  only 
waititig  to  be  satisfied  as  to  whom  he  should  pay  it. 

Mr  Miller  was,  for  some  time  prior  to  his  election  as  school  commissioner, 
principal  of  the  school  at  Horseheads.  He  was  wholly  familiar  with  all  the  cir- 
cumstances in  that  district  and  was  well  acquainted  with  its  officials.  He  has  an 
office  at  Ilorselieads  which  he  announces  will  be  open  on  Saturday  afternoon. 
He  admitted  that  during  the  thirteen  months  while  he  had  been  holding  this 
money  he  had  been  in  Horseheads  more  than  twenty  times;  also  that  he  well 
knew  the  officers  of  the  district  and  that  the  Chemung  Valley  Bank  was  the 
treasurer. 

The  question  as  to  the  time  when  the  school  commissioner  received  my  let- 
ter of  February  4th.  and  as  to  what  led  him  to  pay  the  claim  of  the  district  three 
days  after  this  letter  was  mailed  from  Albany,  without  having  received  this  let- 
ter, is  of  slight  importance  except  as  it  bears  upon  his  credibility.  The  explana- 
tion oft'ered  for  the  delay  in  paying  over  the  money  is  not  sufficient.  It  was  the 
business  of  the  school  commissioner  to  pay  this  money  over  immediately  upon  its 
receipt.     An  officer  having  any  correct  feeling  about  the  matter  or  any  proper 


JUDICIAL    decisions:    officers —  REMOVAL    OF  443 

appreciation  of  the  ol)ligations  and  responsibility  of  a  public  ofTice,  would  have 
been  anxious  and  restless  until  the  money  had  passed  out  of  his  hands  and  into 
the  hands  entitled  to  possess  it.  The  difficulty  about  determining  to  whom  it 
might  properly  and  legally  be  paid  seems  mere  pretense. 

It  is  not  necessary  to  indulge  in  speculations  as  to  whether  this  money  would 
ever  have  been  paid  over  if  the  matter  had  not  been  stirred  up  by  the  parties 
in  interest.  The  fact  that  this  school  commissioner  applied  for  and  received 
money  from  the  State  to  settle  an  expense  of  the  teachers  institute,  and  that 
he  kept  this  money  over  thirteen  months,  during  which  time  he  was  in  frequent 
contact  with  the  officials  to  whom  it  was  to  be  paid,  is  sufficient  in  itself  to  con- 
stitute a  wilful  violation  and  neglect  of  duty,  requiring  the  exercise  of  the  power 
of  removal  reposed  by  law  in  the  Commissioner  of  Education.  I  should  be 
glad  to  come  to  some  other  conclusion,  but  it  is  impossible.  Failure  to  act  as 
the  law  contemj)lates  would  be  a  delinquency  on  my  part. 

It  is  therefore  ordered,  That  George  Turner  Miller  be,  and  he  hereby  is, 
removed  from  the  office  of  school  commissioner  of  the  sole  school  commissioner 
district  of  Chemung  county. 


5286 

In  the  matter  of  the  application  to  remove  James  H.  Roe  as  trustee  of  common 
school  district  no.  6,  town  of  Warwick,  county  of  Orange. 

Ai)pcaring  in  and  answering  a  proceeding  without  reserving  any  rights,  even  if  formal  notice 
of  proceeding  is  not  given,  brings  the  proceeding  properly  within  the  jurisdiction  of 
the  Commissioner  of  Education. 

A  trustee  who  fails  to  provide  for  his  own  children  the  instruction  prescribed  by  the  com- 
pulsory education  law  is  guilty  of  wilful  violation  of  law  and  neglect  of  official  duty  and 
should  be  removed  from  office. 

The  burden  of  proof  as  to  the  physical  inability  of  children  to  attend  school  is  upon  the 
parent  and  not  the  school  authorities. 

Trustees  may  require  parents  to  furnish  a  physician's  certificate  in  the  case  of  habitual  or 
long-continued  absence  on  the  ground  of  physical  inability  and  such  certificate  is  con- 
clusive. 

Decided  October  20,   1906 


Lewis  J.  Stage,  attorney  for  petitioners 
Clifford  S.  Beattie,  attorney  for  respondent 


Draper,  Commissioner 

District  no.  6,  town  of  Warwick,  county  of  Orange,  is  a  common  school  dis- 
trict having  three  trustees.  At  the  annual  meeting  of  August  1905,  James  H. 
Roe  was  elected  one  of  the  trustees  of  this  district  and  is  still  serving  in  that 
official  capacity.  This  proceeding  was  commenced  July  7,  1906,  but  the  plead- 
ings were  not'  completed  until  October  22,  1906.  At  the  time  this  proceeding 
was* instituted  John  M.  ^larsh  and  George  H.  Davenport  were  the  other  trustees 


444  THE    UXIVEKSITY    OF   THE    STATE    OF    NEW    YORK 

of  tlic  (listricl.  Tliesc  two  trustees  and  Jacob  F.  Welch  and  other  les^al  voters  of 
the  district  are  the  i)etitioners  who  pray  for  the  removal  of  Trustee  Roe. 

The  specific  charge  ai^aitist  respondent  is  that  he  violated  the  provisions  of 
the  compulsory  education  law  by  not  requiring  his  two  children  who  are  within 
the  ages  of  that  law  to  regularly  attend  upon  instruction.  The  i)lcadings  show 
that  respondent  Roe  is  the  father  of  Arthur  Roe,  a  boy  lo  years  of  age,  and  of 
Mima  Roe.  a  girl  9  years  of  age,  and  that  they  are  residents  of  school  district  no. 
12,  town  of  Warwick.  It  also  appears  that  between  October  i,  1905.  and  April 
30,  1906,  the  school  in  said  district  was  in  session  126  days  and  that  Arthur  Roe 
was  in  attendance  thereat  63  days  and  absent  63  days,  and  that  Elma  Roe  was  in 
attendance  upon  such  school  60^  days  and  absent  655/2  days.  It  is  further 
shown  that  between  April  30  and  June  i,  1906,  neither  of  these  pupils  was  in 
attendance  at  school.  The  absence  of  such  children  from  school  is  not  denied 
by  respondent  nor  does  he  claim  that  such  children  were  in  attendance  upon 
instruction  elsewhere. 

It  is  also  shown  that  on  April  17,  1906,  Arthur  Roe  had  some  trouble  in 
school  with  the  teacher  over  a  recitation  in  arithmetic  and  that  the  teacher  took 
Arthur  from  the  recitation  to  his  seat  by  the  collar  of  his  coat  and  that  at  noon 
when  the  teacher  was  at  his  dinner  respondent  appeared  at  the  schoolhouse  and 
look  Arthur  and  his  daughter  Elma  home.  These  children  did  not  attend  school 
any  portion  of  the  year  thereafter.  It  is  also  shown  that  in  the  early  part  of 
May  respondent  took  the  books  of  these  two  children  from  the  schoolhouse. 

The  pleadings  in  this  case  further  show  that  on  April  30,  1906,  on  an  infor- 
mation duly  made  by  John  L.  Springer,  an  attendance  officer  of  the  town  of 
Warwick,  charging  this  respondent  Roe  with  the  crime  of  misdemeanor  for  vio- 
lation of  the  compulsory  education  law,  a  warrant  for  the  arrest  of  said  Roe  was 
duly  issued  by  J.  V.  D.  Benedict,  a  justice  of  the  peace  of  the  town  of  Warwick. 
It  also  appears  that  on  similar  informations  warrants  were  issued  for  four  other 
residents  of  this  district  and  that  such  residents  were  found  guilty  and  fined. 

Respondent  Roe  was  tried  May  26,  1906,  before  a  jury  and  such  trial  resulted 
in  a  disagreement  of  the  jury.  Before  this  trial,  however,  an  application  was 
made  by  respondent  through  his  attorney  to  the  special  county  judge  of  Orange 
county  for  an  order  directing  that  the  case  should  be  presented  to  the  grand 
jury  for  indictment.  This  application  was  denied.  It  also  appears  that  a  second 
application  was  made  to  a  justice  of  the  Supreme  Court  and  denied.  The  second 
trial  of  Roe  took  place  June  16,  1906,  and  at  the  close  of  such  trial  the  jury 
brought  in  a  verdict  of  guilty  without  leaving  the  court  room.  Roe  was  there- 
upon fined  $5  by  the  court  the  maximum  penalty  as  this  was  the  first  time  he  had 
been  prosecuted  for  a  violation  of  this  law.  The  respondent  has  taken  an  appeal 
from  this  judgment  to  the  county  courts.  The  foregoing  outline  of  the  history 
of  the  case  is  shown  by  the  moving  and  answering  papers  in  this  proceeding. 

In  the  moving  papers  of  petitioners  is  an  informal  petition  signed  by  thirty- 
five  legal  voters  of  the  district  praying  for  Roe's  removal.  Respondent  objects 
to  the  acceptance  of  such  petition  on  the  ground  that  it  is  not  verified.     It  is 


JUDICIAL    decisions:    officers  —  REMOVAL    OF  445 

immaterial  whether  this  petition  is  accepted  or  not  as  the  petition  of  Trustees 
Marsh  and  Davenport  and  Jacob  F.  Welch,  a  legal  voter  of  the  district,  is  suffi- 
cient to  bring  the  case  properly  before  me  for  determination.  Attorney  for 
respondent  further  objects  to  the  consideration  of  this  proceeding  on  the  ground 
that  the  offenses  charged  as  being  a  violation  of  law  took  place  more  than  thirty 
days  previous  to  the  date  on  which  this  proceeding  was  instituted  and  that  notice 
of  a  hearing  on  the  alleged  charges  has  not  been  given  as  required  by  section 
13,  title  I  of  the  Consolidated  School  Law.  This  is  not  an  appeal  which  must 
be  brought  within  thirty  days  from  the  date  on  which  an  official  act  constituting 
a  grievance  occurred  but  it  is  an  appealing  termed  an  appeal  brought  by  petition 
for  the  removal  of  a  school  officer  for  a  wilful  violation  of  law  and  official  duty. 
This  Department  does  not  hold  nor  do  the  rules  require  that  a  petition  for  this 
purpose  shall  be  presented  within  thirty  days  from  the  date  on  which  the  alleged 
violation  of  law  or  official  duty  occurred  or  that  a  satisfactory  reason  shall  be 
given  for  such  delay.  If  the  rules  did  require  this  the  fact  as  shown  upon  the 
pleadings  that  respondent  was  being  prosecuted  in  the  courts  for  the  alleged  viola- 
tion of  law  would  in  itself,  without  specifically  pleading  the  same  as  such  excuse, 
be  regarded  as  good  reason  for  delay  in  bringing  the  proceeding.  It  appears 
that  no  formal  notice  of  application  to  me  for  hearing  the  charges  alleged  was 
attached  to  the  moving  papers.  This  notice  is  merely  a  matter  of  form.  It  is 
not  required  by  section  13,  title  i  of  the  Consolidated  School  Law  or  by  any 
other  provision  of  law.  The  moving  papers  contained  all  the  essential  facts  as 
required  by  page  15  of  the  rules  regulating  such  proceedings.  The  service  of 
the  moving  papers  was  ample  notice  of  what  respondent  was  required  to  answer. 
Hovv^ever,  respondent  has  appeared  and  answered  without  notice  and  without 
waiving  any  rights,  and  such  appearance  and  answer  even  if  notice  were  required 
is  sufficient  to  bring  the  proceeding  properly  within  my  jurisdiction. 

After  this  proceeding  was  inaugurated  before  me,  I  applied  to  Justice  of 
the  Peace  Benedict  for  a  certified  return  of  the  evidence  taken  by  him  upon  the 
trial  at  which  Roe  was  found  guilty.  He  returns  what  purports  to  be  a  record 
of  such  evidence  but  his  certificate  shows  that  by  agreement  at  the  trial  between 
the  complainant  and  the  defendant  he  did  not  keep  a  complete  record  of  the 
evidence  and  that  the  return  made  is  a  record  written  by  him  from  memory  since 
my  application  for  a  return  has  been  made.  Attorney  for  respondent  properly 
objects  to  my  receiving  such  return  and  I  shall  sustain  this  objection. 

Trustees  of  school  districts  are  charged  with  the  enforcement  of  the  com- 
pulsory Education  Law  and  a  trustee  who  not  only  fails  but  refuses  to  provide 
for  his  own  children  who  are  subject  to  the  provisions  of  that  law  the  instruction 
which  the  law  declares  they  shall  receive  is  guilty  not  only  of  a  wilful  violation 
of  law  but  of  a  wilful  refusal  to  perform  his  official  duty  and  should  be  removed 
from  office. 

It  is  proper  to  inquire  what  the  official  record  of  district  no.  6,  Warwick,  with 
this^Department  has  been  in  the  enforcement  of  the  compulsory  education  law. 
Our 'official  reports  and  files  show  that  it  has  been  almost  impossible  to  compel 


44^  THE   UNIVERSITY    OF  THE   STATE   OF    NEW   YORK 

the  officers  of  this  district  to  enforce  such  law.  On  December  5,  1905,  the  Chief 
of  the  Atten(hnicc  Division  wrote  Trustee  Marsh  calHng  his  attention  to  the 
unsatisfactory  attenchmce  in  his  district  and  specifically  naming  the  two  children 
of  respondent  Roe  as  puj^ils  who  were  not  attending  school  as  required  by  law. 
The  trustee's  attention  is  called  to  the  "  long  record  of  unsatisfactory  attend- 
ance "  and  is  advised  that  if  the  law  is  not  properly  enforced  the  public  money 
of  the  district  will  be  withheld.  Again  on  March  i,  1906  the  Chief  of  the 
Attendance  Division  wrote  Trustee  Marsh  of  the  continued  unsatisfactory 
attendance  and  again  named  the  daughter  of  respondent  Roe  as  one  of  the  pupils 
who  did  not  attend  school  as  legally  required  and  also  staled  that  satisfactory 
excuse  for  her  absence  was  not  given.  Again  on  April  18,  1906  a  communica- 
tion was  addressed  to  all  three  of  the  trustees  calling  attention  to  the  failure  to 
enforce  this  law.  The  Chief  of  the  Attendance  Division  reports  that  in  the 
enforcement  of  the  compulsory  education  law  district  no.  6,  Warwick,  has  one 
of  the  worst  records  of  any  district  in  this  State.  In  this  connection  it  is  perti- 
nent to  refer  to  the  fact  that  the  data  of  the  last  United  States  census  will  show 
that  Orange  county  stands  number  44  in  the  list  of  counties  of  the  State  arranged 
in  the  order  of  the  number  of  illiterates  above  the  age  of  10  years.  This  county 
has  4090  illiterates  above  that  age  or  49  out  of  every  1000.  It  also  stands  number 
46  in  the  list  of  counties  of  the  State  arranged  according  to  the  number  of  illit- 
erates in  the  voting  population.  It  has  1894  illiterate  voters  or  62  out  of  every 
1000.  These  figures  show  the  importance  of  the  strict  enforcement  of  the  com- 
pulsory education  law  and  a  trustee  who  does  not  manfully  perform  his  duty  in 
this  respect  is  unfit  to  continue  to  assume  the  responsibilities  of  such  office. 

The  respondent's  answer  does  not  deny  the  charges  of  absence  from  school 
on  the  part  of  his  children  nor  does  he  claim  in  his  answer  that  proper  excuses 
were  furnished  for  their  absence.  Therefore  the  charges  of  petitioners,  namely, 
that  the  children  did  not  attend  school  as  required  by  law  and  that  proper  and 
legal  excuses  were  not  furnished  for  their  nonattendance,  stand  admitted.  In 
his  answer  he  justifies  his  violation  of  the  plain  provisions  of  the  law  on  the 
ground  that  the  children  were  physically  incapacitated  to  attend.  If  his  children 
were  physically  unable  to  attend  school  it  was  his  duty  to  satisfy  the  school 
authorities  upon  that  point.  The  statement  of  a  parent  to  the  effect  that  a  child 
is  ill  and  unable  to  attend  school  need  not  necessarily  be  accepted  by  school 
authorities  as  a  proper  excuse.  School  authorities  might  know  that  such  children 
were  running  the  streets  or  were  illegally  detained  at  home  to  aid  their  parents. 
If  school  authorities  were  required  to  accept  such  excuses,  a  parent  might  keep 
his  children  out  of  school  at  any  time  for  any  purpose  and  simply  send  an  excuse 
to  the  school  authorities  stating  that  the  children  were  ill.  Such  construction  of 
the  statutes  would  render  the  compulsory  education  law  a  dead  letter  and  the  " 
fundamental  purposes  of  this  law  would  be  absolutely  defeated. 

The  affidavit  of  respondent's  attorney  shows  that  the  principal  ground  upon 
which  he  has  taken  an  ajijieal  to  the  county  court  from  the  judgment  of  the  court 
which  tried  and  convicted  him  is  that  the  justice  improperly  charged  the  jury 


JUDICIAL    DECISIONS  :    OFFICERS REMOVAL    OF  447 

tliat  the  burden  of  proof  as  to  the  physical  inability  to  attend  school  was  upon 
the  parent  and  not  the  school  authorities.  If  the  contention  of  respondent's 
attorney  in  this  respect  is  true  it  would  be  an  absolute  impossibility  to  enforce 
the  law.  Such  interpretation  of  the  law  would  put  many  obstacles  in  the  way 
of  its  enforcement  which  school  officers  would  be  unable  to  overcome.  How  are 
school  officers  to  ascertain  the  physical  conditions  of  children  ?  The  law  provides 
no  method.  If  a  physician  should  be  sent  by  school  authorities  to  examine  a  child 
detained  on  the  ground  of  illness  and  the  parent  refuses  to  permit  the  child  to 
be  examined  by  such  physician  how  can  such  examination  be  made?  Must  in 
such  event  application  be  made  to  the  courts  for  an  order  to  make  such  examina- 
tion and  the  important  legal  questions  raised  which  such  procedure  involves?  It 
can  not  be  held  that  it  was  the  intention  of  the  Legislature  to  place  such  burdens 
upon  the  school  system.  The  rational  interpretation  of  this  law  consonant  with 
the  general  policy  of  school  administration  is  that  the  burden  of  proof  in  such 
cases  is  upon  the  parent.     It  violates  no  legal  right  of  the  parent. 

Section  lo  of  the  compulsory  education  law  places  the  general  responsibility 
of  the  supervision  of  the  enforcement  of  this  law  throughout  the  State  upon  the 
Commissioner  of  Education.  Pursuant  to  this  authority  I  have  promulgated  cer- 
tain regulations  for  the  enforcement  of  such  law.  In  every  school  register  of 
the  State,  a  copy  of  which  is  furnished  every  school  district  and  a  copy  of  which 
was  supplied  school  district  no.  12,  Warwick,  for  the  year  beginning  August  i, 
1905,  was  the  following  printed  regulation : 

No  pupil  subject  to  the  provisions  of  the  compulsory  education  law,  shall 
be  absent  or  tardy  without  bringing  a  written  excuse  from  his  parent  or  guardian, 
which  excuse  should  state  the  specific  reasons  for  absence  or  tardiness.  Sickness 
of  the  child,  severe  sickness  in  the  family  requiring  the  service  of  the  child  tem- 
porarily till  other  help  may  be  had.  or  some  unusual  condition  beyond  the  con- 
trol of  either  child  or  parent,  should  be  deemed  the  only  legal  excuse  for  absence. 
If  any  question  as  to  the  sufficiency  of  an  excuse  shall  arise  between  the  parent 
or  guardian  and  teacher,  it  shall  be  referred  to  the  superintendent  of  schools 
or  to  the  school  authorities  for  decision. 

This  rule  places  it  within  the  power  of  trustees  to  determine  what  are  suffi- 
cient excuses.  This  Department  has  always  ruled  that  in  the  case  of  habitual  or 
long-continued  absence  on  the  ground  of  physical  inability  to  attend,  trustees  are 
within  their  lawful  rights  in  requiring  parents  to  furnish  a  physician's  certificate 
and  that  such  certificate  is  conclusive. 

The  Court  of  Appeals  has  held  that  the  Commissioner  of  Education  has 
authority  to  prescribe  reasonable  rules  in  the  management  of  the  public  school 
system  (181  N.  Y.  421). 

Respondent  also  claims  that  the  reason  for  making  application  to  have  the 
case  presented  to  the  grand  jury  was  to  have  the  case  tried  in  a  court  of  record 
so  that  a  commission  could  be  appointed  to  take  the  testimony  of  two  physicians 
who  reside  out  of  the  State.  He  sets  up  that  it  was  impossible  to  secure  their 
attejidance  in  this  State  at  a  trial  and  that  a  justice  of  the  peace  had  not  authority 
to  take  their  testimony  through  a  commission.     If  respondent  believed  the  testi- 


448  THR   UXrVERSlTV    OF  THE    STATE    OF    NEW   YORK 

mony  of  physicians  rcsidino^  out  of  the  State  admissible  why  did  he  not  ofTer 
their  testimony  by  atVichivit  in  this  ])roceeding?  No  evidence  of  this  character 
has  been  offered  and  no  apj)Hcation  or  request  has  been  made  to  me  to  obtain 
such  evidence.  It  is  proper  to  state,  however,  that  evidence  of  this  character 
is  a(hnissil)le  now  as  it  was  also  upon  the  trial  of  Roe.  The  strained  effort  of 
respondent  to  make  it  appear  now  that  he  is  desirous  of  presenting  a  certificate 
or  testimony  from  a  physician  does  not  relieve  him  from  the  penalty  due  for 
failing  to  furnish  the  trustees  such  certificate  at  the  proper  time. 

It  api)ears  clear  from  the  pleadings  in  this  case  that  respondent  was  guilty  of 
failing  to  rc(|uirc  his  children  to  attend  school  as  provided  by  law  and  of  failing 
to  conform  to  a  regulation  of  this  Department  in  the  enforcement  of  the  com- 
pulsory education  law  and  that  the  facts  show  that  his  conduct  therein  was  wilful 
and  for  a  wrongful  purpose  and  that  he  thereby  as  trustee  became  guilty  of  a 
wilful  violation  of  law,  of  a  regulation  of  this  Department  and  of  official  duty. 
He  should  be  removed  from  oftice. 

The  petition  herein  is  sustained. 

It  is  ordered.  That  James  II.  Roe  be,  and  hereby  is,  removed  from  the  oflice 
of  trustee  of  school  district  no.  12,  town  of  Warwick,  county  of  Orange. 


5170 

In  the  matter  of  the  petition  and  proceedings  of  school  district  no.  6,  town  of 
Xorth  Salem,  Westchester  county,  for  the  removal  of  Charles  S.  Oakley  and 
Frank  C.  Parkus,  trustees  of  said  district. 

Funds  received  by  a  school  district  as  an  award  under  condemnation  proceedings  in  which 
tlie  site  of  the  district  is  taken  for  public  purposes  must  be  used  for  the  purchase  of  a 
new  site  and  in  removing  and  erecting  thereon  a  schoolhouse,  and  improving  and  fur- 
nishing such  site  and  house  and  their  appendages  and  to  purchase  school  apparatus 
and  for  the  support  of  the  school.  Such  funds  must  be  used  for  these  purposes  as  the 
legal  voters  of  the  district  shall  direct,  buch  funds  are  not  at  the  disposal  of  the  trustees 
to  be  used  for  such  purposes  as  they  shall  direct. 

When  the  trustees  of  a  common  school  district  are  directed  to  expend  $2000  in  the  erection 
of  a  building  and  such  officers  expend  $4000  for  that  purpose  they  are  guilty  of  a  viola- 
tion of  law  and  of  official  duty.  If  it  is  necessary  to  expend  any  considerable  amount 
in  excess  of  an  appropriation  for  the  erection  of  a  building  it  is  the  duty  of  the  trustees 
to  call  a  special  meeting  of  the  district  and  permit  the  legal  voters  thereof  to  direct  what 
action  shall  be  taken. 

It  is  not  within  the  power  of  trustees  to  decide  to  make  improvements  which  are  not  neces- 
sary for  the  comfort  or  convenience  of  the  children  but  which  add  to  the  general 
attractiveness  of  the  building,  such  as  installing  electric  light,  putting  in  metal  ceilings, 
papering  walls,  etc.  The  legal  voters  of  the  district  in  district  meeting  assembled  is  the 
proper  authority  to  decide  on  making  such  improvements. 

Section  473  of  the  Penal  Code  prohibits  trustees  from  becoming  interested  personally, 
directly  or  indirectly,  in  any  contract  which  they  are  authorized  to  make  for  the  district. 

School  districts  are  entitled  to  protection  in  their  rights  and  when  trustees  are  determined 
to  ignore  such  rights  this  Department  is  bound  on  appeal  in  due  form  to  afford  districts 


JUDICIAL    DECISIONS  :    OFFICERS  —  REMOVAL    OF  449 

such  protection  as  the  law  provides.    When  the  conduct  of  trustees  shows  clearly  that 
they  have  wilfully  violated  the  law  and  wilfully  neglected  their  duty  the  penalty  of 
removal   must  be  imposed. 
Decided  January  31,  1905 

Wilson  Brown,  jr,  attorney  for  petitioners 

Frank  L.  Parkus  &  Charles  S.  Oakley,  attorneys  for  respondents 

Draper,  Couimissioner 

During  the  school  year  ending  July  31,  1904,  the  board  of  trustees  erected 
a  school  building  in  this  district.  The  report  of  the  trustees  to  the  annual  meet- 
ing in  1904  included  expenditures  for  the  erection  of  such  building.  Such  report 
was  referred  to  an  auditing  committee  of  three  with  instructions  to  report  at  an 
adjourned  meeting  to  be  held  August  i6th.  At  such  adjourned  meeting  the  com- 
mittee submitted  a  written  report  charging  the  trustees  with  having  made  unnec- 
essary and  illegal  expenditures,  with  being  interested  in  district  contracts,  and 
recommending  that  such  trustees  be  requested  to  resign  on  or  before  August  22d. 
The  report  also  contained  a  recommendation  to  the  effect  that  a  committee  be 
appointed  with  power  to  employ  counsel  and  to  take  such  action  as  might  be 
deemed  necessary.  The  meeting  adopted  this  report  and  authorized  the  appomt- 
ment  of  the  committee  recommended  therein.  Isaac  Purdy,  G.  Preston  Brown 
and  Uel  T.  Bailey  were  named  as  members  of  such  committee.  The  meeting 
adjourned  until  August  23d.  The  trustees  did  not  resign  as  requested  before 
August  22d.  At  the  meeting  of  the  district  on  August  23d  the  above-named 
committee  was  instructed  to  petition  the  Commissioner  of  Education  for  the 
removal  of  these  trustees.  This  petition  is,  therefore,  presented  by  direction  of 
the  district.  The  members  of  the  committee  join  in  the  petition  as  individuals 
and  as  taxpayers  of  the  district. 

The  petitioners  allege  twenty-two  specific  violations  of  law  or  of  official  duty 
on  which  they  ask  for  the  removal  of  Trustees  Oakley  and  Parkus.  It  is 
unnecessary  to  go  into  a  detailed  consideration  of  each  of  these  twenty-two 
counts  against  such  trustees.  The  substance  of  the  principal  charges  is  that  the\ 
made  expenditures  from  the  funds  of  the  district  in  excess  of  appropriations  and 
without  legal  authority  therefor;  and  that  they  were  personally  interested  in 
contracts  which  they  made  for  the  district  and  that  they  rendered  services  in 
various  forms  for  the  district,  determined  their  compensation  therefor  and  then 
audited  and  paid  their  own  bills. 

The  pleadings  which  contain  several  hundred  pages  of  typewritten  matter 
show,  among  other  things,  that  during  the  school  year  ending  July  31,  1903,  the 
site  of  this  school  district  with  other  adjoining  land  was  taken  by  the  authorities 
of  New  York  City  under  condemnation  proceedings  for  the  purpose  of  obtain- 
ing a  pure  and  wholesome  supply  of  water  for  that  city.  An  award  was  made 
to  the  district  by  proper  authority  about  June  19,  1903.  This  award  amounted 
to  $6518.90. 

*"  \  The  school  law  does  not  directly  provide  what  use  shall  be  made  of  a  fund 
derived  from  tiiis  source.     It  will  be  shown  hereinafter  that  under  the  provisions 


450  THE   UNIVF.RSITV    OF   THE    STATE    OF    NEW   YORK 

of  tlie  Consolidated  School  Law  so  much  of  such  fund  as  may  be  necessary 
shall  be  used  in  procuring  a  "  new  site  and  in  removing  or  erecting  thereon  a 
schoolhouse,  and  improving  and  furnishing  such  site  and  house  and  their  ajjpend- 
agcs,"  and  also  to  purchase  school  apparatus  and  for  the  support  of  the  school. 
But  such  fund  must  be  used  for  these  purposes  as  the  inhabitants  of  the  district 
shall  direct  at  a  district  meeting.  Such  fund  is  not  at  the  disposal  of  the  trustees 
to  be  used  by  them  for  any  of  such  purposes  as  they  shall  direct. 

These  alleged  illegal  expenditures  were  made  during  tlie  school  year  begin- 
ning August  I,  1903,  and  ending  July  31,  1904.  Tlie  board  of  trustees  for  that 
year  was  composed  of  E.  L.  Quick,  Frank  L.  Parkus  and  C.  S.  Oakley.  Mr 
Quick's  term  of  office  expired  at  the  annual  meeting  in  1904,  and  he  was  not 
reelected.  This  petition  was  not  liled  at  this  Department  until  October  3,  1904, 
and  after  Mr  Quick's  term  of  office  had  expired.  The  petitioners,  therefore,  ask 
for  the  removal  of  Mr  Parkus  and  Mr  Oakley  who  were  members  of  the  board  of 
trustees  at  the  time  these  alleged  illegal  expenditures  were  made  and  who  are 
still  serving  as  members  of  such  board. 

It  appears  that  during  the  school  year  ending  July  31,  1903,  a  new  site  had 
been  purchased  for  the  sum  of  $500  and  that  improvements  thereon  had  been 
made  in  the  sum  of  5397-93.  At  the  annual  meeting  of  1903  the  trustees  reported 
a  balance  of  $5620.97  in  the  fund  received  by  award  from  New  York  City. 

Tile  authorities  representing  New  York  City  gave  the  district  the  building 
on  the  old  site.  At  a  district  meeting  the  sum  of  $800  was  voted  for  the  purpose 
of  removing  the  building  from  the  old  site  to  the  new  site.  The  sum  of  $1200 
was  voted  for  repairs  to  the  building.  The  trustees  were  authorized  to  grade  the 
grounds  in  a  suitable  condition,  but  a  specific  amount  was  not  voted  for  that  pur- 
pose. These  are  the  only  expenditures  expressly  authorized  by  the  district.  It 
is  not  claimed  by  the  respondents  that  other  expenditures  were  authorized  by 
the  district. 

Trustees  are  authorized  by  subdivision  5,  section  47,  article  6,  title  7  of  the 
Consolidated  School  Law  to  expend  $50  for  repairs  to  the  schoolhouse,  furniture 
etc.  in  any  one  year  without  a  vote  of  the  district.  They  may  also,  on  the  order 
of  the  school  commissioner,  expend  under  subdivision  3,  section  13,  title  5  of 
the  same  act,  the  sum  of  $200  for  repairs  to  the  schoolhouse  and  $100  for  repairs 
to  or  for  the  purchase  of  furniture.  They  are  also  authorized  by  section  50  of 
title  7  to  expend  $50  for  the  erection  of  outbuildings  when  the  district  is  wholly 
unprovided  with  such  buildings  and  when  such  exi)enditure  is  directed  by  the 
school  commissioner  or  by  the  Commissioner  of  Education.  It  is  not  claimed  by 
the  respondents  that  the  school  commissioner  or  the  Commissioner  of  Education 
directed  expenditures  for  these  purposes.  The  trustees  could,  therefore,  expend 
only  $50  in  addition  to  that  voted  by  the  district. 

As  the  district  meeting  authorized  an  expenditure  of  $800  for  removing  the 
building  and  $1200  for  repairs  to  the  building,  and  the  trustees  could  expend  $50 
without  a  vote  of  the  district,  such  trustees  could  legally  expend  $2050  and  what- 
ever might  be  necessary  to  grade  the  grounds  in  a  suitable  condition.     They  did 


JUDICIAL    decisions:    officers  —  REMOVAL    OF  451 

not  possess  legal  authority  to  expend  more.  Any  expenditure  in  excess  of  such 
amount  for  the  erection  and  equipment  of  buildings  and  the  grading  and  improve- 
luent  of  the  site  was  an  unauthorized  and  illegal  expenditure.  In  making  such 
expenditures  the  trustees  were  guilty  of  a  violation  of  law  and  of  official  duty. 
If  it  were  necessary  to  expend  any  considerable  amount  in  excess  of  the  appro- 
priation to  place  the  grounds  and  buildings  in  proper  condition,  it  was  the  duty 
of  the  trustees  to  call  a  special  meeting  of  the  district  and  permit  the  legal  voters 
thereof  to  direct  what  action  should  be  taken.  To  pursue  any  other  course  would 
be  an  unwarranted  and  illegal  procedure.  It  appears  that  many  of  the  taxpayers 
believed  improper  and  illegal  expenditures  were  being  made  and  petitioned  the 
trustees  to  call  a  special  meeting  to  consider  the  question.  The  school  commis- 
sioner suggested  to  the  trustees  that  they  call  such  special  meeting.  These  trus- 
tees refused  to  call  such  meeting.  It  was  a  serious  mistake  on  the  part  of  these 
trustees  under  the  circumstances  to  refuse  to  honor  such  petition  and  to  fail  to 
comply  with  the  suggestion  of  the  school  commissioner.  They  should  have  called 
a  special  meeting  of  the  district. 

The  report  of  this  board  of  trustees  to  the  annual  meeting  of  the  district  in 
1904  shows  the  following  expenditures : 

Expenses  of  grading,  cellar,  ditch,  well  etc. 

Grading    $422  55 

Well 150  17 

Cellar  and  chimneys 650  30 

Cement,    lime   and    brick 94  ^5 

Tile    130  96 

Labor     231  88 

Posts  for  fence 30  00 

Use  of  pump ^  °° 

Replacing  tree 2  00 

Total    $171301 

Less  amount  expended  by  former  board 382  93            $I330  08 

Architectural    work °^  °7 

Heating  plant 45o  00 

Desks  and  furniture 246  50 

Moving  and  settling  building 8/5  00 

Registry  of  deed  and  lot ^  40 

Electric   lights 47  90 

Extra  work  on  closets  and  clearing  lot I7  43            $i699  90 

Expense  of  building 

Bells,  batteries  etc •. ^4  30 

Carpenter  labor   546  88 

Cartage  and  car  fare ^94 

Metal    ceiling ^^ 

Express  and  freight ^  50 

Glass    ^°32 

^\^    Hardware  ^     ^ 

•    Labels  and  cards  for  desk ^  ^5 

T  ^  ID   GO 

Lavatory   


:>082  72 
117  20 
65  10 

133  55 
16  00 

57  09 
5  40 
I  75 

(>3   52 

$1877  91 

$4907  89 

452  THE   UNIVF.KSITY    OF   TMK   STATE    OF    NEW   YORK 

Expense  of   building  —  Continued 

Lumber  

Mason  work,  chimneys  and  walls 

Paint,  paste,  varnish  etc 

Painters'    labor 

Paper   for   ceilings 

Pipes,  tin  etc 

Registers  

Sink   

Slate   boards 

Total   expenditures 

The  report  made  by  these  trustees  therefore  shows  that  they  expended 
$4907.89  for  the  purposes  for  which  they  were  legally  authorized  to  expend 
$J05o  plus  what  might  be  necessary  for  grading  the  grounds  in  a  suitable  condi- 
tion. The  respondents  do  not  attempt  to  state  just  how  much  they  did  expend 
in  grading  the  grounds.  They  should  be  able  to  give  the  exact  amount  expended 
for  that  purpose.  It  is  clear  that  at  least  $700  in  addition  to  that  expended  by 
the  former  board  was  expended  for  this  purpose.  Accepting  this  as  a  fair, 
reasonable  amount  to  have  paid  for  grading  the  grounds,  the  board  was  authorized 
to  expend  not  more  than  $2750.  By  this  liberal  estimate  their  expenditures  still 
exceed  the  amount  legally  authorized  by  nearly  $2200.  All  of  these  expenditures 
were  made  froin  the  fund  derived  from  the  award  paid  by  New  York  City. 

These  respondents  attempt  to  justify  their  conduct  in  making  these  excessive 
and  illegal  expenditures,  on  the  theory  that  section  21  of  article  2,  title  7  of  the 
Consolidated  School  Law,  conferred  on  them  that  power.  Sections  19  and  20 
of  this  article  and  title  of  the  school  law  provides  for  the  sale  of  a  district  site. 
Section  21  provides  for  the  use  that  shall  be  made  of  a  fund  derived  from  the 
sale  of  a  site.  This  fund,  as  previously  stated,  was  obtained  as  an  award  in 
condemnation  proceedings.  The  school  law  makes  no  provision  for  the  use  of  a 
fund  obtained  in  this  manner.  The  school  law  does  provide  for  the  use  that  shall 
be  made  of  money  derived  from  a  sale  of  the  site  of  a  district.  A  fund  derived 
from  an  award  made  as  the  result  of  taking  a  site  under  condemnation  proceed- 
ings is  the  equivalent  of  a  fund  derived  from  the  sale  of  a  site.  In  the  absence 
of  a  provision  of  law  to  the  contrary  such  fund  must  be  so  regarded  and  must 
be  used  as  the  law  directs  a  fund  derived  from  the  sale  of  a  site  to  be  used. 

The  section  of  law  above  cited  must,  therefore,  govern  the  use  of  this  fund 
in  question.  The  law  reads  that  this  fund  ''  shall  be  applied  to  the  expenses 
incurred  in  procuring  a  new  site  and  in  removing  or  erecting  thereon  a  school- 
house  and  improving  and  furnishing  such  site  and  house,  and  their  appendages, 
so  far  as  such  application  shall  be  necessary;  and  the  surplus,  if  any,  shall  be 
devoted  to  the  purchase  of  school  apparatus  and  the  support  of  the  school  as 
the  inhabitants  at  any  annual  meeting  shall  direct."  This  section  of  law  does 
not  provide  that  all  of  such  moneys  shall  be  expended  on  a  new  site  and  build- 
ings but  only  so  much  thereof  as  may  be  necessary.    This  section  of  law  does  not 


JUDICIAL    DECISIONS  :    OFFICERS  —  REMOVAL    OF  453 

confer  on  trustees  the  power  to  select  or  purchase  sites  or  to  erect  or  repair 
buildings  or  to  appropriate  funds  of  the  district  derived  from  any  source  for 
these  purposes.  It  simply  provides  that  this  fund  shall  be  used  for  certain 
purposes.  To  be  used  for  such  purposes  it  must  be  appropriated  by  the  authority 
which  the  law  directs,  namely,  a  duly  assembled  school  meeting. 

There  is  no  provision  of  the  school  law  conferring  on  trustees  the  power  to 
appropriate  money  for  a  site  or  to  determine  what  amount  shall  be  paid  for  a 
site.  There  is  no  provision  of  the  school  law  conferring  on  trustees  the  power 
to  appropriate  money  for  the  erection  of  buildings  or  for  the  improvement  of, 
or  additions  to,  school  buildings  except  to  the  amount  of  $50,  nor  are  trustees 
empowered  to  determine  what  amount  shall  be  used  for  such  purposes.  The 
law  does  not  confer  on  trustees  the  power  to  appropriate  money  beyond  the  sum 
of  $50  for  the  purchase  of  school  furniture.  The  law  does,  however,  confer  on 
a  district  meeting  the  power  to  appropriate  money  for  these  purposes  and  to 
determine  the  amount  to  be  expended  therefor  (see  subdivisions  7  and  8  of  sec- 
tion 14  and  sections  17  and  18  of  title  7  of  the  ConsoHdated  School  Law).  Before 
any  portion  of  the  $6518.90  could  be  legally  used  by  the  trustees  in  purchasing 
a  site  or  removing  or  erecting  a  building,  it  was  necessary  that  a  district  meeting 
authorize  an  appropriation  therefrom  and  to  specify  the  amount  to  be  used.  The 
trustees  could  legally  expend  the  amount  thus  voted  but  no  more. 

The  respondents  claim  that  the  action  of  the  district  in  voting  $800  for 
removing  the  old  building  and  $1200  for  repairs  was  illegal  and  not  binding 
upon  them,  on  the  ground  that  the  vote  was  not  taken  at  a  proper  meeting  and 
not  taken  by  the  method  which  the  law  directs.  In  this  they  are  in  error.  Such 
action  was  binding  upon  the  trustees  until  declared  illegal  by  proper  authority. 
If  these  respondents  were  correct  in  this  contention  they  had  no  right  to  make 
any  expenditure  from  this  fund  except  the  $50  which  the  law  permits  trustees 
to  expend  without  a  vote  of  the  district.  By  this  contention  the  trustees  evidently 
recognized  the  limitations  placed  on  their  powers  by  the  Consolidated  School 
Law  in  relation  to  expenditures  for  the  purposes  under  consideration.  If  these 
expenditures  were  made  by  the  respondents  knowing  that  they  were  exceeding 
their  rightful  powers,  their  conduct  was  wilful  and  they  must  stand  guilty  of  a 
wilful  violation  of  law  and  neglect  of  duty. 

The  trustees  were  authorized  by  the  annual  meeting  of  1903  to  inquire  into 
the  best  mode  of  heating  the  schoolhouse.  They  never  reported  to  the  district  on 
that  question,  but  decided  on  a  heating  system  and  installed  it  at  a  cost  of  $450, 
without  direction  from  the  district  to  do  so.  It  also  appears  from  the  report  of 
the  trustees  to  the  annual  meeting  of  1904  that  such  trustees  installed  a  system 
of  electric  lights  in  the  building,  put  in  metal  ceilings,  papered  the  walls,  expended 
nearly  $250  for  furniture  and  made  expenditures  for  several  other  purposes 
which  had  not  been  authorized.  Many  of  these  expenditures  were  not  necessary 
for  the  comfort  or  convenience  of  the  children  but  added  to  the  general  attract- 
-iveness  of  the  building.  It  was  not  within  the  power  of  these  trustees  to  decide 
to'  make  such  improvements  no  matter  how  desirable  they  may  have  been.     It 


454  Tin-:  uni\kksity  ok  tiiI':  state  of  new  vork 

was  the  rii^lit  of  the  district,  under  the  law,  to  pass  upon  the  necessity  and  the 
desirability  of  making  such   exi)cnditures. 

It  is  also  alleged  in  the  ])ctition  that  these  trustees  personally  supplied 
material,  performed  labor  and  services  for  the  district  and  were  thereby  per- 
sonally interested  in  contracts  which  they,  as  trustees,  made  for  the  district.  One 
of  the  purposes  for  which  it  is  alleged  excessive  and  illegal  expenditures  were 
made  was  grading  the  grounds.  The  official  records  of  the  board  show  that 
I  rustee  Quick  was  emploved  on  the  grading  a  large  portion  of  the  time  between 
(  )c(()ber  5.  1003.  and  b'ebruary  6.  T904.  ITe  received  $5  per  day  for  the  services 
of  himself  and  team.  These  records  also  show  that  he  supplied  material  used  in 
the  improvements  made.  He  received  for  such  labor,  services  and  material  at 
least  .$346.60.  The  olticial  records  of  the  board  also  show  that  Trustee  Parkus, 
who  is  a  painter  and  decorator,  supplied  material  at  various  times,  that  he  was 
employed  much  of  the  time  between  November  20,  1903  and  February  20,  1904, 
receiving  $3.50  per  day.  He  received  for  such  labor,  services  and  material  at 
least  $303.87.  The  bills  of  Trustee  Quick  and  Trustee  Parkus  for  such  labor, 
services  and  material  were  presented  to  the  board  of  trustees,  audited  by  such 
body  and  paid  under  the  order  of  that  body.  Mr  Parkus  and  Mr  Quick  con- 
stituted a  majority  of  the  board.  They  could  have  controlled  the  action  of  the 
board.  Mr  Oakley  ottered  no  objection  to  this  procedure,  but  on  the  contrary 
readily  concurred  in  it.  It  was  an  illegal  and  wrongful  proceeding  and  ISIr 
(Jakley  in  acquiescing  in  it  became  equally  censurable  with  the  other  two  mem- 
bers. In  fact  he  appears  to  have  been  the  controlling  power  in  the  board.  It 
is  charged  by  i)etitioners  and  admitted  by  respondents  that  all  members  of  the 
board  rendered  services  or  performed  labor  for  which  they  presented  bills  which 
were  audited  officially  by  the  board. 

This  board  of  trustees  made  a  division  of  certain  work  among  its  members. 
These  members  performed  such  work.  As  trustees  they  passed  upon  the 
character  and  quality  of  the  work  which  they  as  individuals  performed  for  the 
district.  Again  as  trustees  they  determined  the  value  of  the  services  which  they 
as  individuals  rendered  the  district.  It  is  this  very  practice  which  the  law 
prohibits.  It  is  a  violation  of  section  473  of  the  Penal  Code  for  trustees  to  become 
interested  personally,  directly  or  indirectly,  in  any  contract  which  they  are 
authorized  to  make  for  the  district.  The  petitioners  have  shown  that  those 
respondents  did  not  make  proper  effort  to  get  this  work  done  for  the  district  at 
the  lowest  price  consistent  with  substantial  service.  The  appellants  have  also 
shown  by  evidence  of  competent  witnesses  that  the  cost  of  the  building  and 
improvements  is  largely  in  excess  of  their  real  value.  Four  men  competent  to 
testify  on  the  value  of  the  school  property  in  question  as  it  now  stands,  swear  that 
the  cost  of  erecting  the  buildings  and  making  the  improvements  to  the  grounds 
etc.  should  not  have  exceeded  if'2500,  provided  such  sum  was  properly  expended. 
The  respondents  have  failed  to  present  competent  evidence  to  controvert  this 
charge.  The  testimony  of  men  who  have  made  repairs  in  the  locality  of  this 
school  district  showing  that  such  repairs  have  cost  more  than  was  anticipated  is 


JUDICIAL    decisions:    officers REMOVAL    OF  455 

not  sufficient  nor  is  it  competent.  Testimony  on  this  point  should  be  from  men 
familiar  with  grading  and  building  and  who  know  the  cost  of  performing  such 
labor  and  of  the  materials  to  be  used  etc.  Such  testimony  the  resondents  have 
not  offered  and  the  allegation  that  the  funds  of  the  district  were  wastefully  and 
wrongfully  expended  is  established. 

Section  17  of  article  2  of  the  Consolidated  School  Law  rovides  that  no 
schoolhouse  shall  be  built  in  any  school  district  until  the  plan  of  ventilating, 
heating  and  lighting  have  been  approved,  in  writing,  by  the  school  commissioner. 
The  plans  of  this  building,  showing  these  features  were  never  submitted  to  the 
school  commissioner  for  approval  and  the  trustees  erected  this  building  in  viola- 
tion of  a  law  generally  understood  by  the  people  and  with  which  they  must  have 
been  familiar.  The  conduct  of  these  trustees  has  been  reprehensible  in  many 
ways.  They  seem  to  have  had  no  regard  for  the  wishes  of  the  people  of  the  dis- 
trict as  clearly  expressed  in  district  meetings.  They  have  shown  no  respect  for 
the  law  regulating  their  duties  and  limiting  their  powers.  They  decided  to  make 
certain  improvements  and  expenditures  without  regard  to  their  legal  powers  or 
the  rights  of  the  district  and  they  put  into  effect  their  decision  thereon.  School 
districts  are  entitled  to  protection  in  their  rights  and  when  trustees  are  deter- 
mined to  ignore  such  rights  this  Department  is  bound  on  appeal  in  due  form  to 
afford  districts  such  protection  as  the  law  provides.  The  severe  penalty  of 
removal  from  office  will  not  be  imposed  for  slight  reasons  or  for  trivial  offenses 
committed  through  a  misunderstanding  of  the  law ;  but  when  the  conduct  of 
trustees  shows  clearly  that  they  have  wilfully  violated  the  law  and  wilfully 
neglected  their  duty  this  penalty  must  be  imposed.  When  a  district,  acting 
within  its  legal  powers,  directs  its  trustees  to  do  certain  things  and  such  trustees 
fail  to  do  as  directed  or  deliberately  exceed  their  powers  in  such  matter  they 
;ire  guilty  of  a  wilful  violation  of  law  and  of  neglect  of  official  duty. 

School  officers  are  to  be  commended  for  manifesting  a  desire  to  erect  suitable 
buildings,  to  properly  equip  them,  and  improve  and  beautify  the  grounds.  In 
all  proper  and  legal  efforts  to  achieve  such  results  they  will  be  fully  sustained 
by  this  Department.  When  the  voters  of  a  district  refuse  to  properly  cooperate 
with  trustees  in  such  matters  this  Department  will  extend  all  assistance  and 
relief  which  the  circumstances  will  warrant  and  the  law  will  permit.  School 
officers  who  disregard  the  plainly  written  statutes  and  violate  the  rights  of  a 
district  to  reach  these  ends,  of  course,  can  not  be  sustained. 

I  decide,  that  Frank  L.  Parkus  and  Charles  S.  Oakley,  members  of  the  board 
of  trustees  of  school  district  no.  6,  town  of  North  Salem,  Westchester  county, 
were,  and  each  of  them  was,  guilty  of  wilful  violation  of  law  and  wilful  neglect 
and  violation  of  duty: 

By  expending  illegally,  excessively,  exorbitantly  and  wrongfully  the  funds 

of  the  district;  by  knowingly  permitting  members  of  the  board  of  trustees  of 

such  district  to  become  personally  interested  in  contracts  of  the  district  and  by 

-auditing  and  paying  the  bills  of  members  of  the  board  for  services  performed 

and  material  furnished ;  by  failing  to  comply  with  the  directions  of  the  district 


45^^  Tin--    l'M\  KKSITY    OF   Till-:    STATI-:    OF   NEW   YORK 

in  many  ways  as  charged  in  the  moving  papers ;  and  by  failing  to  protect  the 
rights,  property  and  funds  of  the  cHstrict  as  required  by  virtue  of  the  offices 
which  they  held  and  as  the  law  provides. 

The  petition  herein  is  sustained. 

It  is  ordered.  That  Frank  L.  Parkus  and  Charles  S.  Oakley,  and  each  of 
them,  be,  and  they  are,  and  each  of  them  is,  hereby  removed  from  office  as 
members  of  the  board  of  trustees  of  school  district  no.  6,  town  of  North  Salem, 
Westchester  county,  for  wilful  violation  of  law  and  wilful  neglect  and  violation 
of  duty  as  members  of  such  board  of  trustees. 

It  is  further  ordered,  That  Uel  T.  Bailey,  the  member  of  the  board  of  trus- 
tees of  said  district,  elected  at  the  annual  meeting  held  in  such  district  August 
2,  1904,  without  unnecessary  delay,  call  a  special  meeting  of  the  legal  voters  of 
said  district  no.  6,  town  of  North  Salem,  in  accordance  with  the  provisions  of 
section  6,  title  7  of  the  Consolidated  School  I-aw,  for  the  purpose  of  electing  a 
trustee  whose  term  of  office  shall  expire  on  the  first  Tuesday  of  August  1905, 
in  place  of  Frank  L.  Parkus,  removed;  also,  for  the  election  of  a  trustee  whose 
term  of  office  will  expire  on  the  first  Tuesday  in  August  1906,  in  the  place  of 
Charles  S.  Oakley,  removed. 


3727 

In  the  matter  of  the  application  for  the  removal  of  Isaiah  M.  Merrill  as  trustee 
of  school  district  no.  8,  town  of  Northfield,  county  of  Richmond. 

A  trustee  who  reported  a  claim  against  the  district  as  paid,  when  in  fact  it  was  not  paid, 
and  who  received  district  moneys  into  his  own  hands  to  pay  tlic  same,  and  then  hqui- 
dated  the  debt  by  giving  his  personal  promissory  note,  is  guilty  of  a  procedure  which 
can  not  be  upheld. 

Trustee's  removal  from  office  decreed. 

Decided  November  15,  1888 

Draper,  Superintendent 

Isaiah  M.  Merrill  is  one  of  three  trustees  in  the  district  above  named.  He 
was  elected  to  such  office  at  the  annual  school  meeting  in  1886,  and  his  term  will 
expire  in  1889. 

The  petitioners  allege  that  he  has  been  guilty  of  making  false  reports  to 
district  meetings.  It  was  shown  that  the  annual  report  of  the  trustees  made 
in  1887,  showed  that  a  bill  for  lumber  in  favor  of  J.  H.  Van  Clief  &  Son 
had  been  paid,  when  in  fact  such  bill  had  not  been  paid.  It  seems  that  a  brother 
of  Merrill  was  the  collector  of  the  district  and  that  between  them  they  received 
the  money  which  should  have  paid  this  bill.  On  the  other  hand,  the  trustee  claims 
that  the  report  was  not  intended  to  show  that  such  bill  had  been  in  fact  paid, 
but  that  an  order  had  been  drawn  upon  the  collector  in  favor  of  Van  Clief  &  Son 
for  the  payment  thereof.  It  is  also  shown  that  Merrill  settled  this  bill  with  Van 
Clief  &  Son  on  the  4th  of  I'ebruary  1888,  by  giving  to  said  firm  his  promissory 


JUDICIAL    DECISIONS  :    OFFICERS REMOVAL    OF  457 

note  for  the  amount,  and  that  said  firm  received  such  note  in  settlement  of  the 
claim. 

There  are  some  other  matters  set  forth  in  the  petition  for  the  removal  of 
Merrill,  but  I  do  not  deem  it  necessary  to  consider  them. 

Sufficient  appears  to  show  that  the  trustee  has  been  derelict  in  the  duties  of 
his  office.  He  does  not  deny  that  he  had  full  knowledge  of  all  the  circumstances 
and  was  responsible  for  the  report  to  the  district  meeting  in  1887  being  made  in 
the  form  in  which  it  was  presented.  If  the  claim  of  Van  Clief  &  Son  had  not 
actually  been  paid,  the  report  should  not  have  indicated  that  it  had  been.  But 
while  it  might  be  possible  to  overlook  a  misstatement  of  that  nature  upon  the 
ground  that  it  was  unintentional  and  that  there  was  no  deliberate  purpose  to 
deceive  the  district  meeting,  it  is  not  possible  to  overlook  the  fact  that  this  trustee 
received  the  money  of  the  district  into  his  own  hands  and  that  instead  of  paying 
the  same  over  to  the  claimant  he  converted  the  same  to  his  own  use  for  a  long 
time,  and  then  finally  settled  the  claim  by  giving  his  personal  promissory  note 
therefor. 

A  school  trustee  has  no  right  to  take  into  his  hands  moneys  belonging  to 
the  district.  It  is  his  business  to  draw  orders  upon  the  proper  officer  in  settle- 
ment of  legitimate  claims  and  deliver  the  order  to  the  claimant,  who  must  get 
his  money  from  the  collector.  It  is  quite  possible  that  there  has  been  no 
deliberate  purpose  to  defraud  the  district,  but  the  conclusion  is  irresistible  that 
the  trustee  in  this  case  has  been  guilty  of  a  procedure  which  can  not  be  upheld 
as  a  predecent,  and  can  not  be  tolerated  with  safety  to  the  public  interests. 

Mr  Merrill,  the  trustee,  also  comes  before  the  Department  with  a  petition 
asking  that  the  records  of  a  certain  district  meeting  be  expunged  from  the  official 
records  of  the  district,  on  the  ground  that  such  meeting  was  not  regularly  and 
lawfully  called.  It  is  alleged  by  the  respondents  that  the  meeting  referred  to  was 
not  intended  to  be  a  regular  district  meeting,  that  it  was  only  a  voluntary 
assemblage  of  residents  of  the  district  looking  to  action  which  should  be  advan- 
tageous to  the  interests  of  the  district.  It  is  admitted  that  if  the  records  of 
such  a  meeting  have  been  incorporated  into  the  records  which  the  law  requires 
the  clerk  to  keep,  that  the  same  should  be  expunged  therefrom. 

It  is,  therefore,  ordered  that  Isaiah  M.  Merrill  be,  and  he  is  hereby  removed 
from  the  office  of  trustee  in  school  district  no.  8  of  the  town  of  Northfield,  Rich- 
mond county,  and  that  the  remaining  members  of  the  board  call  a  speedy  meet- 
ing of  the  district  for  the  purpose  of  filling  such  vacancy. 


5441 

In  the  matter  of  the  petition  of  Charles  J.  Quinby  and  Robert  F.  Smith  for  the 

removal  of  William  A.  Cromwell  from  the  board  of  education  in  union  free 

school  district  no.  i,  town  of  White  Plains,  Westchester  county. 

Removal   of  member   of  board   of   education;   authorizing   expenditures  in   excess   of 

appropriation.     Where  a  board  of  education  directs  certain  specified  repairs  to  be  made 

to  the  several  school  buildings  in  a  union  free  school  district  and  one  of  the  members 


45^  !■"£   UXIVERSITV    ni-    TlIK    STATK    Ol"    XKW    YORK 

of  the  board  acts  as  a  committee  in  making  such  repairs,  the  fact  that  such  member  in 
contracting  for  repairs  exceeded  the  amount  which  had  been  appropriated  for  such 
repairs,  is  not  a  sufficient  cause  for  his  removal  where  it  appears  that  there  was  no 
evidence  of  bad  faith  and  that  the  board  itself  examined  the  accounts  for  the  repairs 
and  ordered  them  to  be  paid. 

Failure  to  obey  rules  requiring  bids.  A  board  of  education  adopted  a  rule  requiring  that 
bills  sliould  be  received  uu  all  contracts  exceeding  the  sum  of  $ioo.  A  wilful  violation 
of  such  a  rule  to  the  detriment  of  the  district  for  the  purpose  of  favoring  any  person 
or  persons  in  transactions  resj)ecting  the  district  property  or  affairs  is  sufficient  ground 
fur  removal.  Where  the  evidence  shows  that  the  violation  of  such  rule  is  technical  and 
not  wilful  he  should  not  be  removed.  A  petitioner  who  seeks  the  removal  of  a  member 
of  the  board  of  education  because  of  a  violation  of  such  a  rule  must  show  by  pre- 
ponderance of  proof  that  such  violation  was  wilful  and  resulted  in  injury  to  the  district. 

Decided  March    lo,    lyio 

Charles  J.  Ouinby,  attorney  for  appellant 
William  A.  Cromwell,  attorney  for  respondent 

Draper,  Couimissioncr 

The  petitioners,  Charles  J.  Quinby  and  Robert  F.  Smith,  are  taxpayers  and 
quaHfied  electors  in  union  free  school  district  no.  i,  town  of  White  Plains,  West- 
chester county,  and  they  ask  for  the  removal  of  William  A.  Cromwell  from  his 
ollice  as  member  of  the  board  of  education  of  such  district.  The  petition  was 
filed  in  this  Department  November  17,  1909;  an  answer  was  filed  by  the  respond- 
ent November  24,  1909,  but  the  subsequent  pleadings  and  affidavits  submitted  by 
both  parties  delayed  the  closing  of  the  case  until  January  24,  1910.  The  case 
has  assumed  voluminous  proportions;  a  large  number  of  affidavits  have  been 
submitted  on  both  sides  and  a  considerable  amount  of  documentary  evidence  has 
been  adduced.  It  has  been  necessary  to  carefully  examine  all  these  pleadings, 
affidavits  and  documents  to  reach  a  decision. 

The  proceeding  is  brought  under  section  228  of  the  Education  Law  which 
provides  that  "  P'or  cause  shown,  and  after  giving  notice  of  the  charge  and 
opportunity  of  defense,  the  Commissioner  of  Education  may  remove  any  mem- 
ber of  a  board  of  education.  Wilful  disobedience  of  any  lawful  requirement  of 
the  Commissioner  of  Education,  or  a  want  of  due  diligence  in  obeying  such 
requirement,  or  wilful  violation  or  neglect  of  duty,  is  cause  for  removal."  The 
respoiulent  has  been  served  with  a  copy  of  all  the  charges,  and  has  replied 
thereto  in  detail.  He  has  been  notified  of  his  opportunity  to  present  oral  testi- 
mony in  his  defense.  The  petitioners  and  the  respondent  have  expressly  consented 
to  a  decision  upon  the  i)ai)ers  presented,  without  oral  argument. 

It  is  admitted  that  the  respondent  was  a  member  of  the  board  of  education 
of  union  free  school  district  no.  i,  town  of  White  Plains,  which  consists  of  the 
village  of  While  Plains,  in  the  year  1908,  and  that  during  that  year  he  was  a 
member  of  the  committee  on  buildings  and  repairs;  that  at  the  annual  meeting 
held  in  August  1908,  an  item  of  $4500  was  voted  to  be  expended  during  the 
ensuing  school  years  for  repairs  to  school  buildings;  that  the  respondent,  as  a 
member  of  the  committee  on  buildings  and  repairs,  presented  a  detailed  report  to 


JUDICIAL    DECISIONS  :    OFFICERS REMOVAL    OF  459 

the  board,  at  a  meeting  held  July  14.  1908,  specifying  the  character  and  extent 
of  the  repairs  to  be  made  on  the  several  school  buildings  in  the  district,  and 
thereupon  the  making  of  such  repairs  was  referred  to  the  said  committee,  with 
power;  that  on  July  30,  1908  the  respondent,  as  sole  acting  member  of  such  com- 
mittee, sent  notices  to  certain  persons,  with  specifications  attached,  directing  them 
to  make  the  repairs  in  accordance  with  such  specifications ;  that  the  repairs  were 
accordingly  made  under  the  direction  of  the  respondent  during  the  months  of 
July.  August  and  September  1908,  and  that  the  total  amount  of  indebtedness 
thereby  incurred  amounted  to  over  $7300 ;  that  such  repairs  were  made  without 
competitive  bids  being  asked  for  or  received. 

The  petitioners  contend  that  the  respondent  wilfully  violated  the  law  in 
incurring  an  indebtedness  for  repairs  in  excess  of  the  .sum  of  $4500,  voted  at 
the  annual  school  meeting  held  August  4,  1908,  for  repairs  to  school  buildings. 
But  it  appears  from  the  allegations  contained  in  the  petitioners'  reply  that  the 
board  directed  that  certain  specified  repairs  be  made  to  the  several  school  build- 
ings, without  regard  to  the  probable  cost  thereof,  at  a  meeting  held  prior  to  the 
annual  meeting  of  the  district  when  the  appropriation  was  made.  It  is  the  duty 
of  a  board  of  education  to  keep  the  schoolhouses  of  the  district,  and  the  furniture 
and  apparatus  therein  in  repair  (Education  Law,  §  226,  subd.  6)»  and  such  duty 
is  not  limited  or  enlarged  by  an  appropriation  which  may  be  made  therefor  by  a 
district  meeting.  If  the  amount  appropriated  for  such  purpose  by  the  annual 
meeting  in  accordance  with  estimates  submitted  to  such  meeting  by  the  board  is 
insufficient  to  pay  the  cost  of  necessary  repairs,  and  there  is  no  other  fund  avail- 
able for  such  purpose,  it  is  the  duty  of  the  board  to  present  a  supplementary 
estimate  to  a  special  meeting  duly  called  by  such  board  (Education  Law,  §  242). 
If  the  school  buildings  are  in  such  condition  as  to  make  the  repairs  necessary 
for  the  use  of  such  buildings  for  school  purposes,  the  board  may  take  the  neces- 
sary action  to  secure  a  tax  levy  to  raise  the  amount  required  to  pay  for  such 
repairs,  as  in  the  case  of  contingent  expenses  (Education  Law,  §  244).  While 
it  is  true  that  under  the  provisions  of  section  232  of  the  Education  Law,  the 
amount  appropriated  for  a  specific  purpose  measures  the  liability  to  be  incurred, 
such  section  must  not  be  construed  as  arbitrarily  limiting  the  amount  to  be 
expended  in  making  repairs  which  must  be  made  to  preserve  the  district's  prop- 
erty and  to  render  its  buildings  fit  for  use. 

All  of  the  bills  submitted  l)y  the  persons  whom  the  respondent  employed  to 
make  the  repairs,  amounting  to  more  than  $7300.  were  carefully  examined  by 
the  board,  and  they  were  ordered  paid  without  a  dissenting  vote.  If  there  was 
any  unlawful  act  committed  in  paying  out  money  in  excess  of  the  appropriation 
made  by  the  district  meeting,  it  was  the  act  of  the  board,  for  which  it  would  be 
unjust  to  hold  this  respondent  responsible.  There  is  no  proof  that  all  or  a  part 
of  the  repairs  were  unnecessary,  or  that  there  was  no  fund  available  to  pay  the 
cost  thereof,  and  it  must  therefore  be  held  that  neither  the  respondent  nor  the 
•board  of  education  violated  the  law  in  exceeding  the  amount  appropriated  for 
such  repairs  at  the  annual  school  meeting. 


460  THE    UN'IVKKSITY    OF   TIIK    STAl  K    oi'    NKW    YORK 

A  more  serious  question  is  involved  in  the  declaration  that  the  respondent 
is  guilty  of  a  wilful  violation  or  neglect  of  duty  in  failing  to  ask  for  and  receive 
bids  for  the  performance  of  the  work  which  he  was  directed  to  do,  and  in  omitting 
to  refer  the  matter  of  making  certain  repairs  to  the  board  of  education,  as  required 
by  the  rules  and  regulations  of  the  board.  The  rules  which  it  is  insisted  the 
respondent  has  violated  are  as  follows: 

Buildings  and  repairs :  this  committee  shall  exercise  general  supervision  oyer 
all  buildings  and  grounds.  It  shall  order  all  needful  repairs  on  all  school  build- 
ings ami  grounds,  when  the  sum  to  be  expended  does  not  exceed  $100,  otherwise 
it  shall  first  obtain  the  approval  of  the  board. 

Proposals  and  bids:  bids  shall  be  received  on  all  contracts  and  purchases 
exceeding  the  sum  of  $100,  the  board  reserving  the  right  to  accept  or  reject  any 
and  all  bids. 

These  rules  were  probably  in  force  when  the  respondent  directed  the  reports 
to  be  made  according  to  the  specifications  which  had  been  submitted  to  the  board, 
although  this  is  denied  by  the  respondent.  It  may  be  that  the  board  had  not 
contimiously  observed  such  rules.  It  may  be  that  the  board  had  not  adopted  rules 
and  regulations  for  the  years  1907,  1908  and  1909.  But  it  does  not  appear  that 
such  rules  ami  regulations  have  been  abrogated,  and  the  rules  cited  should  have 
guided  the  respondent  in  the  performance  of  his  duty. 

It  appears  from  the  evidence  that  all  the  repairs  of  certain  kinds  on  all  the 
schoolhouses  were  given  to  the  same  person  or  firm.  For  instance,  the  work  of 
renewing,  repairing  and  cleaning  heaters,  repairing  roofs,  skylights  etc.  was 
given  to  Klein  &  Carter.  This  work  was  done  on  three  schoolhouses.  The  expense 
incurred  for  such  work  on  two  of  the  schoolhouses  exceed  $100.  The  total 
amount  of  this  claim  was  $973.32.  The  work  of  papering,  painting  and  kal- 
somining  was  given  to  one  firm,  and  was  done  by  the  day  without  contract, 
except  as  to  a  portion  thereof  on  two  of  the  school  buildings.  The  total  amount 
of  such  work  was  $1288.91.  The  carpentry  work  on  all  these  school  buildings 
was  done  by  one  man,  and  the  amount  charged  therefor  was  $656.  The  masonry 
work  required  in  and  around  all  these  buildings,  consisting  of  plastering,  cement 
work  and  brick  work,  was  done  by  daywork  and  without  competitive  bids  or 
contracts.  The  amount  charged  for  such  work  was  $1776.03.  The  amount 
expended  for  new  plumbing  and  repairing  old  plumbing  in  the  several  school 
buildings  was  $1723.52,  and  it  was  all  done  under  an  arrangement  made  with 
one  man  on  a  daywork  basis,  separate  charges  being  made  for  materials.  In 
many  instances  the  amount  expended  on  each  school  building  for  the  several 
kinds  of  repairs  which  were  ordered  by  the  respondent,  in  his  capacity  as  sole 
member  of  the  committee  on  buildings  and  repairs,  exceeded  the  sum  of  $100, 
and  the  expenditures  thereof  should  have  been  subject  to  approval  by  the  board 
and  in  accordance  with  competitive  bids.  There  was  an  apparent  disregard  of 
the  two  regulations  of  the  board  to  which  reference  is  made  above. 

The  respondent  should  have  known  that  he  was  exceeding  his  authority  in 
ordering  these  repairs  to  be  made  without  asking  for  competitive  bids  and  sub- 


JUDICIAL   DECISIONS  :    OFFICERS REMOVAL    OF  461 

mitting  the  same  to  the  board  so  that  contracts  therefor  might  be  awarded.  The 
Department  approves  of  such  a  method  of  expenditure  of  the  district's  money, 
and  will  insist  that  such  method  be  followed  where  the  law  or  the  rules  of  the 
board  require  it.  If  in  any  case  it  is  shown  by  sufficient  and  competent  evidence 
that  a  board  of  education  or  member  or  committee  thereof  has  wilfully  violated 
any  such  law  or  rule,  to  the  detriment  of  the  district,  with  the  purpose  of  favor- 
ing any  person  or  persons  in  transactions  respecting  the  district's  property  or 
affairs,  such  board,  member  or  committee  will  be  removed  from  office. 

The  respondent  is  guilty  of  a  technical  violation  of  the  rules  of  the  board  in 
ordering  the  repairs  made  without  receiving  competitive  bids.  But  unless  such 
violation  is  shown  to  be  wilful  there  is  not  sufficient  proof  to  justify  his  removal. 
The  statute  conferring  the  power  on  the  Commissioner  of  Education  to  remove  a 
member  of  a  board  of  education  recognizes  "  wilful  violation  or  neglect  of  duty  " 
as  cause  for  removal.  There  is  no  proof  in  this  case  that  the  respondent  wilfully 
violated  such  rules  or  wilfully  neglected  his  duty.  The  minutes  of  the  board 
show  that  each  member  thereof  voted  in  favor  of  a  motion  referring  the  matter 
of  repairs  to  the  various  schools  to  the  "  building  committee  zvith  pozver."  The 
respondent  insists  that  he  thought  he  was  thereby  given  power  to  proceed  as  he 
saw  fit  in  making  the  repairs  specified.  The  motion  was  broad  in  its  terms  and 
on  its  face  would  appear  to  confer  ample  authority  upon  the  respondent  to  pro- 
ceed with  the  repairs.  He  might  have  misjudged  his  limitations,  but  he  was  not 
wilful  in  his  transgression;  there  is  no  evidence  that  he  wilfully  refused  to  obey 
the  directions  of  the  board  in  respect  to  such  repairs. 

The  petitioners  have  alleged  that  the  bills  presented  to  the  board  were  exor- 
bitant and  that  the  repairs  ordered  by  the  respondent  were  not  reasonably  neces- 
sary. These  allegations  are  denied  by  the  respondent.  The  petitioners  should 
have  shown  in  what  respect  the  repairs  ordered  were  unnecessary  and  how  the 
prices  charged  were  exorbitant.  Both  of  these  statements,  if  true,  could  have 
been  substantiated  by  affirmative  proof.  There  being  no  proof  of  unnecessary 
work  done  upon  the  order  of  the  respondent,  for  prices  which  are  excessive,  it 
must  be  held  that  the  respondent  is  not  guilty  of  fraud  or  collusion.  Whatever 
proof  is  produced  by  either  party  upon  this  question  leads  to  the  conclusion  that 
the  district  was  not  seriously  injured  by  these  transactions.  The  money  paid 
for  such  repairs  was  not  misappropriated.  The  petitioners  must  bear  the  burden 
of  their  allegation  of  misfeasance  in  office  based  upon  the  charges  that  favored 
tradesmen  and  contractors  were  permitted  to  charge  exorbitant  prices  for  work 
that  was  not  needed.  They  have  not  assumed  this  burden,  and  it  must  be  held 
that  these  charges  are  not  proven. 

Mr  Edward  B.  Long  and  Mr  Robert  C.  Bromm  are  members  of  the  board 
of  education  and  present  affidavits  in  support  of  the  petition  for  removal.  It 
appears  from  Mr  Long's  affidavit  that  he  and  Mr  Bromm  were  appointed  a  com- 
mittee to  examine  the  bills  for  repairs  which  were  claimed  to  have  been  incurred 
'by  the  respondent  without  authority.  It  is  apparent  that  these  two  gentlemen 
were  not  friendly  to  the  respondent.    If  they  had  discovered  any  fraud  or  collu- 


^6 J  THE    UMVi;Kt«rJV    ol-   THli    STATE   UE    -NEW    YORK 

sion  in  these  transactions  they  wcjiild  have  probably  reported  that  fact  to  the 
l)oard.  This  committee  kept  these  accounts  in  their  possession  for  several  weeks 
and  presumably  made  a  caret td  examination  of  each  piece  of  work  done.  The 
minutes  t)f  tlie  board  show  that  this  committee  reported  nearly  all  the  bills  in 
controversy  and  advised  that  they  lie  paid.  Mr  Long  and  Mr  liromm  both  say 
that  they  advisetl  the  boaril  to  j)ay  the  bills,  since  they  believed  that  they  were 
legal  claims  against  the  district.  If  the  respondent  exceeded  his  lawful  authority 
in  incurring  an  indebtedness  in  excess  of  an  appropriation,  or  if  he  wilfully  vio- 
lated a  provision  of  law  in  failing  to  advertise  for  and  receive  bids  for  the  work 
done,  the  claims  therefor  were  not  enforceable  against  the  district.  When  the 
board  directed  the  payment  of  these  claims,  it  recognized  their  validity,  and  in 
etlect  approved  the  acts  of  the  respondent.  The  acts  of  the  respondent  thereby 
became  the  acts  of  the  board,  and  if  the  respondent  is  guilty  of  improper  conduct 
in  incurring  indebtedness  in  excess  of  the  appropriation  made  for  repairs,  the 
board  is  ecjually  guilty,  and  if  the  respondent  should  be  removed  on  this  account 
the  members  of  the  board  who  voted  to  pay  such  claims  should  also  be  removed. 
After  a  careful  examination  of  all  the  material  matters  involved  in  this  pro- 
ceeding it  must  be  held  that  the  respondent  has  not  been  shown  to  be  guilty  of 
any  intentional  or  wilful  violation  or  neglect  of  duty.  The  petition  is  therefore 
disnnssed. 


5338 
In  the  matter  of  the  apjK-al  of  A.  L.  Clcaveland  and  E.  N.  Christopher  from  the 
action  of  the  board  of  education  of  union  free  school  district  no.   i,  town 
of  Union,  Broome  county. 

A  proceeding  to  impeach  the  official  action  of  a  board  of  education  without  showing  definite 
knowledge  of  wrongdoing  on  the  part  of  such  board  and  without  supplying  sufficient 
proof  to  sustain  alleged  charges,  will  be  dismissed. 

Decided  September  24,  1907 

Thomas  A.  Macclary,  attorney  for  respondents 

Draper,  Commissioner 

The  moving  papers  in  this  proceeding  are  very  defective.  The  verification, 
the  service,  the  insufticiency  of  proof  of  wrongful  conduct  on  the  part  of  the 
board  of  education  and  the  failure  of  api)ellants  to  show  that  the  action  com- 
plained of  operates  as  a  grievance  to  them,  are  sufficient  grounds  for  dismissing 
this  appeal.  It  further  appears  that  appellants  were  at  the  annual  meeting  of 
district  no.  i.  town  of  Union,  on  the  evening  of  August  6,  1907,  and  raised  no 
objection  to  the  acts  complained  of.  Appellants  are  thereby  estopped  froin  rais- 
ing objection  to  such  proceedings  now. 

It  appears  that  the  notice  of  the  annual  meeting  was  published  but  three 
weeks  preceding  the  date  of  such  meeting.  If  no  notice  at  all  had  been  given  of 
such  meeting  the  proceedings  of  such  meeting  would  not  be  void.     The   law 


JUDICIAL    decisions:    officers REMOVAL   OF  463 

fixes  the  date  of  an  annual  meeting  and  the  voters  of  a  district  may  convene  on 
that  date  at  the  proper  hour  and  place  and  transact  the  business  of  the  meeting 
if  no  notice  at  all  is  given.  The  provision  of  law  requiring  notice  of  such  meet- 
ing is  simply  directory  and  not  essential  to  the  validity  of  the  meeting. 

There  is  no  ground  for  appellants'  contention  that  the  board  improperly  paid 
an  attorney  $io  for  services  rendered  the  board.  The  services  were  proper  and 
the  charge  therefor  was  not  excessive.  The  board  had  full  authority  to  employ 
an  attorney  for  the  work  which  he  performed  and  the  expense  of  the  same  was 
a  district  liability. 

The  principal  contention  of  appellants  is  that  the  published  account  of  the 
receipts  and  disbursements  of  the  board  are  not  sufficiently  itemized.  On  the 
contrary,  the  report  which  was  printed  appears  to  be  very  complete  in  details  and 
very  clear.  It  may  be  that  there  are  two  clerical  or  typographical  errors  but 
there  is  nothing  in  these  suggestive  of  irregularity  on  the  part  of  the  board. 

A  person  should  not  initiate  a  proceeding  to  impeach  the  official  action  of  a 
board  of  education  without  having  definite  knowledge  of  wrongdoing  on  the  part 
of  such  board  and  without  supplying  sufficient  proof  to  sustain  his  charges. 

The  appeal  herein  is  dismissed. 


3907 

In  the  matter  of  the  appeal  of  Alfred  T.  Bortle  and  Jacob  P.  Lansing  v.  the 
trustees  of  school  district  no.   ii,   town  of   Schodack,   Rensselaer  county. 

A  trustee  having  placed  himself  in  an  equivocal  position  as  between  the  district  whose  inter- 
ests he  should  protect,  and  a  contractor  engaged  in  building  for  the  district,  by  accepting 
employment  from  the  contractor  upon  such  work,  removed  from  office. 

Decided  September  10,  1890 

Draper,  Superintendent 

Appeal  to  restrain  trustees  of  district  no.  ii,  town  of  Schodack,  Rensselaer 
county,  from  the  further  prosecution  of  the  work  of  building  a  schoolhouse  m 
said  district,  and  for  the  removal  of  James  Benner,  one  of  the  trustees,  from 
office. 

The  ground  upon  which  an  order  to  restrain  is  asked  for,  is  that  the  work  is 
not  being  carried  on  as  required  by  the  plans  and  specifications  adopted. 

The  trustee's  removal  is  sought  upon  the  ground  that  he  has  been  employed 
by  the  contractor,  and  is  doing  work  for  him  as  a  laborer  or  carpenter  upon 
the  school  building,  thereby  placing  himself  in  an  equivocal  position  as  between 
the  district  whose  interests  he  should  guard,  and  the  contractor  by  whom  he  is 
employed. 

Having  carefully  considered  the  pleadings  filed,  and  after  hearing  the  appel- 
"lant  and  counsel  for  the  respondent,  I  have  concluded  to  defer  a  final  determina- 


4^14  THE   UNIVERSITY    OF   TlIK    STATE    OF    NEW    YORK 

tion  of  all  the  issues  raised  until  the  completion  of  the  building  in  question.     I 
niai<c.  hinvever,  the  following  preliminary  determination  and  order: 

1  I  deny  the  application  for  an  order  to  enjoin  the  prosecution  of  the  work. 

2  I  hereby  remove  the  trustee,  James  Benner,  from  office,  it  having  been 
conceded  that  he  is  engaged  at  work  upon  the  schoolhouse,  under  employment 
from  the  contractor,  I  do  this  among  other  reasons,  in  order  that  a  trustee  may 
be  selected  by  the  legal  voters  of  the  district  if  they  will,  who  is  in  no  manner 
associated  with  the  contractor  in  the  performance  of  his  contract,  and  who  will 
guard  and  protect  the  interests  of  the  people. 

I  do  hereby  enjoin  the  trustees  of  said  district  from  issuing  any  further 
order  to  the  contractor  or  his  assignees  for  work  done  or  to  be  done  upon  the 
contract,  for  building  said  schoolhouse,  and  the  collector  of  said  district 
from  disbursing  any  district  money  upon  orders  to  the  contractor  or  his 
assignees  upon  said  contract,  until  ten  days  after  the  completion  of  said  con- 
tract, and  the  acceptance  of  the  building  by  the  trustees,  in  order  that  any  legal 
voter  of  the  district,  believing  that  the  contract  has  not  been  complied  with,  may 
have  a  reasonable  opportunity  to  call  the  attention  of  the  Department  thereto. 


4773 

In  the  matter  of  the  petition  of  G.  M.  Sweet  and  others,  for  the  removal  of 
I'Vank  K.  Avery  from  office  as  a  trustee  of  Phoenix  school  district,  Schroep- 
pel,  Oswego  county. 

In  a  petition  for  the  removal  of  a  school  officer  for  wilful  violation  of  duty,  under  the 
provisions  of  section  13,  title  i,  of  the  Consolidated  School  Law  of  1894,  the  petitioners 
must  establish,  by  a  preponderance  of  proof,  that  such  officer  has  acted  intentionally, 
'cith  a  urougful  purpose,  or  such  petition  will  be  dismissed. 

Decided  June  23,  1899 

O.  M.  Reilly,  attorney  for  petitioners 
Addison  D.  Merr}',  attorney  for  respondent 

Skinner,  Superintendent 

This  is  a  petition  by  certain  residents  of  the  Phoenix  school  district,  in 
the  village  of  Phoenix,  county  of  Oswego,  praying  for  the  removal  of  Frank  K. 
Avery  from  office  as  a  member  of  the  board  of  education  of  said  school  district, 
for  wilful  violation  and  neglect  of  duty. 

The  petitioners,  upon  information  and  belief,  as  the  main  grounds  for  the 
removal  of  said  Avery,  allege  that  on  February  22,  1898,  the  said  Avery,  then 
being  one  of  the  trustees  of  such  school  district,  entered  into  a  contract  with  the 
board  of  trustees  of  said  district,  by  which  he  sold  and  delivered  to  said  district 
40,625  pounds  of  coal  at  the  agreed  price  of  $5.25  per  ton,  amounting  in  the 
aggregate  to  the  sum  of  $106.64,  and  on  or  about  April  5,  1898,  received  said 
sum  from  such  district;  that  on  or  about  January  28,  1899,  still  being  one  of 


JUDICIAL    DECISIONS  :    OFFICERS REMOVAL    OF  465 

the  trustees  of  said  district,  Avery  entered  into  a  contract  with  the  board  of 
trustees  of  the  district  by  which  he  sold  and  dehvered  to  said  district  40,280 
pounds  of  coal  at  the  agreed  price  of  $4.75  per  ton,  amounting  in  the  aggregate 
to  the  sum  of  $95.67,  and  on  or  about  February  20,  1899,  received  said  sum 
from  said  district;  that  on  or  about  October  26,  1898,  said  Avery  then  being 
one  of  the  trustees  as  aforesaid,  and  a  member  of  the  firm  of  Merry  &  Avery, 
which  firm  was  engaged,  in  the  village  of  Phoenix,  in  conducting  the  business 
of  lire  insurance  for  divers  fire  insurance  companies,  entered  into  a  contract 
with  said  board  of  trustees  by  which  he  procured  to  be  written  and  delivered 
to  the  clerk  thereof  a  policy  of  insurance  upon  the  school  building  of  the  district, 
the  premium  thereon  being  the  sum  of  $48,  and  which  premium  was  paid  by  the 
board  of  trustees  to  said  Avery  on  or  about  December  i,  1898. 

Said  petitioners  further  allege,  upon  information  and  belief,  that  at  the 
times  he  furnished  said  coal  and  received  pay  therefor,  and  delivered  said 
policy  of  insurance,  and  was  paid  the  premium  thereon,  "  said  Avery  knew  that 
he  had  no  right  to  be  directly  or  indirectly  interested  in  any  contracts  with  said 
school  district  while  being  a  member  of  the  board  of  trustees  of  the  district." 

The  respondent,  Avery,  has  answered  the  petition  in  which  he  admits 
that  he  was  elected  a  member  of  the  board  of  education  as  stated  in  the  petition, 
and  is  still  acting  in  such  capacity,  and  for  the  purposes  of  the  proceedings  herein, 
he  admits  the  sale  and  delivery  by  him  to  said  school  district,  in  February  1898 
and  January  1899,  of  the  coal  and  at  the  purchase  price  as  stated  in  the  petition, 
and  that  he  received  from  the  district  such  purchase  price;  that  he  denies  the 
allegations  in  the  petition  that  the  bills  for  said  coal  were  never  audited  by  said 
board,  and  alleges  that  said  bills  were  duly  audited;  that  he  denies  the  allega- 
tions in  the  petition,  that  at  the  times  he  furnished  such  coal  and  received  pay 
therefor,  he  knew  that  he  had  no  right  to  be  directly  or  indirectly  interested  in 
any  contracts  made  by  him  with  said  school  district,  or  by  its  board  of  education ; 
but  on  the  contrary  alleges  that  at  none  of  said  times  had  he  any  knowledge  of 
the  existence  of  any  law  forbidding  such  acts  or  contracts,  or  that  he  had  any 
knowledge  that  his  said  acts  or  contracts  were  in  violation  of  any  law  of  this 
state. 

Respondent  Avery  further  admits  that  he  was  a  member  of  the  firm  of 
Merry  &  Avery  as  alleged  in  the  petition,  but  alleges  that  before  the  formation 
of  said  firm  it  was  agreed  that  he  (Avery)  was  to  have  an  interest  only  in  such 
business  as  he  should  solicit  and  bring  to  said  firm,  and  that  he  did  not  bring, 
solicit  or  procure  the  issuing  of  the  policy  of  insurance  upon  said  school  build- 
ing, and  never  had  any  interest  whatever  in  the  premium  paid  thereon,  or  any 
commission  thereon;  that  the  business  of  procuring  such  insurance  had  been 
solicited  by,  and  promised  to.  Merry  prior  to  the  formation  of  the  firm  of 
Merry  &  Avery  in  January  1897. 

To  said  answer  the  petitioners  have  filed  a  reply. 
-  .  In  section  18,  article  4,  title  8  of  the  Consolidated  School  Law  of  1894  it 
is  provided,  among  other  things,  that  no  member  of  a  board  of  education  shall 
be  personally  interested  in  any  contract  made  by  said  board. 


466  tiif:  university  of  the  state  of  new  york 

Section  13  title  i  of  the  Consolidated  School  Law  of  1894  provides  that 
whenever  it  shall  he  i)roved  to  the  satisfaction  of  the  State  Snperintendcnt  of 
I'uhlic  Inslrnction  that  any  school  commissioner  or  other  school  officer  has  hecn 
j,niilty  of  any  wilful  violation  or  neglect  of  duty  under  said  act,  or  any  other 
act  pertaining  to  connnon  schools,  or  wilfully  disobeying  any  decision,  order 
or  regulation  of  such  Suj)erinlendent.  the  said  Superintendent  may,  by  an  order 
imdcr  his  hand  and  seal,  remove  such  school  commissioner  or  other  school 
oflficer  from  his  office. 

In  the  people  ex  rel.  Clingen  v.  Draper,  State  Supt.  etc.,  63  Hun  3S9,  the 
general  term  for  the  third  department  held  that  "  li'ilfid "  in  said  section  13 
means  "  intentional."  In  the  people  ex  rel.  Light  v.  Skinner,  Supt.  etc.,  37 
Appellate  Division  Reports  44,  the  court  called  attention  to  the  estabhshed  doc- 
trine that  where  the  power  to  remove  an  officer  is  conferred  by  authority  of 
a  statute,  it  nuist  he  strictly  construed,  and  its  provisions  accurately  followed. 
That  it  would  not  he  doubted,  as  claimed  by  counsel,  that  a  power  to  remove  offi- 
cers who  have  been  elected  by  the  citizens  of  the  town  in  which  they  live,  to  an 
honcjrable  office  for  a  term  of  years,  should  not  be  exercised  except  in  a  reason- 
ably clear  case,  and  with  great  caution.  The  court  held  that  "  The  words  '  wilful 
violation  of  duty,'  as  used  in  section  13,  title  i  of  the  Consolidated  School  Act, 
as  applicable  to  acts  for  which  members  of  a  board  of  education  may  be  removed 
by  the  State  Superintendent,  must  be  construed  to  mean  acts  intentionally  done 
with  a  wrongful  purpose." 

The  petitioners  allege,  upon  information  and  belief,  that  Trustee  Avery 
knew  at  the  time  he  entered  into  each  of  the  two  contracts  with  the  board  of 
which  he  was  a  member,  to  furnish  coal  for  the  district,  that  the  law  forbade 
him  to  be  personally  interested  in  either  of  such  contracts.  The  respondent, 
Avery,  expressly  denies  that  he  had  any  such  knowledge. 

I  decide : 

That  the  petitioners  have  failed  in  establishing  by  a  preponderance  of  proof 
that  the  respondent,  in  entering  into  such  contracts,  acted  intentionally  with  a 
wrongful  purpose. 

1  further  decide : 

That  the  preponderance  of  proof  filed  herein,  establishes  the  fact  that  the 
res|)ondent  herein  had  no  personal  interest  in  the  matter  of  insuring  the  school 
building  by  an  insurance  company  of  which  the  firm  in  which  the  respondent 
was  a  member,  acted  as  the  agents. 

The  petitioners  allege  in  their  petition  that  on  the  evening  of  April  5,  1899, 
at  a  meeting  of  the  board  of  education  of  said  school  district,  the  respondent, 
Avery,  used  abusive  and  insulting  language  toward  certain  other  members  of 
such  board,  and  was  guilty  of  official  misconduct. 

Assuming,  for  the  purpose  of  argument  only,  that  such  misconduct  is  estab- 
lished by  the  proofs  herein,  I  have  no  legal  authority  to  remove  the  respondent 
from  office  as  a  member  of  said  board  of  education  for  official  misconduct. 

Subdivision  13  of  section  15,  article  4,  title  8  of  the  Consolidated  School  Law 
of  1894,  provides  that  the  boards  of  education  of  every  union  free  school  dis- 


JUDICIAL    DECISIONS  :    OFFICERS REMOVAL    OF  46/ 

trict  shall  severally  have  the  power,  and  it  shall  be  their  duty  "  To  remove 
any  member  of  their  board  for  ofticial  misconduct."  Said  subdivision  requires 
a  written  copy  of  all  charges  made  of  such  misconduct  shall  be  served  upon 
him  at  least  ten  days  before  the  time  appointed  for  the  hearing  of  the  same;  and 
he  shall  be  allowed  a  full  and  fair  opportunity  to  refute  such  charges  before 
removal. 

The  petitioners  having  failed  to  establish  the  allegations  contained  in  their 
petition  by  a  preponderance  of  proof,  such  petition  is  dismissed,  and  the  prayer 
of  the  petitioners  is  denied. 


457^ 

In  the  matter  of  the  petition  of  Julien  T.  Williams  for  the  removal  of  Frederick 
D.  Light,  Daniel  Scanned,  Charles  J.  Flahaven,  Charles  C.  Parker  and 
Henry  F.  Van  Devort  from  office  as  members  of  the  board  of  education  of 
the  town  of  Dunkirk,  Chautaucjua  county. 

When  a  meeting  of  a  board  of  education  is  duly  adjourned  to  a  day  and  hour,  and  upon 
such  day  and  hour  two  members  thereof  are  present  and  after  waiting  for  seven  minutes 
for  their  associate  members  to  arrive,  adjourn  such  meeting  without  day  and  leave  the 
building  and  notify  their  associates  that  the  meeting  is  adjourned  without  day  and  such 
associate  members,  notwithstanding  such  notice,  proceed  to  organize  a  meeting  of  such 
board,  claiming  such  meeting  to  be  the  regular  adjourned  meeting,  and  proceed  to 
transact  business,  such  members  of  said  board,  so  acting,  are  guilty  of  a  wilful  violation 
of  duty  and  upon  petition  will  be  removed  from  office.^ 

Decided  September  4,  1897 

^"kinner,  Superintendent 

Julien  T.  Williams,  the  petitioner  in  the  above-entitled  matter,  has  filed  his 
petition,  alleging  that  he  is  the  president  of  the  board  of  education  of  the  town 
of  Dunkirk.  Chautauqua  county,  and  asking  for  the  removal  of  Messrs  Light, 
Scannell,  Flahaven,  Parker  and  VanDevort  as  members  of  said  board  of  educa- 
tion for  wilful  violation  and  neglect  of  duty  in  holding  illegal  meetings  of  said 
board,  and  assuming  to  transact  business  thereat,  and  attempting  to  carry  into 
effect  the  motions  and  resolutions  of  such  illegal  meetings ;  and  for  disregarding 
and  refusing  to  obey  an  injunction  order  of  the  State  Superintendent  of  Public 
Instruction. 

Messrs  Light,  Scannell,  Flahaven,  Parker  and  Van  Devort  have  answered 
the  petition. 

The  material  facts  alleged  in  the  petition  of  the  holding  by  the  respondent 
herein,  of  an  illegal  meeting  on  June  14,  1897,  are  not  controverted. 

It  appears  that  by  chapter  54  of  the  Laws  of  188S,  the  Dunkirk  union  free 
school  district  was  established ;  that  said  chapter  54  has  been,  at  different  times, 
amended ;  that  said  district  is  under  the  direction  of  a  board  of  education  which 

iThe  State  Superintendent  was  reversed  by  the  Court  of  Appeals  upon  this  case.     The 
opinion  is  given  here  for  the  purpose  of  making  the  record  of  the  case  complete. 


468  THE    UNIVERSITY    OF   THE    STATE    OF    XEW    YORK 

hoard,  for  the  school  year  of  1896-97,  consisted  of  eight  members,  namely,  the 
petitioner  and  respondents  herein,  and  Thomas  C.  Jones  and  Richard  Mulholland, 
of  which  the  petitioner  was  president  and  the  respondent.  Light,  secretary;  that 
said  board  is  a  body  corporate,  a  majority  of  whom  shall  constitute  a  quorum 
for  the  transaction  of  business;  that  such  board  has  power  to  fill  vacancies  occur- 
ring in  said  body ;  that  a  regular  meeting  of  said  board  is  required  to  be  held  once 
in  each  month,  and  may  be  adjourned  from  time  to  time;  that  special  meetings 
may  be  called  by  the  president  of  the  board,  or,  in  his  absence  or  inability  to  act, 
by  the  secretary  or  any  other  member  of  the  board,  as  often  as  necessary,  by 
giving  personal  notice  to  each  member  of  the  board,  or  causing  a  written  or 
printed  notice  to  be  left  at  his  place  of  residence,  at  least  twenty-four  hours 
before  the  hour  of  meeting;  that  said  board  shall,  at  the  first  meeting  after  the 
annual  election  in  each  year  appoint  one  of  their  number  president  of  the  board, 
who  shall  preside  at  the  meetings  of  such  board  when  present,  and  when  absent 
a  president  pro  tempore  shall  act  in  his  stead. 

It  further  appears  that  a  regular  meeting  of  the  board  of  education  of  the 
town  of  Dunkirk,  was  held  at  its  office  in  Dunkirk,  on  June  14,  1897,  at  7.30 
p.  m.,  and  was  duly  adjourned  to  June  16,  1897,  at  7.30  p.  m.,  and  on  June  16, 
1897,  was  again  adjourned  to  June  18,  1897,  at  7.30  p.  m. ;  that  on  June  18,  1897, 
a  written  notice  was  sent  by  the  respondent.  Light,  as  secretary,  to  each  of  the 
members  of  such  board  that  there  would  be  an  adjourned  regular  meeting  of 
such  board  of  education  on  Saturday  evening,  June  19,  1897,  at  7.30  o'clock; 
that  on  June  19,  1897,  at  7.30  o'clock  in  the  evening  the  petitioner  herein,  the 
president  of  said  board,  and  Mr  Mulholland,  a  member  thereof,  met  in  the  office 
of  said  board  of  education,  pursuant  to  the  aforesaid  notice  of  Secretary  Light 
and  remained  until  7.37  o'clock  when,  no  other  members  of  said  board  appearing, 
on  motion  of  Mr  Mulholland  the  meeting  was  adjourned;  that  the  petitioner  and 
Mulholland  in  passing  out  of  the  building  met  certain  other  members  of  the 
board  and  informed  them  that  the  meeting  of  the  board  was  adjourned  without 
day.  and  the  petitioner  and  Messrs  Mulholland  and  Jones,  two  other  members 
of  the  board,  left  the  building. 

It  further  appears  that  the  respondents  herein  organized  a  meeting,  the 
respondent  Parker  acting  as  chairman,  and  the  respondent  Light  acting  as  secre- 
tary, at  which  said  meeting  one  Clarence  F.  Morton  was  elected  superintendent 
of  the  Dunkirk  school  for  the  school  year  of  1897-98,  and  other  proceedings  taken 
relative  to  the  school  of  Dunkirk,  after  which  the  meeting  was  adjourned  with- 
out day. 

The  respondents  claim  that  the  meeting  held  by  them  on  June  13,  1897,  was 
legal  and  valid  and  held  pursuant  to  the  adjournment  made  on  June  16,  1897;  the 
petitioner  claims  that  such  meeting  was  illegal,  and  that  the  respondents,  in  hold- 
ing such  meeting,  are  guilty  of  a  wilful  violation  of  their  duty  as  members  of 
such  board  of  education. 

I  am  of  the  opinion  that  the  contention  of  the  petitioner  is  well  taken.     ' 

On  June  16,  1897,  the  regular  meeting  of  the  board  of  education  was 
adjourned  to  June  19,  1897,  at  7.30  o'clock  p.  m.,  and  each  member  thereof  was 


JUDICIAL   DECISIONS  :    OFFICERS  —  REMOVAL   OF  469 

notified  in  writing  of  the  fact  by  the  secretary.  It  was  the  duty  of  each  member 
of  such  board  to  be  present  at  the  hour  fixed  for  the  meeting.  The  members 
who  were  present  at  the  hour  to  which  such  meeting  was  adjourned  were  not 
legally  or  otherwise  required  to  wait  for  their  associates  or  send  the  janitor  to 
hunt  them  up,  and  the  action  of  the  petitioner  and  Mulholland  in  adjourning  the 
meeting  was  legal  and  valid. 

The  meeting  held  by  the  respondents  herein  on  June  19,  1897,  was  neither 
an  adjourned  meeting  of  the  board  of  education,  nor  a  special  meeting  of  such 
board.  The  adjourned  regular  meeting  of  the  board  was  to  June  19,  1897,  at 
7.30  o'clock  p.  m.  At  7.37  p.  m.  only  the  petitioner  and  Mulholland  were  present 
and  such  adjourned  meeting  was  then  and  there  adjourned  without  day.  A 
special  meeting  of  the  board  could  not  be  held  without  a  notice  to  each  member 
of  such  board,  and  it  is  not  claimed  that  any  such  notice  for  a  special  meeting  to 
be  held  on  June  19,  1897,  was  given.  It  follows  that  the  meeting  held  on  June 
19,  1897,  at  which  the  respondents  were  present,  and  the  respondent  Parker  acted 
as  chairman,  was  not  a  legal  meeting  of  the  board  of  education  of  Dunkirk,  but 
simply  a  meeting  of  the  five  persons  who  were  present,  as  individuals.  The  pro- 
ceedings had  and  taken  thereat  have  no  legal  force  or  effect,  and  are  not  binding 
upon  the  school  district,  or  upon  the  board  of  education  thereof. 

It  appears  that  the  petitioner  here  in  July  1897,  brought  an  appeal  from 
certain  acts  and  resolutions  of  certain  members  of  said  board  of  education,  and 
that  on  July  9,  1897,  an  order  was  made  by  me  restraining  said  board  from  taking 
any  action  whatever  in  regard  to  the  election  of  a  new  superintendent  of  schools 
in  Dunkirk,  or  dismissing  the  present  superintendent,  J.  W.  Babcock,  until  the 
decision  of  such  appeal  or  a  further  order  should  be  made  by  me  therein ;  that 
on  July  30,  1897,  the  respondents  herein  addressed  a  letter  to  said  J.  W.  Babcock, 
notifying  him  that  they  considered  his  services  as  superintendent  of  schools 
definitely  ended  on  July  31,  1897.  The  petitioner  herein  contends  that  such  action 
on  the  part  of  the  respondents  was  a  disobedience  of  my  order  of  July  9,  1897. 
The  contention  is  not  well  taken.  The  letter  was  not  written  in  pursuance  of  any 
legal  action  taken  by  such  board  of  education,  but  is  simply  a  letter  of  the  five 
persons  who  signed  it,  and  has  no  legal  force  or  effect,  and  a  mere  harmless 
thunderbolt  on  their  part. 

By  section  13,  title  i,  of  the  Consolidated  School  Law  of  1894,  it  is  enacted 
that  whenever  it  shall  be  proved  to  my  satisfaction  that  any  school  commissioner 
or  other  school  officer  has  been  guilty  of  any  wilful  violation  or  neglect  of  duty 
under  said  act,  or  any  other  act  pertaining  to  common  schools,  I  may,  by  an 
order  under  my  hand  and  seal,  remove  such  school  commissioner  or  other  school 
officer  from  his  office. 

I  find  and  decide.  That  upon  the  facts  presented  herein,  it  has  been  proved 
to  my  satisfaction  that  said  Frederick  D.  Light,  Daniel  Scannell,  Charles  J.  Fla- 
haVen,  Charles  C.  Parker  and  Henry  F.  Van  Devort  have,  and  each  of  them  has, 
asntiembers  of  the  board  of  education  of  the  town  of  Dunkirk,  been  guilty  of  a 
wilful  violation  of  duty. 

The  petition  herein  is  sustained. 


470  TIIF.    U\I\F.KSITV    OF   Till'.    STATI^    OI'    XFW   YORK 

It  is  ordered,  That  Frederick  D.  Light,  Daniel  Scannell,  Charles  J.  Flahaven. 
Charles  C.  Parker  and  Henry  F.  \'an  Devort  be,  and  they  are  and  each  of  them 
is,  hereby  removed  from  oftice  as  mcniljcrs  of  the  board  of  education  of  the 
town  of  Dunkirk,  Chautauqua  county. 


Removal  of  trustee  hy  Superintendent  can  not  be  predicated  upon  moral  grounds,  1)Ut  only 

ui)on  wilful  violation  or  neglect  of  legal  duty, 
decided   Nuvcinlur  J6,   1869 

W^eaver,  Supcriutcndcut 

Appeal  askin<i[  for  the  removal  of  a  trustee  upon  the  alleged  ground  that  he 
is  an  habitual  drunkard. 

I  am  far  from  desiring  to  excuse  the  degrading  habit  of  intoxication  in 
any  one,  and  certainly  not  in  an  officer  intrusted  with  the  educational  interests 
of  a  school  district.  The  fact  may  be  that  the  testimony  has  failed  to  show  that 
the  respondent  is  at  this  time  an  habitual  drunkard,  but  its  manifest  tendency  is 
to  prove  that  he  has,  like  many  others  who  have  reformed  from  the  vice  of 
drunkenness,  relapsed  into  what  it  is  to  be  hoped  was  but  a  temporary  forget- 
fulness  of  his  better  resolutions. 

But  the  appellants  have  failed  to  make  out  any  case  for  my  action  in  the 
premises.  They  do  not  accuse  the  respondent  of  any  violation  or  even  neglect 
of  official  duty.  I  have  no  censorship  over  his  morals.  If  the  voters  of  a  district 
choose  immoral  persons  for  school  officers,  responsibility  as  to  the  damage  of 
such  action  will  remain  with  themselves  as  long  as  such  officers  are  not  guilty 
of  any  wilful  violation  or  neglect  of  legal  duly  in  regard  to  their  functions. 


Petition  for  the  removal  of  a  trustee  for  not  agreeing  with  his  associates,  and   for  using 

rude  and  uncourteous  language  toward  them,  denied. 
Decided  March  2,  1859 

Van  Dyck,  Superintendent 

On  the  petition  of  two  of  the  trustees  asking  for  the  removal  from  office 
of  the  third  trustee,  it  appears  that  the  third  trustee  refuses  to  cooperate  with 
his  associates  in  matters  relating  to  the  administration  of  school  affairs,  and  that 
his  language  toward  them  is  rude  and  uncourteous. 

Concerning  the  disagreement  of  Mr  Simpson  with  his  associates,  they  are 
the  majority  and  can  control,  and  it  was  never  intended  that  this  Department 
should  have  power  to  make  men  agree,  nor  to  punish  them  for  disagreeing. 

In  regard  to  the  incivility  of  the  third  trustee  toward  his  associates,  the 
district  is  sujiposed  to  know  whether  or  not  those  whom  they  elect  to  office  have 
sufficient  culture  and  refinement,  sufficient  dignity  and  purity  of  character,  prop- 


JUDICIAL    DECISIONS  :    OFFICERS REMOVAL    OF  4/1 

erly  to  adorn  the  office  to  which  they  are  elected ;  and  if  they  see  fit  to  elect  one 
who  is  rude,  vulgar  and  coarse  in  his  language,  this  Department  will  not  and 
can  not  interfere. 


For  wilful  violation  of  duty  in   refusing  to  accept  the  lowest  Ijid  of   a  responsible  bidder 

with  responsible  surety. 
Decided  August  3,  1868 

Weaver,  Superintendent 

A  responsiljle  man  with  a  perfectly  responsible  surety  offered  to  take  the 
contract  for  repairing  the  schoolhouse  of  a  district  for  $ioi.  Other  responsible 
bids  were  offered  under  $175 ;  one  as  low  as  $104.  But  the  bid  for  $101  was 
the  lowest. 

The  trustee  refused  to  accept  the  surety,  and  let  the  contract  to  his  nephew 
for  $175.  The  Superintendent  says:  "  In  view  of  the  facts,  I  am  of  the  oi)inion 
that  the  trustee  has  been  guilty  of  wilful  violation  of  duty.  He  should  have  used 
his  best  endeavors  to  protect  the  interests  of  his  district.  Instead  of  doing  this, 
by  his  own  admission,  he  refused  to  accept  responsible  surety  for  reasons  purely 
frivolous.  By  this  action,  the  district  was  put  to  an  additional  expense  of  nearly 
$75.  When  district  officers  appear  to  have  forgotten  or  to  have  wilfully 
disregarded  their  duties,  the  Department  is  bound  to  interfere  for  the  protection 
of  the  district.    Order  entered  removing  the  said  trustee  from  office." 


The  State  Superintendent  will,  on  proper  application,  remove  a  trustee  for  unwarrantable 

neglect  of  official  duty. 
Decided  July  1851 

Morgan,  Superintendent 

Elisha  Bedell,  one  of  the  trustees  of  school  district  no.  i  in  the  town  of 
Hempstead,  is  charged  with  a  wilful  disturbance  and  interruption  of  the  school 
taught  by  Mary  Augusta  Brown,  in  said  district.  Mr  \'an  Cott,  another  of  the 
trustees,  is  charged  with  a  refusal  to  unite  with  one  of  his  colleagues  in  prosecut- 
ing for  such  off'ense,  in  accordance  with  the  statute. 

It  is  in  evidence  that  A-Ir  Bedell  went  to  the  schoolroom,  and  in  the  presence 
of  the  scholars  used  angry  and  abusive  language  to  the  teacher,  openly  counter- 
manded her  orders  in  conducting  the  school,  and  caused  the  school  to  be  thrown 
into  disorder,  and  that  both  teacher  and  pupils  were  much  frightened  by  his 
language  and  threatening  manner,  and  for  some  time  after  she  was  unable  to 
proceed  with  the  school. 

The  evidence  is  confirmed  by  the  report  of  a  committee  of  ten  appointed 
by  the  inhabitants  of  the  district  at  the  annual  meeting,  to  visit  and  examine  the 
schod,  who,  in  concluding  their  statement,  observe  that  they  "  were  compelled  to 


472  THE    UNIVERSITY    OF   THE   STATE   OF    NEW   YORK 

the  Opinion  that  Mr  Rt-dell  has  thereby  disquaHfied  himself  for  the  office  of 
trustee,  and  that  it  is  evidently  for  the  welfare  of  the  school  that  he  should  forth- 
with resign  his  office." 

This  array  of  evidence  is  met  only  by  a  general  and  unsatisfactory  denial 
by  Mr  Bedell. 

There  can  be  no  doubt,  in  the  opinion  of  the  Superintendent,  from  evidence, 
that  Mr  Bedell  has  been  guilty  of  a  gross  and  unjustifiable  violation  of  law  and 
neglect  of  official  duty.  The  same  conduct  in  an  individual  not  officially  con- 
nected with  the  school  would  unquestionably  have  incurred  the  penalty  prescribed 
by  law ;  and  it  certainly  does  not  mitigate  the  offense,  nor  change  its  nature,  that 
it  was  committed  by  an  officer  specially  charged  with  the  preservation  of  quiet 
and  order  in  the  school,  and  with  the  protection  and  guardianship  of  its  interests. 

The  act  of  1845,  to  prevent  disturbances  in  schools,  above  referred  to,  makes 
it  the  special  duty  of  the  trustees  of  any  school  district  in  which  any  such  offense 
shall  be  committed,  to  prosecute  such  offender,  before  any  officer  having  cog- 
nizance of  such  offense.  Mr  Van  Cott,  one  of  the  two  remaining  trustees,  having 
been  called  upon  for  the  performance  of  this  duty,  positively  refused  to  comply 
with  said  request,  and  still  refuses  so  to  do.  This  is  clearly  an  unwarrantable 
neglect  of  official  duty,  for  which  no  defense  is  interposed;  and  the  said  Elisha 
Bedell  and  Nicholas  Van  Cott  are  hereby  removed  from  office  as  trustees  of  said 
district. 


4297 

In  the  matter  of  the  appeal  of  John  ]\I.  Pendleton  v.  John  Scaton,  John  Travers 
and  John  J.  Santry,  as  trustees;  Charles  Crowley,  as  collector;  and  George 
Sheridan,  jr,  as  clerk  of  school  district  no.  3,  town  of  Castleton,  Richmond 
county. 

Where  in  a  petition  or  appeal  for  the  removal  of  school  officers  for  a  wilful  violation  or 
neglect  of  duty,  the  petitioner  must  establish  to  the  satisfaction  of  the  Superintendent 
that  such  violations  of  duty  were  intentional  and  not  the  result  of  ignorance,  neglect, 
omission,  misapprehension  or  inadvertence. 

Decided  December  3,  1894 

Edward  C.  Delavan,  jr,  attorney  for  appellant 

John  J.   Kenney,   attorney    for  respondents,    Scaton,   Travers,   Santry   and 
Crowley 

Crooker,  Superintendent 

The  appellant  in  the  above-entitled  matter,  by  proceedings  in  the  nature  of 
an  appeal  and  by  petition,  asks  for  the  dismissal  of  the  respondents,  Seaton, 
Travers  and  Santry,  as  trustees,  and  the  respondent,  Sheridan,  as  clerk  of  school 
district  no.  3,  town  of  Castleton,  Richmond  county,  for  wilful  violation  and 
neglect  of  duty  as  such  school  officers,  under  the  provisions  of  section  13,  title  i 
of  the  Consolidated  School  Law  of  1894,  and  for  the  removal  of  the  respondent, 


JUDICIAL    DECISIONS  :    OFFICERS REMOVAL    OF  4/3 

Crowley,  from  the  office  of  collector  of  said  district  on  the  ground,  as  alleged, 
of  his  not  being  able  to  read  and  write,  and,  therefore,  ineligible  to  hold  said 
office  under  the  provisions  of  section  23,  article  3,  title  7  of  the  Consolidated 
School  Law  of  1894. 

The  appeal  and  petition  of  the  appellant  was  received  September  26,  1894; 
a  demurrer  on  the  part  of  Crowley  was  received  October  5,  1894,  and  also  the 
answers  of  the  respondents  Seaton,  Travers,  Santry  and  Sheridan.  A  reply  to 
said  answers  was  received  October  12,  1894,  and  rejoinder  to  said  reply  was 
received  October  29,  1894, 

The  appeal  was  submitted  on  the  part  of  the  appellant  on  November  i6th 
and  on  the  part  of  the  respondents  November  23,  1894.  The  appellant  alleges  as 
grounds  for  the  removal  of  trustees  Seaton,  Travers  and  Santry,  first,  that  as 
such  trustees  they  filed  the  bond  of  one  Crowley  as  collector  without  the  approval 
thereof  in  writing  upon  said  bond;  second,  that  said  trustees  have  failed  to  file 
with  the  clerk  of  the  village  of  New  Brighton  the  tax  lists  and  warrants  of  said 
district  for  the  years  1891  and  1892;  third,  that  said  trustees  have  failed  to  trans 
mit  to  the  county  treasurer  of  Richmond  county  the  collector's  account  of  unpaid 
taxes  for  the  years  1892  and  1893;  fourth,  that  said  trustees  have  drawn  orders 
upon  the  collector  for  the  payment  of  teachers'  wages  when  no  sufficient  money 
was  in  the  hands  of  said  collector  to  pay  such  orders;  fifth,  that  said  trustees 
have  failed  to  procure  a  blank  book  on  which  to  keep  their  accounts  of  all  moneys 
received  and  disbursed  by  them  as  such  trustees;  sixth,  that  said  trustees  have 
failed  to  render  at  the  annual  school  meetings,  held  in  1893  and  1894,  their 
annual  reports  as  required  by  the  school  law;  seventh,  that  said  Trustee  Seaton 
has  availed  himself  of  his  official  position  to  make  a  profit  from  the  school 
district. 

The  appellant  alleges  that  Charles  Crowley,  who  was  elected  collector  of  said 
district  at  the  annual  school  meeting  in  1894,  is  not  eligible  to  hold  the  office  as 
said  Crowley  can  not  read  and  write. 

The  appellant  alleges  that  George  Sheridan,  jr,  as  district  clerk,  has  failed 
to  keep  open  for  the  inspection  of  any  qualified  voter  of  said  district  the  records, 
books  and  papers  of  said  district,  and  has  refused  to  permit  the  attorney  of  the 
appellant  to  have  access  to  said  records  etc. 

The  appellant  also  alleges  that  said  Crowley,  as  collector  of  said  district, 
has  failed  in  the  performance  of  the  duties  of  his  office,  and  that  one  Driscoll, 
a  surety  upon  the  bond  of  said  Crowley,  is  insolvent  and  that  no  action  has  been 
taken  by  said  trustees  to  protect  said  bond. 

The  appellant  appeals  from  the  action  of  the  annual  school  meeting  in  said 
district  in  1894,  in  the  adoption  of  a  resolution,  by  a  viva  voce  vote,  to  procure 
an  architect  to  draw  plans  for  a  proposed  enlargement  of  the  school  building, 
such  resolution  involving  the  expenditure  of  money. 

The  appellant  asks  in  this  one  appeal  to  have  said  trustees  and  district  clerk 
removed  from  office  for  wilful  violation  and  neglect  of  duty :  to  have  the  collector 
elecfed  declared  to  be  ineliarible  to  hold  his  office;  and  to  set  aside  so  much  of  the 


474  'i'^ll'    LNU  liKSlTV    Ui'    nil.    blATK    UF    NEW     VUUK 

proceedings  of  the  annual  school  meeting  held  in  1894,  as  authorized  the  trustees 
to  employ  an  architect. 

It  appears,  since  this  appeal  or  proceedings  herein  was  commenced,  that 
Charles  Crowley  has  resigned  the  office  of  collector  of  said  district,  and  being  no 
longer  collector  of  the  district  I  have  no  jurisdiction. 

It  appears  from  the  proofs  presented  in  this  appeal  that  one  of  the  sureties 
upon  the  bond  of  Collector  Crowley  was  Cornelius  J.  Driscoll,  and  that  said 
Crowley  delivered  moneys  collected  by  him  under  the  tax  list  and  warrant  issued 
to  him  to  said  Driscoll,  and  that  said  Driscoll  failed  on  the  demand  of  said 
Crowley  to  pay  said  moneys;  that  Trustee  Seaton  and  others,  upon  being  informed 
by  said  Crowley,  of  said  matters,  under  the  advice  of  counsel,  entered  into  nego- 
tiations with  said  Driscoll,  and  had  received  from  said  Driscoll  some  $1400,  and 
that  said  negotiations  were  pending  when  the  appeal  herein  was  brought,  and 
that  an  action  has  been  instituted  by  said  trustees  upon  the  bond  of  said  collector. 

It  also  appears  that  when  the  bond  of  said  collector  was  presented  to  said 
trustees  for  approval  they  informed  said  collector  that  they  would  approve  the 
bond  provided  another  surety  was  added,  and  that  one  Patrick  M.  Dailey  became 
such  additional  surety ;  that  by  an  inadvertence  the  notary  public  who  took  the 
acknowledgment  of  the  last  surety  filed  the  bond  in  the  office  of  the  town  clerk, 
instead  of  returning  it  to  said  trustees,  and  that  the  omission  of  the  written 
approval  of  said  trustees  upon  said  bond  was  through  inadvertence. 

It  also  appears  that  the  tax  lists  and  warrants  for  the  years  1891  and  1892 
were  in  frequent  use  after  the  close  of  the  school  year  in  the  negotiations  entered 
into  for  settlement  with  the  collector  and  his  sureties,  and  for  examination  by 
the  counsel  for  the  trustees,  and  so  continued  until  the  commencement  of  this 
|)roceeding  that  said  tax  lists  and  warrants  are  on  file  with  said  town  clerk. 

It  also  appears  that  said  trustees  did  transmit  to  the  county  treasurer  the 
account  of  the  collector  of  unpaid  taxes,  and  the  same  was  retained  by  said 
treasurer  for  some  time;  that  on  January  16,  1894,  said  treasurer  wrote  to  the 
collector,  stating  that  he  had  rejected  such  account  as  it  did  not  contain  map, 
lot  or  block  numbers,  and  returned  the  account  to  said  collector;  that  although 
said  account  contained  a  description  of  the  lands  upon  which  taxes  were  unpaid 
precisely  as  the  same  were  placed  ujion  the  tax  list,  said  trustees  corrected  such 
descrij)tions  with  the  aid  of  the  clerk  of  the  village  of  New  Brighton  inserting 
map.  lot  and  block  numbers  as  far  as  the  same  could  be  identified  and  sent  the 
same  to  said  county  treasurer;  that  on  April  10,  1894,  said  treasurer  returned 
said  accounts  on  the  ground  that  the  taxes  for  1893  had  been  levied;  that  the 
next  levy  of  taxes  will  be  in  1895. 

It  further  ai)i)cars  that  said  trustees  had  kept  books  in  which  are  entered 
their  accounts  of  all  moneys  received  or  drawn  for  or  paid  by  them,  with  sepa- 
rate accounts  of  each  appropriation  and  the  payments  made  therefrom,  and  full 
minutes  of  their  official  proceedings ;  that  said  trustees  at  the  annual  meetings  in 
said  district  held  in  1893  and  1894,  rendered  just  and  true  accounts  in  writing  of 
all  moneys  received  by  them  respectively  for  the  use  of  the  said  district,  or  raised 


JUDICIAL    DECISIONS  I    OFFICERS REMOVAL    OF  4/5 

or  collected  by  taxes  the  preceding  year,  and  the  manner  in  which  the  same  were 
expended,  and  of  all  drafts  or  orders  made  by  them  upon  the  supervisor  or  col- 
lector or  other  custodian  of  the  moneys  of  the  district,  and  of  every  special 
matter  touching  the  condition  of  the  district,  and  which  reports  are  entered  in 
the  minute  book  of  the  district. 

It  is  not  established  that  said  trustees  have  drawn  drafts  upon  the  collector 
for  the  payment  of  teachers'  wages  at  times  when  there  were  no  funds  in  the 
liands  of  the  collector  for  the  payment  thereof.  There  is  no  proof  that  trustee 
Seaton  has  availed  himself  of  his  said  office  to  receive  any  profit  or  advantage 
to  himself  for  any  official  act  performed  by  him  nor  by  reason  of  any  contract 
of  employment  of  any  person  for  work  done  for  said  district. 

The  respondent  Sheridan,  the  district  clerk,  for  answer  to  the  allegations  of 
the  appellant,  shows  that  the  first  knowledge  that  he  had  that  the  appellant  or  his 
attorney  desired  to  examine  the  records  of  said  district  was  on  Se])tember  14, 
1894;  that  at  the  annual  school  meeting  held  in  August  1894,  a  committee  was 
appointed  to  examine  the  papers  and  records  of  said  district,  and  said  meeting 
adjourned  to  October  3,  1894,  for  the  purpose  of  receiving  the  report  of  said 
committee ;  that  records  and  papers  being  under  examination  by  said  committee, 
said  Sheridan  believed  that  other  parties  should  not  have  possession  thereof 
until  such  examination  by  said  committee  was  concluded  ;  that  examination  of 
said  committee  having  been  finished  on  September  28,  1894,  he  informed  the 
attorney  for  appellant  that  said  records,  etc.,  were  open  to  his  inspection  at  any 
reasonable  time ;  that  the  appellant  and  his  attorney  have  had  free  access  to  said 
records  etc.,  and  made  copies  thereof  on  October  2,  1894. 

That  as  to  the  allegations  with  reference  to  the  action  of  the  annual  meeting 
in  August  1894,  upon  the  resolution  presented  authorizing  the  trustees  to  employ 
an  architect  to  draw  plans  for  an  enlargement  of  the  school  building,  it  appears 
that  the  board  of  health  of  the  village  of  New  Brighton  had  notified  the 
trustees  of  said  school  district  that  by  reason  of  insufficient  air  space  for  the 
number  of  pupils,  it  would  be  necessary  to  make  an  addition  to  the  schoolhouse; 
that  thereupon  a  resolution  was  ofifered  at  the  annual  meeting  empowering  the 
trustees  to  procure  an  architect  to  draft  plans,  which  resolution  was  put  to  a 
viva  voce  vote;  but  the  chairman  being  in  doubt  as  to  the  result  there  was  a 
division  of  the  house  and  upon  the  division  the  resolution  was  declared  adopted ; 
that  said  trustees  thereupon  entered  into  an  arrangement  with  an  architect  to 
furnish  plans  upon  his  stipulating  that  said  district  was  not  to  be  liable  to  pay 
him  anything  for  such  services  unless  such  plans  should  be  accepted  by  the 
school  meeting  and  at  which  meeting  the  sum  to  be  paid  should  be  fixed  by  the 
vote  of  such  meeting. 

Under  section  13,  title  I  of  the  Consolidated  School  Law  of  1894,  it  is 
enacted  that  "  whenever  it  shall  be  proved  to  his  satisfaction  that  any  school 
commissioner  or  other  school  officer  has  been  guilty  of  any  wilful  violation  or 
neglect  of  duty  under  this  act,  or  any  other  act  pertaining  to  common  schools  or 
wilfidly  disobeying  any  decision,  order  or  regulation  of  the  Superintendent,  the 


47^  THE   UNIVERSITY   OF  THE   STATE   OF   NEW  YORK 

Superintendent  may,  by  an  order  under  his  liand  and  seal,  which  order  shall  be 
recorded  in  his  office,  remove  such  school  commissioner  or  other  school  officer 
from  his  ofiice." 

This  Department  has  uniformly  held  that  "  wilful  "  in  said  section  13,  above 
quoted,  means  "  intentionally  ''  or  "  designedly  "  and  not  ignorance,  neglect, 
omissions,  misapprehension  or  inadvertence,  but  knowing  his  duty,  absolutely 
refusing  to  perform  it.  The  courts  of  this  State  have  so  held.  (See  People  ex 
rel.  Clingen  v.  Draper,  Supt.,  63  Hun  389.) 

In  appeals  and  petitions  to  this  Department  under  the  school  law  the  burthen 
is  upon  the  appellant  or  petitioner  to  establish  his  appeal  or  petition  by  a  prepon- 
derance of  proof.     In  this  he  has  failed. 

The  papers  presented  upon  this  appeal  and  petition  have  not  proven  to  my 
satisfaction  that  said  trustees,  John  Seaton,  John  Travers  and  John  J.  Santry, 
have,  or  either  of  them  has,  nor  that  said  George  Sheridan,  jr,  district  clerk,  has 
been  guilty  of  any  wilful,  that  is.  intentional,  violation  or  neglect  of  duty  under 
the  school  laws. 

The  appeal  and  petition  herein  are  dismissed. 


4173 

In  the  matter  of  the  application  of  Bertha  L.  Emerson  for  the  removal  of 
George  H.  Edgerton  as  trustee  of  joint  school  district  no.  5,  towns  of  Sidney 
and  Franklin,  Delaware  county. 

Wilful  violation  or  neglect  of  duty  on  the  part  of  a  school  officer,  as  stated  in  section  18 
of  title  I  of  the  Consolidated  School  Act,  does  not  mean  mere  omission,  misapprehen- 
sion or  inadvertence  on  the  part  of  such  officer,  but  an  intentional  violation  or  neglect 
of  duty  and  an  absolute  refusal  to  perform  a  duty  and  an  announcement  of  doing 
directly  the  reverse  of  what  is  his  duty  to  do. 

Decided  May  31,  1893 

Crooker,  Superintendent 

This  is  an  application  by  Bertha  L.  Emerson  for  the  removal  of  George  H. 
Edgerton  as  trustee  of  joint  school  district  no.  5,  towns  of  Sidney  and  Franklin, 
Delaware  county. 

A  verified  petition,  with  an  affidavit  of  Leroy  Emerson  annexed  and 
notice  of  their  presentation  to  me,  were  served  on  the  trustee  on  March  4,  1893, 
and  filed  in  this  Department  on  March  8,  1893.  An  answer  was  filed  by  the 
trustee  to  which  Miss  Emerson  filed  an  affidavit  in  reply. 

It  appears  from  the  papers  presented  that  on  or  about  August  10,  1892, 
the  petitioner  and  respondent  entered  into  a  verbal  contract  by  the  terms  of 
which  the  petitioner  was  employed  to  teach  the  school  in  said  district  for  sixteen 
weeks,  commencing  on  Sei:»tcmbcr  26,  1892,  at  the  compensation  of  $5.50  per 
week.  That  about  the  time  of  the  commencement  of  the  school  the  petitioner 
filled  out  a  memorandum  of  hiring  on  a  form  contained  in  the  school  register 


JUDICIAL   DECISIONS  I    OFFICERS  —  REMOVAL    OF  477 

and  left  the  same  at  the  residence  of  the  trustee,  with  the  wife  of  the  trustee, 
with  a  request  that  the  trustee  should  sign  the  same  and  return  it  to  the  petitioner ; 
that  the  trustee  was  absent  from  home  and  before  his  return  the  register  was 
returned  to  the  possession  of  the  petitioner.  The  petitioner  states  that  the 
trustee  had  said  register  in  his  possession  upon  two  different  occasions,  but 
neglected  to  sign  said  memorandum,  although  requested  by  her  to  sign  the  same, 
she  does  not  definitely  state  when  and  where  she  requested  the  trustee,  in  person, 
to  sign  said  memorandum,  and  the  trustee  alleges  that  it  was  not  signed  by  him 
through  inadvertence. 

The  petitioner  fulfilled  her  contract,  but  the  trustee  did  not  pay  her  wages 
at  the  end  of  each  calendar  month,  but  after  she  had  taught  for  about  three 
months  he  paid  her  for  two  months'  services.  After  the  completion  of  the  peti- 
tioner's term  of  employment  she  applied  to  the  trustee  for  the  balance  of  wages 
due  her,  and  the  trustee  requested  further  time,  which  the  petitioner  declined 
to  accede  to.  At  the  interview  it  would  appear  that  both  parties  were  some- 
what excited  and  irritated.  Within  a  few  days  the  trustee  paid  the  petitioner 
the  balance  of  the  wages  due  her. 

By  section  i8  of  title  i  of  the  Consolidated  School  Law  of  1864,  it  is  pro- 
vided that,  whenever  it  shall  be  proved  to  the  satisfaction  of  the  Superintendent 
of  Public  Instruction  that  any  school  commissioner,  or  other  school  officer,  has 
been  guilty  of  any  wilful  violation  or  neglect  of  duty  under  said  act,  or  any 
other  act  pertaining  to  common  schools,  the  said  Superintendent  may,  by  an 
order  under  his  hand  and  seal,  which  order  shall  be  recorded  in  his  office,  remove 
such  school  commissioner,  or  other  school  officer,  from  his  office. 

By  chapter  335  of  the  Laws  of  1887  it  is  provided  that  all  officers  who 
shall  employ  any  teacher  to  teach  in  any  of  the  public  schools  of  the  State  shall, 
at  the  time  of  such  employment,  make  and  deliver  to  said  teacher,  or  cause  to 
be  made  and  delivered,  a  memorandum  in  writing  signed  by  said  officer,  in  which 
the  details  of  the  agreement  between  the  parties,  and  particularly  the  length  of 
the  term  of  employment,  the  amount  of  compensation,  and  the  time  or  times 
such  compensation  shall  be  due  and  payable,  shall  be  clearly  and  definitely  set 
forth ;  but  nothing  in  said  act  contained  shall  be  deemed  to  abridge  or  otherwise 
affect  the  term  of  employment  of  any  teacher  then  or  thereafter  employed  in  the 
public  schools,  etc. 

The  object  of  said  act  was  to  avoid  controversies  and  prevent  misunder- 
standing between  trustees  and  teachers  relative  to  the  terms  of  contracts  as  to 
employments  when  made  orally. 

There  seems  to  have  been  no  controversy  between  the  petitioner  and  the 
trustee  in  this  matter  as  to  the  terms  of  the  contract. 

The  trustee  neglected  to  sign  the  memorandum  of  hiring  of  the  petitioner. 
The  question  is,  is  the  trustee  guilty  of  a  wilful  violation  and  neglect  of  duty? 

The  courts  of  this  State  have  held  that  "  wilful  "  in  the  statute  means 
"  intentional,"  not  omissions,  misapprehension  or  inadvertence,  but  an  absolute 
refusal  to  perform  a  duty,  and  an  announcement  of  doing  directly  the  reverse 


478  THE   UNIVERSITY   OF  THE   STATE   OF   NEW   YORK 

of  what  it  was  his  duty  to  do.  (People  ex  rel.  CHiigcn  v.  Draper,  State  Super- 
iiiteiidcnt,  18  N.  Y.  Suppk-incnt,  232,  and  cases  cited.) 

Tlie  papers  presented  upon  this  api)Hcation  have  not  proved  to  my  satis- 
faction that  the  trustee,  George  D.  Edgerton,  has  been  guilty  of  any  wilful 
(that  is,  intentional)  violation  or  neglect  of  duty  under  the  school  laws. 

The  application  is  denied  and  the  petition  dismissed. 


4380 

In  the  matter  of  the  petition  of  Charles  W.  Burton,  Joseph  L.  Hover  and  William 
A.  C'hoatc  for  the  removal  from  office  of  Jeremiah  I.  Best,  B.  J.  Walker 
and  William  A.  Alsdorf,  members  of  the  board  of  education  of  union  free 
school  district  no.  12,  town  of  Schodack,  Rensselaer  county. 

In  a  petition  for  the  removal  of  school  district  officers  for  wilful  violation  and  neglect  of 
duty,  the  burden  is  upon  the  petitioners  to  establish  such  violation  or  neglect  of  duty 
by  a  preponderance  of  proof.  The  courts  of  this  State  have  decided  that  "  wilful " 
means  "intentional";  that  is,  a  school  officer,  knowing  what  the  law  and  his  duty  are, 
intentionally  does  that  which  is  directly  contrary  to  the  law  and  his  duty,  or  so  knovv'ing 
his  duty,  intentionally  neglects  to  perform  it. 

Decided  September  28,  1895 

Alden  Chester,  attorney  for  petitioners 

T.  Almern  Griffin,  attorney  for  respondents 

Robert  G.   Scherer,  of  counsel  for  respondents 

Skinner,  Superintendent 

The  petitioners  named  in  the  above-entitled  matter,  on  June  19,  1895,  filed 
their  petition  in  which  they  allege  that  they  are  qualified  voters  of  said  district 
no.  12,  town  of  Schodack,  and  that  said  district  is  a  union  free  school  district; 
that  said  Best,  Walker  and  Alsdorf  are  the  trustees  of  said  district  and  as  such 
have  been  guilty  of  a  wilful  violation  and  neglect  of  duty,  as  alleged  specifically 
in  said  petition;  that  the  petitioners  ask  for  the  removal  of  said  trustees  from 
office.  Annexed  to  said  petition  are  certain  affidavits  and  papers  in  support  of 
the  charges  contained  in  the  petition.  An  answer  by  the  respondents  to  said 
petition  was  filed  on  July  5,  1895,  denying  that  said  school  district  is  a  union 
free  school  district,  and  that  they  have  been  guilty  of  any  wilful  violation  of  their 
duties  as  trustees  as  required  and  imposed  under  the  school  law.  To  said  answer 
are  annexed  certain  affidavits  in  support  of  the  matters  stated  in  said  answer. 
A  reply  to  the  answer  has  been  filed  and  to  the  reply  a  rejoinder.  Briefs  have 
been  filed  by  the  attorneys  of  the  respective  parties,  and  an  exhaustive  oral 
argument  made  by  said   attorneys  and   counsel. 

In  the  charges  set  out  in  the  petition  some  five  or  six  allege  that  the  respond- 
ents have  neglected  to  do  and  perform  certain  duties  which,  under  the  school 
law,  are  required  to  be  done  and  performed  by  boards  of  education  or  imion 


JUDICIAL    DECISIONS  :    OFFICERS REMOVAL    OF  479 

free  school  districts,  and  are  not  specially  required  to  be  done  by  trustees  of 
common  school  districts.  If  district  no.  12  of  Schodack  is  not  a  union  free 
school  district  the  respondents  do  not  constitute,  nor  are  they  members  of,  a 
board  of  education  of  a  union  free  school  district  and  hence  such  charges  fall. 

I  am  of  the  opinion  that  said  school  district  no.  12  is  not  a  union  free  school 
district.  The  establishment  of  a  union  free  school  in  a  common  school  district, 
since  chapter  555  of  the  Laws  of  1864  became  operative,  is  a  statutory  pro- 
ceeding, and  the  provisions  of  the  statute  in  relation  thereto  must  be  complied 
with.  No  proof  is  produced  that  any  action  or  proceedings  under  the  Consoli- 
dated School  Act  of  1864  and  the  amendments  thereto,  or  under  the  Consolidated 
School  Law  of  1894,  relative  to  the  establishment  of  union  free  schools,  was 
or  were  ever  had  or  taken  in  said  school  district.  Conceding  that  at  the  annual 
school  meeting,  held  in  said  district  in  1864,  a  resolution  was  adopted,  in  effect, 
that  said  district  should  be  changed  to  a  union  free  school,  such  action  did  not 
establish  a  union  free  school  under  the  school  law.  The  fact  that  the  trustees 
of  the  district  in  their  annual  report  for  the  commissioner  for  several  years 
called  said  district  a  union  free  school  district,  and  the  school  commissioner  in 
making  his  annual  report  to  this  Department,  from  the  statements  contained  in 
said  report  of  said  trustees,  called  the  district  a  union  free  school  district  or 
that  upon  an  application  of  the  trustees  of  said  district  to  this  Department  for 
an  apportionment  of  library  money  it  was  stated  therein  that  the  district  was  a 
union  free  school  district,  and  that  statement  was  accepted  by  the  Superintendent 
as  true,  did  not  make  said  district  a  union  free  school  district,  nor  was  it  a 
recognition  by  this  Department  that  it  was  such  district.  This  Department  has 
no  power  or  authority  to  recognize  any  school  district  as  a  union  free  school 
district,  unless  there  is  produced  and  filed  a  certified  copy  of  proceedings  had 
and  taken  under  and  pursuant  to  the  provisions  of  the  school  law  relating  to 
the  establishment  of  union  free  schools  establishing  said  union  free  school  dis- 
trict, or  an  act  of  the  Legislature  of  the  State  creating  such  union  free  school 
district.  It  is  conceded  that  after  a  careful  search  in  this  Department  for  a 
copy  of  proceedings  in  the  establishment  of  a  union  free  school  in  said  district 
no  such  record  can  be  found. 

By  the  provisions  of  the  Consolidated  School  Law  of  1894,  which  went 
into  operation  on  June  30,  1894,  the  trustee  or  trustees  of  every  school  district 
whether  there  is  one  or  three  trustees,  shall  constitute  a  board  for  each  of  said 
districts  respectively,  and  each  of  said  boards  are  severally  created  bodies  cor- 
porate; that  every  power  committed  to  said  trustees  by  said  act  must  be  exer- 
cised as  a  board;  that  such  board  must  meet  for  the  transaction  of  business.  A 
trustee  or  the  trustees  of  a  common  school  district  can  not  lawfully  be  inter- 
ested in  any  contract  made  by  said  board ;  nor  can  any  trustee  lawfully  perform 
labor  for  the  district  and  fix  his  compensation  for  such  services ;  nor  can  he 
purchase  property  for  the  district  from  himself  and  fix  the  price  of  said  prop- 
erty„  As  such  trustees  are  required  to  meet  as  a  board,  books  should  be  kept 
in  which  the  records  of  all  their  proceedings  should  be  kept  by  the  clerk  of  the 


480  THE   UNIVERSITY    OF   THE   STATE   OF    NEW   YORK 

district;  such  clerk  should  be  notified  by  the  trustees  of  the  time  and  place  of 
such  meetings:  that  such  records  are  the  property  of  the  district  and  should  be 
open  for  inspection  by  any  qualitied  voter  at  all  reasonable  hours. 

By  section  13  of  title  i  of  the  Consolidated  School  Law  of  1894,  it  is 
enacted  that  whenever  it  shall  be  proved  to  his  satisfaction  that  any  school  com- 
missioner or  other  school  officer  has  been  guilty  of  any  wilful  violation  or  neglect 
of  duty  under  said  act,  or  any  other  act  pertaining  to  common  schools,  the 
Superintendeat  may,  by  an  order  under  his  hand  and  seal,  remove  such  school 
commissioner  or  other  school  officer  from  his  office. 

The  courts  of  the  State  have  decided  that  "  wilful  "  means  "  intentional," 
that  is,  a  school  officer  knowing  what  the  law  and  his  duty  are,  intentionally  docs 
that  which  is  directly  contrary  to  the  law  and  his  duty,  or  so  knowing  his  duty 
intentionally  neglects  to  perform  his  duty. 

The  respondents  herein,  as  trustees  of  said  school  district  during  the  school 
year  of  1894-95,  appear  not  to  have  performed  their  duty  strictly  in  accordance 
with  the  provisions  of  law,  especially  in  meeting  as  a  board  and  transacting 
the  business  as  a  board ;  in  having  a  record  kept  by  the  district  clerk,  etc.,  etc., 
in  the  auditing  of  accounts  against  the  district  and  drawing  orders  for  their 
payment,  etc.,  etc.,  but  the  proofs  herein  do  not  show  that  such  violation  or 
neglect  of  duty  was  "  wilful,"  that  is,  "  intentional." 

The  proofs  herein  fail  to  show  that  the  respondent,  Best,  was  pecuniarily 
interested  in  the  action  of  the  board  in  employing  Best's  children  to  perform 
janitor  work  in  the  schoolhouse. 

The  charges  relative  to  the  failure  of  the  respondents  to  insure  the  school- 
house  and  furniture  for  a  period  of  five  months,  and  to  the  condition  of  the 
water  closets  were  not  pressed  by  the  petitioners  upon  the  argument  before  me. 

The  petition  charges  that  the  respondents  wilfully  and  unlawfully  removed 
one  Emma  Wygant,  a  teacher  in  said  district,  during  her  term  of  employment 
without  sufficient  cause.  I  find  this  charge  is  not  sustained  by  the  proofs.  The 
proofs  show  Miss  Wygant  was  not  removed  by  them,  but  resigned,  contrary 
to  the  wishes  of  the  respondents,  and  that  her  resignation  was  accepted.  But 
if  said  respondents  had  demurred  or  removed  her  without  sufficient  cause,  I 
have  no  power,  under  the  school  law,  to  remove  the  respondents  from  office  as 
trustees  of  said  district  for  such  dismissal. 

I  find  and  decide,  That  it  has  not  been  proved  to  my  satisfaction  that  the 
respondents  herein,  as  such  trustees  of  school  district  no.  12,  town  of  Schodack, 
Rensselaer  county  have,  or  either  of  them  has,  been  guilty  of  any  wilful  violation 
or  neglect  of  duty  under  the  Consolidated  School  Law  of  1894,  or  any  other  act 
pertaining  to  common  schools. 

The  petition  herein  is  dismissed  and  the  application  of  the  petitioners 
therein  denied. 


JUDICIAL    DECISIONS  :    OFFICERS REMOVAL    OF  481 

4325 

In  the  matter  of  the  petition  of  Orin  Swift  and  others  for  the  removal  of 
Daniel  E.  Butler  as  sole  trustee  of  school  district  no.  6,  town  of  ^lilford, 
Otsego  county. 

So-  long  as  a  school  district  is  in  existence,  it  is  the  duty  of  the  trustee  or  trustees  thereof 
to  maintain  a  school  therein  if  there  is  a  sufficient  number  of  pupils  to  warrant  it,  and 
where  he  or  they  neglect  or  refuse  to  maintain  such  school,  are  not  excused  from  per- 
forming such  duty  for  the  reason  that  the  annual  school  meeting  had  voted  that  no 
school  should  be  taught  in  the  district  for  that  school  year.  A  trustee  who  fails  to 
maintain  a  school  will  be  deemed  guilty  of  a  wilful  violation  and  neglect  of  duty. 

Decided  February  14,  1895 

R.  M.  Townsend,  attorney  for  petitioners 

t 

Crooker.  Superintendent 

This  is  a  petition  by  certain  qualified  voters  of  school  district  no.  6,  town 
of  Milford,  Otsego  county,  for  the  removal  from  office  of  Daniel  E.  Butler,  sole 
trustee  of  said  district.  The  principal  grounds  upon  which  such  removal  is 
asked  are,  that  said  Butler  did  not  maintain  any  school  in  said  district  during 
the  school  year  of  1892-93  ;  that  during  the  school  year  of  1893-94  a  school 
was  maintained  in  said  district  for  only  twelve  weeks;  and  that  by  the  neglect 
of  said  Butler  the  sum  of  $66.18  of  the  public  moneys  apportioned  to  said  dis- 
trict in  the  custody  of  the  supervisor  was  lost  to  the  district. 

On  account  of  sickness  in  the  family  of  said  Butler  his  time  to  answer 
the  petition  herein  was  extended  by  me,  and  said  answer  was  not  received  by 
me  until  August  20,  1894.  A  reply  to  said  answer  was  received  by  me  on 
November  13,  1894,  and  a  brief  on  the  part  of  the  petitioners  was  received 
by  me  on  February  6,   1895. 

It  appears  from  the  papers  presented  that  said  Butler,  at  the  annual  school 
meeting  held  in  said  district  in  August  1892,  was  elected  sole  trustee  of  said 
district;  that  said  annual  meeting  voted  that  no  school  should  be  taught  in  said 
district  during  said  school  year;  that  no  school  was  taught  or  maintained  in  said 
district  during  said  school  year;  that  at  the  annual  school  meeting,  held  in  said 
district  in  August  1893,  said  Butler  was  elected  sole  trustee  of  said  district; 
that  in  the  autumn  of  1893,  said  Butler  employed  one  Helen  Windsor,  who 
taught  said  school  for  six  weeks  and  was  paid  $36  therefor  by  an  order  of  said 
Butler  upon  the  supervisor  of  the  town  of  Milford;  that  the  school  remained 
closed  until  about  February  i,  1894,  when  said  Butler  employed  one  Daniel 
Thorn,  who  taught  the  school  for  six  weeks ;  that  said  Butler  gave  said  Thorn 
an  order  upon  the  supervisor  who  declined  to  pay  the  same ;  that  for  the  balance 
of  said  school  year  no  school  was  maintained  in  said  district ;  that  at  the  annual 
meeting  of  said  district,  held  in  August  1894,  a  successor  to  said  Butler  as 
trustee  was  elected.  In  his  answer  to  the  petition  herein  said  Butler  alleges  as 
an'  Excuse  for  not  maintaining  a  school  in  said  district  in  the  school  year  of 
1892-93  the  aforesaid  action  of  the  annual  meeting  resolving  that  no  school  be 
16 


482  THE    L'XIVEKSITV    OF   THE   STATE    OF   NEW    YORK 

taught  for  said  school  year,  and  that  during  the  school  year  of  1893-94  he  was 
unable  to  hire  teachers  excc])t  for  said  twelve  weeks  during  which  a  school  was 
taught. 

The  petitioner^.  a\cr  that  iaid  Butler  could  have  employed  a  comj^etent 
teacher  if  he  had  been  willing  to  pay  a  reasonable  sum  as  wages,  but  refused 
to  em})ioy  any  one  unless  at  a  compensation  less  than  S5  per  week;  that  one 
Minnie   W.   Bishop,   a   duly   qualihed    teacher,   made   application   in    September 

1893,  to  teach  the  school  for  the  sum  of  $5  per  week  and  board  herself ;  but 
said  Butler  declined  to  employ  her,  stating  that  he  would  not  pay  $5  per  week 
for  a  teacher. 

While  a  school  district  is  in  existence  it  is  a  duty  of  a  trustee  or  trustees 
to  maintain  a  school  in  said  district,  and  where  he  or  they  neglect  or  refuse 
to  maintain  such  school,  he  or  they  are  not  excusW  from  performing  such 
duty  for  the  reason  that  the  annual  school  meeting  has  voted  that  no  school 
be  taught  in  the  district  for  that  school  year.  From  the  proofs  herein  I  am 
satisfied  that  said  Butler  could  have  employed  a  competent  qualified  teacher  to 
teach  the  school  in  said  district  in  the  school  year  of  1893-94  had  he  been 
willing  to  pay  a  reasonable  compensation  for"  such  services. 

I  am  of  the  opinion  that  said  Butler  was  guilty,  during  said  school  years  of 
1892-93  and  1893-94.  of  a  wilful  violation  and  neglect  of  duty  as  said  trustee 
of  said  district,  in  not  maintaining  a  school  therein  for  at  least  thirty-two  weeks 
in  1S92-93,  and  for  at  least  160  days,  inclusive  of  legal  holidays  that  might  occur 
during  the  term  of  said  school  and  exclusive  of  Saturdays  during  1893-94. 
Said  Butler  having  ceased  to  be  the  trustee  of  said  district  since  the  annual 
school  meeting  held  therein  in  August  1894,  I  have  no  power  to  make  any  order 
to  remove  him  for  such  wilful  violation  and  neglect  of  duty. 

The  petitioners  ask  me  to  make  an  order  directing  the  said  Butler  to  pay 
to  the  district  the  sum  of  $66.18  which,  it  is  alleged,  said  district  lost  by  reason 
of  the  wilful  neglect  of  official  duty  on  the  part  of  said  Butler.  It  appears  that 
in  the  autumn  of  the  year  1893  there  was  in  the  custody  of  the  supervisor  of  the 
town  of  Milford  the  sum  of  $102.18  for  the  payment  of  teachers'  wages,  belong- 
ing to  said  school  district  and  that  said  Butler  drew  $36  thereof  to  pay  Miss 
Windsor;  that  some  time  in  ^^larch  1894,  he  drew  an  order  upon  said  supervisor 
to  pay  Thorn  for  services  as  teacher,  which  order  was  not  paid.  Under  the 
school  law,  on  the  first  Tuesday  of  March  in  each  year,  each  supervisor  is 
required  to  make  a  report  in  writing  to  the  county  treasurer  for  the  use  of  the 
school  commissioners,  showing  the  amounts  of  school  moneys  in  his  hands  not 
paid  on  orders  of  trustees  for  teachers'  wages,  and  the  districts  to  which  they 
stand  accredited,  and  th.ereafter  he  shall  not  pay  out  any  of  said  moneys  until 
he  shall  have  received  the  certificate  of  the  next  apportionment;  and  the  moneys 
so  returned  by  him  shall  be  reapportioned.     It  would  seem  that  on  March   i, 

1894.  the  supervisor  made  his  report  to  the  county  treasurer  showing  the  sum 
of  $66.18  accredited  to  the  district,  and  he  was  forbidden  by  law  to  then  pay 
out  any  of  said  moneys  until  after  he  received  the  certificate  of  the  next  appor- 


JUDICIAL    decisions:    OFFICIiRS REMOVAL    OF  483 

tionment,  upon  which  new  apportionment  said  district  would  receive  a  propor- 
tion of  said  sum  of  S66.18.  I  am  of  the  opinion  that  I  have  no  power  to  decide 
whether  or  not  said  district  has  lost  or  forfeited  any  money  by  the  acts,  mis- 
conduct or  negligence  of  said  Butler,  nor  to  make  any  order  in  the  premises. 

By  section  i,  article  i,  title  15,  of  the  Consolidated  School  Law  of  1S94 
it  is  enacted,  that  whenever  the  share  of  school  moneys  or  any  portion  thereof, 
apportioned  to  any  town  or  school  district,  etc.,  shall  be  lost  in  consequence 
of  any  wilful  neglect  of  official  duty  by  school  commissioner,  town  clerk, 
trustee,  etc.,  the  officer  or  officers  guilty  of  such  neglect  shall  forfeit  to  the  town 
or  school  district  so  losing  the  same,  the  full  amount  of  such  loss  with  interest 
thereon.  I  have  no  jurisdiction  of  proceedings  under  the  foregoing  section, 
but  such  proceedings  must  be  taken  in  the  courts.  The  forfeiture  in  this  matter, 
if  any,  being  declared  for  the  benefit  of  said  school  district,  it  is  the  duty  of  the 
trustee  to  sue  for  and  enforce  its  collection. 

The  petition  herein  is  dismissed. 


3695 

In  the  matter  of  the  appeal  of  Erastus  B.  Alason  v.  George  A.  Butler,  as  trustee 
of  school  district  no.  8,  town  of  New  Hartford,  Oneida  county. 

A  trustee  who  has  not  been  charged  with  dishonesty  or  immoral  conduct  will  not  be  removed 
from  office  because  he  has  neglected  to  repair  schoolhouse  and  improve  its  surroundings, 
unless  it  should  be  made  to  appear  that  he  has  refused  or  neglected  to  carry  out  the 
proper  directions  of  a  district  meeting  or  of  a  school  commissioner  to  do  so. 

A  citizen  who  occupies  real  estate  and  pays  rent  therefor,  is  a  legal  voter  and  eligible  to 
the  office  of  trustee. 

Decided  June  12,  1888 

Draper,  Superintendent 

The  appellant  asks  for  the  removal  of  the  respondent  from  the  office  of 
trustee  in  district  no.  8,  town  of  New  Hartford,  Oneida  county. 

The  grounds  alleged  are  that  the  respondent  is  not  a  qualified  voter  at 
school  meetings,  and  is,  therefore,  ineligible  to  hold  the  office,  and  that  he  has 
been  negligent  in  the  discharge  of  his  duties  and  has  allowed  the  building  to 
remain  out  of  repair  and  has  suffered  accumulations  of  stagnant  water  to  remain 
so  near  the  schoolhouse  as  to  endanger  the  health  of  the  pupils. 

While  the  charges  appear  somewhat  serious,  yet  they  do  not  affect  the  moral 
standing  of  the  respondent.  No  charge  of  dishonesty  is  made.  At  the  niost,  it  is 
only  said  that  he  has  neglected  to  repair  and  keep  in  good  condition  the  school 
building  and  its  surroundings.  It  does  not  appear  that  the  school  commissioner 
nor  any  meeting  of  the  inhabitants  has  directed  repairs  which  the  trustee  has 
refused  to  make,  and  it  is  not  made  to  appear  that  he  could  have  made  the  repairs 
referred  to  upon  his  own  motion  and  kept  the  expense  within  the  limit  the  law 
attows. 


484  THE   UXIVEkSITV    OF   THE   STATE   OF   NEW  YORK 

The  charj^e  that  the  respondent  is  not  a  qualified  voter  has  not  been  regularly 
met  by  an  answer  properly  served,  but  for  the  information  of  the  Department, 
the  respondent  has  filed  a  verified  statement  to  the  effect  that  for  three  years 
last  past,  he  has  occupied  real  estate  in  the  district  and  paid  rent  therefor. 

I  have  concluded,  in  view  of  all  the  circumstances  and  the  fact  that  the 
annual  election  of  trustees  is  to  occur  so  soon,  to  overrule  the  appeal  and  let 
the  voters  then  determine  as  to  the  choice  of  a  trustee. 


3674 

In  the  matter  of  the  application  of  ^Martin  V.  Clark  and  others,  for  the  removal 

of  Lewis  H.  Lockwood,  as  trustee  of  school  district  no.  5,  towns  of  Wheeler 

and  Urbana,  Steuben  county. 

A  trustee  will  not  be  removed  from  his  office  unless  it  is  shown  by  a  clear  preponderance 

of  proof  that  he  has  been  guilty  of  acts  which  are  sufficiently  grave  to  justify  such  a 

penalty. 

The  reelection  of  a  trustee  after  a  neglect  to  carry  out  the  directions  of  a  prior  district 

meeting  is  good  reason  for  refusing  to  remove  him  for  such  neglect. 
Decided  March  24,  1888 

Draper.  Superintendent 

Lewis  H.  Lockwood  was  elected  trustee  of  school  district  no.  5,  towns  of 
V/heeler  and  Urbana,  Steuben  county,  on  the  31st  day  of  May  1887,  at  a  special 
meeting,  and  was  reelected  to  the  same  office  at  the  annual  meeting  held  on 
the  31st  day  of  August  1887. 

This  is  an  application  to  remove  him  from  office.  The  applicants  allege. 
as  the  grounds  of  the  complaint,  that  the  trustee  has  refused  or  neglected  to 
carry  out  the  directions  of  the  district  meeting,  relative  to  repairs  to  the  school- 
house  and  that  he  discharged  a  teacher  from  employment,  which  resulted  in 
litigation  and  in  the  district  being  involved  in  trouble  and  expense  on  account 
thereof. 

It  appears  that  the  district  meeting  directed  certain  repairs  to  be  made  to 
the  schoolhouse.  and  appointed  a  special  committee  to  superintend  such  repairs. 
The  trustee  refused  to  permit  the  special  committee  to  do  this  and  insisted  upon 
attending  to  the  matter  himself.  He  was  clearly  justified  in  doing  so.  The 
trustee  is  the  officer  created  by  law  for  the  purpose  of  attending  to  such  matters, 
among  his  other  duties.  The  complaint  that  the  trustee  refused  to  carry  out 
the  directions  of  the  district  meeting,  loses  its  weight  when  taken  in  view  of 
the  fact  that  the  directions  were  made  at  the  meeting  held  in  March  1887,  at  the 
same  time  the  trustee  was  elected,  and  that  he  was  reelected  at  the  annual  meeting 
at  the  end  of  August  1887.  It  would  seem  strange  that  he  should  have  been 
reelected  if  his  course  was  so  displeasing  to  the  majority  of  electors  in  the  dis- 
trict as  is  claimed.  The  same  observation  may  be  made  relative  to  the  discon- 
tinuance  of   the   employment   of   the   teacher.      Such   employment   discontinued 


JUDICIAL    decisions:    officers  —  REMOVAL    OF  485 

immediately  after  Lockwood  became  trustee,  and  yet  he  was  reelected  to  the 
office,  several  months  subsequently.  It  is  true  that  a  litigation  has  followed 
the  discharge  of  the  teacher,  which  seems  to  me  to  establish  the  fact  that  the 
teacher  was  discharged  in  violation  of  the  contract  or  agreement;  but  notwith- 
standing this  fact,  if  a  majority  of  the  electors  of  the  district  approved  the  action 
of  the  trustee  in  the  discharge  of  the  teacher,  then  such  action  ought  not  to  be 
permitted  to  be  the  groundwork  for  removing  the  trustee  from  office. 

Before  a  trustee  can  be  removed  from  office,  the  persons  moving  in  that 
direction  must  show  by  a  clear  preponderance  of  proof,  that  he  is  guilty  of  acts 
which  are  sufficiently  grave  to  justify  such  a  penalty.  The  proofs  offered  in  this 
case  are  not  sufficient,  in  my  judgment,  to  justify  me  in  granting  the  application 
of  the  petitioners,  particularly  in  view  of  the  fact  that  the  whole  trouble  seems 
to  be  a  controversy  relative  to  the  transaction  of  the  business  affairs  of  the  dis- 
trict about  which  men  have  a  right  to  differ  in  opinion  and  in  view  of  the  fact 
that  the  school  year  is  so  far  advanced  that  the  district  will  soon  have  an  oppor- 
tunity to  elect  a  trustee. 

The  application  is  denied. 


4192 

In  the  matter  of  the  petition  of  John  E.  Casey  for  the  removal  of  Adelbert  Case 
as  clerk  of  school  district  no.  6,  town  of  North  Norwich,  Chenango  county. 

Where,  upon  application  to  a  district  clerk  by  a  qualified  voter  of  the  district  for  permis- 
sion to  examine  the  minutes  of  the  annual  school  meeting  of  the  district,  the  clerk 
refused  to  permit  such  voter  to  examine  such  minutes,  using  vulgar  and  profane  lan- 
guage in  expressing  such  refusal,  held  that  the  clerk  was  guilty  of  a  wilful  violation  of 
duty  and  an  order  made  for  his  removal. 

Decided  November  2,  1893 

W.  H.  Sullivan,  attorney  for  petitioner 

Crooker,  Superintendent 

This  is  a  proceeding  in  the  nature  of  an  appeal  for  the  removal  of  one 
Adelbert  Case  as  clerk  of  school  district  no.  6,  town  of  North  Norwich,  Chenango 
county,  for  wilful  violation  and  neglect  of  duty. 

A  petition  of  John  E.  Casey,  a  resident  and  taxpayer  in  said  school  district, 
duly  verified  on  September  16,  1893,  setting  forth  certain  charges  against  said 
Case  with  specifications  of  the  facts  to  establish  such  charges,  and  having  annexed 
thereto  the  affidavits  of  said  Casey,  of  one  Perry  Hunt  in  support  thereof,  and 
a  notice  addressed  to  said  Case  that  said  petition  and  affidavits  would  be  pre- 
sented to  me  at  Albany  and  application  thereupon  be  made  to  remove  said  Case 
from  his  said  office  of  clerk  of  said  district,  and  requiring  said  Case  to  transmit 
his  answer  to  said  application  duly  verified,  to  this  Department  within  ten  days 
after- service  of  said  notice,  petition  and  application,  or  the  charges  contained 


486  THE    UNIVERSITY    OF   THE   STATE   OF    NEW   YORK 

therein  would  be  deemed  admitted,  with  proof  of  service  of  copies  of  said  peti- 
tion, affnlavits  and  notice  upon  said  Case  on  September  19,  1893,  were  filed  in 
this  Department  on  September  23,  1893.  No  answer  to  said  petition  etc.,  has 
been  received  or  tiled,  and  the  allegations  contained  in  said  petition  etc.,  are 
considered  as  admitted  as  true  by  the  said  Case.  The  allegations  contained  in 
said  petition  etc.,  so  considered  admitted  as  true,  are  as  follows: 

That  the  said  Adelbert  Case  was,  in  August  and  September  1893,  the  duly 
elected  and  qualitied  clerk  of  school  district  no.  6,  town  of  North  Norwich, 
Chenango  county ;  that  on  or  about  August  28,  1893,  about  9  o'clock  in  the  fore- 
noon of  that  day.  John  E.  Casey  and  Perry  Hunt,  each  of  whom  was  a  resident, 
voter  and  taxpayer  of  said  school  district,  went  to  the  premises  of  said  Adelbert 
Case,  the  clerk  of  said  school  district,  and  asked  permission  of  said  Case,  to  look 
at  the  minutes  of  the  school  meeting  of  said  district,  held  on  August  22,  1893, 
and  the  said  Case,  in  wilful  violation  of  his  duty  as  such  clerk,  refused  to  permit 
said  Casey  and  Hunt  to  look  at  and  inspect  such  minutes,  using  vulgar  and  pro- 
fane language  in  expressing  such  refusal.  That  on  the  nth  day  of  September 
1893,  'It  about  9  o'clock  in  the  forenoon,  said  Casey  and  Hunt  went  to  the  house 
of  said  Case  and  said  Casey  then  and  there  requested  said  Case  to  allow  him  to 
inspect  the  minutes  of  said  school  meeting  of  said  district  held  on  August  22, 
1893,  and  also  asked  for  a  copy  of  said  minutes;  that  said  Case  told  said  Casey 
that  he  would  not  let  him  see  the  minutes,  and  to  get  right  off  from  his  premises, 
or  he  would  slash  him  right  down  with  a  corn  knife,  which  said  Case  then  held  in 
his  hand.  Said  Case  further  told  said  Casey  to  get  right  off  from  his  premises 
and  to  keep  off,  and  that  he  would  not  furnish  him  with  a  copy  of  said  minutes. 

The  clerk  of  a  school  district  is  a  school  officer,  and  his  principal  duties  are 
defined  in  section  yj  of  title  7  of  the  school  law.  His  duty  is  to  record  the  pro- 
ceedings of  his  district  in  a  book  to  be  provided  for  that  purpose  by  the  district, 
etc.,  etc. ;  to  keep  and  preserve  all  records,  books  and  papers  belonging  to  his 
office  and  to  deliver  the  same  to  his  successor,  and  a  refusal  or  neglect  so  to  do 
subjects  him  to  the  forfeit  of  fifty  dollars  for  the  benefit  of  the  district,  to  be 
recovered  by  the  trustees. 

The  proceedings,  records,  books  and  papers  in  possession  of  said  clerk  are 
the  property  of  the  district,  and  not  the  individual  property  of  the  clerk.  It  is 
the  duty  of  the  clerk  to  permit  any  voter  to  freely  inspect  the  records  at  all 
reasonable  times,  and  a  wilful  denial  of  this  right  by  a  clerk  would  subject  him 
to  the  liability  of  removal  from  office.  There  can  be  no  doubt  as  to  the  right  of 
a  voter  of  a  school  district  to  examine  and  copy  the  district  records,  under  rea- 
sonable provisions. 

Section  18  of  title  2  of  the  school  laws  provides  that  whenever  it  shall  be 
proved  to  his  satisfaction  that  any  school  commissioner,  or  other  school  officer, 
has  been  guilty  of  any  wilful  violation  or  neglect  of  duty  under  the  school  act, 
the  Superintendent  of  Public  Instruction  may,  by  an  order  under  his  hand  and 
seal,  which  order  shall  be  recorded  in  his  office,  remove  said  school  commissioner 
or  other  school  officer  from  his  office. 


JUDICIAL    DECISIONS  :    OFFICERS REMOVAL    OF  48/ 

From  the  facts  established  upon  this  appeal  I  am  satisfied  that  the  said 
Adelbert  Case,  as  clerk  of  school  district  no.  6,  town  of  North  Norwich,  Che- 
nango county,  was  guilty  of  wilful  violation  and  neglect  of  duty  under  the  school 
laws,  as  such  clerk,  as  alleged  in  said  petition  etc. 

The  petition  herein  is  sustained. 

It  having  been  proven  to  my  satisfaction  that  Adelbert  Case,  clerk  of  school 
district  no.  6,  town  of  North  Norwich.  Chenango  county,  has  been  guilty  of  wilful 
violation  and  neglect  of  duty,  under  the  school  laws,  as  such  clerk,  I  do  therefore, 
by  virtue  of  the  power  and  authority  in  me  vested,  order : 

That  the  said  Adelbert  Case  be,  and  he  hereby  is,  removed  from  the  office 
of  clerk  of  said  school  district  no.  6,  town  of  North  Norwich,  Chenango  county. 


OUTBUILDINGS 

3979 

In  the  matter  of  the  appeal  of  Fannie  A.  Karker  v.  school  district  no.  4,  town 
of  Westerlo,  in  the  connty  of  Albany. 

.V  school  district  maintains  outhouses  or  privies  within  the  bounds  of  a  public  highway. 

Held,  the  obstruction  must  be  removed. 
Decided  May  9,  1891 

Engene  Burlingame,  Esq.,  attorney  for  appellant 
\  an  Alstyne  ii:  Hevenor,  attorneys  for  respondent 

Draper,  Superintendent 

This  appeal  is  against  the  action  of  the  district  in  erecting  and  maintaining 
outhouses  or  privies,  within  the  bounds  of  the  public  highway,  and  adjacent  to 
the  lands  of  the  ajipellant.  She  claims  that,  thus  located,  they  constitute  a  public 
nuisance,  and  interfere  with  the  beneficial  enjoyment  of  her  adjacent  property. 
The  allegations  of  the  appellant  as  to  the  location  of  the  outhouses,  are  not  denied 
by  the  respondent.  But  it  is  claimed  that  the  school  site  is  so  limited  that  they 
can  not  be  placed  in  the  rear  of  the  school  building  and  are  in  no  way  offensive 
to  appellant,  or  an  infringement  upon  her  rights.  It  is  also  claimed  by  the  dis- 
trict that  the  legal  right  to  maintain  outbuildings  at  the  place  where  they  now 
stand,  has  been  acquired  under  the  deed  by  which  the  site  was  conveyed  to  the 
district,  and  by  reason  of  long  usage. 

It  hardly  seems  necessary  to  discuss  complicated  law  questions.  A  school 
outhouse  within  a  public  highway  can  not  be  justified  upon  any  ground.  It  is  an 
offensive  obstruction  which  no  school  district  should  insist  upon.  A  proper 
regard  for  the  interests  of  the  school,  as  well  as  for  the  comfort  of  the  public, 
require  that  such  buildings  should  be  placed  where  they  will  not  be  conspicuous, 
and  may  be  properly  screened  and  secluded  from  public  view.  If  a  district  lacks 
a  school  site  large  enough  for  the  accommodation  of  outbuildings  it  should  take 
steps  to  procure  such  a  site. 

The  appeal  is  sustained"  and  the  district  is  directed  forthwith  to  remove  the 
outhouses  from  the  highway,  and  to  construct  such  outbuildings  as  are  suitable 
for  the  use  of  the  school,  in  a  more  secluded  place.  If  the  present  school  site 
does  not  permit  of  this,  the  district  will  take  steps  to  procure  more  land,  either 
by  adding  to  the  present  site,  or  by  changing  to  a  more  commodious  one. 

[488] 


JUDICIAL    DECISIONS  :     OUTBUILDINGS  4S9 

3773 

In  the  matter  of  the  appeal  of  George  B.  Lampman  v.  William  H.  Smith,  as 

trustee  of  school  district  no.  13,  New  Baltimore,  Greene  county. 
Tlie  expense   for  erecting  outbuildings  pursuant  to  chapter  538  of  the  Laws  of   1887,  can 

not  be  lawfully  levied  without  the  vote  of  a  district  meeting,  except  the  same  shall  have 

been  approved  by  a  school  commissioner. 
A  trustee  of  a  school  district  can  not  legally  be  a  party  to  a  contract  with  the  district  except 

in  his  official  capacity. 
A  tax  list  which  contains  no  heading  specifying  the  objects  for  which  the  tax  is  to  be  levied; 

held,  fatally  defective. 
Decided  Alarch  27,  1889 

E.  C.  Hallenbeck,  attorney  for  appellant 

Draper.  Superintendent 

This  is  an  appeal  by  a  resident  taxpayer  and  elector  of  school  district  no.  13, 
of  the  town  of  New  Baltimore,  county  of  Greene,  from  the  acts  of  William  H. 
Smith,  trustee  of  said  district.    The  grounds  alleged  are  as  follows : 

1  That  the  trustee  has  performed  work  for  the  district  in  building  a  certain 
outhouse,  privy  or  water-closet,  performing  labor  himself,  and  that,  not  being  a 
carpenter  or  builder,  he  has  performed  the  work  in  an  unworkmanlike  manner. 

2  That  he  has  prepared  a  tax  list  and  warrant,  and  delivered  the  same  to 
the  collector  of  the  district,  presumably  to  raise  a  sufficient  amount  to  pay  his 
charge  for  the  work  thus  performed  as  aforesaid ;  that  the  tax  list  contains  no 
heading  specifying  the  object  for  which  the  tax  is  to  be  collected.  It  is  also 
alleged  by  the  appellant  that  the  expense  of  constructing  the  outbuilding  has 
never  been  approved  by  the  school  commissioner  of  the  district  within  which 
the  school  district  is  located.  The  warrant  bears  date,  December  12,  1888,  and 
was  placed  in  the  hands  of  the  collector  on  or  about  the  nth  day  of  January 
1889. 

A  copy  of  the  tax  list  and  warrant  appears  among  the  appellant's  exhibits. 
No  answer  has  been  interposed  by  the  trustee.  I  am  therefore  compelled  to 
assume,  in  passing  upon  the  questions  raised  by  this  appeal,  that  the  allegations 
of  the  appellant  are  true.  A  trustee  of  a  school  district  can  not  legally  be  a 
party  to  a  contract  with  the  district  except  as  the  representative  of  the  district. 
The  expense  for  erecting  outbuildings  pursuant  to  chapter  538  of  the  Laws  of 

1887,  can  not  be  levied  without  a  vote  of  the  district  meeting,  except  the  same 
shall  have  been  approved  by  the  school  commissioner.  The  tax  list  is  fatally 
defective,  for  the  reason  that  it  contains  no  heading  specifying  the  objects  for 
which  the  tax  is  to  be  levied. 

I  must,  therefore,  sustain  the  appeal,  and  the  tax  list  dated  December  12, 

1888,  issued  by  the  respondent,  and  which  was  delivered  to  the  collector  of  the 
district  on  the  nth  day  of  January  1889,  is  hereby  vacated  and  set  aside. 


490  TIIK    UNIVEKSnV    OF   THE    STATE    OF    NEW    YORK 

3749 

In  the  matter  of  tlie  appeal  of  Aaron  Silvernail  v.  Jacob  H.  Mann,  school  com- 
missioner of  the  second  commissioner  district  of  Schoharie  county,  and 
Egbert  Baker,  trustee  of  school  district  no.  17,  towns  of  Summit,  Schoharie 
county,  and  Worcester,  Otsego  county. 

Where  a  trustee,  in  good  faith,  constructed  additional  outbuildings,  intending  to  comply 
with  the  provisions  of  the  health  and  decency  act,  and  the  charge  for  the  work  is 
reasonable,  the  trustee  will  be  sustained,  although  the  school  commissioner  refuses  to 
approve  the  bill. 

Decided  January  14,   1889 

Draper,  Superintendent 

The  appellant  was  trustee  in  the  above-named  district  during  the  school 
year  ending  August  20,  1888.  There  having  been  two  privies  or  water-closets 
in  the  woodshed  adjacent  to  the  schoolhouse,  the  appellant,  while  serving  as 
trustee,  erected  two  others  farther  removed  from  the  schoolhouse,  and  presented 
to  the  school  commissioner  a  bill,  amounting  to  about  $28,  for  his  approval, 
under  the  provisions  of  chapter  538  of  the  Laws  of  1887.  The  school  commis- 
sioner refused  to  approve  such  bill,  and  from  such  refusal  this  appeal  is  taken. 
The  grounds  of  refusal  alleged  by  the  school  commissioner  are  that  the  old  privies 
were  sufficient  and  complied  with  the  act  of  1887,  in  relation  to  health  and 
decency,  and  also  that  the  bill  was  exorbitant.  It  seems  that  the  trustee  had 
included  in  the  bill  a  charge  for  his  own  services  in  connection  with  the  matter, 
but  that  he  has  since  withdrawn  such  charge  and  presented  a  bill  amounting  to 
$18.93;  ^"t  the  school  commissioner  likewise  refuses  to  approve  this  bill  on  the 
ground  that  the  expense  was  unnecessary  and  unwarranted. 

The  papers  are  nearly  as  voluminous  as  would  be  advisable  if  the  matter  in 
issue  was  an  indictment  for  murder  in  the  first  degree,  but  I  have  read  them 
with  as  much  care  as  possible.  I  find  that  the  respective  parties  each  allege  bad 
faith  and  false  swearing  against  the  other.  I  do  not  see  any  ground  for  this 
on  eitiier  side.  That  there  was  need  for  improved  water-closet  accommodations, 
is  manifest.  A  number  of  teachers  who  have  taught  in  the  school  during  recent 
years,  swear  that  much  trouble  was  experienced  from  the  close  proximity  of 
the  water-closets. 

The  Department  has  repeatedly  notified  trustees  that  they  must  carry  out 
the  provisions  of  the  act  in  relation  to  health  and  decency,  and  I  see  nothing  to 
indicate  that  the  appellant  was  not  acting  in  entire  good  faith  in  taking  the  steps 
which  he  did  to  erect  new  water-closets.  On  the  other  hand,  I  see  nothing 
to  indicate  that  the  commissioner  was  disposed  to  do  anything  concerning  the 
matter  which  he  did  not  believe  it  his  official  duty  to  do.  I  have  no  doubt  there 
was  a  misunderstanding  between  the  commissioner  and  the  trustee  in  reference 
to  the  matter.  Although  the  communications  from  the  commissioner  to  the 
triistee  do  not.  in  terms,  direct  him  to  take  the  steps  which  he  did  take,  he  did 
enjoin  upon  him  the  importance  and  necessity  of  his  complying  with  the  statute. 


JUDICIAL  decisions:   outbuildings  491 

and  it  is  not  strange  for  the  trustee  to  reason  that  the  way  for  him  to  comply 
with  the  statute  was  to  put  up  two  additional  water-closets.  It  seems  that  the 
commissioner  has  since  directed  the  water-closets  erected  by  the  trustee  to  be 
torn  down,  and  that  the  others  have  been  cleansed  and  put  in  condition,  and,  as 
the  commissioner  thinks,  they  are  sufficient.  With  that  conclusion,  I  have 
nothing  to  do.  Even  though  his  judgment  may  be  right  in  that  connection,  I 
think  he  errs  in  withholding  approval  of  the  appellant's  bill,  as  now  presented. 

It  would  not  be  right  to  put  a  responsibility  upon  a  school  trustee,  and  per- 
mit him  to  proceed  in  good  faith  and  with  fair  intelligence  to  discharge  that 
responsibility,  and  thereby  involve  himself  in  expense  without  indemnifying  him 
against  personal  liability  or  loss.  If  the  appellant  had  refused  to  take  any  steps, 
and  if  the  determination  had  been  reached  that  the  old  water-closets  were  insuffi- 
cient, he  would  have  been  liable  to  the  district  for  the  entire  amount  of  public 
moneys  which  the  district  might  have  suffered  in  consequence  of  his  refusal.  If, 
then,  he  acted  in  good  faith  and  with  ordinary  intelligence,  the  expense  which 
he  incurred  should  be  borne  by  the  district. 

I  can  not  consider  the  sum  of  $18.93  ^s  an  unreasonable  amount  for  the 
work  performed. 

The  appeal  is  therefore  sustained,  and  the  trustee  of  the  district  will  forth- 
with proceed  to  the  settlement  of  the  bill  of  the  appellant  at  the  amount 
indicated. 


PUPILS 

4252 

In  the  matter  of  tlie  petition  of  George  Fish  to  annul  certificate  or  diploma  to 
teach  granted  to  Loren  S.  Minckley. 

Where  in  a  school  the  teacher  stated  to  the  board  of  education  that  certain  of  the  scholars 
showed  a  disposition  to  disturb  the  school  and  asked  what  course  he  should  take,  and 
was  instructed  by  said  board  that  he  was  expected  to  keep  order  in  the  schoolroom 
and,  if  necessary,  to  punish  the  scholars,  and  one  Fish,  a  pupil,  a  disturbing  element  in 
the  school,  was  punished  by  the  teacher,  and  that  such  punishment  was  not  cruel,  unrea- 
sonable or  excessive;  held,  that  a  petition  asking  that  the  certificate  to  the  teacher  be 
annulled  on  the  ground  of  such  punishment  be  denied  and  the  petition  dismissed.  Also 
held,  it  to  maintain  good  order  and  discipline  in  the  schools  all  other  reasonable 
methods  fail,  then  a  resort  to  corporal  punishment  will  be  proper.  When  such  punish- 
ment is  administered  the  teacher  should  be  careful  not  to  lose  his  temper,  that  the 
punishment  be  not  cruel,  unreasonable,  excessive  or  improper,  but  of  a  character  suit- 
able as  a  correction  for  the  offense  committed  and  of  such  nature  and  to  such  extent 
as  a  parent  would  administer  for  the  correction  of  his  child. 

Decided  June  6,   1894 

J,  O.  Sebring,  attorney  for  petitioner 
A.  J.  Wright,  attorney  for  respondent 

Croolccr,  Superintendent 

This  is  an  apphcation  by  petition  to  have  the  certificate  granted  to  one  Loren 
S.  Minckley  to  teach,  annulled,  upon  the  ground  that  in  intlicting  punishment 
upon  the  pupils  in  the  school  tatight  by  him  for  violations  of  the  rules  for  the 
discipline  and  government  of  said  school  he  has  resorted  to  cruel,  unreasonable, 
excessive  and  improper  methods  of  discipline  and  punishment. 

The  petitioner,  George  Fish,  is  a  resident  and  qualified  voter  in  union  free 
school  district  no.  2,  towns  of  Bradford  and  Orange,  Steuben  county,  and  is  one 
of  the  members  of  the  board  of  trustees  of  said  school  district,  such  board  con- 
sisting of  five  members.  The  respondent,  Loren  S.  Minckley,  is  the  principal  in 
the  school  in  said  district,  about  30  years  of  age,  a  graduate  in  the  academic 
department  of  the  State  normal  school,  Brockport,  N.  Y.,  and  holds  a  first  grade 
certificate  of  the  school  commissioner  of  Orleans  county,  indorsed  by  C.  W.  Hal- 
liday,  who.  at  the  time  of  such  indorsement,  was  a  school  commissioner  of  the 
first  commissioner  district  of  Steuben  county,  within  which  commissioner  district 
said  school  district  is  situated.  The  respondent  was  employed  by  the  board  of 
education  of  said  school  district  to  teach  a  term  of  eight  weeks  of  school  in  the 
spring  of  the  year  1893,  being  the  unexpired  portion  of  the  school  year  ending 
on  July  31,  1893,  and  was  then  employed  to  teach  in  said  school  for  the  school 
year  commencing  on  August  i,  1893,  and  is  still  teaching  in  said  school. 

[492] 


JUDICIAL  decisions:  pupils  493 

The  petition  herein  is  verified  by  the  petitioner,  and  in  support  of  the  allega- 
tions contained  therein  are  annexed  the  affidavits  of  Jesse  Morgan,  Fred  D.  Mor- 
gan, Anson  Tobias,  Richard  D.  Fish,  Ernest  L.  Smith  and  Harry  Morgan.  A 
verified  answer  to  the  petition  has  been  interposed  by  the  respondent,  Minckley, 
and  in  support  of  the  allegations  therein  are  annexed  his  affidavit  and  those  of 
upwards  of  thirty  other  persons,  including  four  of  the  five  members  of  the 
board  of  education  of  said  district,  with  a  certificate  as  to  the  satisfactory  man- 
agement of  the  school  under  the  charge  of  respondent  signed  by  forty-nine  resi- 
dents and  taxpayers  of  said  school  district. 

The  petitioner  has  filed  a  verified  reply  to  the  answer  of  the  respondent  and 
annexed  to  his  reply  are  some  seventeen  affidavits.  To  such  reply  the  respondent 
has  filed  a  verified  rejoinder,  to  which  is  annexed  some  thirteen  affidavits,  quite 
a  number  of  which  were  made  by  persons  whose  affidavits  are  annexed  to  the 
reply  of  the  petitioner. 

The  papers  in  this  proceeding  are  very  voluminous  and  contain  a  large 
amount  of  matter  not  relevant  to  the  question  at  issue.  All  the  papers,  how- 
ever, have  been  carefully  read  and  fully  considered. 

The  burden  is  upon  the  petitioner  to  establish  the  allegations  contained  in 
his  petition  by  a  preponderance  of  proof.  I  am  clearly  of  the  opinion,  after  a 
careful  examination  of  the  proofs  presented  herein,  that  the  petitioner  has  failed 
to  so  sustain  such  allegations.  The  only  pupils  in  said  school  who  complain  that 
they  were  punished  by  the  respondent  in  a  cruel,  unreasonable,  excessive  and 
improper  manner  are  Jesse  Morgan,  Anson  Tobias,  Richard  D.  Fish  and  Ernest 
L.  Smith,  each  of  whom  has  made  an  affidavit  relative  to  the  punishment  received 
by  him  respectively.  It  appears  from  the  proofs  that  the  respondent  punished 
the  pupil,  Morgan,  three  times,  twice  with  a  ruler  and  once  with  a  small  piece 
of  pine  siding,  by  three  or  four  blows  upon  his  person.  Alorgan  states  in  his 
affidavit  that  at  one  of  these  punishments  he  fainted;  but  that  is  denied  by  the 
respondent,  and  it  appears  in  proof  that  Morgan  admitted  to  divers  persons  that 
he  did  not  faint  upon  such  occasion.  It  appears  that  Morgan  was  punished  for 
running  away  from  school,  for  getting  angry  and  refusing  to  be  shown  in  rela- 
tion to  a  lesson,  and  refusing  to  obey  his  teacher,  and  for  conspiring  with  two 
or  three  of  the  larger  boys  in  the  school  to  resist  the  respondent  in  the  perform- 
ance of  his  duties.  That  the  pupil,  Tobias,  was  punished  for  making  an  obscene 
mark  or  picture  upon  his  desk.  Tobias  denied  having  made  it,  although  one 
Ackerman  saw  him  make  it;  but  Tobias  subsequently  admitted  that  he  made  it. 
The  punishment  was  administered  by  means  of  a  rubber  tubing  about  three- 
eighths  of  an  inch  in  diameter,  applied  upon  his  person.  That  the  pupil.  Smith, 
by  means  of  a  rubber  syringe,  threw  water  upon  other  pupils  in  the  school  during 
school  hours ;  that  he  was  kept  after  school  hours  and  respondent  gave  him  the 
choice  of  being  punished  or  have  his  ofi:ense  reported  to  the  board  of  education, 
a,nd  that  Smith  replied  he  preferred  to  be  punished,  and  thereupon  the 
respondent  punished  him  with  a  ruler  applied  to  the  person  of  said  Smith.  That 
the  pupil.  Fish,  who  is  a  son  of  the  petitioner  herein,  was  punished  several  times ; 


494  THE   UNIVERSITY    OF   THE   STATE   OF   NEW   YORK 

once,  on  being  kept  after  school  hours  for  disorderly  conduct  in  school,  while 
the  res]iondent  was  talking  with  him  he  became  angry  and  struck  the  respondent 
with  his  fist,  and  the  respondent  slapped  him  upon  his  face  with  his  hand  and 
whipped  him  with  a  ruler;  on  another  occasion,  on  said  Fish  being  kept  after 
school  hours  and  refusing  to  get  his  lessons  and  talking  in  an  impudent  and 
saucy  manner  to  the  respondent,  he  was  struck  two  or  three  times  by  respondent 
with  a  ruler;  that  the  last  punishment  received  by  Fish  from  respondent  was  on 
February  8,  1S94.  when  he  told  an  untruth  to  the  respondent,  was  disobedient, 
became  angry  with,  and  saucy  and  impudent  to  the  respondent,  and  caused  the 
other  pupils  in  the  school  to  laugh  by  making  faces  behind  the  back  of  the 
respondent.  The  nature  and  extent  of  the  punishment  received  by  said  Fish 
is  set  out  in  a  number  of  affidavits  by  pupils  present,  and  both  by  Fish  and  the 
respondent. 

Upon  all  the  proofs  presented  as  to  the  character  of  the  punishment  admin- 
istered to  the  pupils,  Morgan,  Tobias,  Smith  and  Fish,  by  the  respondent,  I  am 
of  the  opinion  that  such  punishment  was  not  cruel,  unreasonable  or  excessive. 
It  is  not  shown  that  any  of  said  pupils  sustained  any  serious  injury  thereby;  that 
it  does  appear  that  the  pupil,  Fish,  was  a  disturbing  element  in  the  school. 

Under  subdivision  2  of  section  13,  title  9  of  the  Consolidated  School  Act  of 
1864,  and  the  amendments  thereof,  power  is  given  to  the  board  of  education  of 
every  union  free  school  district  "  to  establish  such  rules  and  regulations  concern- 
ing the  order  and  discipline  of  the  school  or  schools  in  the  several  departments 
thereof,  as  they  may  deem  necessary  to  secure  the  best  educational  results." 

Boards  of  education  and  boards  of  trustees  of  the  school  districts  of  the 
State  establish  the  rules  for  the  discipline  and  government  of  the  schools,  and 
the  teachers  in  the  schools  are  charged  with  their  execution. 

In  the  establishment  of  rules  of  order  and  discipline  for  such  schools  boards 
of  education  must  use  reasonable  discretion,  as  their  action  in  that  regard  may 
be  the  subject  of  appeal  to  the  Superintendent  of  Public  Instruction. 

It  appears  in  proof  that  the  respondent  stated  to  said  board  of  education 
that  certain  of  the  scholars  in  the  school  under  their  charge  showed  a  disposition 
to  disturb  the  school,  and  asked  what  course  he  should  take;  that  he  was 
instructed  by  said  board  that  he  was  expected  to  keep  order  in  the  schoolroom 
and,  if  necessary,  to  punish  the  scholars  in  order  to  do  so.  That  such  board  has 
made  careful  inquiry  and  from  reliable  sources  relative  to  the  punishment 
inflicted  by  the  respondent  and  the  conduct  and  character  of  the  scholars  pun- 
ished, and  from  such  inquiry  such  board  believes  that  such  punishment  was 
merited  and  necessary,  and  not  disproportionate  to  the  oflFenses  committed.  That 
no  complaints  or  charges  against  the  respondent  have  been  made  to  such  board 
other  than  by  the  petitioner  herein. 

The  school  laws  are  silent  in  regard  to  corporal  punishment;  they  neither 
permit  nor  forbid  its  use.  It  was  said  by  Secretary  of  State  Dix,  that  the  prac- 
tice of  inflicting  corporal  punishment  upon  scholars  had  no  sanction  but  usage. 
It  is  of  the  highest  importance  that  order  and  discipline  should  be  maintained  in 


JUDICIAL  decisions:  pupils  495 

all  schools  if  the  best  educational  results  are  to  be  obtained.  If  to  maintain  good 
order  and  discipline  in  the  schools,  all  other  reasonable  methods  fail,  then  a  resort 
to  corporal  punishment  will  be  proper.  When  such  punishment  is  administered 
the  teacher  should  be  careful  not  to  lose  his  temper;  that  the  punishment  be  not 
cruel,  unreasonable,  excessive  or  improper,  but  of  a  character  suitable  as  a  cor- 
rection for  the  offense  committed,  and  of  such  a  nature  and  to  such  an  extent  as 
a  parent  would  administer  for  the  correction  of  his  child. 

The  allegations  contained  in  the  petition  herein,  that  the  respondent,  while 
teaching  said  school,  became  engaged  in  a  public  and  newspaper  quarrel  with  a 
Rev.  Mr  Alulford,  in  which  a  majority  of  the  board  of  education  sided  with  the 
respondent,  and  that  a  desire  to  spite  said  Mulford  and  his  friends,  was  the 
reason  that  said  board  continued  the  employment  of  the  respondent  for  the  pres- 
ent school  year,  are  not,  nor  is  either  of  them,  sustained  by  the  proofs.  Had  such 
allegations  been  sustained  they  would  not  have  constituted  any  valid  or  legal 
grounds  for  annulling  the  certificate  of  the  respondent. 

The  application  of  the  petitioner.  Fish,  is  denied  and  his  petition  dismissed. 


4936 

In  the  matter  of  the  appeal  of  Henry  S.  Mott  and  Samuel  Robbins  v.  board  of 
education  of  union  free  school  district  4,  Huntington,  Suffolk  county. 

The  school  law  is  silent  on  the  subject  of  corporal  punishment,  but  such  punishment  has 
been  recognized  by  this  Department  for  many  years,  and  it  has  uniformly  ruled  that 
the  force  or  violence  used  must  be  reasonable  in  manner  and  moderate  in  degree. 
Subdivision  4  of  section  223  of  the  Penal  Code  permits  teachers  to  use  force  or  violence 
upon  or  toward  a  scholar,  and  if  the  force  or  violence  used  is  reasonable  in  manner 
and  moderate  in  degree  it  is  not  unlawful.  When  the  trustees  of  school  districts 
authorize  or  direct  corporal  punishment,  it  is  the  teacher,  not  the  trustees,  that  admin- 
ister the  punishment,  and  the  trustees  have  no  authority  to  direct  the  kind  of  instru- 
ment to  be  used,  nor  the  extent  of  the  punishment.  A  teacher  who  uses  force  or 
violence  upon  or  toward  a  scholar,  not  reasonable  in  manner  or  moderate  in  degree, 
thereby  renders  himself  or  herself  liable  to  be  proceeded  against  in  the  courts,  and 
to  have  his  or  her  license  annulled. 

Decided   April   24.    1901 

Skinner,  Superintendent 

This  is  an  appeal  from  the  following  resolutions  adopted  at  a  meeting  of 
the  board  of  education  of  union  free  school  district  4,  Huntington,  Suffolk 
county,  held  January  12,  1901  : 

Resolved,  That  Harry  Robbins  and  Fred  Ketcham  be,  and  they  hereby  are, 
suspended  from  the  Northport  union  school  for  the  balance  of  the  school  year; 
or,  in  the  alternative,  that  they  be  permitted  to  return  to  school  at  once  and  sub- 
mit to  such  punishment  as  the  principal  may  see  fit  to  inflict,  and  resistance  to 
such  punishment  shall  constitute  cause  for  their  immediate  and  final  expulsion 
from'  the  school. 


49^  THE   UXIVEKSITV    OF   THE   STATE   OF   NEW   YORK 

Resolved,  That  this  board  does  most  heartily  recommend  to  the  {jrincipai 
that  the  punishment  inflicted  be  a  good  sound  thrashing,  administered  with  some 
flexible  substance  that  will  hurt  but  not  permanently  injure. 

Resolved,  That  in  consequence  of  the  fact  that  this  is  the  first  time  that  any 
insubordination  on  the  part  of  Harry  Mott  has  been  brought  to  our  attention, 
that  he  be  permitted  to  return  to  school  at  once  upon  condition  that  he  submits 
to  such  punishment  as  the  principal  may  see  fit  to  administer,  and  that  any  resist- 
ance on  the  part  of  said  Mott  to  such  punishment  shall  constitute  cause  for  his 
immediate  and  final  expulsion  from  the  school. 

The  grounds  alleged  by  the  appellants  for  bringing  their  appeal  are.  that 
such  resolutions  are  illegal,  unjust  and  improper  and  that  the  principal  of  the 
school  is  not  a  proper  person  to  administer  punishment  because  of  his  ungovern- 
able temper  and  of  unreasonable  punishments  which  he  is  in  the  habit  of 
administering. 

The  board  of  education  filed  an  answer  to  the  appeal,  and  to  such  answer 
the  appellants  have  replied. 

From  the  papers  filed  in  this  appeal  it  appears  that  the  appellants  are  resi- 
dents of  union  free  school  district  4,  Huntington,  Suffolk  county ;  that  the  appel- 
lant. Henry  S.  Mott,  is  the  father  of  Harry  T.  Mott,  a  boy  of  the  age  of  16 
years  who,  prior  to  January  10,  1901,  has  attended  the  school  in  such  district; 
that  the  appellant,  Samuel  Robbins,  is  also  a  resident  of  such  school  district  and 
has  a  son  named  Harry  Robbins,  of  the  age  of  16  years  who,  prior  to  January 
10,  1901,  attended  such  school:  that  one  Benjamin  J.  Wightman  now  is.  and 
for  the  past  five  years  has  been,  the  principal  teacher  in  such  school ;  that  the 
respondents.  Rowland  Miles,  John  W.  Olmstead,  Elbert  Hartt,  Frank  B.  Smith. 
Henry  G.  Simpson,  Charles  E.  Robertson  and  Charles  B.  Partridge  constitute 
the  board  of  trustees  of  such  district  for  the  present  school  year. 

It  also  appears  from  the  records  of  this  Department  that  on  or  about  Decem- 
ber 18,  1895,  under  the  provisions  of  title  8  of  the  Consolidated  School  Law  of 
1894,  chapter  556  of  the  Laws  of  1894.  common  school  districts  4  and  8  were 
consolidated  by  the  establishment  of  a  union  free  school  therefor  and  therein, 
said  union  free  school  district  to  be  designated  and  known  as  district  4,  Hunting- 
ton. Suffolk  county. 

It  is  in  proof  that  at  a  recess  of  said  school  on  the  afternoon  of  January  9, 
1901,  a  dispute  arose  between  Harry  T.  Mott  and  one  James  Fitzgerald,  also  a 
pupil  in  the  school,  in  which  Harry  Robbins,  and  one  Sweeney  another  pupil, 
a  cousin  of  Fitzgerald,  became  parties  in  which  blows  were  exchanged  and  stones 
thrown ;  that  the  boys  Fitzgerald  and  Sweeney  went  home  instead  of  returning 
to  the  school,  but  during  the  session  of  the  school  returned  with  a  note  from 
Mrs  Fitzgerald,  whereupon  the  principal  requested  the  four  boys  to  remain  after 
the  school  was  dismissed;  that  the  four  boys  remained  after  the  school  was 
dismissed ;  and  the  principal  called  Fitzgerald  and  Sweeney  to  his  desk  and  after 
talking  with  them  relative  to  the  matters  that  occurred  during  the  recess  pun- 
ished each  of  them  for  leaving  the  school  grounds  without  permission,  and  dis- 
missed them;  that  thereupon  the  principal  requested  Mott  to  come  forward,  but 


JUDICIAL  decisions:  pupils  497 

as  he  did  not  comply  the  principal  seized  him  by  the  coat  collar,  tearing  the  coat, 
and  struck  Mott  with  a  ruler  or  rulers ;  that  then  Robbins  arose  from  his  seat 
and  was  struck  by  the  principal  with  his  fist,  and  thereupon  the  boy,  Ketcham, 
who  was  in  the  yard  below,  hearing  the  disturbance  entered  the  schoolroom  and 
was  ordered  by  the  principal  to  leave  the  room,  and  Ketcham  took  several  steps 
backward,  whereupon  the  principal  struck  him  with  his  fist  and  Ketcham  left 
the  room ;  that  the  principal  then  told  ]^.Iott  and  Robbins  to  report  to  the  president 
of  the  board  of  trustees,  and  not  to  return  to  the  school  until  authorized  by  said 
board  to  do  so ;  that  Alott  and  Robbins  left  the  school  building  and  forthwith 
reported  the  matter  to  the  president  of  the  board  and  to  their  respective  parents. 

It  further  appears  that  on  the  evening  of  January  12,  1901,  pursuant  to  a 
call  by  the  president,  a  meeting  of  the  board  of  trustees  was  held  at  which  all 
the  members  were  present,  and  also  Henry  S.  ]\lott  and  his  wife  and  sons,  Henry 
T.  and  Charles  Mott,  Samuel  Robbins  and  his  wife  and  son  Harry  Robbins, 
Ellsworth  Ketcham  and  son  Frederick,  John  Fitzgerald  and  his  son  James  and 
his  nephew  John  Sweeney,  and  William  H.  Bartow  and  Daniel  A.  Arthur,  clerk 
of  the  board.  That  the  president  of  the  board  of  education  questioned  the  boys 
in  relation  to  the  matters  that  occurred  at  the  afternoon  recess,  and  after  the 
school  closed  on  January  9,  1901,  and  the  statements  made  were  substantially  as 
hereinbefore  stated ;  that  the  appellants  herein  addressed  the  board,  the  boys 
having  left  the  meeting,  admitting  a  breach  of  discipline  on  the  part  of  their  sons ; 
that  thereupon  the  board  of  trustees  adopted  the  resolutions  hereinbefore  stated ; 
copies  of  which  were  served  upon  the  appellants  January  14,  1901. 

The  appellants  admit  that  their  sors  should  be  reprimanded  or  punished  in 
a  reasonable  manner  for  their  acts  on  January  9,  1901. 

The  board  of  education  of  union  free  school  district  4,  Huntington,  under 
subdivision  2,  of  section  15,  article  4,  title  8  of  the  Consolidated  School  Law  of 
1894,  has  the  power  to  establish  such  rules  and  regulations  concerning  the  order 
and  discipline  of  the  school  or  schools  under  its  charge,  in  the  several  depart- 
ments thereof  as  it  may  deem  necessary  to  secure  the  best  educational  results. 

The  teachers  in  such  school  have  no  power  to  make  such  rules,  but  only 
to  enforce  the  rules  made  by  the  board. 

Such  board  has  power  to  suspend  or  expel  pupils  for  violation  of  such  rules, 
and  under  the  provisions  of  the  compulsory  education  law,  to  send  pupils  between 
the  ages  of  8  and  16  years  who  are  habitual  truants  from  instruction  or  who  are 
insubordinate  or  disorderly  during  their  attendance,  or  irregular  in  their  attend- 
ance to  a  truant  school.  Such  board  nlay  direct  that  corporal  punishment  be 
administered.  An  order  to  suspend  or  expel  a  pupil  should  designate  the  time 
of  such  suspension  or  expulsion,  and  can  not  be  longer  time  than  to  the  close  of 
the  school  year,  nor  can  any  pupil  be  confined  or  maintained  in  any  truant  school 
exceeding  the  remainder  of  the  school  year. 

The  school  law  is  silent  on  the  subject  of  corporal  punishment,  but  such 
punishment  has  been  recognized  by  this  Department  for  many  years,  but  it  has 
uniformly  ruled  that  the  force  or  violence  used  must  be  reasonable  in  manner 


49«^  THE    UNIVERSITY    OF   THE   STATE    OF   NEW   YORK 

and  moderate  in  dcfjree.     Such  punishment  is  permitted  by  a  teacher  to  a  scholar 
under  section  22^  of  the  Penal  Code  of  this  State: 

Section  223  Use  of  force  or  violence,  declared  not  unlawful,  etc.  To  use 
or  attempt,  or  otTer  to  use,  force  or  violence  u\)on  or  toward  the  person  of 
another  is  not  unlawful  in  the  following  cases: 

4  When  committed  by  a  parent  or  the  authorized  agent  of  any  parent,  or  by 
any  guardian,  master  or  teacher,  in  the  exercise  of  a  lawful  authority  to  restrain 
or  correct  his  child,  ward,  apprentice  or  scholar,  and  the  force  or  violence  used  is 
reasonable  in  manner  and  moderate  in  degree. 

When  the  trustees  of  any  school  districts  authorize  or  direct  corporal  punish- 
ment to  be  administered  to  any  scholar  in  the  school  under  their  charge  it  is  the 
teacher,  not  the  trustees,  that  administers  the  punishment,  and  the  trustees  have 
no  authority  to  direct  the  kind  of  instrument  to  be  used  or  the  extent  of  the 
punishment  to  be  administered.  Such  trustees  have  no  authority  to  require 
scholars  to  submit  to  such  punishment  as  the  teacher  may  see  tit  to  inflict,  or  to 
finally  expel  a  scholar  from  the  schools  who  shall  resist  any  such  punishment. 

Under  section  227^  of  the  Penal  Code,  in  such  punishment,  the  force  or  vio- 
lence used  must  be  reasonable  in  manner  and  moderate  in  degree  and  hence  if 
excessive  force  is  used,  or  the  instrument  used  would  do  great  bodily  harm,  the 
act  of  the  teacher  becomes  an  assault  which  the  scholar,  to  prevent  bodily  harm, 
may  lawfully  resist. 

A  teacher  who  uses  force  or  violence  not  reasonable  in  manner  or  moderate 
in  degree  will  render  himself  or  herself  liable  to  be  proceeded  against  in  the 
courts  both  civilly  and  criminally,  and  to  have  his  or  her  license  to  teach  revoked. 

Admitting,  for  the  purposes  of  argument  only,  that  Principal  Wightman 
correctly  stated  what  occurred  in  the  schoolroom  after  the  school  was  dismissed 
on  the  afternoon  of  January  9,  1901,  on  the  part  of  the  principal,  and  the  boys 
Mott  and  Robbins  and  Ketcham,  such  action  on  the  part  of  the  boys  was  not 
sufficient  to  authorize  the  decision  and  action  of  the  board  of  education  in  the 
adoption  of  the  resolutions  appealed  from. 

I  decide  that  the  board  of  education  of  union  free  school  district  4,  Hunt- 
ington. Suffolk  county,  in  the  adoption  January  12,  1901,  of  the  three  resolutions 
appealed  from  by  the  appellants  herein,  exceeded  the  authority  given  to  such 
board  under  the  provisions  of  the  Consolidated  School  Law  of  1894,  and  the 
amendments  thereof :  that  such  action  of  such  board  should  be  vacated  and  set 
aside. 

The  appeal  herein  is  sustained. 

It  is  ordered  that  the  three  resolutions  adopted  by  the  board  of  education 
of  union  free  school  district  4,  Huntington,  SuiTolk  county,  January  12,  1901, 
be,  and  each  of  them  is,  hereby  vacated  and  set  aside. 

It  is  further  ordered  that  said  board  of  education  admit  into  the  school  of 
such  district,  without  any  condition  or  conditions  precedent,  Harry  T.  Mott, 
Harry  Robbins  and  Frederick  Ketcham,  each  of  whom  is  of  school  age,  and  each 
of  whom  resides  with  his  respective  parents  within  such  district. 


PUPILS  —  EXPULSION  OF 

5253 

In  the  matter  of  the  appeal  of  Frank  McAvoy  from  the  action  of  Averill  Cole 
as  trustee  of  school  district  no.  12,  town  of  Greece,  county  of  Monroe. 

When  a  pupil  is  a  constant  menace  to  the  good  order  and  discipline  of  the  school  and  the 

progress   of   other    pupils    in    their    school   work   and    when   his    conduct    is    mean   and 

vicious,   it  is  the   duty   of   the   trustee   to   expel   such   pupil. 
The   trustee   should   then   proceed   against   such   pupil   under   section   4   of   the   compulsory 

education  law  so  that  he  may  be  committed  to  a  proper  institution  where  suitable  and 

lawful  instruction  will  be  provided. 
Decided  April  10,  1906 

Henry  R.  Glynn,  attorney  for  appellant 

G.,  S.  C.  &  A.  E.  Truesdale,  attorneys  for  respondent 

Draper,  Coui})iissioiicr 

On  or  about  February  7,  1906,  Averill  Cole,  trustee  of  school  district  no. 
12,  town  of  Greece,  expelled  William  McAvoy,  the  son  of  appellant,  from  fur- 
ther attendance  at  the  public  school  maintained  in  said  district.  This  appeal  is 
brought  to  obtain  an  order  directing  the  trustee  to  reinstate  the  said  William 
McAvoy  to  full  school  privileges. 

The  evidence  submitted  in  this  case  consists  of  the  affidavits  of  appellant, 
appellant's  wife  and  the  boy,  William,  upon  one  side,  and  the  affidavits  of 
Respondent  Cole,  who  is  trustee  of  the  district,  Nettie  Ireland,  who  is  the  teacher, 
and  six  pupils  of  the  school  whose  ages  are  from  11  to  16  years,  upon  the  other 
side. 

The  pleadings  show  that  Nettie  Ireland  has  been  teaching  in  this  district 
since  September  1905,  and  that  William  McAvoy,  the  boy  who  has  been  expelled, 
was  a  registered  pupil  in  said  school  from  the  opening  of  the  school  in  September 
until  the  time  of  his  expulsion.  It  is  also  shown  that  his  attendance  was  irregu- 
lar and  that  he  refused  or  neglected  to  bring  proper  excuses  from  his  parents  for 
absence  from  school.  .  William  was  13  years  of  age  and  therefore  subject  to  the 
provisions  of  the  compulsory  education  law. 

The  evidence  of  the  teacher  which  is  corroborated  by  several  pupils  clearly 
establishes  that  this  boy  was  a  constant  source  of  annoyance  to  the  teacher  and 
the  school  from  the  time  he  entered  school  in  September  until  his  expulsion 
and  that  his  conduct  grew  worse  as  the  term  of  school  progressed.  From  the 
evidence  submitted  the  boy  appears  to  have  been  guilty,  among  other  things,  of 
the  following  conduct:  he  refused  to  do  the  things  which  his  teacher  directed 
him  to  do  and  he  did  those  things  which  his  teacher  told  him  not  to  do  and 
which  he  knew  would  disturb  the  school  and  interrupt  and  hinder  the  progress 
of  other  pupils ;  he  fought  his  teacher  when  she  undertook  to  discipline  him  and 
he  fought  other  pupils  in  the  schoolroom  when  school  was  in  session ;  he  threw 
a  brick  across  the  schoolroom  when  school  was  in  session;  he  would   remain 

[409] 


500  THE   UNIVERSITY   OF   THE   STATE   OF   XEW   YORK 

on  the  school  grounds  after  school  had  been  regularly  convened  and  then  call 
to  the  pupils  in  the  schoolroom  and  otherwise  attract  their  attention;  he  smoked 
on  the  school  grounds  and  in  the  building;  he  persistently  and  wilfully  annoyed 
other  pupils  in  many  ways;  he  was  disobedient,  insolent  and  vulgar;  he  used 
low,  vile,  profane  and  indecent  language  in  the  .presence  of  his  teacher  and 
the  other  pupils ;  he  was  guilty  of  low  and  indecent  actions ;  he  swore  at  his 
teacher,  called  her  vile,  coarse  names,  and  frequently  made  insulting  remarks 
to  her  in  the  presence  of  the  other  pupils  and  even  before  the  school  when  it 
was  in  session.  His  presence  was  a  constant  menace  to  the  good  order  and 
discipline  of  the  school  and  the  progress  of  other  pupils  in  their  school  work. 
His  conduct  appears  to  have  been  such  that  the  parents  of  other  pupils  consulted 
the  trustee  in  relation  to  the  matter.  He  was  suspended  in  December  but  per- 
mitted to  return  on  a  promise  of  good  behavior. 

It  can  not  readily  be  understood  how  his  teacher  endured  such  conduct  as 
long  as  she  did.  During  this  period  of  wilful  misbehavior  his  parents  tried  to 
believe  that  he  was  not  properly  treated.  It  is  cjuite  probable  that  if  his  parents 
had  not  supported  him  in  his  mean  and  vicious  conduct  and  had  upheld  the 
efTorts  of  his  teacher  to  properly  discipline  him  the  result  would  be  quite  dif- 
ferent. It  appears  that  the  teacher  and  the  trustee  endeavored  to  enlist  the 
cooperation  of  his  parents  in  their  efforts  to  keep  his  conduct  within  proper 
limitations,  without  success  or  encouragement. 

This  Department  has  held  that  incorrigible  pupils  and  those  whose  moral 
senses  have  become  so  depraved  that  their  association  with  other  pupils  would 
contaminate  such  pupils  is  proper  ground  for  expulsion.  The  trustee  was  justi- 
fied in  expelling  this  boy.  More  than  that  it  was  his  duty  to  expel  him.  It 
appears  to  have  been  necessary  as  a  means  of  proper  protection  to  the  well-being 
of  other  pupils. 

The  boy  is  between  the  compulsor}'  school  ages  and  is  required  to  be  under 
instruction  as  the  compulsory  education  law  directs.  The  trustee  is  charged  by 
law  with  the  duty  of  seeing  that  the  boy  attends  upon  instruction  as  required 
by  the  statutes.  It  appears  that  since  his  expulsion  from  this  school  he  has  been 
attending  school  in  the  city  of  Rochester.  When  a  trustee  expels  a  pupil  within 
the  compulsory  school  ages  and  the  parents  of  such  child 'fail  to  provide  proper 
instruction  elsewhere  it  becomes  the  duty  of  such  trustee  to  proceed  against 
such  parents  under  section  4  of  the  compulsory  education  law  and  such  pupil 
may  then  be  committed  to  a  proper  institution  where  suitable  and  lawful  instruc- 
tion will  be  provided. 

The  trustee  must  be  sustained  in  the  action  he  took.  It  was  clearly  in  the 
interest  of  the  school  and  all  parties  aft'ected.  For  the  present  I  must  leave  to 
his  discretion  the  question  of  reinstating  the  pupil  and  the  conditions  on  which 
such  action  shall  be  taken. 

If  this  boy  is  causing  no  particular  trouble  in  the  school  which  he  has  been 
attending  since  his  expulsion  it  appears  wise  to  continue  him  in  attendance  upon 
that  school. 

The  appeal  herein  is  dismissed. 


PUPILS  — SCHOOL  PRIVILEGES  OF 

5238 

In  the  matter  of  the  appeal  of  Arthur  Mills  from  the  action  of  a  special  meeting 
held  in  school  district  no.  13,  in  the  town  of  Hume,  Allegany  county. 

A  man  who  is  not  a  taxpayer  but  who  is  the  father  of  children  of  school  age  has  a  right 
founded  upon  reason  and  law  to  be  heard  upon  the  question  of  proper  school  facilities 
in  his  district  equal  to  that  of  a  man  who  may  be  a  large  taxpayer  but  who  is  not 
the  father  of  children  of  school  age. 

Whoever  may  reside  upon  farms  whether  owners  or  tenants  are  entitled  to  proper  school 
facilities. 

Decided  February  i,  1906 

Smith  &  Dickson,  attorneys  for  appellant 
G.  W.  Harding,  attorney  for  respondent 

Draper,  Commissioner 

On  August  31,  1904,  School  Commissioner  D'Autremont  of  the  first  school 
commissioner  district  of  Allegany  county,  and  School  Commissioner  McCall  of 
the  second  school  commissioner  district  of  Wyoming  county,  made  an  order  dis- 
solving joint  school  district  no.  5  of  the  town  of  Hume,  Allegany  county,  and 
the  town  of  Genesee  Falls,  Wyoming  county,  and  annexing  its  territory  to  school 
district  no.  13,  Hume.  The  schoolhouse  of  district  no.  13  is  located  in  the  village 
of  Wiscoy  and  previous  to  the  annexation  of  district  no.  5  was  located  near  the 
central  part  of  the  district.  All  the  children  residing  in  former  district  no.  13 
were  within  a  reasonable  distance  of  the  schoolhouse.  At  the  extreme  eastern 
point  of  former  district  no.  13  and  about  i  mile  distant  from  the  village  of  Wis- 
coy is  the  village  of  Rossburg.  Appellant  claims  that  Rossburg  is  within  the 
boundaries  of  former  district  no.  13,  but  it  appears  from  the  map  submitted  in 
appellant's  pleadings  that  Rossburg  is  partly  in  former  district  no.  13  and  partly 
in  former  district  no.  5.  The  two  districts  join  each  other  in  or  near  this  village. 
Former  district  no.  13  contained  about  33  children  of  school  age  and  had  an 
assessed  valuation  of  $49,597. 

Former  district  no.  5  embraces  a  section  of  the  Genesee  valley  of  about  3 
miles  in  length.  It  is  an  agricultural  region  and  contains  many  fine  farms  for 
which  this  valley  is  noted.  The  Pennsylvania  Railroad  extends  through  the 
whole  length  of  the  district.  The  public  highway  extending  through  the  valley 
is  a  good  hard  road  and  in  excellent  condition.  The  schoolhouse  was  located 
so  that  it  was  easily  accessible  to  all  the  children  in  the  district.  Many  of  the 
farms  in  this  district  are  occupied  by  tenants.  At  the  time  of  the  dissolution  of 
this  district  the  number  of  children  of  school  age  residing  therein  was  nine  and 
the  assessed  valuation  of  the  district  was  $90,392.     As  compared  with  district 

[501] 


502  THE    UXIVERSITV    OF   THE    STATE   OF    XEW     YORK 

no.  13  its  assessed  valuation  was  twice  that  of  no.  13,  but  the  number  of  children 
of  school  age  was  less  than  one  third  of  those  of  no.  13.  The  number  of  legal 
voters  in  district  no.  13  exceeds  those  in  district  no.  5.  The  assessed  valuation 
of  former  district  no.  5  was  sufficient  to  maintain  a  good  school  without  impos- 
ing undue  burdens  upon  the  taxpayers. 

The  consolidated  district  has  an  assessed  valuation  of  $139,989  and  42  chil- 
dren of  school  age.  The  financial  and  numerical  strength  of  the  district  is  such 
as  to  render  it  possible  for  this  district  to  maintain  an  ideal  rural  school.  The 
schoolhouse  of  the  consolidated  district  is  the  one  ow^ned  by  former  district  no. 
13.  It  is  not  centrally  located  but  is  in  the  extreme  western  portion  of  the  pres- 
ent district.  The  distance  from  many  of  the  homes  in  former  district  no.  5  to  the 
schoolhouse  is  so  great  as  to  make  attendance  upon  school  by  small  children  pro- 
hibitive unless  transportation  is  provided. 

On  August  9,  1905,  26  residents  and  voters  of  the  district  petitioned  the 
trustee  to  call  a  special  meeting  for  the  purpose  of  voting  upon  the  proposition 
to  change  the  site  of  the  district  from  the  village  of  Wiscoy  to  the  village  of 
Rossburg.  On  August  14,  1905,  Trustee  Pratt  issued  a  call  for  such  meeting 
to  be  held  at  7.30  p.  m.  on  August  29th.  Such  meeting  regularly  convened  at  the 
proper  time  and  place  and  after  electing  a  chairman  adjourned  to  meet  October 
28th.  The  minutes  of  the  meeting  show  that  50  voters  were  present  at  the  time 
the  meeting  adjourned.  These  50  voters  were  mostly  residents  of  the  Wiscoy 
section  of  the  district.  Many  of  the  voters  from  former  district  no.  5  had  not 
reached  the  meeting  although  it  appears  they  were  on  their  way  to  sucJi  meeting. 
It  does  not  appear  that  those  present  acted  with  undue  haste  in  opening  the  meet- 
ing. It  does  appear  that  they  were  prompt  in  opening  the  meeting  but  that  some 
little  time  elapsed  before  the  meeting  w^as  adjourned.  The  action  of  the  meeting 
appears  to  have  been  regular  and  legal  and  if  residents  of  the  district  were  pro- 
hibited from  participating  in  the  proceedings  of  the  meeting  it  is  chargeable  to 
their  failure  to  be  present  at  the  time  set  for  its  opening. 

It  is  claimed  by  appellant  that  it  was  the  intention  of  the  voters  residing  in 
the  Wiscoy  end  of  the  district  and  who  appear  to  be  a  majority  of  those  in  the 
district,  to  continue  to  adjourn  such  meeting  without  taking  definite  action  on 
the  question  which  it  was  called  to  consider.  The  pleadings  do  not  show  whether 
or  not  the  meeting  was  held  on  the  adjourned  date  of  October  28th.  It  a])pears 
from  an  official  inspection  ordered  by  this  Department  that  no  action  has  been 
taken  on  the  proposition  to  change  the  site.  It  was  the  duty  of  the  clerk  to  have 
given  notice  of  this  adjourned  meeting  in  accordance  with  the  provisions  of  sub- 
division 3,  section  34,  title  7  of  the  Consolidated  School  Law. 

It  is  claimed  by  appellant  that  when  district  no.  5  consented  to  the  proposi- 
tion of  consolidation  with  no.  13  it  was  upon  the  understanding  that  the  site  of 
the  district  should  be  changed  and  the  schoolhouse  centrally  located.  This  claim 
is  supported  by  the  testimony  of  School  Commissioner  D'Autremont  and  Doctor 
Soule,  who  was  trustee  of  school  district  no.  13  during  the  school  year  ending 
July  31,  1904.  and  during  the  year  when  the  consolidation  of  these  districts  was 


JUDICIAL  decisions:      pupils  —  SCHOOL    PRIVILEGES    OF  503 

agitated  and  which  agitation  resulted  in  the  order  made  by  the  school  commis- 
sioner on  August  31,  1904.  Respondent  denies  that  district  no.  13  ever  became 
a  party  to  such  understanding.  Respondent  shows  that  at  the  annual  meeting  of 
district  no.  13,  in  1904,  a  resolution  was  voted  down  which  proposed  the  appom:- 
ment  of  a  committee  of  three  to  take  into  consideration  the  question  of  consoli- 
dation of  these  districts  and  the  change  of  the  site.  It  does  appear  that  there 
had  been  some  representations  to  the  inhabitants  of  district  no.  13  by  leading 
citizens  residing  in  district  no.  5,  to  the  effect  that  if  they  would  consent  to  the 
consolidation  plan  the  site  of  the  district  would  be  changed  so  as  to  bring  all 
residents  of  the  enlarged  district  within  a  reasonable  distance  of  the  schoolhouse. 

However,  it  is  immaterial  as  to  what  the  understanding  between  the  inhab- 
itants of  these  two  districts  may  have  been  on  this  question.  The  inhabitants 
of  district  no.  13  could  not  expect  to  annex  territory  to  their  district  represent- 
ing twice  the  assessed  valuation  of  their  district  without  extending  in  return 
adequate  school  facilities  to  the  inhabitants  of  such  territory.  Many  of  the 
inhabitants  of  former  district  no.  5  live  from  2^  miles  to  3>4  miles  from  the 
schoolhouse  of  the  present  district.  Children  are  therefore  required  to  travel 
from  5  to  7  miles  daily  in  order  to  attend  school  This  distance  renders  attend- 
ance by  such  children  upon  school  prohibitive.  If  the  district  boundaries  are  to 
be  maintained  as  they  now  exist  the  district  must  change  the  site  to  some  suitable 
location  at  or  near  Rossburg.  If  the  site  is  not  changed  former  district  no.  5 
must  be  restored.  This  controversy  must  be  determined  by  one  of  these  two 
methods.  If  district  no.  5  is  restored  it  will  be  necessary  for  that  district  to 
erect  a  new  schoolhouse. 

In  determining  the  change  of  site  the  inhabitants  of  former  district  no.  13 
should  take  into  consideration  the  condition  of  the  present  schoolhouse.  If  the 
districts  should  be  separated  it  will  be  necessary  for  district  no.  13  to  enlarge  its 
site,  make  extended  repairs  to  its  schoolhouse,  and  erect  outbuildings  that  shall 
be  sanitary  and  conform  to  law.  The  appeal  from  the  order  of  the  school  com- 
missioner in  condemning  this  schoolhouse  will  not  be  decided  until  the  question 
of  changing  the  site  is  settled. 

I  believe  either  of  these  districts  will  be  able  to  maintain  a  satisfactory 
school.  A  better  school  can  probably  be  maintained  by  the  consolidated  district 
at  less  expense  to  the  taxpayers  of  the  district.  The  conditions  in  this  com- 
munity are  such  that  I  believe  the  voters  of  the  district  should  be  given  an  oppor- 
tunity to  pass  upon  the  question  and  I  shall  therefore  direct  the  trustee  to  call  a 
special  meeting  of  the  district  to  decide  upon  the  wisdom  of  changing  its  site. 
After  such  meeting  has  been  held  and  the  action  taken  by  the  district  is  known 
such  further  orders  may  be  made  herein  as  shall  appear  necessary. 

The  respondent  has  not  satisfactorily  answered  the  charge  that  adequate 
and  proper  school  facilities  can  not  be  aft'orded  by  continuing  the  schoolhouse 
where  it  now  stands.  This  charge  is  not  answered  by  showing  the  physical  con- 
dition of  the  schoolhouse,  its  seating  capacity,  etc.  Neither  is  the  question 
answered  by  showing  that  many  of  the  farms  are  occupied  by  tenants  who  may 


504  THE   U.VIVERSITV    OF   THE    STATE   OF   XEW    YORK 

remove  from  the  district  at  the  end  of  the  year.  These  vahia])le  farms  will  con- 
tinue to  be  occupied  by  some  one.  If  not  by  their  owners  or  the  present  tenants 
by  other  tenants.  Whoever  may  reside  on  these  farms,  whether  owners  or  ten- 
ants, are  entitled  to  pro])er  school  facilities.  The  value  of  the  farms  depends  to 
a  certain  extent  upon  the  school  facilities  afforded  by  the  district. 

Respondent  has  devoted  much  eliort  to  show  that  many  of  the  petitioners 
praying  for  a  special  meeting  to  vote  upon  the  proposition  to  change  the  site 
of  the  schoolhouse  are  not  taxpayers.  It  is  not  claimed  that  these  petitioners 
are  not  legal  voters  of  the  district.  Jt  is  shown  that  many  of  them  have  children 
whose  education  depends  upon  their  ability  to  travel  to  and  from  the  schoolhouse 
daily.  A  man  who  is  so  unfortunate  as  not  to  be  a  taxpayer  but  who  is  so 
fortunate  as  to  be  the  father  of  children  of  school  age  has  a  right  founded 
upon  reason  and  law  to  be  heard  upon  the  question  of  proper  school  facilities 
in  his  district  equal  to  that  of  a  man  who  may  be  a  large  taxpayer  but  who  is 
not  the  father  of  children  of  school  age. 

It  is  ordered.  That  Fred  E.  Pratt,  sole  trustee  of  school  district  no.  13.  of 
the  towns  of  Hume  and  Genesee  Falls,  of  the  county  of  Allegany  and  Wyoming, 
be.  and  he  hereby  is,  directed  to  forthwith  call  a  special  meeting  of  the  legal 
voters  of  said  district  to  vote  upon  the  proposition  to  change  the  site  of  the 
schoolhouse  to  the  site  described  in  the  petition  of  A.  R.  Mills  and  others,  voters 
of  said  district,  dated  August  9,  1905,  and  presented  to  said  Pratt  on  or  about 
that  date,  or  to  such  other  site  at  or  near  the  village  of  Rossburg  as  said  meeting 
shall  deem  proper  and  suitable. 

It  is  also  ordered.  That  the  said  Fred  E.  Pratt  shall  forward  to  me  imme- 
diately after  the  said  meeting  shall  have  been  held  a  true  certified  copy  of  the 
proceedings  of  said  meeting  and  the  whole  thereof. 


5387 

In  the  matter  of  the  appeal  of  Una  Beth  Davis  from  a  decision  of  the  board  of 
education  of  the  village  of  Spencerport,  N.  Y. 

A  girl  18  years  of  age  who  has  abandoned  her  parental  home  and  resides  with  her  grand- 
mother is  entitled  to  attend  school  in  the  district  in  which  her  grandmother  resides, 
without  the  payment  of  tuition. 

Decided  May  19,  1908 

Berton  W,  Brown,  attorney  for  respondent 

Draper,  Commissioner 

The  appellant  in  this  proceeding  is  18  years  of  age  and  claims  that  she  has 
abandoned  the  home  of  her  parents  and  has  resided  since  September  last  and  is 
now  residing  in  the  village  of  Spencerport  with  her  grandmother,  Mrs  Abbie 
B.  Hiscock.     The  pleadings  show  that  ]\Irs  Hiscock  is  78  years  of  age  and  has 


JUDICIAL   DECISIONS  :       PUPILS SCHOOL    PRIVILEGES    OF  505 

resided  in  the  village  of  Spencerport  for  the  past  i6  years  and  that  no  one 
except  appellant  resides  vi-ith  her.  It  further  appears  that  because  of  the  age 
of  Airs  Hiscock  it  is  necessary  that  she  should  have  some  one  residing  with 
her  permanently.  Appellant  swears  that  she  has  abandoned  her  father's  home 
to  reside  permanently  with  her  grandmother  and  that  her  grandmother  is 
responsible  for  her  clothing  and  education.  Mrs  Hiscock  swears  that  appellant 
has  resided  with  her  since  September  i,  1907,  and  that  she  has  assumed  general 
care  and  absolute  responsibility  and  control  over  appellant.  The  father  of 
appellant  swears  that  because  of  the  age  of  Airs  Hiscock  he  has  permitted  his 
daughter  to  live  with  her  grandmother  and  that  she  is  to  remain  with  her  grand- 
mother permanently  and  that  he  has  relinquished  all  rights  and  claims  to  his 
daughter's  services.  He  further  swears  that  he  relies  upon  Mrs  Hiscock  for 
the  general  bringing  up  of  his  daughter,  and  to  provide  her  moral  and  temporal 
education  and  to  furnish  her  clothing  etc. 

Under  these  conditions  appellant  claims  the  right  to  attend  school  in  the 
Spencerport  district  without  the  payment  of  tuition.  Such  right  has  been 
denied  her  by  the  board  of  education  and  this  proceeding  is  instituted  for  the 
purpose  of  obtaining  an  order  directing  the  board  of  education  to  recognize 
appellant  as  a  resident  student  of  the  Spencerport  district. 

The  contention  of  the  board  of  education  is  that  the  father  of  appellant 
is  a  well-to-do  farmer  and  abundantly  able  to  pay  the  tuition  of  his  daughter. 
The  financial  condition  of  appellant's  father  has  no  bearing  upon  the  question. 
If  appellant  is  a  resident  of  the  district  she  is  entitled  to  the  school  privileges 
of  such  district.  It  is  contended  by  the  board  of  education  that  the  claim  of 
residence  on  the  part  of  appellant  is  not  founded  upon  sufficient  facts  or  made 
in  good  faith.  The  whole  theory  of  respondents'  answer  is  founded  upon 
information  and  belief.  No  evidence  is  offered  to  controvert  the  testimony  of 
appellant,  of  her  grandmother  and  of  her  father.  The  testimony  of  these  three 
persons  fully  establishes  that  appellant  is  a  resident  of  the  Spencerport  district. 

Airs  Hiscock  has  resided  in  the  Spencerport  district  for  16  years.  It  is 
claimed  by  the  board  of  education  and  much  stress  is  placed  upon  this  point, 
that  Airs  Hiscock  for  several  summers  has  closed  her  residence  at  Spencerport 
and  passed  the  summ.er  elsewhere  and  usually  at  the  home  of  appellant's  father. 
Even  if  she  did,  such  action  on  her  part  would  not  affect  her  residence.  The 
fact  that  a  person  leaves  his  home  to  spend  the  summer  in  some  other  part  of 
the  country  is  not  an  abandonment  of  his  residence. 

The  record  in  this  case  shows  that  Airs  Hiscock  is  a  resident  of  the  Spencer- 
port district  and  that  appellant  resides  with  her  and  is  entitled  to  all  the  privileges 
of  resident  pupils  in  such  district. 

The  exact  point  in  this  case  was  fully  considered  and  determined  by  this 
Department  in  decision  no.  4344,  decided  Alarch  20,  1895.  Such  decision  is 
also  supported  by  the  Supreme  Court  in  People  ex  rel.  B.C.A.Soc.  v.  Hen- 
drickson  (54  Alisc.  337). 

The  appeal  herein  is  sustained. 


506  THE    UXIVERSITY    OF   THE   STATE    OF   NEW    YORK 

It  is  ordered.  Tliat  the  board  of  education  of  union  free  school  district  no. 
I,  town  of  Ogden.  sliail  receive  into  the  school  of  said  district  the  appellant 
herein.  Una  Beth  Davis,  as  a  resident  pupil  thereof  and  accord  the  said  Una 
Beth  Davis  all  the  rights  and  privileges  to  which  resident  pupils  of  such  district 
are  entitled. 


5363 

In  the  matter  of  the  appeal  of  Beverly  R.  Crowell  from  the  action  of  the  boar  1 
of  education  of  union  free  school  district  no.  i,  town  of  Palmyra,  county 
of  Wayne. 

It  is  manifest  that  school  authorities  should  give  greater  weight  to  the  opinions  of 
physicians  who  arc  officially  charged  with  responsibility  concerning  the  public  health 
than  to  the  views  of  other  physicians  who  are  not  charged  with  such  official  responsi- 
bihty. 

A  board  of  education  is  not  justified  in  barring  from  attendance  upon  school,  children 
who  are  alleged  to  have  had  a  contagious  disease  when  the  health  authorities  have 
formally  declared  that  such  children  did  not  have  the  alleged  disease. 

Decided  December  16,  1907 

S.  K.  and  B.  C.  Williams  and  Hon.  W.  P.  Rudd,  attorneys  for  appellant 
Hon.  Charles  McLouth,  attorney  for  respondents 

Draper,  Commissioner 

This  is  an  appeal  from  the  action  of  the  board  of  education  of  union  free 
school  district  no.  i,  town  of  Palmyra,  Wayne  county,  in  excluding  the  children 
of  the  appellant  from  school.  There  is  no  contention  about  the  right  of  the 
appellant  to  send  his  children  to  the  school,  except  for  cause.  The  cause  alleged 
by  the  school  board  is  that  the  children  had  scarlet  fever  in  May  1907  and  that 
the  house  has  not  since  been  fumigated.  The  appellant  admits  that  the  children 
were  ill  for  a  brief  period,  but  contends  that  the  disease  was  not  scarlet  fever 
and  that  there  has  been  no  scarlet  fever  in  the  house.  He  resists  the  desire  of 
the  school  board  to  have  his  home  fumigated,  and  stands  on  what  he  conceives 
to  be  his  legal  right  that  his  children  be  admitted  to  the  school  without  it. 

The  pleadings  show  that  the  children  n'ere  admitted  to  the  school  on  Sep- 
tember 3,  1907,  and  attended  until  October  15th,  when  they  were  excluded  by 
the  board  of  education  because  of  some  apprehension  about  the  matter,  which 
was  quickened  by  the  presence  of  considerable  scarlet  fever  in  the  school  dis- 
trict. Fortunately,  there  appears  to  be  no  wrongful  intent;  the  school  board 
appearing  to  be  only  desirous  of  fully  meeting  its  responsibilities. 

Of  course,  a  ver}'  material  question  is,  did  appellant's  children  really  have 
scarlet  fever?  This  question  is  apparently  involved  in  one  of  the  unfortunate 
controversies  which  too  frequently  prejudice  the  medical  profession.  Several 
physicians  in  the  town,  some  of  whom  saw  the  patients,  say  that  the  disease 


JUDICIAL   decisions:       pupils SCHOOL    PRIVILEGES    OF  507 

was  scarlet  fever;  the  attending  physician  says  that  it  was  not.  The  proper 
representative  of  the  State  Department  of  Health  visited  the  place  and  saw 
each  of  the  children  at  the  time  of  the  illness,  consulted  the  attending  physician 
and  other  physicians  who  saw  the  children,  and  determined  that  the  disease  was 
not  scarlet  fever.  The  local  hoard  of  health  took  the  same  view  and,  as  the 
matter  seems  to  have  been  much  discussed,  the  local  board  of  health  was  called 
upon  several  times  to  determine  whether  the  disease  referred  to  was  or  was  not 
scarlet  fever.  On  four  different  occasions  it  formally  declared  that  it  was  not. 
The  local  health  officer  also  officially  reports  that  he  has  traced  to  his  satisfaction 
the  origin  of  each  case  of  scarlet  fever  occurring  in  this  district  and  that  no 
case  has  been  traced  to  the  house  or  family  of  appellant. 

Thus,  the  school  authorities  are  called  upon  to  meet  the  question  whether 
they  should  be  guided  by  the  official  attitude  of  the  health  authorities  upon  a 
question  of  health,  or  should  feel  free  to  ignore  the  opinions  of  the  health  officers 
who  are  charged  with  official  responsibility,  and  act  upon  the  advice  of  other 
physicians. 

The  opinion  of  the  physicians  upon  which  the  board  of  education  claimed 
to  act  in  suspending  appellant's  children  was  a  statement  signed  by  such  physi- 
cians on  the  6th  day  of  October.  These  physicians  say  in  this  statement  that  as  it 
has  been  reported  that  members  of  appellant's  family  have  been  afflicted  with 
scarlet  fever  and  as  it  has  been  reported  that  the  health  officer  of  the  village  as  a 
matter  of  precaution  has  recommended  that  appellant's  house  be  disinfected  that 
they  concur  in  such  recommendation.  It  appears  upon  the  record  that  no  report 
was  ever  received  by  the  board  of  education  from  the  health  officer  recommending 
that  Crowell's  house  be  fumigated.  It  also  appears  that  the  health  officer  reported 
to  the  village  health  board  that  the  facts  in  the  case  did  not  authorize  the  board 
of  health  to  fumigate  the  Crowell  house.  Section  24  of  the  public  health  law 
confers  very  broad  powers  upon  local  boards  of  health  and  if  it  appeared  neces- 
sary to  fumigate  the  house  of  appellant  in  order  to  protect  the  health  of  the 
citizens  of  Palmyra  the  board  of  health  not  only  possessed  the  power  to  direct 
that  such  house  be  fumigated  but  it  was  the  duty  of  that  body  to  give  such 
direction. 

It  is  manifest  that  the  school  authorities  ought  to  give  greater  weight  to  the 
opinions  of  physicians  who  are  officially  charged  with  responsibility  concerning 
the  public  health  than  to  the  views  of  other  physicians  who  are  not  charged  with 
such  official  responsibility. 

It  might  have  been  well  if  the  appellant  had  thought  proper  to  submit  his 
home  to  the  process  of  fumigation,  but  it  can  not  be  overlooked  that  his  house 
is  his  castle  and  that  when  the  public  authorities  sought  to  invade  it  he  was 
entitled,  if  he  saw  fit,  to  stand  upon  his  legal  rights,  and  it  seems  to  me  that  he 
had  lawful  warrant  for  taking  the  position  that  whether  his  house  must  be 
invaded  by  public  authority  for  the  protection  of  the  public  health  was  to  be 
settled  by  the  concurrent  action  of  the  local  and  State  health  authorities.  It 
\'^t>uld  also  seem  that  the  board  of  education  would  be  abundantly  protected  in 


508  THE    UNIVERSITY    OF   THE   STATE   OF   NEW   YORK 

^iich  a  matter  by  the  attitude  of  the  health  authorities,  and  that  where  the  right 
of  a  citizen  to  send  his  children  to  school  was  insisted  upon,  the  board  of  educa- 
tion should  have  recognized  the  right  when  the  health  authorities  formally 
declared  that  the  children  did  not  have  scarlet  fever  and  thereby  held  in  effect, 
that  the  presence  of  the  children  would  be  no  menace  to  the  school. 

The  able  and  ingenious  counsel  for  the  school  board  raises  a  question  about 
the  legal  right  of  the  Commissioner  of  Education  to  entertain  and  decide  this 
appeal,  on  the  ground  that  the  discretional  power  of  the  local  board  of  education 
is  not  subject  to  review  by  the  Commissioner.  The  precedents  of  the  State 
Department  or  the  decisions  of  the  courts  do  not  sustain  this  view.  The  board  of 
education  would  doubtless  be  absolved  from  responsibility  in  damages  for  a 
nn'staken  course  when  acting  with  reasonable  judgment  and  correct  purpose,  but 
it  is  manifestly  the  intent  of  the  school  law  that  local  controversies  affecting  the 
schools  or  relating  to  the  rights  of  citizens  in  the  schools  shall  be  determined  by 
appeals  to  the  Commissioner  of  Education,  and  that  fundamental  school  policies 
shall  be  settled  in  this  way.  Otherwise,  it  would  only  be  necessary  for  a  school 
board  to  allege  its  good  purposes  and  that  it  had  exercised  its  discretion  in  order 
to  wholly  defeat  the  purposes  of  the  Consolidated  School  Law  as  to  the  speedy, 
inexpensive  and  conclusive  settlement  of  differences  which  are  related  to  the 
administration  of  the  schools. 

Counsel  cites  several  court  decisions  of  other  states  to  show  that  trustees 
are  sole  governors  of  the  school  under  their  managements.  These  decisions  how- 
ever relate  to  schools  in  states  where  appellate  power  to  judicially  determine 
school  controversies  is  not  vested  in  a  state  officer  having  general  supervisory 
powers  over  the  school  system  of  the  State.  He  also  cites  People  ex  rel.  King 
V.  Gallagher,  93  N.  Y.  438,  and  In  the  matter  of  Walters,  84  Hun  457  in  support 
of  his  contention.  In  each  of  these  cases  however  the  action  of  the  board  of 
education  was  explicitly  authorized  by  the  statutes.  The  courts  therefore  denied 
an  application  for  a  writ  of  mandamus  and  held  that  the  action  of  the  school 
authorities  in  such  case  was  conclusive.  The  appeal  under  consideration  is  not 
analogous  to  these  cases.  In  this  proceeding  the  action  of  the  board  of  educa- 
tion was  not  based  upon  any  provision  of  law  explicitly  authorizing  such  action. 
Such  action  was  based  upon  an  implied  power  under  the  Consolidated  School  Law 
which  in  express  terms  confers  the  right  of  appeal  therefrom  to  the  Commissioner 
of  Education  and  authorizes  that  officer  to  determine  the  matter. 

The  action  of  the  school  board  appealed  from,  so  far  as  it  relates  to  the 
children  of  the  appellant  and  their  right  to  be  admitted  to  the  school,  is  held  to 
be  erroneous,  and  the  appeal  is  therefore  sustained. 

It  is  ordered,  That  the  board  of  education  of  union  free  school  district  no. 
I.  town  of  Palmyra,  Wayne  county,  shall  forthwith  admit  the  children  of  Beverly 
R.  Crowell,  the  appellant  herein,  to  the  public  school  maintained  in  said  district. 


JUDICIAL   DECISIONS :       PUPILS SCHOOL    PRIVILEGES    OF  5^9 

53II 

In  the  matter  of  the  appeal  of  WilHam  H.  Ash  from  the  action  of  the  board 
of  education  of  union  free  school  district  no.  i,  town  of  Islip,  Suffolk  county, 
in  suspending  his  daughter  from  the  high  school  thereof  without  a  hearing 
after  demand. 

In  the  suspension  of  a  pupil  a  board  of  education  is  not  required  to  proceed  with  the 
formality  of  a  trial.  To  hold  such  procedure  necessary  would  be  subversive  of 
proper  discipline  in  a  large  public  school.  In  such  case  a  board  should  acquire  full 
knowledge  of  the  facts  in  the  case  and  take  such  action  as  will  promote  the  best 
interests  of  the  school.  The  action  of  a  board  in  suspending  a  pupil  pending  suitable 
apology  to  a  teacher  to  whom  she  had  been  impudent  and  insubordinate  will  be  sus- 
tained. 

Decided  April   12,   1907 

Hon.  John  B.  Merrill,  attorney  for  appellant 
Freeman  T.  Hulse,  Esq.,  attorney  for  respondent 

Draper,  Commissioner 

Esther  E.  Ash,  daughter  of  appellant,  was  a  resident  pupil  In  attendance 
upon  the  academic  department  of  union  free  school  district  no.  i,  town  of  Islip, 
Suffolk  county.  On  December  19,  1906,  she  was  suspended  from  school  for 
insubordination.  Her  reinstatement  was  conditioned  upon  an  apology  to  one 
of  the  teachers  for  her  alleged  misconduct.  Miss  Ash  was  17  years  of  age  at 
the  time  of  her  suspension.  On  December  19,  1906,  IMiss  Ash  had  trouble  with 
Mr  Platner,  the  vice  principal  of  the  school.  He  reported  the  case  to  the  prin- 
cipal. The  principal  interviewed  Miss  Ash  on  the  subject  and  on  her  statement 
of  what  occurred  and  the  statement  of  ]\Ir  Platner,  the  principal  suspended  her 
on  the  condition  above  stated.  Miss  Ash  refused  to  make  the  apology.  The 
case  was  referred  by  the  principal  to  the  board  of  education.  The  board  of 
education  investigated  the  case  and  sustained  the  action  of  the  principal.  The 
father  of  Miss  Ash,  through  his  attorney,  made  demand  upon  the  board  of  edu- 
cation for  her  immediate  reinstatement  in  school.  This  the  board  declined  to  do. 
Thereupon  the  father  of  Miss  Ash  applied  to  the  Supreme  Court  for  a  writ  of 
mandamus  commanding  the  board  of  education  of  said  district  to  reinstate  his 
daughter.  The  court  denied  such  application  without  prejudice  to  an  appeal  to 
the  Commissioner  of  Education.     This  proceeding  was  then  instituted. 

The  claim  of  appellant  is  that  his  daughter  was  not  officially  notified  by 
the  board  of  education  of  charges  against  her,  that  no  hearing  was  granted  her 
by  the  board  of  education  even  after  a  request  therefor  was  made  by  her  father, 
and  that  to  protect  the  rights  of  this  pupil  the  board  of  education  was  required 
to  order  a  formal  hearing  and  to  permit  her  to  appear  with  counsel  and  pro- 
ceed with  all  the  formality  of  a  trial. 

This  contention  is  not  sound.  The  school  law  contains  no  provision  con- 
templating such  procedure.  Such  procedure  would  be  subversive  to  proper  dis- 
cipline in  a  large  public  school.     Subdivision  2  of  section  15,  title  8  of  the  Con- 


5K)  THE    LMVEKSITY    OF   THE   ST  ATE    OF   XEW    YORK 

solidated  Scliool  Law  confers  on  a  board  of  education  the  power  to  establish  such 
regulations  concerning  the  order  and  discipline  of  the  schools  under  its  charge 
as  it  shall  deem  necessary  to  secure  the  best  educational  results.  Subdivision  lo  of 
the  same  section  among  other  things  provides  that  a  board  of  education  is  "  to 
have,  in  all  respects,  the  superintendence,  management  and  control  of  said  union 
free  schools."  It  appears  that  the  board  of  education  pursued  the  proper  course 
in  dealing  with  this  case.  The  board  made  an  informal  inquiry  into  all  the 
questions  involved.  Members  of  the  faculty  were  consulted.  Pupils  of  the 
school  having  knowledge  of  the  affair  were  consulted.  The  principal  had  talked 
the  matter  over  with  Miss  Ash.  The  board  acquired  full  knowledge  of  the  facts 
in  the  case  and  took  such  action  as  it  deemed  for  the  best  interests  of  the  school. 

I  shall  not  hold  that  in  such  cases  a  board  of  education  shall  proceed  with 
the  formality  of  a  trial.  A  board  should  ascertain  what  the  conduct  of  a  pupil 
has  been  and  should  take  such  action  as  the  facts  in  the  premises  warrant.  If 
a  board  violates  any  of  the  rights  of  a  pupil  the  statutes  afford  adequate  relief. 

The  pupil  was  not  expelled.  She  was  simply  suspended  until  she  made 
suitable  apology  to  a  teacher  to  whom  she  had  been  impudent  and  insubordinate. 
It  was  not  stipulated  that  the  apology  should  be  public  or  attended  by  humilia- 
tion. The  requirement  was  that  Miss  Ash  should  conform  to  that  decorum  by 
which  ladies  and  gentlemen  are  governed  when  one  has  unintentionally  violated 
the  conventions  of  good  society.  She  may  return  to  school  any  time  upon  suit- 
able apolog}\  It  does  not  appear  from  the  pleadings  submitted  that  any  injustice 
has  been  imposed  upon  appellant's  daughter  by  the  action  complained  of. 

The  appeal  herein  is  dismissed. 


Suspension   from   school    for  more  than  a  year  sufficient  punishment   for  using  language 

to  a  teacher  unbecoming  a  gentleman.     Should  not  be  made  perpetual. 
Decided  July  21,  1875 

Gilmour,  Superintendent 

The  appellant  was  and  still  is  suspended,  "  for  disrespectful  conduct  and 
language  toward  his  teacher,"  and  the  board  of  education  refuse  to  restore 
him  to  the  school  until  he  shall  make  an  apology  to  the  teacher.  This  the 
pupil  refuses  to  do. 

The  Superintendent  finds  that  the  language  of  the  pupil  was  such  as  no 
provocation  would  justify  a  gentleman  in  using  toward  a  lady,  and  that  his 
own  sense  of  self-respect  should  have  prompted  him  to  make  an  apology  to 
the  teacher  without  any  requirement  from  the  trustees. 

But  in  view  of  the  fact  that  the  pupil  has  already  been  deprived  of  the 
privileges  of  the  school  for  more  than  a  year,  which  may  perhaps  be  regarded 
as  a  sufficient  punishment  for  an  offense  committed  in  a  moment  of  excite- 
ment, and  by  a  scholar  of  unifortn  previous  good  conduct,  the  appeal  is,  with 
considerable  reluctance,  sustained,  and  the  pupil  restored  to  the  privileges  of 
the  school. 


JUDICIAL   decisions:       pupils SCHOOL    PRIVILEGES    OF  5II 

Colored  children  are  entitled  to  attend  the  common  schools  in  this  State,  in  all  districts, 
except  those  in  which,  by  law,  provision  is  made  for  their  education  in  separate 
schools. 

Decided  December  21,   1865 

Rice.  Superintendent 

The  petition  of  appeal  in  this  case  states,  as  the  ground  of  appeal,  that  the 
trustees  came  to  the  schoolhouse  and  ordered  a  certain  colored  lad,  commonly 
called  "  Dick,"  to  leave  the  school.  The  petition  alleges  that  said  "  Dick  "  was 
at  the  time  over  5  and  under  21  years  of  age,  and  was  of  the  age  of  14  or  15 
years;  and  that  he  was  an  actual  resident  of  the  district,  and  has  for  the  last 
two  years  been  included,  by  the  trustees  of  the  district,  in  the  enumeration  of 
the  children  made  in  their  annual  report  to  the  school  commissioner.  These 
facts  would  give  him  the  right  to  attend  the  district  school,  while  the  trustees 
would  also  have  the  'right  to  expel  him  from  the  school  for  any  good  cause 
shown.  The  appellant  alleges  that  "  the  trustees  gave  '  Dick  '  no  reason  for  his 
expulsion,  except  that,  if  he  continued  to  go  to  school,  the  school  would  be 
broken  up,"  and  he  also  alleges  that  after  the  dismissal  of  "  Dick  "  from  school, 
the  teacher  said  to  appellant  that  "  Dick  "  had  been  an  orderly  scholar,  and 
had  not  disobeyed  the  rules  or  orders  of  the  school. 

The  only  allegations  in  the  answer  which  may  be  considered  as  contradicting 
these  are  in  the  language  of  the  respondent,  as  follows,  namely :  "  On  the 
morning  of  the  ist  day  of  December  1865,  the  teacher  dismissed  school  on 
account  of  disturbance  caused,  as  the  teacher  declared,  and  as  the  trustees 
verily  believe,  on  account  of  said  colored  boy  being  in  school;  and  on  the  4th 
day  of  December  1865,  the  teacher  commenced  school  again,  and  the  trustees 
did  there  and  then  dismiss  the  said  colored  boy  from  school,  and  at  the  time 
did  assign  to  him  the  reason  why  they  so  dismissed  him;  and  that,  on  the  nth 
day  of  December  1865,  the  said  colored  boy  went  to  school,  and  on  the  same 
day  the  above-named  John  Skatts  and  William  R.  Parker  went  to  the  school- 
house  and  dismissed  the  said  colored  boy  again  for  the  same  reason,  and  told 
him  that  he  could  not  come  to  school  until  the  weather  was  settled ;  that  they 
dismissed  him  because  he  was  offensive  and  a  laughing  stock  for  the  scholars 
both  in  and  out  of  school ;  and  that  his  presence  there  did  annoy  and  disturb 
the  school  to  such  an  extent  that  the  teacher  could  not  preserve  or  keep  order." 

These  are  all  the  facts  of  any  consequence  alleged  in  the  case. 

It  is,  therefore,  admitted  by  the  respondents,  that  "  Dick  "  was  primarily 
entitled  to  attend  the  school,  being  a  resident  and  of  school  age;  and  that  he 
was  expelled  because  "  his  presence  did  annoy  and  disturb  the  school  to  such 
an  extent  that  the  teacher  could  not  preserve  or  keep  order."  I  know  no  law 
of  this  State,  or  decision,  excluding  a  pupil  from  a  public  school  merely  because 
his  presence  annoys  and  disturbs  the  school.  If  he  had  the  small-pox,  or  some 
other  dangerous  and  contagious  disease,  the  presence  of  such  disease  would  be 
dangerous  to  the  school,  and  the  disease  might  legally  be  removed  by  removing 
the  pupil.  But  no  such  complaint  is  made  of  "  Dick,"  and  the  presumption  is 
that  he  is  a  strong,  healthy,  intelligent  boy. 


5 12  THE   UNIVERSITY    OF   THE   STATE   OF    NEW   YORK 

But  the  respondents  allege  that  he  "  was  offensive  and  a  laughing  stock 
for  the  scholars."'  It  is  not  alleged  that  he  actively  engaged  in  any  offensive 
operations  at  school,  to  the  injury  of  the  scholars.  Therefore,  the  cause  of  his 
offense,  if  there  was  any  cause,  must  have  been  that  he  was  "  colored,"  or  in 
some  other  respect,  was  not  by  his  Creator  so  made  as  to  be  adapted  to  the 
tastes  of  his  school- fellows,  or  that  his  tailor  was  at  fault.  The  oft'ense  was 
committed  by  those  who  made  sport  of  him.  They  ought  to  have  been  taught 
better  manners.  The  mere  fact  that  "  Dick  "  was  "  a  laughing  stock  for  the 
scholars  "  is  not  a  just  ground  of  punishment  or  censure  to  be  visited  upon 
him.  but  may  be  the  result  of  the  highest  virtues,  the  noblest  purposes,  and 
the  most  commendable  action  in  ///'/;;. 

In  the  absence  of  evidence  to  the  contrary,  such  is  presumed  to  have  been 
the  case,  in  view  of  the  allegations  of  the  appellant,  "  that  v/hen  the  colored 
lad  returned  to  school  on  the  nth  day  of  December,  other  boys  in  school  hours 
annoyed  him  with  opprobrious  looks  and  actions."  There  is  no  allegation  in 
the  answer  that  "  Dick  "  has  ever,  on  any  occasion,  in  school  or  out  of  school, 
acted  in  a  manner  unbecoming  a  high-minded,  earnest  boy.  For  such  boys  this 
great  State  has,  by  the  labors  and  money  of  a  willing  people,  organized  and 
sustained  a  beneficent  common  school  system,  and  has  designed  thus  to  extend 
a  ]>rotecting  and  guiding  hand  to  them,  and  by  these  means  to  bless  and  exalt 
all  her  children. 

'I  he  trustees  of  said  school  district  nos.  21  and  11,  in  the  towns  of  Darien 
and  Alexander,  in  the  county  of  Genesee,  are,  therefore,  hereby  ordered  forth- 
with to  admit  said  colored  lad  "  Dick  "  to  all  the  privileges  of  said  district  school. 


The  authority  of  trustees,  and  hence  of  teachers   over  pupils,   ceases   after   the   close   of 

school,  and  their  departure  from  the  school  premises. 
Derided  May  13,  1875 

Gilmour,  Superintendent 

A  rule  adopted  by  the  board  of  education  of  a  union  free  school  district, 
among  other  things  forbade  pupils  attending  parties,  and  their  being  "  absent 
from  their  rooms  and  studies  at  unusual  and  improper  hours  during  school 
week,"  and  further  provided  that  pupils  "  violating  this  rule,  or  any  part 
thereof,  may  be  suspended,  or  on  repeated  violations,  expelled  from  the  school 
by  the  principal,  subject  to  the  approval  of  the  board  of  education." 

This  rule  was  enforced  against  the  appellants,  two  pupils  of  said  school, 
by  their  suspension  therefrom,  the  offense  charged  against  them  being  their 
attendance  upon  a  meeting  of  a  society  in  the  village  known  as  the  Good  Tem- 
I^lars,  an  organization  for  the  promotion  of  the  cause  of  temperance,  of  which 
the  appellants  were  members,  their  attendance  therein  being  charged  as  a  vio- 
lation of  the  above  rule. 


JUDICIAL   decisions:      pupils  —  SCHOOL    PRIVILEGES    OF  513 

The  appellants  do  not  lodge  in  the  school  building,  and  the  rule  in  question 
is  avowedly  for  the  purpose  of  regulating  the  conduct  of  the  scholars  out  of 
school  hours,  and  when  absent  from  the  school  premises. 

I  am  aware  of  the  existence  of  no  law  under  which  trustees  or  teachers 
have  the  right  to  regulate  the  conduct  of  the  scholars  out  of  school  hours,  and 
when  away  from  the  school  premises.  When  the  school  closes  and  the  pupil 
leaves  the  school  premises  the  authority  of  trustees  and  teacher  ceases,  and  that 
of  the  parent  or  guardian  is  resumed. 

All  rules  or  regulations  founded  upon  any  different  basis  are  without 
authority,  and  no  penalty  for  their  violation  can  be  legally  enforced. 


'■  Cruel  and  unusual  punishments  "  of  pupils  reprehended. 
Decided  April  15,  1873 

"Weaver,  Supcrintetidcnt 

A  pupil  accused  of  whispering  was  ordered  by  the  teacher,  as  a  punishment 
for  the  offense,  to  take  a  seat  near  a  very  hot  stove.  This  the  young  man 
declined  to  do,  and  because  he  would  not  subsequently  acknowledge  that  he 
had  done  wrong  in  thus  disobeying  his  teacher,  the  trustee  suspended  him  from 
school  until  he  should  make  the  required  acknowledgment. 

Held,  to  be  the  duty  of  teachers  to  exercise  a  sensible  discretion  in  their 
deahngs  with  the  pupils  under  their  charge.  To  compel  a  scholar  to  sit  by  a 
Jiot  stove  is  an  improper  punishment  for  any  offense,  and  when  one  refuses  to 
acknowledge  that  he  has  done  wrong  in  declining  to  submit  to  its  infliction,  a 
proper  case  is  not  presented  for  suspension  from  school. 


The   right  of  a  pupil  to  wear  her  hair  in  school  according  to  the  taste   of  the   parent, 

maintained. 
Decided  April  6,  1S74 

Weaver,  Superintendent 

A  mother  appeals  from  the  action  of  the  trustees  in  expelling  from  the 
school  her  two  children,  a  girl  of  9,  and  a  boy  of  7  years  of  age. 

The  alleged  ground  of  expulsion  is  the  refusal  of  the  mother  to  comply 
with  a  requirement  of  the  teacher  and  the  trustees,  in  regard  to  the  mode  in 
which  the  hair  of  the  little  girl  of  9  should  be  arranged. 

Though  this,  as  the  reason  of  the  expulsion,  is  denied  by  the  trustees, 
it  would  seem  that  the  conflict  of  opinion  between  mother  and  teacher,  upon 
this  important  question  of  the  arrangement  of  the  child's  hair,  led  the  way  at 
leastxto  the  final  act  in  the  controversy,  the  exclusion  of  the  children  from  school. 
The  Superintendent  says :  "  There  is  no  evidence  of  the  infraction  of  the  rules 

17 


514  THE    UXUEKSITV    OF   THE   STATE    OF    NEW   YORK 

of  the  school  by  the  boy,  and  the  girl  docs  not  appear  to  have  violated  any  rule, 
unles'?  it  is  by  coming  to  school  with  her  hair  arranged  by  her  mother  in  a 
manner  different  from  that  required  by  the  trustees. 

"  The  action  of  the  trustees  is  without  lawful  authority.  They  had  no  right  to 
make  such  a  regulation  as  they  say  was  disregarded  in  this  case,  and  conse- 
quently they  could  not  legally  inflict  any  penalty  for  its  violation." 

Nor  could  they  lawfully  insist  upon  the  conditions  prescribed  by  them  for 
readmitting  the  children  to  the  school,  which  are,  that  the  mother  shall  make 
a  written  apology  to  the  teachers  of  the  school  for  alleged  insults  offered  to 
them  in  connection  with  this  matter,  and  shall  stipulate  in  writing  with  the 
trustees  that  all  rules  and  regulations  of  the  school  shall  be  strictly  conformed 
to,  and  that  she  "  will  not  seek  to  enter  upon  the  school  lot,  speak  to,  or  address 
by  letter  either  of  the  teachers." 

Trustees  directed  to  admit  the  children  to  the  school. 


Riijht  of  children,  residing  on  lands  within  a  district  which  have  been  ceded  to  the  United 

States,  to  attend  the  school  of  the  district. 
Decided  July  13,  1869 

W^eavcr.  Superintend  ait  . 

Within  the  limits  of  school  district  no.  13.  Champlain,  Clinton  county,  are 
certain  lands,  jurisdiction  over  which  has  been  ceded  by  the  State  of  New  York 
to  the  United  States,  "  for  the  defense  and  safety  of  the  State."  Resident  upon 
these  lands  are  persons  with  children  of  school  age  whom  they  desire  to  send 
to  the  school  of  the  district  within  whose  boundaries  they  are  embraced.  The 
trustee  of  district  no.  13  refuses  to  allow  these  children  to  attend  the  school 
in  said  district  without  payment  of  a  tuition  fee,  claiming  that  the  cession  of 
jurisdiction  referred  to  has  had  the  efifect  of  entirely  excluding  the  lands  in 
question  from  the  said  district.  The  Superintendent  says :  "  In  this  position, 
the  respondent,  in  my  judgment,  is  in  error.  There  exists  no  good  reason 
either  in  the  purpose  for  which  the  cession  of  jurisdiction  was  made,  or  in  the 
terms  of  the  cession  itself,  for  excluding  any  of  the  children  resident  upon  the 
lands  in  question  from  the  advantages  for  education  afforded  by  the  State." 
Trustee  directed  to  permit  the  children  resident  upon  said  lands,  to  attend  the 
district  school  in  equal  terms  with  other  children  of  the  district. 


Trustees  have  no  power  to  impose  a  fine  upon  a  pupil,  and  suspend  him  from  school  until 

it  is  paid. 
Decided  March  25,  1873 

Weaver.  Superintendent 

It  appears  that  the  appellant,  a  minor  of  the  age  of  15  vears,  residing  in 
union  free  school  district  no.  2,  town  of  Onondaga,  has  been  suspended  from 
the  school  until  a  fine  of  fifteen  cents,  inflicted  upon  him  for  damages  done  to 


JUDICIAL    decisions:       pupils SCHOOL    PRIVILEGES    OF  515 

seats  and  desks  in  the  schoolhouse,  shall  be  paid.  The  appellant  denies  the 
charge  as  against  him,  but  the  decision  is  made  without  regard  to  his  guilt  or 
innocence  in  the  matter. 

If  to  protect  the  district  property  the  trustees  deem  it  necessary  or  proper 
to  suspend  from  the  school  for  a  reasonable  period  any  of  the  scholars  guilty 
of  injuring  such  property,  there  is  no  doubt  of  their  right  to  do  so.  But  there 
is  no  provision  of  law  which  authorizes  school  officers  to  inflict  a  pecuniary 
fine  upon  the  pupils  for  any  cause.  It  will  be  the  duty  of  the  board  of  educa- 
tion to  readmit  the  appellant  to  the  school  on  his  application  therefor. 


Abuse  of  discretion  in  the  enforcement  of  discipline  rebuked. 
Decided  April  27,   1872 

Weaver,  Superintendent 

The  son  of  the  appellant,  a  boy  about  ii  years  of  age,  had  been  guilty  of 
some  light  offense  against  the  discipline  of  the  school,  and  the  same  was  reported 
to  the  trustee  by  the  teacher  in  accordance  with  previous  instructions  to  that 
effect.  The  trustee  ordered  the  boy  to  ask  pardon  upon  his  knees  of  the  teacher, 
on  penalty  of  expulsion  from  school  for  a  refusal  to  comply.  The  scholar 
expressed  his  willingness  to  ask  pardon  of  the  teacher,  but  declined  to  do  so 
in  the  humiliating  posture  required.  He  was  thereupon  expelled  from  the 
school. 

Such  an  abuse  of  his  discretion  by  the  trustee  is  in  my  opinion  entirely 
without  excuse.  While  I  would  always  cheerfully  sustain  trustees  in  enforcing 
discipline  in  the  schools  by  the  use  of  proper  means,  such  an  act  of  petty 
tyranny  as  the  one  complained  of  can  receive  no  countenance  from  me. 


3891 

In  the  matter  of  the  appeal  of  William  McDonough  v.  Lorenzo  Smith,  trustee 
of  school  district  no.  6,  town  of  Springfield,  Otsego  county. 

A  child  was  excluded  from  the  school  by  a  teacher,  with  the  trustee's  approval,  upon  the 
alleged  ground  that  he  was  idiotic,  lacked  capacity  for  education,  and  was  unable  to 
care  for  himself.  Evidence  ofifered  before  the  school  commissioner  did  not  sustain  the 
charges,  but  rather  refuted  them.    Held,  that  the  boy  should  be  received  as  a  pupil. 

Decided  July   i8,    1890 

Draper,  Superintendent 

During  the  last  term,  Miss  Fannie  E.  Ingalls,  teacher  in  the  above-named 
district,  sent  a  son  of  the  appellant  from  the  school  and  refused  to  permit  him 
to  reenter.  In  this  action,  she  is  sustained  by  the  trustee.  This  appeal  is 
brought  to  determine  whether  or  not  the  child  should  be  permitted  to  attend 
school  in  the  district. 


5l6  THE  UNIVERSITY   OF  THE   STATE   OF  NEW   YORK 

The  ground  upon  wliicli  the  child  was  sent  from  school  was  that  he  was 
idiotic,  and  not  only  lacked  capacity  for  education,  but  also  was  unable  to  care 
for  his  own  person.  It  is  alleged  by  the  trustee  and  otliers,  that  upon  occasions 
he  permitted  his  clothing  to  be  disarranged,  even  to  the  exposure  of  his  person. 
and  that  he  said  and  did  things  detrimental  to  the  interests  of  the  school  and 
incompatible  with  his  continuance  therein. 

These  allegations  are  stoutly  denied  by  the  father  and  at  his  instance.  I 
directed  the  school  commissioner  having  jurisdiction  to  take  testimony  touching 
the  matter.  He  has  taken  the  testimony  offered  by  the  appellant,  but  his 
rejjort  discloses  the  fact  that  the  respondent  entirely  failed  to  maintain  his  side 
of  the  case  at  such  inquiry.  Neither  the  teacher  nor  any  one  else  was  pro- 
duced before  the  commissioner  to  give  testimony  touching  the  matter.  I  observe, 
however,  that  two  or  three  witnesses  who  had  previously  made  affidavit  on  the 
side  of  the  respondent,  were  produced  by  the  appellant  before  the  commissioner, 
and  contradicted  material  parts  of  the  affidavits  which  they  had  previously  made, 
stating  that  such  affidavits  were  read  to  them  by  the  father  of  the  teacher,  and 
that  either  he  did  not  read  them  as  written,  or  that  they  did  not  understand 
them  to  that  effect.  These  discrepancies  are  not  at  all  explained  by  the  respond- 
ent, and  it  must  be  said  that  they  materially  weaken  his  case. 

I  have  read  all  the  allegations  of  the  parties,  and  all  the  testimony  taken 
before  the  school  commissioner,  with  much  care.  From  all  of  the  statements 
made,  I  conclude  the  fact  to  be  that  the  boy  in  question,  who  is  now  ii  years  of 
age,  is  of  weak  physical  and  mental  organization,  and  has  been  of  no  little 
trouble  and  annoyance  to  the  teacher.  Yet,  but  one  instance  is  set  forth  by  her 
when  his  conduct  was  subversive  of  the  good  order  and  decorum  of  the  school- 
room, and  touching  that  occasion,  it  occurs  to  me  that  more  may  have  been  said 
than  was  justified.  No  less  than  three  persons  who  have  previously  taught  the 
school,  and  of  unquestioned  credibility,  state  that  the  boy  was  in  the  school 
while  they  had  charge  of  it,  and  that  they  not  only  suffered  no  severe  annoy- 
ance or  inconvenience  because  of  his  presence,  but  that  they  considered  him 
capable  of  receiving  an  education,  and  that  they  believed  that  he  had  made  some 
progress  in  that  direction. 

I  Suppose  the  true  rule  touching  such  a  case  is  that  the  child  should  be  per- 
mitted to  attend  the  school  unless  his  presence  is  obnoxious  to  others,  and  unless 
he  is  so  weak-minded  as  to  be  incapable  of  caring  for  himself  and  receiving  the 
elements  of  an  education.  The  school  ought  to  help  this  boy  if  it  can  do  so 
without  detriment  to  the  interests  of  other  pupils.  Not  the  mere  pleasure  or 
convenience  of  the  teacher  is  to  be  considered,  but  the  efficiency  and  success  of 
the  school.  Although  he  may  be  the  occasion  of  some  annoyance,  and  of  a  little 
unusual  care  and  attention,  he  should  be  permitted  to  continue  in  the  school 
unless  his  presence  there  will  injure  it. 

Applying  this  view  to  the  facts  in  this  particular  case,  I  can  not  resist  the 
conclusion  that  it  is  my  duty  to  direct  the  trustee  to  again  receive  the  boy  into 
the  school. 

The  appeal  is  sustained,  and  it  is  so  ordered. 


JUDICIAL   decisions:      pupils  —  SCHOOL    PRIVILEGES    OF  517 

3861 

In  the  matter  of  the  appeal  of  Patrick  Horan  v.  the  board  of  trustees  of  school 
district  no.  19,  of  the  town  of  Watervliet,  county  of  Albany. 

Appeal  from  the  refusal  of  the  trustees  of  a  district  to  receive  a  pupil  in  the  school  who 
had  been  expelled  for  a  breach  of  discipline.  The  boy  has  been  denied  the  privileges 
of  the  school  for  several  weeks.  The  act  for  which  the  punishment  was  inflicted  was 
evidently  the  result  of  momentary  impulse,  and  for  which  he  is  now  contrite.  Nothing 
is  shown  against  him  but  this  one  act.    Held,  that  he  should  be  admitted  to  the  school. 

Decided  March  4,  1890 

Draper,  Superintendent 

The  appellant  has  a  son,  William  Horan,  who  has  been  a  pupil  in  the 
school,  in  the  above-named  school  district,  and  who  has  been  expelled  from 
the  school  for  a  breach  of  discipline  on  or  about  the  28th  day  of  January  1890. 
Since  that  time  the  father  has  made  repeated  efforts  to  have  the  boy  received 
into  the  school  again,  but  the  trustees  persistently  refused  to  admit  him.  From 
this  refusal  he  brings  this  appeal  to  the  Department. 

The  trustees  make  no  answer.  The  boy  is  about  14  years  of  age.  It 
nowliere  appears  that  he  is  of  such  a  character  as  to  make  his  presence  in  the 
school  destructive  of  its  efficiency.  Nothing  is  shown  against  him  except  the 
one  act  for  which  he  was  expelled.  That  act  was  evidently  the  result  of 
momentary  impulse,  and  there  is  apparent  contrition  on  the  part  of  the  boy. 
The  father  is  evidently  a  hard-working,  industrious  man,  with  a  large  family, 
and  is  anxious  to  give  the  boy  a  suitable  education.  It  is  not  necessary  to  deter- 
mine whether  the  board  was  justified  or  not  in  turning  the  boy  out  of  the  school. 

It  is  manifest  to  me  that  whatever  may  be  said  upon  that  point,  he  has  been 
deprived  of  the  privileges  of  the  school  as  long  as  he  ought  to  be. 

The  appeal  is  sustained,  and  the  trustees  are  directed  to  forthwith  admit 
William  Horan  to  the  privileges  of  the  school. 


3689 

In  the  matter  of  the  appeal  of  E.  Parmly  Brown  v.  the  board  of  education  of 

the  village  of  Flushing,  in  the  county  of  Queens. 
The  action  of  a  teacher  and  of  a  board  of  education  in  suspending  a  pupil  will  be  upheld 

when  it  is  shown  that  the  pupil  was  disorderly  and  refused  to  obey  the  teacher  and 

properly  deport  himself  in  the  school. 
Until  it  is  made  to   appear  by  proof  that   the  pupil  has  been  subjugated  and  is   ready   to 

conduct  himself  properly,  he  should  not  be  admitted  to  the  privileges  of  the  school. 
Decided  May  30,  1888 

Draper,  Superintendent 

This  is  an  appeal  from  the  action  of  the  respondents  in  suspending  the  son 
of  the  appellant,  a  young  man  named  Anthony  Brown,  17  years  of  age,  from 
the  privileges  of  the  school  under  their  charge. 


5l8  THE    UNIVERSITY   OF  THE   STATE   OF   NEW   YORK 

Tlie  papers  submitted  by  the  respective  parties  are  voluminous,  containing 
mucli  irrelevant  matter,  but  they  have  been  read  and.  compared  with  care.  The 
cause  of  the  suspension  of  the  boy  was  his  misconduct.  The  facts  touching  his 
misconduct  are  in  dispute.  The  statements  of  the  parties  are  contradictory. 
Without  entering  into  an  extended  or  detailed  account  of  what  is  alleged  on 
either  side,  it  may  be  said  that  there  is  considerable  evidence  to  show  that  the 
boy  had  been  irregular  in  attendance  and  frequently  disorderly  and  troublesome 
to  his  teachers,  in  consequence  of  which  he  was  kept  on  the  front  seat.  On  the 
I2th  day  of  October  1887,  while  the  principal  of  the  school,  Mr  John  H.  Clark, 
was  speaking  to  the  pupils  of  the  room  in  which  the  boy  was,  in  relation  to 
some  matter  of  discipline,  the  young  man  partly  rose  in  his  seat  and  turned 
around  to  look  at  other  pupils  in  a  manner  so  contemptuous  to  the  principal 
as  to  lead  the  latter  to  take  hold  of  him.  The  boy  resisted  and  a  trial  of  physical 
strength  between  the  two  ensued.  It  seems  to  have  been  so  severe  as  to  have 
required  the  intervention  of  the  janitor  of  the  building  on  behalf  of  the  teacher. 
The  boy  was  taken  to  the  office  of  the  principal  and  talked  with  until  he  indi- 
cated his  willingness  to  make  an  apology  before  the  school  and  promise  future 
good  behavior,  which  he  did  the  same  day.  The  next  morning  the  lady  teacher, 
in  whose  room  the  boy  was,  reported  to  the  principal  that  he  was  continually 
troublesome,  and  later,  upon  the  same  day,  she  sent  him  to  the  principal,  pur- 
suant to  a  rule  of  the  school  that  such  action  should  be  taken  when  a  pupil  had 
received  four  demerits  during  the  month,  which  this  boy  had  now  received. 
The  princijial  swears  that  upon  his  remonstrating  with  the  pupil  he  became 
insolent  and  abusive,  defended  his  action,  applied  a  vile  and  offensive  epithet  to 
him,  dared  the  teacher  to  undertake  to  put  him  out  of  the  school,  said  that,  if 
he  did  not  look  out,  he  (the  teacher)  would  have  to  go  himself,  and  if  he  did 
not  take  care  he  would  get  hurt.  The  teacher  told  the  pupil  that  he  should  sus- 
pend him  from  the  privileges  of  the  school  and  directed  him  to  leave,  which  he 
finally  did.  The  next  morning,  however,  the  boy  appeared  in  the  school  and 
was,  it  is  alleged,  a  leader  in  a  plot  for  scattering  numerous  paper  caps  upon  the 
floor  and  in  exploding  the  same,  to  the  great  confusion  of  the  school.  There- 
upon, the  boy  was  removed  from  the  school  and  the  matter  reported  to  the  board 
of  education,  which  body,  by  resolution,  sustained  the  action  of  the  principal. 

The  appellant's  statements  put  a  coloring  upon  these  facts  more  favorable 
to  his  son,  but  I  think  I  state  them  as  favorably  to  the  boy  as  the  proofs  sub- 
mitted will  justify.  The  principal  of  the  school  is  a  man  of  mature  age  and  long 
experience.  His  affidavit  is  clear  and  minute  in  its  statements  of  all  the  cir- 
cumstances. He  is  strongly  supported  by  the  sworn  statements  of  two  lady 
teachers,  and  the  janitor  of  the  school,  as  to  the  facts  of  which  they  were  wit- 
nesses and  which  were  the  more  important  and  essential  ones.  All  the  surround- 
ing circumstances,  many  of  which  are  admitted  by  the  appellant  and  his  son,  are 
in  corroboration  of  the  statements  of  the  board  and  the  principal. 

The  facts  lead  to  the  conclusion  that  the  boy  undertook  the  task  of  over- 
throwing the  government  of  the  school.  It  was  necessary  that  he  be  reduced  to 
subjection  immediately  and  effectually,  or  removed  from  the  school.    There  is  no 


JUDICIAL   decisions:       pupils SCHOOL    PRIVILEGES    OF  519 

proof  of  oversevere  punishment.  There  is  proof  of  moderation  and  forbearance 
on  the  part  of  the  teacher.  There  is  evidence  of  persistent  insubordination  on  the 
part  of  the  pupil  This,  even  after  suspension  and  to  an  extent  v^hich  rendered 
him,  in  my  judgment,  hable  to  punishment  in  the  criminal  courts  for  interfering 
with  and  disturbing  the  school.  There  is  no  doubt  of  the  power  of  the  school 
authorities  to  deprive  pupils  of  the  privileges  of  the  school  until  they  are  ready 
to  abide  proper  discipline.  The  propriety  of  exercising  this  power  is  more  mani- 
fest in  the  case  of  pupils  of  advanced  age.  The  pupil  in  the  case  under  con- 
sideration is  17  years  of  age.  He  may  have  strength  equal  to  that  of  the  teacher. 
The  public  has  no  right  to  call  upon  teachers  to  test  their  physical  powers  with 
those  of  young  men  already  grown  to  man's  estate.  I  do  not  see  that  the  princi- 
pal or  the  board  could  have  done  anything  less  than  suspend  this  boy.  The 
action  of  the  board  indicates  that  the  suspension  was  intended  to  continue  only 
so  long  as  was  necessary  to  reduce  the  boy  to  subjection.  No  proof  is  offered 
of  contrition  on  the  part  of  the  boy  or  of  any  application  for  his  readmission 
upon  promise  of  good  behavior.  The  main  purpose  of  the  appeal  seems  to  be 
the  overthrow  of  the  teacher  and  defeat  of  the  board.  Facts  are  not  shown 
which  would  justify  me  in  sustaining  this  attempt.  The  boy  is  the  one  to  be 
subjugated  and  until  there  is  proof  of  that  having  been  accomplished  and  the 
board  still  refusing  to  admit  him  to  the  privileges  of  the  school,  I  shall  not  feel 
justified  in  interfering  with  its  action. 

In  view  of  these  considerations,  the  appeal  must  be  dismissed. 

3698 

In  the  matter  of  the  appeal  of  W.  C.  Baldwin  v.  L.  Duane  Streeter.  trustee  of 

school  district  no.  i6,  town  of  Volney,  county  of  Oswego. 
A  pupil  was  denied  the  privileges  of  the  school  because  he   persisted  in   leaving  the   school 

grotinds  during  the  noon  recess;  held,  insufficient  cause.     That  the  teacher  has  no  claim 

upon  a  pupil's  time  during  the  recess. 
Decided  July  16,  1888 

Draper,  Superintendent 

From  the  statement  of  the  appellant,  it  seems  that  the  trustee  and  teacher 
in  district  no.  i6,  town  of  Volney,  county  of  Oswego,  dismissed  one  Clarence 
Stead  from  the  school  in  said  district  in  the  latter  part  of  March  1888.  The 
reason  for  such  dismissal  which  is  alleged  is,  that  the  boy  persisted  in  going 
away  from  the  school  grounds  during  the  noon  recess.  It  seems  that  he  was 
on  one  occasion  called  away  from  the  school  during  the  afternoon  session  in 
order  to  assist  his  uncle  in  an  emergency,  but  the  principal  difficulty  alleged  is 
that  he  refused  to  remain  upon  the  school  grounds  during  the  noon  recess,  in 
violation  of  a  rule  which  the  teacher  had  established.  No  answer  has  been 
s«-ved  upon  the  appellant  by  the  trustee,  and  none  has  been  filed  in  the  Depart- 
ment. Fearing  that  there  was  some  misunderstanding  or  oversight  about  the 
matter  on  the  part  of  the  trustee,  a  letter  was  addressed  to  him  on  the  8th  day 


520  THE    UXIVEKSITV    OF   THE   STATE   OF   NEW    YORK 

of  June,  asking  why  no  answer  liad  been  interposed  and  also  requesting  him 
to  advise  nie  whether  the  boy  was  still  denied  the  privileges  of  the  school,  and, 
if  so,  upon  what  grounds.  In  the  course  of  time  a  reply  was  received,  in  which 
he  states  that  the  boy  had  not  l)cen  permitted  to  reenter  the  school,  and  that  no 
answer  had  i)een  interposed  because  he  "  did  not  think  there  was  enough  to  it 
to  bother  with  it,"  and  he  volunteers  the  statement  that  "  if  this  is  not  sufficient, 
let  me  know  and  I  will  go  into  details." 

The  rules  of  this  Department,  which  are,  or  should  be,  familiar  to  all  trus- 
tees, require  that  all  appeals  shall  be  answered  within  ten  days  from  the  lime  of 
service.  That  not  having  been  done  in  the  present  case,  the  unusual  course  was 
purstied  of  communicating  with  the  trustee,  in  order  that  he  might  make  no 
mistake  about  the  matter.  Even  after  this,  he  neglects  to  interpose  an  answer 
in  justification  of  his  own  act  in  dismissing  the  boy  from  the  school.  Such 
gross  negligence  is  hardly  tolerable  on  the  part  of  a  trustee. 

There  being  no  answer  interposed,  I  must  accept  the  statements  of  the 
appellant  as  true.  That  being  so,  I  can  see  no  good  reason  for  depriving  the 
boy  of  the  privileges  of  the  school.  The  teacher  had  no  claim  upon  his  time 
during  the  noon  recess.  He  was  at  liberty  to  go  where  he  chose  at  that  time, 
assuming  that  he  did  so  with  his  parents"  knowledge  and  consent.  It  is  not 
shown  that  his  attendance  during  school  hours  was  with  any  such  irregularity 
as  to  interfere  with  the  efficiency  of  the  school  or  justify  the  school  authorities 
in  dismissing  him. 

The  appeal  is,  therefore,  sustained,  and  the  trustees  and  teacher  directed 
to  admit  Clarence  Stead  to  the  privileges  of  the  school  whenever  it  shall  be  in 
session. 


3574 
In  the  matter  of  the  appeal  of  Lyman  Randall  v.  Homer  Titus,  trustee  of  school 

district  no.  2,  towns  of  Lindley  and  Erwin,  Steuben  county. 
When  a  pupil  has  been  suspended  from  school  for  violating  a  rule  of  propriety,  and  before 
an  appeal  \yas  taken,  the  officer  who  suspended  the  pupil  had  given  public  notice  that 
the  pupil  might  return  to  school,  an  appeal  subsequently  taken  from  the  act  of  dismissal 
will  not  be  sustained. 
Decided  March  lo,  1887 

Draper,  Supcrititendcnt 

This  is  an  appeal  by  a  resident  of  school  district  no.  2,  towns  of  Lindley 
and  Erwin.  Steuben  county,  New  York,  from  the  action  of  the  trustee  of  said 
district,  in  suspending  appellant's  son,  who  is  a  pupil  at  the  public  school  in 
said  school  district. 

The  alleged  cause  of  the  suspension  is  that  the  bov  broke  a  pane  of  glass  in 
the  schoolhousc,  which  the  boy,  or  his  father,  the  appellant,  would  not  replace. 

It  is  claimed  by  the  appellant  that  the  glass  was  broken  accidentally. 


JUDICIAL   decisions:       pupils  —  SCHOOL    PRIVILEGES    OF  52I 

The  trustee  has  answered  the  appeal,  and  filed  affidavits  of  two  boys  who 
were  present  at  the  time,  which  tend  to  show  that  the  boy  undertook  to  go 
through  a  window  of  the  schoolhouse  instead  of  using  the  door,  which  was 
unlocked ;  that  he  was  warned  to  go  to  the  door,  but  he  persisted  in  using  the 
window,  and  in  so  doing  broke  the  glass.  The  trustee  admits  that  he  suspended 
the  boy,  but  before  this  appeal  was  brought  he  had  publicly  stated  to  the  scholars, 
among  them  one  of  appellant's  children,  that  the  boy  could  return  to  school,  and 
that  he.  the  trustee,  would  pay  for  the  glass. 

The  appellant  asks  that  the  action  of  the  trustee  in  suspending  his  boy.  be 
set  aside.  As  the  evidence  shows  that  this  has  already  been  done  by  the  trustee's 
action  in  inviting  the  boy  to  return  to  school,  the  necessity  for  the  appeal  to  me 
does  not  exist,  and  I  therefore  dismiss  the  same. 


4362 

In  the  matter  of  the  appeal  of  Daniel  Lynch,  sr,  and  others  v.  R.  F.  Ford,  sole 
trustee,  school  district  no.  22,  town  of  Verona,  Oneida  county. 

Where  it  is  established  to  the  satisfaction  of  the  trustees  of  a  district  that  pupils  attending 
the  school  in  the"  district  have  indecently  exposed  their  persons  and  acted  in  obscene 
or  indecent  manner,  and  used  vile  and  indecent  language,  the  trustee  of  said  district  has 
the  power,  and  it  is  his  duty,  to  suspend  such  pupils  from  the  school. 

Decided  July  9,  1895 

M.  H.  Powers,  attorney  for  appellants 
Davies  &  Johnson,  attorneys  for  respondent 

Skinner,  Superintendent 

This  is  an  appeal  by  Daniel  Lynch,  sr,  and  Edward  Lynch  and  Daniel  Lynch, 
jr.  his  sons,  from  the  action  and  decision  of  R.  F.  Ford,  sole  trustee  of  school 
district  no.  22,  town  of  Verona,  Oneida  county,  suspending  said  Edward  Lynch 
and  Daniel  Lynch,  jr  from  the  school  in  said  district. 

The  respondent  has  filed  an  answer  to  the  appeal;  to  said  answer  a  reply 
has  been  made ;  to  the  reply  a  rejoinder,  and  to  the  rejoinder  a  subrejoinder.  The 
papers  are  somewhat  voluminous,  but  much  of  the  matters  contained  therein  is 
not  relevant  to  the  issue  presented  by  the  appeal  and  answer. 

From  the  proofs  filed  herein  it  appears:  That  R.  F.  I-ord  is  the  trustee  of 
school  district  no.  22,  town  of  Verona,  Oneida  county,  for  the  present  school 
year;  that  the  appellant,  Daniel  Lynch,  sr,  is,  and  has  been,  a  resident  of  said 
school  district  during  the  present  school  year,  and  that  the  appellants.  Edward 
and  Daniel  Lynch,  jr,  are  the  sons  of  said  Daniel  Lynch,  sr,  residing  with  their 
father  in  said  school  district,  and  of  school  age,  to  wit:  said  Edward  is  16  years 
of  age,  and  said  Daniel,  jr,  is  14  years  of  age;  that  said  Edward  and  Daniel,  jr, 
have  been  attending  the  school  in  said  school  district  in  the  present  school  year, 


522  THE    UNIVEKSITY    OF   THE    STATE    OF    NEW    YORK 

and  in  the  term  of  school  in  said  year  in  wliioh  said  school  was  maintained,  com- 
mencing March  ii.  i>^jS'-  that  at  different  times  during  said  school  year  com- 
plaint was  made  by  scholars  attending  the  school  in  said  district  that  said  Edward 
Lynch  and  Daniel  Lynch,  jr,  had  each  of  them  at  different  times  in  the  school- 
house  and  upon  the  school  grounds  indecently  exposed  their  persons  to  the 
scholars  attemling  said  school,  and  had  acted  in  the  presence  of  scholars  in  said 
school  in  the  schoolhouse  and  upon  the  school  grounds  in  an  obscene  and  indecent 
manner,  and  had  also  used  vile,  obscene  and  indecent  language;  that  within  the 
week  of  said  school  next  preceding  April  12,  1895,  for  a  day  or  two  a  large 
number  of  scholars  absented  themselves  from  said  school  by  reason  of  the  afore- 
said conduct  on  the  part  of  said  Ldward  and  Daniel  Lynch,  jr;  that  on  or 
about  April  10,  1S95,  seven  of  the  scholars  attending  said  school  informed  the 
respondent  herein  of  the  aforesaid  acts  on  the  part  of  said  Edward  and  Daniel 
Lynch,  jr,  and  severally  signed  a  paper  in  which  they  stated  that  during  school 
hours  they  had  repeatedly  seen  said  Lynch  boys  indecently  expose  their  persons 
to  them  and  other  scholars  of  said  school,  and  delivered  said  paper  to  the 
respondent;  that  the  respondent,  after  receiving  said  statement,  informed  the 
appellant,  Daniel  Lynch,  sr,  of  the  charges  made  by  scholars  attending  said 
school  against  his  sons,  Edward  and  Daniel,  jr,  and  asked  or  advised  that  he 
take  his  said  sons  out  of  school  temporarily,  and  thus  save  the  respondent  from 
the  necessity  of  suspending  them  from  school;  that  said  appellant,  Lynch,  sr, 
declined  to  take  his  sons  out  of  school,  and  informed  the  respondent  that  he 
must  act  in  the  matter  as  he  thought  best ;  that  on  April  12,  1895,  the  respondent 
went  to  said  schoolhouse  while  the  said  school  was  in  session,  and  the  said 
Edward  and  Daniel  Lynch,  jr,  being  then  present  in  said  school,  he  directed 
them  to  leave  the  school  and  informed  them  that  they  were  suspended  from  said 
school  until  such  time  as  he  (the  respondent)  deemed  advisable  for  them  to 
return,  and  they  should  conduct  themselves  properly;  that  on  April  16,  1895,- 
the  appellants  herein  filed  their  appeal  from  said  action  and  decision  of  the 
respondent,  as  such  trustee. 

It  must  be  conceded  that  if  said  Lynch  boys  had  conducted  themselves  in 
the  schoolhouse  or  upon  the  school  grounds  in  the  presence  of  the  scholars 
attending  said  school  in  the  manner  they  were  charged  to  have  acted  and  the 
respondent  was  satisfied  from  the  statements  made  to  him  that  said  statements 
were  true,  it  was  the  duty  of  the  respondent  to  suspend  them  from  attending  said 
school.  Under  the  school  law,  the  Lynch  boys  and  their  parents,  if  they  felt 
aggrieved,  that  is,  injured,  by  the  action  of  the  respondent,  had  the  right  to  appeal 
to  the  State  Superintendent  of  Public  Instruction  from  the  action  and  decision  of 
the  respondent,  when  the  proofs  relative  to  said  charges  and  their  answer  thereto 
could  be  presented.  The  respondent  has  filed  the  affidavits  of  eleven  scholars 
attending  said  school,  all  of  whom  allege  that  they  have  seen  both  Edward  and 
Daniel  Lynch,  jr,  in  the  school  building  and  upon  the  school  grounds,  while  the 
school  was  in  session  and  in  recess  and  intermission,  indecently  expose  his  or 
their  person  or  persons,  and  act  in  an  obscene  and  indecent  manner,  and  heard 
them  use  vile,  obscene  and  indecent  language. 


JUDICIAL   decisions:       pupils SCHOOL    PRIVILEGES    OF  523 

In  the  proofs  filed  by  the  appellants,  Edward  and  Daniel  Lynch,  jr,  deny,  in 
the  affidavits  made  by  them,  the  charges  brought  against  them.  The  other  affidavits 
filed  by  the  appellants,  so  far  as  they  relate  to  the  aforesaid  charges,  the  affiants 
state  therein  that  they  never  saw  the  Lynch  boys  indecently  expose  their  per- 
sons, or  act  in  an  obscene  or  indecent  manner,  or  hear  them  use  vile,  obscene 
and  indecent  language,  and  that  the  said  affiants  do  not  believe  the  said  boys 
are  guilty  of  the  charges  made  against  them. 

I  can  not  disregard  the  positive  testimony  presented  by  the  respondent  in 
this  appeal,  that  said  Lynch  boys  were  guilty  of  the  conduct  alleged  therein.  I 
am  clearly  of  the  opinion,  upon  the  proofs  presented  herein,  that  the  respondent 
acted  within  the  powers  and  duties  given  him  under  the  school  law  in  suspending 
said  Lynch  boys  from  the  school  in  said  district,  and  upon  sufficient  proof  of 
the  improper  conduct  of  said  boys.  The  appellants  have  failed  in  establishing 
their  appeal  and  the  appeal  should  be  dismissed. 

Appeal  dismissed. 


RELIGIOUS   SERVICES 

Trustees  have  no  warrant  of  law  for  directing  religious  exercises  to  be  conducted  in  the 
school  during  .school  hours,  nor  for  excluiling  pupils  from  the  school  altogether  on  the 
ground  of  their  declining  to  be  present  at  such  reading. 

Decided  August  23,  1870 

Weaver,  Supcrintcudcut 

The  appellant  states  that  by  the  express  orders  and  directions  of  the  trustee, 
the  teacher  of  the  district  school,  each  morning  at  the  opening  thereof,  reads  a 
chapter  of  the  protestant  version  of  the  scriptures.  That  the  appellant  from 
conscientious  and  religious  scruples  has  kept  his  children  from  going  to  school 
until  after  such  reading  of  the  scriptures  was  ended.  That  in  consequence 
thereof,  appellant's  children  get  to  the  school  ten  or  fifteen  minutes  after  the 
opening  of  school,  and  that  they  are  for  that  reason  refused  admission  by  the 
teacher,  and  are  by  her  sent  home,  she  declaring  to  them  "  that  they  must  be 
present  at  the  reading  or  stay  away  all  day." 

The  object  of  the  common  school  system  of  the  State  is  to  afiford  the  means 
of  secular  instruction  to  all  the  children  within  its  borders.  For  their  religious 
training,  the  State  does  not  provide  and  with  it  does  not  interfere.  The  advan- 
tages of  the  schools  are  to  be  free  to  all  alike,  and  the  consciences  of  none  are  to 
be  legally  violated.  There  is  no  authority  in  the  law,  as  a  matter  of  right,  to 
use  any  portion  of  the  regular  school  hours  in  conducting  any  religious  exercise 
at  which  the  attendance  of  the  scholars  is  made  compulsory.  On  the  other  hand, 
there  is  nothing  to  prevent  the  reading  of  the  scriptures  or  the  performance  of 
other  religious  exercises  by  the  teacher  in  the  presence  of  such  of  the  scholars  as 
may  attend  voluntarily  or  by  the  direction  of  their  parents  or  guardians,  if  it  be 
done  before  the  hour  fixed  for  the  opening  of  the  school  or  after  the  dismissal  of 
the  school.  (Decisions  of  Secretary  Spencer  and  Superintendent  Rice,  above 
quoted,  commented  on  and  approved.) 

The  action  of  the  trustee  in  directing  the  reading  of  the  scriptures  as  a 
part  of  the  school  exercises,  and  in  causing  the  exclusion  of  any  of  the  pupils 
from  the  school  on  the  ground  of  their  declining  to  be  present  at  such  reading, 
has  been  entirely  without  warrant  of  law. 


Decided    June    s.    1872 

Weaver,  Superintendent 

A  long  and  bitter  controversy  between  certain  of  the  inhabitants  and  the 
board  of  education  of  Long  Island  City,  involving  precisely  the  same  question 
as  that  in  the  last  preceding  decision,  leads  the  Superintendent  to  recite  quite 
fully  the  previous  rulings  of  the  Department  upon  the  question  and  the  same  are 

[524] 


JUDICIAL  decisions:  religious  services 


3^0 


upheld  by  him  in  the  following  conclusion  concerning  the  particular  issue  pre- 
sented upon  those  separate  appeals  from  that  city : 

"  The  action  of  the  board  of  education  of  Long  Island  City,  in  directing 
the  reading  of  a  portion  of  the  Bible  as  an  opening  exercise  in  the  schools  under 
their  charge  during  school  hours,  and  in  excluding  pupils  from  those  schools 
or  any  of  them,  on  the  ground  of  declining  to  be  present  at  such  reading,  has 
been  without  warrant  of  law." 


2847 

Decided  April  18,  1870 

Gilmour,  Superintendent 

Religious  exercises  that  are  held  before  nine  o'clock  a.  m.,  and  are  not  com- 
pulsory, do  not  violate  any  legal  right. 


Trustees    can    not,    under    any   circumstances,    be    required   to    open    the    schoolhouse    for 

religious  meetings. 
Decided  June  7,  i860 

A'an  Dyck,  Superintendent 

This  Department,  in  its  late  action,  has  favored  the  policy  of  opening  the 
schoolhouse  for  religious  and  other  worthy  objects,  when  not  wanted  for  school 
purposes.  Where  this  power  is  exercised  by  the  trustees,  within  the  limits  of  a 
proper  discretion,  and  regard  for  the  district  property,  the  Department  will  not 
interfere. 

But  this  is  very  different  from  compelling  the  trustees  to  open  the  house 
for  such  purposes.  They  can  not,  as  trustees  of  the  district,  be  compelled  to  do 
any  act  not  specifically  within  the  range  of  duties  prescribed.  They  are  under 
no  obligation  to  yield,  even  to  the  unanimous  wish  of  the  district,  to  open  the 
schoolhouse  for  other  than  school  purposes ;  and  for  the  reason  that  they  are 
not  elected  as  guardians  of  the  moral  or  religious  interests  of  the  district,  but 
of  its  educational  interests.  They  can  not  be  compelled  to  take  action  outside 
of  their  official  relations.  For  their  refusal  to  comply  with  the  wishes  of  the 
district  in  matters  outside  their  official  relations,  there  is  no  remedy  but  to  elect 
others  in  their  places,  as  fast  as  their  terms  of  service  shall  expire. 


Trustees  will  not  be  ordered  to  open  the  schoolhouse  for  religious  meetings. 
Decided  May  5,  1862 

Rice,  Superintendent 

No  denomination  has  a  right  to  the  use  of  the  schoolhouse  for  religious  or 

other  purposes.    Whoever  occupies  it  for  other  than  school  purposes  does  so  by 

""sufferance  only.     The  trustee  who  allows  such  privileges  to  be  exercised  does 

so  without  the  sanction  of  any  statute  law,  and  is  personally  responsible  for  any 

injury  to  the  property  caused  thereby. 


C26  THE    US'INEKSITV    OF   THE   STATE    OF   NEW   YORK 

No  inhabitant  of  the  district  has  a  right  to  demand  any  thing  from  the  trus- 
tee as  an  offuer,  whicli  he  is  not  lawfully  bound  to  grant;  and  this  Department 
has  no  authority  to  order  him  to  do  any  thing  not  required  or  contemplated  by 
the  law  prescribing  his  duties.  Consequently,  the  Superintendent  has  not 
authority  to  order  the  trustee  to  open  the  schoolhouse  for  other  than  school 
purposes. 


School  may  be  opened  with  prayers,  provided  that  it  be  done  before  school  hours,  and 

that  there  be  no  comiulsic  n  to  enforce  attendance. 
Decided  May  13,  i83y 

Spencer.  Superintendent 

In  an  appeal  to  the  Superintendent,  certain  inhabitants  of  district  no.  15, 
Barre,  complained  that  the  teacher,  with  the  permission  of  the  trustees,  "  made 
prayer  part  of  school  discipline."  The  trustees  replied  that  they  had  permitted 
the  teacher  to  have  prayers  on  condition  that  they  should  be  had  previous  to 
school  hours,  and  they  alleged  that  he  did  not  occupy  school  hours.  The  Super- 
intendent dismissed  the  appeal,  with  the  following  remarks : 

"  In  this  conduct  of  the  trustees,  the  Superintendent  can  perceive  no  cause 
of  complaint.  Both  parties  have  rights;  the  one  to  bring  up  their  children  in  the 
practice  of  publicly  thanking  their  Creator  for  his  protection,  and  invoking  His 
blessing;  the  other,  of  declining,  in  behalf  of  their  children,  the  religious  services 
of  any  person  in  whose  creed  they  may  not  concur,  or  for  other  reasons  satis- 
factory to  themselves.  These  rights  are  reciprocal,  and  should  be  protected 
equally;  and  neither  should  interfere  with  the  other.  Those  who  desire  that 
tl:eir  children  should  engage  in  public  prayer  have  no  right  to  compel  other  chil- 
dren to  unite  in  the  exercise,  against  the  wishes  of  their  parents.  Nor  have 
those  who  object  to  this  time,  place  or  manner  of  praying,  or  to  the  person  who 
conducts  the  exercises,  a  right  to  deprive  the  other  class  of  the  opportunity  of 
habituating  their  children  to  what  they  conceive  an  imperious  duty.  Neither 
the  common  school  system,  nor  any  other  social  system,  can  be  maintained,  unless 
the  conscientious  views  of  all  are  equally  respected.  The  simple  rule,  so  to 
exercise  your  own  rights  as  not  to  infringe  on  those  of  others,  will  preserve 
equal  justice  among  all,  promote  harmony,  and  insure  success  to  our  schools. 
In  the  present  case,  the  Superintendent  thinks  the  trustees  had  lawful  right  to 
permit  the  teacher  to  commence  the  business  of  the  day  by  public  prayer,  with 
the  children  of  such  parents  as  desired  it;  and  they  were  also  right  in  directing 
that  such  exercises  should  not  take  place  during  school  hours,  nor  form  a  part 
of  school  discipline." 

Another  branch  of  this  first  question  is  whether  the  teacher  has  a  right  to 
compel  the  children  to  kneel,  during  prayer,  or  to  dispense  with  their  ordinary 
business. 

The  answer  already  given  proceeds  upon  the  principle  that  prayer  is  no  part 
of  the  business  of  a  common  school,  but  that  parents  may  place  their  children 


JUDICIAL  decisions:  religious  services  52; 

under  the  superintendence  and  government  of  a  teacher  for  that  purpose.  Of 
course  his  jurisdiction  would  extend  to  that  only.  But  others  have  no  right  to 
disturb  the  performance  of  what  is  considered  a  sacred  duty.  As  the  one  class 
is  required  to  abstain  from  all  attempts  to  compel  the  children  of  the  other  class 
to  engage  in  an  exercise  which  the  latter  disapprove,  so  the  latter  should  abstain 
from  interrupting  such  exercise,  and  should  instruct  their  children,  accordingly, 
not  to  enter  the  schoolroom,  until  the  usual  hour  of  commencing  school,  and  not 
to  disturb  those  within  by  any  noise,  or  other  conduct  calculated  to  annoy  them. 
And  the  teacher  should  allow  the  children  of  all  parents  who  do  not  desire  them 
to  engage  in  prayer  to  withdraw  from  the  room,  or  to  absent  themselves  from 
it.  But  if  they  come  into  the  room  before  the  usual  school  hours,  and  choose  to 
remain  there  during  prayer,  they  must  preserve  the  order  and  decorum  betitting 
such  an  occasion. 


Religious  exercises  are  not  a  part  of  district  school  exercises,  and,  therefore,  no  portion  of 

the  regular  school  hours  is  to  be  consumed  in  conducting  them. 
Decided  February  5,   1866 

Rice,  Superintendent 

A  teacher  has  no  right  to  consume  any  portion  of  the  regular  school  hours 
in  conducting  religious  exercises,  especially  where  objection  is  raised.  The  prin- 
ciple is  this :  Common  schools  are  supported  and  established  for  the  purpose  of 
imparting  instruction  in  the  common  English  branches;  religious  instruction 
forms  no  part  of  the  course.  The  proper  places  in  which  to  receive  such  instruc- 
tion are  churches  and  Sunday  schools,  of  which  there  is  usually  a  sufficient  num- 
ber in  every  district.  The  money  to  support  schools  comes  from  the  people  at 
large,  irrespective  of  sect  or  denomination.  Consequently,  instruction  of  a  sec- 
tarian or  religious  denominational  character  must  be  avoided,  and  teachers  must 
confine  themselves,  during  school  hours,  to  their  legitimate  and  proper  duties. 


5440 

In  the  matter  of  the  appeal  of  Rev.  Charles  A.  Logue  from  the  decision  of 
the   board    of   education   of   district   no.   9,   town   of    Hempstead,    Nassau 
county. 
Religious    services    in    schools.      The   policy   of   the    State   education    system    has   been 
to    deny    the    right    of    school    authorities    to    compel   the    attendance    of    pupils    upon 
religious   exercises   held   during   school  hours.     The   rule   is   that   religious   instruction 
may  not  be  given  in  the  public  schools  as  a  part  of  the  prescribed  course  of  instruc- 
tion  therein;   that  religious   services  consisting  of   prayers,   reading  of   the  Bible  and 
singing  of  hymns  shall  not  be  held  during  the  hours  customarily  allotted  to  the  per- 
■ .       f ormance  of  school  work,  and  that  the  pupils  of  the  schools  may  not  be  compelled  to 
attend  such  services  whenever  held. 
Decided  November  18,  1909 


528  THE   U.VIVEKSITY    OF   THE   STATE   OF    NEW   YORK 

Draper,  Commissioner 

The  appellant.  Rev.  Charles  A.  Log^ue,  complains  that  the  board  of  educa- 
tion of  union  free  school  district  no.  9,  town  of  Hempstead,  unlawfully  permits 
the  reading  of  the  Bible,  the  recitation  of  the  Lord's  prayer  and  the  singing  of 
hymns  as  a  part  of  the  school  exercises  of  the  schools  of  such  district,  and  dur- 
ing school  hours.  The  respondents  have  not  answered  the  appellant's  petition, 
and  the  allegations  therein  will  therefore  be  taken  as  true. 

The  appellant  states  that  he  has  protested  to  the  board  of  education  against 
the  reading  of  the  Bible,  the  recitation  of  the  Lord's  prayer  and  the  singing  of 
hymns  during  school  hours,  but  that  such  board  has  ignored  such  protests,  and 
that  such  exercises  have  been  continued  as  a  part  of  the  school  curriculum. 

The  question  here  submitted  is  not  a  new  one.  The  established  policy  of 
the  State  education  system  has  been  to  deny  the  right  of  school  authorities  to 
compel  the  attendance  of  pupils  upon  religious  exercises  held  during  school 
hours.  There  has  been  no  departure  from  the  rule  that  under  the  general  school 
laws  of  the  State,  religious  instruction  may  not  be  given  in  the  public  schools  as 
a  part  of  the  prescribed  courses  of  instruction  therein,  that  religious  services 
consisting  of  prayers,  reading  of  the  Bible,  and  singing  of  hymns  shall  not  be 
held  during  the  hours  customarily  allotted  to  the  performance  of  school  work, 
and  that  the  ]>upils  of  the  school  may  not  be  compelled  to  attend  such  services 
whenever  held. 

The  decisions  of  Superintendent  Weaver  in  the  case  of  the  appeal  of 
Thomas  McMahon  (Decision  no.  1985.  June  5,  1872)  and  of  Superintendent 
Ruggles  in  the  matter  of  the  board  of  education  of  union  free  school  district  no. 
4,  Orangetovvn  (May  27,  1884)  are  declaratory  of  the  Department's  policy  in 
respect  to  this  question.  These  decisions  control  the  determination  of  this 
appeal,  which  is  hereby  sustained. 

It  is  hereby  ordered.  That  the  board  of  education  of  union  free  school  dis- 
trict no.  9,  town  of  Hempstead,  Nassau  county,  take  such  action  as  may  be 
necessary  to  conform  to  the  rule  set  forth  and  declared  in  this  decision. 


1985 

I.  On  the  appeal  of  Thomas  McMahon  and  others,  board  of  trustees  of  the  first  ward  of 
Long  Island  City,  Queens  county,  against  John  Fahnstock  and  others,  board  of  educa- 
tion of  Long  Island  City.  2  Owen  McEleamey  and  others,  against  the  same. 
3    Edward  McBennett  against  the  same. 

Decided  June  5,  1872 

Weaver,  Superintendent 

These  three  appeals  are  all  against  the  same  respondents,  and,  as  they 
involve  but  one  and  the  same  question,  they  may  conveniently  and  properly  be 
considered  and  disposed  of  together.  The  respondents  compose  the  board  of 
education  of  Long  Island  City,  a  body  created  under  the  provisions  of  chapter  461, 
Laws  of  1 87 1,  for  the  general  local  supervision  and  control  of  the  public  schools 
of  Long  Island  City.     The  ground  of  appeal,  in  all  these  cases,  is  the  action  of 


JUDICIAL  DECISIONS  :   RELIGIOUS    SERVICES  529 

the  respondents  under  a  provision  in  a  by-law  adopted  by  them  for  the  conduct 
of  the  schools  under  their  charge.  That  provision  is  in  the  following  words: 
"  The  daily  opening  exercises  shall  consist  of  the  reading  of  a  portion  of  the 
Holy  Scripture,  without  note  or  comment." 

The  appellants  in  the  tirst  of  the  above  entitled  cases,  who  are  the  trustees 
of  the  first  ward  of  Long  Island  City,  complain  of  the  enforcement,  under  the 
direction  of  the  respondents,  of  the  provision  of  the  by-law  above  cited,  by  com- 
pelling the  pupils  in  the  school  of  the  first  ward  to  be  present  at  the  reading  of 
the  Bible  therein,  under  penalty  of  expulsion  from  school  in  case  of  their  non- 
attendance  at  such  reading.  The  appellants  allege  that  the  regulation  was 
directed  to  be  so  enforced,  against  their  protest,  and  that  of  many  of  the  scholars, 
and  of  the  parents  or  guardians  of  those  scholars. 

The  appellants  in  the  second  appeal  complain  of  the  threatened  expulsion, 
in  some  instances,  of  their  children  from  the  first  ward  school,  because  the  appel- 
lants forbade  their  attendance  upon  the  religious  exercise  in  question,  and  in 
other  instances  they  show  that  their  children  were  actually  expelled  from  that 
school,  for  refusing,  in  obedience  to  the  direction  of  their  parents,  to  attend 
school  when  the  Bible  was  read. 

The  third  appeal  is  by  a  resident  of  the  second  ward  of  Long  Island  City, 
who  alleges  that  his  child  was  expelled  from  the  school  of  that  ward  for  refusing, 
under  the  direction  of  the  appellant,  to  attend  at  the  reading  of  the  Bible  therein. 
In  this  case  an  attempt  has  been  made  to  show  that  the  pupil  left  the  school 
voluntarily,  but  it  is  manifest,  from  the  evidence,  that  the  enforcement  of  the 
regulation  in  question  caused  his  withdrawal,  and  that  he  was  refused  permis- 
sion to  remain  in  the  school,  except  upon  the  condition  of  compliance  with  the 
requirements  of  the  rule  by  attending  when  the  Bible  was  read. 

The  question  presented  by  these  cases  is  not  a  new  one  in  the  history  of 
the  public  schools  of  this  State.  The  claim  by  trustees,  of  the  right  to  enforce 
the  attendance  of  pupils  in  the  public  schools  upon  religious  exercises  therein, 
has  been  frequently  passed  upon  in  this  Department  by  my  predecessors  in  otfice 
and  by  myself,  and  it  has  uniformly  been  held  that  no  such  right  legally  existed. 
The  following  observation?  in  a  former  decision  rendered  by  me  are  equally 
applicable  here:  "The  object  of  the  common  school  system  of  this  State  is  to 
afford  means  of  secular  instruction  to  all  children  over  5  and  under  21  years  of 
age,  resident  therein.  For  their  religious  training  the  State  does  not  provide, 
and  with  it  does  not  interfere.  The  advantages  of  the  schools  are  to  be  free  to 
them  all  alike.  No  distinction  is  to  made  between  Christians,  whether  Protest- 
ants or  Catholics,  and  the  consciences  of  none  can  be  legally  violatetl.  There  is 
no  authority  in  the  law  to  use.  as  a  matter  of  right,  any  portion  of  the  regular 
school  hours  in  conducting  any  religious  exercise,  at  which  the  attendance  of 
the  scholars  is  made  compulsory.  On  the  other  hand,  there  is  nothing  to  prevent 
the  reading  of  the  Scriptures  or  the  performance  of  other  religious  exercises 
Tjy  the  teacher  in  the  presence  of  such  of  the  scholars  as. may  attend  voluntarily, 
or  by  the  direction  of  their  parents  or  guardians,  if  it  be  done  before  the  hour 
fixed  for  the  opening  of  the  school  or  after  the  dismissal  of  the  school.     These 


53^  TIIK    UNIVERSITY    OF   THE    STATE   OF    NEW   YORK 

principles  were  set  forth  by  Secretary  Spencer  more  than  thirty  years  ago.  In 
a  decision  made  by  that  able  othcer  in  the  year  1839,  in  which  he  sustained  the 
action  of  the  trustees  of  a  school  district  in  permitting  a  teacher  to  have  prayers 
in  the  school,  on  condition  that  they  should  be  had  previous  to  school  hours,  the 
following  remarks  occur:  "  Both  parties  have  rights;  the  one  to  bring  up  their 
children  in  the  practice  of  publicly  thanking  their  Creator  for  his  protection, 
and  invoke  his  blessing;  the  other,  of  declining,  in  behalf  of  their  children,  the 
religious  services  of  any  person  in  whose  creed  they  may  not  concur,  or  for  other 
reasons  satisfactory  to  themselves.  These  rights  are  reciprocal,  and  should  be 
protected  equally,  and  neither  should  interfere  with  the  other.  Those  who  desire 
that  their  chiUlren  should  engage  in  public  prayer  have  no  right  to  compel  other 
children  to  unite  in  the  exercises  against  the  wishes  of  their  parents." 

Neither  the  common  school  system,  nor  any  other  social  system  can  be 
maintained,  unless  the  conscientious  views  of  all  are  equally  respected.  The 
simple  rule,  so  to  exercise  your  own  rights  as  not  to  infringe  on  those  of  others, 
will  preserve  equal  justice  among  all,  promote  harmony,  and  insure  success  to 
our  schools"  (Code  of  Public  Instruction,  p.  355 j.  The  same  view  of  this 
subject  was  expressed  by  my  immediate  predecessor.  The  late  Hon.  V.  M. 
Rice,  in  a  decision  rendered  by  him  February  5,  1866,  said:  "  A  teacher  has  no 
right  to  consume  any  portion  of  the  regular  school  hours  in  conducting  religious 
exercises,  especially  where  objection  is  raised.  The  principle  is  this:  Common 
schools  are  supported  and  established  for  the  purpose  of  imparting  instruction 
in  the  common  English  branches ;  religious  instruction  forms  no  part  of  the 
course.  The  proper  places  in  which  to  receive  such  instruction  are  churches  and 
Sunday  schools,  of  which  there  is  usually  a  sufficient  number  in  every  district. 
The  money  to  support  schools  comes  from  the  people  at  large,  irrespective  of 
sect  or  denomination.  Consequently,  instruction  of  a  sectarian  or  religious 
denominational  character  must  be  avoided,  and  teachers  must  confine  themselves, 
during  school  hours,  to  their  legitimate  and  proper  duties."  (Code  of  Public 
Instruction,  p.  349.) 

The  action  of  the  board  of  education  of  Long  Island  City,  in  directing  the 
reading  of  a  portion  of  the  Bible  as  an  opening  exercise  in  the  schools  under 
their  charge,  durintj;  school  hours,  and  in  excluding  pupils  from  those  schools, 
or  any  of  them,  on  the  ground  of  declining  to  be  present  at  the  reading,  has  been 
without  warrant  of  law. 

The  appeals  must  therefore  be,  and  are  hereby  sustained.  The  proper  course 
for  those  who  are  dissatified  with  the  rule  established  by  the  decisions  above 
cited,  and  who  desire  a  different  or  more  explicit  regulation  on  the  subject,  is 
to  apply  to  the  Legislature  for  such  enactments  as  will  meet  their  views.  Con- 
tentions about  the  construction  of  general  principles  of  law  might  thus  be 
obviated  by  plain  statutory  provisions. 

All  persons,  otherwise  entitled  to  attend  any  of  the  schools  of  Long  Island 
City,  and  who  have  been  and  are  excluded  therefrom  for  a  refusal  to  be  present 
at  the  reading  of  the  Bible  therein,  have  had  the  right  to  be  admitted  to  such 
schools  upon  the  same  footing  as  other  pupils  rightfully  attending  them;  and  i<- 


JUDICIAL  decisions:  religious  services  531 

is,  therefore,  the  duty  of  the  said  board  of  education  to  see  that  the  right  of  all 
such  persons,  in  that  respect,  is  accorded  to  them. 

This  decision  must  be  liled  with  the  clerk  of  the  board  of  education  of  Long 
Island  City,  and  notice  thereof  must  be  given  by  him  to  the  members  of  the 
board,  and  to  the  appellants  in  the  appeals  above,  numbered  2  and  3,  with 
opportunity  to  examine  the  same. 


In  the  matter  of  the  application   of  the  board  of   education   of   union   free   school   district 

no.  4,  of  Orangetown,  Rockland  county. 
Decided  May  27,   1884 

Ruggles,  Superintendent 

This  application  represents  that  the  above-named  board  of  education  "  wish 
to  move  unerringly,  but  firmly,  in  the  matter  of  sustaining  the  reading  of 
Scripture  and  prayer  as  a  part  of  the  exercises  in  opening  the  daily  sessions  of 
our  public  school,"  that  the  board  has  "  not  required  the  children  of  non- 
protestant  families  to  participate  in  repeating  Scripture  or  the  Lord's  prayer, 
but  have  simply  required  them  to  behave  with  decorum,"  that  a  number  of 
Catholic  families  "  ask  that  their  children  be  allowed  to  remain  outside  until 
the  devotional  exercises  are  concluded,"  and  that  "  this  interference  causes  much 
disorder  outside  of  the  room,  and  the  subsequent  entrance  of  these  pupils  causes 
a  loss  of  time  and  disturbance  to  class  work." 

I  have  carefully  examined  the  special  act  under  which  this  school  was 
organized  to  see  if  there  was  any  provision  therein  which  might  be  held  to 
authorize  any  other  or  different  rule  for  the  government  of  this  particular  school, 
in  the  respect  in  question,  than  that  which  applies  to  the  public  schools  organized 
under  the  general  law.    I  do  not  find  any  such  exceptional  provision. 

By  the  Constitution  of  this  State  all  people,  in  respect  to  the  free  exercise 
and  enjoyment  of  religious  profession  and  worship,  stand  upon  a  footing  of 
absolute  equality.  Interference  therewith,  in  the  way  of  discrimination  or  pref- 
erence, even  by  legislative  enactment,  is,  by  the  express  words  of  that  instru- 
ment, prohibited. 

Under  our  public  school  system,  within  the  legal  limitations  of  age  and 
residence,  instruction  is  free.  The  material  resources  necessary  for  the  mainte- 
nance of  this  immense  and  complicated  system,  are  drawn  at  large  from  a  popu- 
lation characterized  by  dissimilar  religious  beliefs,  observances,  modes  of  worship 
and  preferences.  With  such  a  public  furnishing  the  money  to  support  the  schools, 
supplying  them  with  the  children  in  attendance,  and  having  equal  rights  to 
the  full  and  equal  enjoyment  of  all  the  benefits  of  the  schools,  if  it  were  possible 
to  devise  some  limited  measure  of  religious  instruction  for  adoption  in  the 
schools,  upon  which  all  these  diverse  classes  and  sects  could  harmonize,  it  would 
be- a  gratifying  result. 

But  this  is  manifestlv  impracticable  and  impossible.  The  only  alterative, 
therefore,  to  preserve  the 'benefits  of  the  constitutional  guaranties,  in  letter  and 


532  THE   UXIVERSITY   OF  THE   STATE   OF   NEW   YORK 

spirit,  and  to  secure  to  all  absolute  equality  of  right  in  matter  of  religious  pre- 
dilection, must  be,  however  reluctantly  the  conclusion  is  arriveil  at,  to  exclude 
religious  instruction  and  exercises  from  the  public  schools  during  school  hours. 

This  conclusion  involves  the  enunciation  of  no  new  principle. 
An  examination  of  the  records  in  this  Department  shows  a  uniform  series 
of  decisions  by  my  predecessors,  extending  over  a  period  of  more  than  forty 
years,  in  substantial  conformity  with  the  views  above  expressed. 

In  1838,  Hon.  John  A.  Dix,  then  Superintendent  of  Common  Schools, 
referring  to  a  former  decision  in  1837,  says:  (Orders  and  Decisions,  6:391) 
"I  have  heretofore  decided  that  a  teacher  might  open  his  school  with  prayer, 
provided  he  did  not  encroach  upon  the  hours  allotted  to  instruction,  and  pro- 
vided that  the  attendance  of  the  scholars  was  not  exacted  as  a  matter  of  school 
discipline."  This  was  a  case  in  which  the  teacher  was  in  the  habit  of  attending 
at  the  schoolhouse  at  15  minutes  before  9  in  the  morning  (9  o'clock  being  the 
hour  for  opening  the  school),  and  devoting  the  intermediate  time  to  religious 
exercises. 

In  1839,  Superintendent  John  C.  Spencer,  having  occasion  to  examine  and 
pass  upon  the  question  (Orders  and  Decisions,  8:101)  says:  "Prayers  can  not 
form  any  part  of  the  school  exercises  or  be  regulated  by  the  school  discipline. 
If  had  at  all  they  should  be  had  before  the  hour  of  9  o'clock,  the  usual  hour  of 
commencing  school  in  the  morning,  and  after  5  in  the  afternoon. 

.  .  .  Both  parties  have  rights,  and  it  is  only  by  a  mutual  and  reciprocal 
regard  by  each  to  the  rights  of  the  other,  that  peace  can  be  maintained  or  a 
school  can  flourish.  The  teacher  may  assemble  in  his  schoolroom  before  9  o'clock 
the  children  of  those  parents  who  desire  him  to  conduct  religious  exercises  for 
them,  and  the  children  of  those  who  object  to  the  practice  will  be  allowed  to 
retire  or  absent  themselves  from  the  room.  If  they  persist  in  remaining,  they 
must  conduct  themselves  with  decorum  and  propriety  becoming  the  occasion.  If 
they  do  not  so  conduct,  they  may  be  dealt  with  as  intruders." 

On  another  occasion  during  the  same  year  (Orders  and  Decisions,  8:87) 
he  says :  "  Neither  the  common  school  system,  nor  any  other  social  system  can 
be  maintained,  unless  the  conscientious  views  of  all  are  respected.  The  simple 
rule,  so  to  exercise  your  own  rights  as  not  to  infringe  on  those  of  others,  will 
preserve  equal  justice  among  all,  promote  harmony,  and  insure  success  to  our 
schools." 

The  principles  laid  down  in  these  early  decisions  have  been  followed  by 
every  one  of  my  predecessors  in  office,  no  distinction  having  been  made  between 
Scripture  reading  and  prayers,  but  each  having  been  held,  in  separate  and  distinct 
appeals,  to  constitute  no  legitimate  part  of  the  business  of  the  public  schools. 
They  will  be  my  guide  and  govern  my  action  in  all  cases  of  Hke  nature  which 
may  come  officially  before  me. 

In  the  particular  case  now  under  consideration,  with  these  principles  in  view 
and  a  disposition  to  carry  them  out  fairly,  and  to  respect  the  rights  and  con- 
scientious opinions  of  all,  the  board  of  education  will,  I  think,  have  no  difficulty 
in  avoiding  further  contention  and  securing  harmony  in  the  school. 


RELIGIOUS   GARB 

3520 

In  the  matter  of  the  appeal  of  Leander  Colt  v.  the  board  of  education  of  union 
free  school  district  no.  7,  of  the  village  of  Suspension  Bridge,  town  of 
Niagara,  Niagara  county. 

Wearing  an  unusual  and  distinctive  garb,  one  used  exclusively  by  members  of  a  certain 
religious  sect,  and  for  the  purpose  of  indicating  membershii^  in  that  sect,  by  public 
school  teachers,  constitutes  a  sectarian  influence  prejudicial  to  the  interests  of  the 
public  school  system  and  must  not  be  persisted  in. 

Pupils  in  a  common  school  should  not  be  permitted  to  address  the  teachers  by  an  assumed 
religious  name,  as  Sister  Mary  or  Sister  Martha,  but  by  their  family  name  with  the 
prefix,  Mr,  Mrs  or  Miss,  as  the  case  may  be. 

Decided  March  24,  1887 

Messrs  Tucker  &  Gary,  attorney  for  appellant 
Hon,  W.  Caryl  Ely,  attorney  for  respondents 

Draper,  Superintendent 

The  circumstances  out  of  which  this  appeal  has  arisen  are  as  follows:  St 
Raphael's  church,  of  the  village  of  Suspension  Bridge,  after  having  maintained 
a  school  in  connection  with  said  church  at  their  own  expense  for  twenty  years, 
presented  a  petition  to  the  board  of  education  of  union  free  school  district  no.  7, 
upon  the  3d  day  of  October  1885,  in  which  they  requested  said  board  to  take 
said  school  under  its  care  and  maintenance.  It  was  also  requested,  in  the 
language  of  the  petition,  "  that  we  may  be  permitted  to  retain  our  sisters  for 
teachers  provided  they  be  found  competent."  The  request  of  the  petitioners  was 
granted  at  a  meeting  of  the  board  held  October  8,  1885,  since  which  time  the 
school  has  been  under  the  care  and  direction  of  the  board  and  has  been  supported 
by  public  moneys.  On  the  loth  of  November  1885,  the  board  entered  into  a 
written  agreement  with  the  trustees  of  St  Raphael's  church,  by  the  terms  of 
which,  the  board  leased  from  the  trustees  of  the  church  the  premises  known 
as  "  St  Raphael's  school  lot,"  together  with  the  schoolhouse,  furniture,  fixtures, 
stoves  and  pipe  and  all  school  appliances,  for  the  term  of  one  year,  at  the 
nominal  rent  of  one  dollar  per  year  and  also  agreed  that,  during  the  term  of 
the  lease,  they  would  "  cause  one  of  the  schools  of  said  free  school  district  no.  7 
to  be  kept  in  operation  in  said  schoolhouse  building  and  keep  employed  as 
teachers  therein  of  such  school  at  the  same  wages  as  are  paid  to  other  teachers 
in  schools  of  said  district,  of  the  same  grade,  three  competent  teachers  of  the 
class  commonly  known  as  "  sisters."  An  appeal  was  taken  to  this  Department 
-from  the  action  of  the  board  in  entering  into  this  agreement,  and  the  decision  of 
the  acting  superintendent    (ISIorrison)    sustained  the  appeal  and  held  that  the 

[533I 


534  THE    UNINKKSITV    OF   THE   STATE   OF    NEW    VORK 

agreement  to  keep  three  teachers  of  the  class  called  "  sisters  "  was  a  discrimina- 
tion in  favor  of  a  particular  class,  which  was  contrary  to  the  spirit  of  the  school 
laws  and  against  iniblic  policy,  and,  consequently,  void.  After  such  decision 
and  on  the  ist  day  of  February  1886,  the  board  entered  into  another  written 
agreement  with  the  trustees  of  the  church,  whereby  they  leased  the  property  for 
the  purposes  of  a  public  school  for  the  term  of  five  years  from  the  nth  day  of 
January  1886,  at  the  nominal  rent  of  one  dollar  per  year. 

The  appellant  now  alleges,  that  the  school  has  since  been  maintained  by  the 
board  of  education,  at  public  expense,  under  about  the  same  management,  and 
with  substantially  the  same  pupils,  as  before  the  leasing  of  the  property  by  the 
board ;  that  it  has  been  taught  by  Sisters  of  Charity  of  the  Roman  Catholic 
Church,  who  wear,  at  all  times,  the  distinctive  garb  of  their  order,  with  crucifix 
and  rosary  ;  that  it  is  attended  exclusively  by  children  of  Roman  Catholic  parents  ; 
that  the  authorities  of  tliat  church  require  the  members  of  their  church  to  send 
their  children  to  this  particular  school,  and  that  the  school  is  opened  and  closed 
by  religious  exercises  in  conformity  with  the  usages  of  that  church.  The  appel- 
lant alleges,  also,  that  this  school  is  not  a  component  part  of  the  school  system 
of  the  district,  and  particularly  says  that  the  pupils  in  this  school  are  not  classified 
and  graded  according  to  their  different  degrees  of  proficiency  as  is  done  in  the 
other  schools,  and  as  their  educational  interests  require.  He  alleges,  also,  that 
the  leasing  of  St  Raphael's  school  building  is  an  unnecessary  expense  and  to 
his  injury'  as  a  taxpayer,  because  the  district  school  building  is  sufficiently  com- 
modious to  accommodate  all  the  pui)ils  in  both  schools,  and  that  one  additional 
teacher  in  the  district  .school  would  provide  amply  for  the  pupils  of  both  schools 
combined.  He  objects,  moreover,  to  the  presence  in  the  schoolroom  of  Sisters 
of  Charity,  wearing  the  dress  of  that  order,  on  the  ground  that  these  things  tend 
to  inculcate  in  the  minds  of  the  children  the  faith  and  doctrines  of  the  Roman 
Catholic  Church,  and  insists  that  the  employment  of  such  persons  as  teachers 
affords  extra  privileges  to  that  church  and  constitutes  an  unlawful  discrimina- 
tion or  preference  to  that  religion,  in  violation  of  the  well-settled  laws  governing 
the  public  school  system  and  of  the  spirit  of  article  i,  section  3,  of  the  Constitu- 
tion of  the  State. 

It  is  shown  that  the  appellant  presented  a  petition,  setting  forth  the  above- 
mentioned  grounds  of  his  complaint,  and  demanding  that,  in  consequence  of  them, 
the  school  should  be  abandoned,  to  the  board  of  education,  at  a  meeting  held  on 
the  4th  day  of  June  1886.  but  that  the  board  laid  the  communication  upon  the 
table  and  refused  to  consider  the  matter.  From  such  refusal  the  appellant  brings 
this  appeal,  and  asks  that  the  board  be  overruled  and  the  prayer  of  his  petition 
be  granted. 

The  board  of  education,  in  their  answer,  admit  that  St  Raphael's  Roman 
Catholic  Church,  in  the  village  of  Suspension  Bridge,  has,  for  some  years,  main- 
tained a  private  school  in  connection  with  said  church,  and  that  said  church 
presented  a  petition  to  the  board  requesting  it  to  take  said  school  under  its 
charge  and  maintenance,  and  that  the  two  written  agreements  relative  to  the 


JUDICIAL  decisions:  religious  garb 


53; 


leasing  of  the  school  property  were  made  as  alleged,  and  that,  since  making  the 
said  agreements,  the  board  has  maintained  a  school  in  the  leased  property,  which 
is  taught  by  three  duly  qualified  and  licensed  teachers.  They  say  that  they  are 
informed  that  said  teachers  "  are  members  of  some  religious  order  of  the  Roman 
Catholic.  Church,  but  are  not  Sisters  of  Charity;  and  that  the  garb,  dress  or 
habit  worn  by  said  teachers  consists  of  a  loose,  flowing  dress  of  black  serge,  with 
a  black  veil,  and  that  the  said  dress  conceals  from  view  all  portions  of  the  form 
of  said  teachers,  except  the  hands  and  head,  .  .  .  and  that  in  addition  to 
this,  is  worn  a  slight  girdle  about  the  waist  from  which  depend  a  cross  and 
beads,  which  hang  upon  the  folds  of  said  dress." 

The  board  says  that  the  school  maintained  in  the  leased  property  is  needed 
for  the  accommodation  of  the  pupils  of  the  district  and  that  it  is  cheaper  to  hire 
than  to  build;  that  the  capacity  of  the  district  school  building  is  inadequate;  that 
the  second  school  is  conducted  substantially  like  the  first  or  older  one ;  the  books 
used  and  the  rules  and  regulations  for  the  management  and  conduct  of  both 
schools  are  the  same.  They  say,  furthermore,  that  neither  of  the  religious  con- 
nections nor  the  religious  belief  of  the  teachers  have  been  the  subject  of  notice 
or  inquiry  by  the  board.  They  say  that  the  board  "  is  under  no  agreement, 
express  or  implied,  with  any  board,  body,  person  or  persons  to  employ  any  par- 
ticular person  or  persons,  or  members  of  any  particular  denomination  as  teachers 
in  said  school.  They  deny  that  the  school  is  opened  or  closed  with  religious 
exercises.  They  allege  broadly  that  their  entire  action  in  the  premises  has  been 
in  good  faith,  without  any  intention  of  discriminating  in  favor  of  any  religious 
creed  or  belief,  and  actuated  only  by  the  desire  to  accommodate  all  children  of 
school  age,  of  all  creeds  and  conditions,  in  the  enjoyment  of  the  benefits  of  the 
public  school  system." 

In  view  of  the  disputed  questions  of  fact  presented  by  the  appeal  and  answer, 
the  case  was  referred  to  the  school  commissioner  of  the  second  district  of 
Niagara  county  to  take  the  evidence  of  the  parties  and  their  witnesses  and  to 
allow  them  an  opportunity  to  cross-examine  each  other,  and  such  evidence  has 
been  returned  and  examined  with  care. 

From  the  allegations  and  admissions  of  the  parties  in  the  pleadings,  and 
from  the  evidence  taken  before  the  commissioner,  I  find  the  facts  of  the  case  to 
be  as  follows : 

1  St  Raphael's  Church,  at  Suspension  Bridge,  for  several  years  prior  to  Octo- 
ber 1885,  maintained  and  managed  a  private  and  sectarian  school  at  its  own 
expense. 

2  On  October  1885,  the  board  of  education  of  union  free  school  district 
no.  7,  of  the  village  of  Suspension  Bridge,  leased  this  school  property  at  a  nominal 
rental  value,  and  has  since  maintained  a  school  at  public  expense  in  said  property. 

3  A  written  lease,  dated  November  10,  1885.  was  executed  between  the 
board  and  the  trustees,  in  which,  among  other  things,  it  was  agreed  that  the 
board  should  maintain  a  public  school  in  the  property  and  should  keep  con- 
tinually employed  in  such  school  three  teachers  of  the  class  commonly  known  as 


536  THE   UNIVERSITY    OF   THE   STATE   OF   NEW   YORK 

"  sisters."  This  lease  was,  because  of  this  provision,  set  aside  upon  an  appeal 
to  this  Department.  On  the  1st  day  of  February  1886,  another  written  lease 
was  executed  between  the  parties,  by  which  the  property  was  leased  to  the  board 
for  five  years  at  a  nominal  consideration. 

4  The  school  accommodations  of  district  no.  7,  other  than  the  St  Raphael 
school  property,  were  not  sulticient  fur  the  convenience  of  the  pupils  of  both 
schools. 

5  Since  the  St  Raphael  school  has  been  in  charge  of  the  public  school 
authorities  it  has  been  continually  taught  by  three  duly  qualified  and  licensed 
teachers,  who  are  members  of  the  order  of  St  Joseph  of  the  Roman  Catholic 
Church.  Two  teachers,  who  served  up  to  September  1886,  then  resigned,  and 
two  others,  who  were  members  of  the  same  order,  were  appointed  in  their  place. 

6  The  teachers  of  the  school  wear  in  the  schoolroom  and  at  all  times,  in 
common  with  all  the  members  of  their  order,  black  serge  dresses,  hanging  loosely 
in  folds  about  the  person,  white  linen  coronets  and  black  veils  falling  down  to 
the  shoulders,  and  white  linen  capes.  Tied  about  the  waist  is  a  black  cord  and 
tassels,  to  which  are  attached  beads  and  a  crucifix. 

7  The  teachers  are  commonly  known  to  the  world  and  are  uniformly 
addressed  by  the  pupils  by  their  Christian  names,  with  the  prefix  of  "  Sister,"  as 
*•  Sister  Martha."  "  Sister  Marj',"  etc. 

8  No  question  is  raised  as  to  the  personal  character  or  intellectual  or  prac- 
tical qualifications  of  these  teachers.  Their  high  character  and  capabilities  are 
conceded. 

9  The  pupils  attending  the  St  Raphael  school  are  very  generally,  if  not 
exclusively,  of  Roman  Catholic  parentage. 

10  There  is  some  evidence  that  the  authorities  of  the  Roman  Catholic 
church  seek  to  have  the  members  of  that  church  send  their  children  to  this 
particular  school,  but  the  fact  is  not  established. 

11  It  is  shown  that  there  are  no  religious  ceremonies  or  exercises  held  in 
the  school  during  school  hours. 

Upon  this  state  of  facts,  the  appellant  asks  to  have  the  action  of  the  respond- 
ent in  taking  the  .St  Raphael  school  under  its  maintenance  and  supervision,  and 
in  refusing  to  discontinue  the  same  upon  demand,  set  aside  and  overruled. 

It  is  the  duty  of  the  people  of  every  school  district  to  provide  pubhc  school 
accommodations  for  all  the  children  of  school  age  in  the  district,  desiring  to 
attend  the  public  schools.  When  application  was  made  to  the  respondent  in  this 
case  to  take  the  St  Raphael  school  under  its  charge,  it  was  bound  to  take  the 
children  of  that  school  into  the  public  school  of  the  district,  if  there  were  accom- 
modations for  them  there,  and  if  not.  it  was  bound  to  go  to  the  extent  of  its 
lawful  authority  to  provide  accommodations  for  them.  The  statutes  confer 
authority  upon  boards  of  education,  or  trustees,  to  lease  propertv  for  school  pur- 
poses, and  as  the  fact  appears  that  there  were  not  accommodations  for  the  chil- 
dren of  the  St  Raphael  school  in  the  district  schoolhouse,  the  board  seems  to 
have   acted   within   its   lawful   authoritv   in   entering  into   the   lease   for  the   St 


JUDICIAL    DECISIONS  :    RELIGIOUS    GARB  537 


Raphael  school  property.  It  is  impossible  to  see  any  reason  why  the  taking  ot 
that  particular  property  and  the  maintenance  of  a  school  in  it,  was  not  a  proper 
exercise  of  the  lawful  authority  of  the  board.  If  the  owners  of  the  property 
found  themselves  unable  or  unwilling  to  continue  their  school  at  their  own 
expense,  and  were  desirous  of  leasing  the  property  to  the  bo^rd  at  a  nominal 
rent  upon  condition  that  the  board  would  maintain  a  public  school  therein,  I  see 
no  objection  to  the  arrangement. 

But  the  school  which  the  board  maintains  in  this  property  must  be,  in  all 
regards,  a  public  school.  Being  supported  by  general  taxation,  it  must  be  abso- 
lutely free  from  all  things  not  essential  to  the  purpose  for  which  it  is  m.aintained, 
namely,  the  general  education  of  its  pupils.  All  must  have  equal  and  common 
rights  in  it.  There  must  be  no  discrimination  in  favor  of  or  against  any  one. 
Nothing  must  be  done  in  it  or  about  it  to  which  any  interested  person  can 
reasonably  or  properly  object,  and  most  surely  must  this  be  so  concerning  mat- 
ters which  the  people  hold  so  sacred  as  their  religious  faith  and  opinions. 

The  appellant  here  particularly  objects  to  the  appointment  of  all  the 
teachers  in  the  school  from  one  religious  denomination  and  from  one  class  of 
persons  wathin  that  denomination,  and  to  the  fact  that  these  teachers  wear,  at 
all  times,  clothing  which  distinguishes  them  everywhere,  as  members  of  their 
particular  sect  or  order,  as  well  as  to  the  fact  that  these  teachers  are  known  to 
the  pupils  and  are  usually  addressed  in  school,  not  by  their  family  names,  but 
by  names  assumed  by  them  in  the  religious  order  of  which  they  are  members. 

A  board  of  education  has  no  right  to  discriminate  in  favor  of  any  religious 
denomination  in  the  appointment  of  teachers.  Inasmuch  as  the  board  assumed 
charge  of  and  continued  a  school  previously  in  existence,  it  ought  not  to  be  con- 
sidered reprehensible  to  have  continued  the  teachers  previously  employed  there, 
even  though  they  were  all  of  one  religious  order,  provided  they  were  properly 
qualified,  as  is  undisputed  in  this  case.  But  three  facts  appear  in  this  connec- 
tion, (a)  In  a  written  lease  of  the  St  Raphael  school  property  entered  mto 
between  the  board  and  the  church  trustees  prior  to  the  execution  of  the  lease 
now  in  force,  and  held  to  be  void  by  my  predecessor  in  office  (Supermtendent 
James  E  :^Iorrison),  it  was  agreed  that  the  board  should  contmually  keep 
employed  in  this  school  three  teachers  "of  the  class  commonly  known  as 
'sifters'"  (b)  The  three  teachers  first  employed  were  representatives  of  this 
class,  and  the  teachers  of  the  school  have  been  exclusively  confined  to  this  class 
U)  Durin-  the  time  the  school  has  been  under  the  charge  of  the  board,  two  of 
the  teacher's  have  resigned  and  their  places  have  been  filled  by  two  others  of  the 
same  class.  These  facts,  taken  together,  must  be  held  to  indicate  a  purpose  on 
the  part  of  the  board  to  discriminate  in  the  employment  of  teachers  m  tavor 
of  this  particular  class.  The  purpose  to  discriminate  would  not  be  so  manifest 
if  these  teachers  had  all  held  a  common  religious  faith  and  nothing  more  That 
-would  be  found  to  be  true  in  many  other  schools,  I  apprehend.  But  when  the 
facts  above  suggested  are  taken  in  connection  with  the  tact  that  the  class 
known  as  '  sisters'"  is  not  a  numerous  class,  it  is  impossible  to  arrive  at  any 


538  THE  uni\"i:ksitv  of  the  state  of  new  york 

other  conrlusion  than  that  the  board  has  intended  to  appoint  none  but  the  mem- 
bers of  this  particular  class  of  persons.  This  constitutes  a  discrimination  or 
reference,  which  is  in  violation  of  the  fundamental  law  of  the  State. 

I  have  given  the  question  raised  in  relation  to  the  dress  of  the  teachers  and 
the  names  by  which  they  are  known  among  the  pupils  very  full  consideration, 
and  have  arrived  at  the  conclusion  that  the  wearing  of  an  unusual  garb,  worn 
exclusively  by  members  of  one  religious  sect,  and  for  the  purpose  of  indicating 
membership  in  that  sect,  by  the  teachers  in  a  public  school,  constitutes  a 
sectarian  influence  which  ought  not  to  be  persisted  in.  The  same  may  be  said 
of  the  pupils  addressing  the  teachers  as  "  Sister  Mary,"  "  Sister  Martha,"  etc. 
The  conclusion  is  irresistible  that  these  things  may  constitute  a  much .  stronger 
sectarian  or  denominational  influence  over  the  minds  of  children  than  the  repeti- 
tion of  the  Lord's  prayer  or  the  reading  of  the  Scriptures  at  the  opening  of  the 
schools,  and  yet  these  things  have  been  prohibited,  whenever  objection  ha?  been 
oflfered  by  the  rulings  of  this  Department  from  the  earliest  days,  because  of 
the  purpose  enshrined  in  the  hearts  of  the  people  and  embedded  in  the  funda- 
mental law  of  the  State,  that  the  public  school  system  shall  be  kept  altogether 
free  from  matters  not  essential  to  its  primary  purpose  and  dangerous  to  its 
harmony  and  efficiency. 

In  view  of  the  conclusions  which  I  have  reached,  I  am  compelled  to  deny  the 
application  of  the  appellant  that  the  school  shall  be  abandoned,  but  to  direct  that 
the  respondent  require  that  the  teachers  shall  discontinue  the  use  in  the  school- 
room of  the  distinguishing  dress  of  the  religious  order  to  which  they  belong, 
and  shall  cause  the  pupils  to  address  them  by  their  family  names  with  the  prefix 
of  "  Miss,"  as  teachers  are  ordinarily  addressed. 

It  is  ordered  that  the  board  of  education  take  action  for  the  purpose  of 
carrying  the  above  direction  into  effect  within  fifteen  days  from  the  date  hereof, 
and  that  the  direction  be  fully  complied  with  within  thirty  days  from  said  date. 


4516 

In  the  matter  of  the  appeal  of  Fayette  B.  Durant  and  others  v.  board  of  educa- 
tion of  West  Troy  school  district. 

It  is  the  policy  of  the  school  law  that  each  of  the  school  districts  of  the  State  should 
become  the  owner  of  a  schoolhouse  or  houses  or  school  building  or  buildings,  either 
by  purchase  or  by  building,  upon  a  suitable  site  or  sites;  and  where  power  is  given 
to  lease  a  room  or  rooms,  it  is  only  for  a  limited  time  to  provide  for  an  emergency. 
When  in  a  school  district,  abundantly  able  to  provide  by  construction  or  purchase, 
sufficient  rooms  and  buildings  for  the  proper  accommodation  of  the  pupils,  the  school 
authorities  hire  rooms  in  a  parochial  school  building  in  which  to  maintain  a  public 
school,  with  the  right  of  the  control  of  such  rooms  only  during  the  school  hours  of 
each  day,  and  consenting  and  giving  to  the  lessors  complete  control  of  the  rooms  at  all 
other  times;  and  such  lease  is  continued  beyond  the  period  of  emergency  contemplated 
by  the  statute,  such  hiring  is  without  legal  authority  on  their  part. 


JUDICIAL  decisions:  religious  garb  539 

Where  the  teachers  in  the  public  school,  who  are  members  of  any  religious  sect  or  order, 
wear  the  distinctive  garb  or  dress  of  such  order,  it  is  the  duty  of  the  school  authorities 
to  require  such  teachers  to  discontinue,  while  in  the  public  schoolrooms  and  in  the 
performance  of  their  duties  as  teachers  therein,  the  wearing  of  such  dress  or  garb. 

Decided  November  25,  1896 

Ward  &  Cameron,  attorneys  for  appellants 
James  F.  Tracey,  attorney  for  respondents 

Skinner,  Superintendent 

The  appellants  in  the  above-entitled  matter,  Messrs  Durant.  Ross,  Covert, 
and  Hilton,  as  residents  and  qualified  voters  in  the  West  Troy  school  district, 
appeal  from  the  action  of  the  board  of  education  of  the  West  Troy  school  dis- 
trict, consisting  of  Messrs  Van  X'ranken,  Phelps,  Sabin,  Mace,  Neason,  McKee- 
ver,  McLeese  and  Ball,  in  leasing  for  school  purposes  rooms  in  a  building  known 
as  "  St  Bridget's  Parochial  School,"  the  property  of  St  Bridget's  Roman 
Catholic  Church,  during  school  hours  only,  and  at  the  nominal  rate  of  $1  per 
month,  the  church  authorities  to  furnish  fuel,  pay  the  fireman  and  janitor,  and 
maintain  therein  a  school  of  said  district,  and  to  employ  eight  persons  as  teachers 
in  such  school,  all  of  whom  are  members  of  the  Roman  Catholic  Church,  and 
six  of  whom  are  of  the  class  known  as  "  Sisters,"  residing  in  St  Joseph's  Con- 
vent. These  sisters  dress  in  a  garb  peculiar  to  their  religious  sect  or  order,  and 
are  usually  addressed  in  school  by  the  names  assumed  by  them  in  the  religious 
order  of  which  they  are  members,  prefixed  by  the  term  "  Sister." 

The  appellants  allege  that  by  reason  of  the  action  of  said  board  of  education, 
the  school  is  wholly  or  partly  under  the  control  or  direction  of  a  religious  secta- 
rian denomination;  that  denominational  doctrines,  or  tenets,  are  taught  therein, 
and  that  by  the  reason  of  the  sectarian  character  of  the  school  many  parents 
residing  within  the  district  object  to  sending  their  children  thereto. 

The  appellants  ask  that  the  action  of  the  board  of  education  in  leasing  said 
school  rooms  be  annulled  and  set  aside;  that  the  contracts  with  the  teachers  be 
annulled  and  set  aside,  and  that  the  board  of  education  be  instructed  to  provide 
a  suitable  building  or  rooms  for  school  purposes,  if  the  public  school  buildings 
now  owned  by  the  district  are  inadequate,  and  to  employ  duly  qualified  teachers 
to  teach  the  school,  irrespective  of  any  religious  denomination,  order  or  sect,  to 
which  they  belong,  and  that  the  teachers  be  prohibited  from  teaching  any  denomi- 
national doctrines  or  tenets  in  the  school,  and  for  such  other  or  further  relief 
as  may  be  proper  in  the  premises. 

The  members  of  said  board  of  education,  with  the  exception  of  Mr  Ball, 
have  joined  in  an  answer  to  the  appeal,  in  which  they  give  their  statements  as 
to  the  leasing  of  the  rooms,  the  contracts  with  the  teachers,  and  the  charges  of 
sectarian  influences,  with  denials,  either  upon  information  and  belief,  or  posi- 
tively, of  certain  allegations  in  the  appeal. 

-  \  Mr  Ball,  in  an  affidavit  made  by  him  and  annexed  to  the  answer,  alleges  that 
he  has  read  the  answer,  and  that  he  concurs  in  the  statement  of  facts  as  to  all 
past  transactions  of  the  board  contained  therein,  but  is  unable  to  concur  in  the 


540  THE   UNIVERSITY   OF   THE   STATE   OF   >:E\V   YORK 

conclusions  thereof,  as  to  sectarian  iniluences,  and  for  that  reason  refuses  to 
sign  or  verify  the  answer. 

To  the  answer  of  the  respondents  the  appellants  have  filed  a  reply  contain- 
ing statements  controverting  certain  allegations  in  the  answer,  and  stating  cer- 
tain matters  relative  to  the  establishment  of  union  free  school  district  no.  i  in 
West  Troy,  all  of  which  occurred  prior  to  the  election  of  the  respondents  as 
members  of  said  board  of  education,  and  are  not  relevant  to  the  action  of  the 
board  complained  of  in  the  appeal. 

It  is  contended  by  the  aj)pcllants  in  the  reply,  in  substance,  that  the  public 
school  buildings  in  the  district  are  of  sufficient  capacity  to  accommodaie  the 
scholars  attending  school,  provided  they  are  put  in  proper  condition  to  receive 
pupils  applying  for  admission,  and  such  pupils  not  residing  in  the  first  ward 
are  required  to  attend  the  schools  in  those  portions  of  the  district  in  which  they 
reside. 

Annexed  to  the  reply  are  the  affidavits  of  twenty-five  persons,  residents  of 
said  West  Troy  school  district,  who  are  the  parents  of,  or  stand  in  parental 
relations  to,  in  the  aggregate,  fifty-two  children  of  school  age,  in  which  they 
severally  allege  that,  while  they  have  no  personal  knowledge  of  religious  doc- 
trines being  actually  taught  as  part  of  the  studies  in  the  school  maintained  in  St 
Bridget's  Parochial  School  building,  the  sectarian  character  of  the  school  is  so 
well  known  and  denominational  influences  in  the  school  are  so  great  that  they 
are  unwilling  to  submit  tlieir  children  to  such  influences  while  attending  school, 
and  for  that  reason  would  not  allow  their  children  to  attend  the  school. 

A  rejoinder  to  the  reply  has  been  filed,  in  which  all  of  the  members  of  the 
board  of  education  join,  excepting  Mr  Ball,  who,  in  his  affidavit  annexed  to  the 
rejoinder,  states  that  he  prefers  not  to  sign  the  same  for  the  same  reasons  sub- 
stantially as  stated  in  his  affidavit  annexed  to  the  answer,  and  for  the  further 
reason  that  he  believes  the  capacity  of  the  public  school  buildings  in  the  first 
ward  is  conservatively  stated  in  the  reply  of  the  appellants.  ^Ir  Ball,  one  of 
the  members  of  the  board  of  education,  has  filed  a  separate  affidavit  relative  to 
the  capacity  of  said  public  school  buildings. 

The  following  facts  are  admitted : 

That  by  chapter  88 r  of  the  Laws  of  1895  the  territory  embraced  in  what, 
on  February  i,  1895,  constituted  union  free  school  district  no.  i,  and  school  dis- 
tricts numbers  2,  9  and  20  of  the  town  of  Watervliet,  and  that  portion  of  school 
district  no.  22,  town  of  Waten-liet,  lying  west  of  the  track  of  the  main  line  of 
the  Delaware  and  Hudson  Canal  Company's  Railroad  was,  from  and  after  the 
organization  of  the  board  of  education  provided  for  in  said  chapter,  consoli- 
dated into  one  school  district  to  be  known  as  the  "  West  Troy  school  district." 

That  the  public  schools  of  said  West  Troy  school  district  shall  be  under 
the  exclusive  charge  of  eight  school  commissioners  to  be  chosen  as  in  said  chap- 
ter provided,  who  were  constituted  a  body  corporate  under  the  name  of  "The 
board  of  education  of  the  West  Troy  school  district." 

That  on  the  first  Tuesday  of  August  1895,  at  an  election  to  be  held  in  the 


JUDICIAL    DECISIONS  :    RELIGIOUS    GARB  54I 

aforesaid  districts,  eight  school  commissioners  were  to  be  elected  or  appointed 
as  in  such  chapter  provided,  and  at  such  election  Messrs  Van  Vranken,  Phelps, 
Sabin,  Mace,  Neason,  ]\IcKeever,  AIcLeese  and  Ball  were  elected  as  the  board 
of  education  of  the  district,  and  are  acting  as  such. 

That  said  board  has  power  to  appoint  a  superintendent  of  schools;  to  raise 
by  tax  such  sums  as  it  may  determine  necessary  and  proper  (not,  however,  more 
than  two  and  one-half  times  the  amount  of  school  moneys  apportioned  to  the 
district  or  the  consolidated  districts  composing  said  district  for  the  previous  year, 
except  as  thereinafter  provided),  for  the  purposes,  among  others,  to  purchase, 
lease  or  improve  sites  for  school  purposes;  to  build,  purchase,  lease,  alter  and 
repair  schoolhouses,  outhouses  and  appurtenances ;  but  the  board,  whenever  in 
its  judgment  a  greater  sum  will  be  required  in  any  one  year  for  such  purposes 
than  it  is  authorized  to  raise,  as  hereinbefore  stated,  is  authorized  to  call  a 
special  meeting  of  the  qualified  voters  of  the  district  to  consider  the  proposition 
to  raise  such  additional  sum. 

That  said  board  has  the  power  and  it  is  its  duty  to  organize,  establish  and 
maintain  such  and  so  many  schools  in  said  school  district,  including  the  common 
schools  now  existing  therein,  as  it  shall  deem  requisite  and  expedient,  and  to 
alter  and  discontinue  the  same;  to  purchase  and  hire  schoolhouses  and  rooms, 
lots  or  sites  for  schoolhouses,  and  to  fence  and  improve  them;  upon  the  lots 
and  sites  owned  by  the  board  of  education,  to  build,  enlarge,  alter,  improve  and 
repair  schoolhouses,  outhouses  and  appurtenances  as  it  may  deem  expedient ;  to 
have  the  custody  and  safe-keeping  of  the  schoolhouse  and  all  the  school  prop- 
erty belonging  to  the  district,  and  to  see  that  the  regulations  of  the  board  in 
relation  thereto  be  observed;  to  contract  with  and  employ  all  teachers  in  the 
schools  and  for  sufficient  cause  to  remove  them;  to  have  in  all  respects  the 
superintendence,  supervision  and  management  of  the  schools  in  the  district; 
.  .  .  from  time  to  time  to  adopt,  alter,  modify  and  repeal,  as  it  may  deem 
expedient,  rules  and  regulations  for  the  organization,  government  and  instruc- 
tion of  the  schools,  and  for  the  reception  of  pupils  and  their  transfer  from  one 
class  to  another  or  from  one  school  to  another,  and  generally  for  their  good  order, 
prosperity  and  utility.  By  said  chapter  88 1  it  is  further  enacted  that  nothing 
therein  shall  be  construed  to  limit,  restrain  or  annul  the  powers  of  the  State 
Superintendent  of  Public  Instruction ;  that  in  all  matters  of  dispute  which  shall 
be  referred  to  him  by  appeal  and  which  shall  arise  under  and  by  virtue  of  such 
act  or  under  and  by  virtue  of  any  other  act  which  is  now  or  shall  hereafter  be 
applicable  to  the  schools,  school  officers  or  school  property  of  or  in  said  district, 
his  decisions  or  orders  shall  be  final  and  binding. 

That  on  the  first  Tuesday  of  August  1895,  upon  a  parcel  of  land  situate  in 
the  first  ward  of  West  Troy,  and  in  former  union  free  school  district  no.  i.  and 
within  said  West  Trov  school  district,  which  land  is  bounded  on  the  north  by  an 
alley,  on  the  east  bv  Fourth  avenue,  on  the  south  by  Seventh  street  and  on  the 
litest' by  Fifth  avenUe.  there  were  three  buildings  —  one  known  as  St  Joseph's 
Convent,   one   as   St   Bridget's   Roman   Catholic   Church,   and   the   third   as    St 


54-  THE    UNIVERSITY    OF   THE    STATE    OF    N'EW    YORK 

Bridget's  Parochial  School.  That  said  third  building  was  erected  in  or  about  the 
year  iS86,  and  is  owned  by  the  St  Bridget's  Roman  Catholic  Church,  having  over 
the  front  entrance  on  Fifth  avenue  a  tablet  with  the  inscription  "  St  Bridget's 
Parochial  School,"  and  the  building  is  surmounted  by  a  large  gilt  cross  similar 
to  the  one  on  St  Bridget's  Church.  That  after  the  completion  of  this  building 
the  ofticers  of  St  Bridget's  Roman  Catholic  Church  conducted  a  parochial  school 
therein,  and  during  the  school  year  of  1894-95  the  board  of  education  of  former 
union  free  school  district  no.  i  leased  certain  rooms  in  the  building  in  which  a 
portion  of  the  schools  of  the  district  were  maintained. 

That  at  a  meeting  of  the  board  of  education  of  said  West  Troy  school 
district,  held  on  August  10,  1895,  an  offer  in  writing  was  received  from  the 
trustees  of  St  Bridget's  Roman  Catholic  Church  to  lease  for  one  year  to  the  West 
Troy  school  district  the  schoolrooms  in  the  building  at  the  corner  of  Fifth 
avenue  and  Seventh  street  (St  Bridget's  Parochial  School  building),  the  board 
to  have  control  of  all  schoolrooms  during  school  hours ;  the  said  church  officers 
to  furnish  fuel  and  pay  the  fireman  and  janitor;  and  the  consideration  to  be  paid 
being  one  dollar  per  month.  That  the  board  of  education,  at  this  meeting, 
unanimously  adopted  a  resolution  accepting  the  offer.  That  thereupon  at  the 
opening  of  the  schools  of  the  district  by  the  board  for  the  school  year  of  1895- 
96.  the  rooms  in  said  building  so  leased  were  occupied  and  used  during  the  school 
liours  of  each  school  day  in  which  the  schools  have  been  in  session  therein  for 
schools  conducted  by  the  teachers  employed  by  the  board.  That  no  religious 
emblems  are  displayed  in  the  schoolrooms. 

That  at  a  meeting  of  the  board  of  education  held  on  August  19,  1895,  a 
resolution  was  adopted  for  the  employment  of  eight  teachers  in  the  school  to  be 
conducted  in  the  rooms  so  leased,  and  such  teachers  designated,  all  of  whom 
were  members  of  the  Roman  Catholic  Church,  and  six  of  whom  resided  in  St 
Joseph's  Convent,  and  were  members  of  a  religious  order  or  sisterhood  of  said 
church,  namely:  Catharine  Walsh,  known  as  Sister  Leonie ;  Anna  G.  Conway, 
known  as  Sister  Gertrude;  Kate  Rice,  known  as  Sister  Ludwina;  Victoria 
Melinda,  known  as  Sister  Adelaide;  Hannah  Keefe,  known  as  Sister  Ignatia; 
Jennie  Higgins,  known  as  Sister  Dechautal. 

That  on  August  31,  1895,  each  of  the  six  teachers  named  received  a  contract, 
partly  printed  and  partly  written,  dated  that  day,  addressed  to  each,  respectively, 
by  name  at  St  Joseph's  Convent,  stating  that  at  a  meeting  of  the  board,  held 
August  19.  1895,  she  was  appointed  a  teacher  in  the  first  district  for  the  pro- 
bationary term  of  one  year,  at  a  salary  therein  named,  and  stating  further  the 
manner  in  which  the  payment  thereof  would  be  made,  and  providing  as  to  pay- 
ment in  the  event  of  a  resignation  by  her  for  sickness  or  any  other  good  cause ; 
and  containing  a  statement  that  it  was  to  be  distinctly  understood  that  the  appoint- 
ment was  for  one  year  only,  and  her  further  retention  was  wholly  within  the 
discrimination  of  the  board,  and  which  contract  was  signed  by  the  president  of 
the  board  and  the  superintendent  of  schools ;  that  upon  each  of  the  contracts  was 
the   following  form  of  acceptance :  "  To  the  board  of  education,   West  Troy, 


JUDICIAL    DECISIONS  :    RELIGIOUS    GARB  543 

N.  Y. :  I  hereby  accept  the  employment  mentioned  in  the  foregoing  contract 
upon  the  terms  stated  therein,  dated  August  31,  1895;"  and  which  acceptance 
was  duly  signed  by  each  of  the  six  persons  respectively  on  the  contract  addressed 
to  her. 

That  the  six  persons  named  under  these  contracts  entered  upon  their  employ- 
ment as  teachers  in  the  school  conducted  in  the  leased  rooms,  and  at  the  date 
of  the  submission  of  this  appeal  were  still  performing  the  duties  of  teachers 
therein  under  the  direction  of  the  board  of  education  and  under  the  rules  and 
regulations  adopted  by  the  board.  That  each  of  the  six  persons,  during  the 
school  hours  of  each  school  day,  in  the  performance  of  her  duties  as  such  teacher, 
respectively,  was  dressed  in  the  particular  garb  of  the  religious  order  or  sister- 
hood of  which  they  are  respectively  members. 

The  following  facts  are  established: 

That  in  August  1S95,  each  of  the  six  persons  so  employed  as  teachers  in 
the  schools  in  the  West  Troy  school  district  was  duly  qualified  to  teach  in  the 
public  schools  of  this  State  under  the  provisions  of  the  school  law  prescribing 
the  qualifications  necessarv  to  be  possessed  by  persons  to  qualify  them  to  teach 
in  the  schools  of  this  State. 

That  during  the  school  hours  in  which  the  school  conducted  in  said  leased 
rooms  has  been  held  no  prayers  have  been  said  and  no  religious  exercises  have 
been  held,  nor  any  denominational  tenets  or  doctrine  taught,  either  orally  or  by 
the  use  of  books. 

That  the  \\'est  Troy  school  district  has  a  superintendent  of  the  schools 
therein,  dulv  elected,  pursuant  to  the  provisions  of  chapter  881  of  the  Laws  of 

1895- 

That  it  is  the  belief  of  a  large  number  of  the  residents  of  that  part  of  the 
West  Troy  school  district  known  as  the  first  ward  that,  by  reason  of  the  leasing 
of  rooms  in  St  Bridget's  Parochial  School  building  for  school  hours  only,  and 
conducting  a  school  therein,  and  the  employment  of  eight  teachers,  all  of  whom 
are  members  of  the  Roman  Catholic  Church,  and  of  whom  six  are  members 
of  a  religious  order  or  sisterhood  of  said  church,  and  who  wear  the  distinctive 
garb  of  their  order,  that  denominational  tenets  or  doctrines  are  taught  in  the 
school,  and  hence  a  large  number  of  children  are  not  permitted  by  their  parents 
or  guardians  to  attend  thereat. 

The  first  question  presented  by  the  appeal  herein  for  my  consideration  and 
decision  is  in  relation  to  the  action  of  the  respondents  herein  in  the  leasing  of 
certain  rooms  in  St  Bridget's  Parochial  School  building  during  the  school  hours 
of  each  school  day  only,  and  maintaining  a  school  therein. 

The  respondents  state  as  grounds  for  such  leasing:  that  the  public  school 
buildings  in  the  West  Troy  school  district  do  not  furnish  adequate  accommoda- 
tions for  the  children  of  school  age  residing  therein,  or  for  such  children 
enrolled  therein,  or  for  the  average  number  of  children  attending  the  schools; 
that  more  schoolrooms  were  needed,  and  the  offer  to  lease  the  rooms  seemed  in 
the  interest  of  the  district;  that  the  board  of  education  of  union  free  school 


544  THE   UXIVEKSITY    OF   THE    STATE    OF    NEW   YORK 

district  no.  i  (a  part  of  the  present  West  Troy  school  district)  had,  for  the 
ten  years  prior,  leased  tlie  same  rooms;  that  no  other  suitable  building  in  the 
first  ward  could  be  leased,  and  to  build  and  furnish  a  new  school  building  would 
cost  the  district  many  thousand  dollars;  that  they  believe  that  they  and  their 
predecessors  in  union  free  school  district  no.  i  have  saved  the  taxpayers  of 
West  Troy  great  sums  of  money  by  annually  renewing  the  lease;  that  there 
were  two  school  buildings  owned  by  the  district  within  four  blocks  of  the  St 
Bridget  building,  so  that  no  scholar  was  without  a  choice  of  schools;  that  ihey 
have  express  authority  to  hire  schoolhouses  and  rooms  by  subdivision  2  of  sec- 
tion 21  of  chapter  881  of  the  Laws  of  1895,  and  cite  decision  no.  3520  of  Super- 
intendent Draper,  in  the  matter  of  St  Raphael's  Church,  decided  March  24,  1887. 

No  proofs  have  been  presented  to  me  herein  of  the  number  of  children  of 
school  age  residing  in  the  school  district,  nor  the  number  registered  in  the 
schools  therein  respectively,  nor  of  the  average  attendance  at  the  schools  respec- 
tively; nor  as  to  the  number  of  school  buildings  the  property  of  the  district,  and 
the  seating  capacity  of  each  building;  nor  whether  said  buildings  or  any  of  them 
would  properly  accommodate  more  children  than  now  attend  school  therein  if 
additional  seats  and  desks  were  provided. 

Xo  proof  has  been  presented  herein  as  to  the  aggregate  assessed  valuation 
of  the  district  upon  which  taxes  for  school  purposes  could  be  assessed. 

The  appellants  herein,  in  their  reply,  annex  thereto  a  map  showing  two 
school  buildings  in  ward  one  on  Sixth  street,  one  school  building  in  ward  two  on 
Fourteenth  street,  one  school  building  in  ward  three,  near  Sixteenth  street,  and 
one  school  building  in  ward  four,  near  Fourth  avenue.  An  affidavit  of  Mr  Ball, 
one  of  the  respondents,  alleges  that  he  has  personally  inspected  and  investigated 
as  to  the  capacity  of  the  public  school  buildings  of  said  district  in  the  fourth 
ward,  and  that  the  floor  space  of  the  buildings  is  sufficient  for  394  scholars  with- 
out more  crowding  than  in  the  other  public  school  buildings  in  the  district ;  that 
in  the  larger  building  with  four  rooms,  with  a  capacity  of  60  scholars  in  each 
room,  one  room  had  13  scholars  enrolled,  one  18,  one  45  and  one  36,  aggregating 
only  112,  with  a  capacity  for  240.  The  brief  for  the  appellants  states  that  in 
these  two  buildings,  with  a  capacity  for  394,  but  250  children  are  enrolled.  The 
respondents  allege  in  their  answer  that  the  daily  attendance  for  the  past  two 
years  in  the  school  in  the  St  Bridget's  School  building  was  351.  The  appellants 
allege  that  of  the  number  attending  the  school,  150  should  properly  be  required 
to  attend  at  the  other  school  buildings  in  the  district. 

From  the  statements  contained  in  the  papers  herein  it  is  not  clearly  estab- 
lished that  the  public  school  buildings,  the  property  of  the  school  district,  if  put 
in  proper  condition  in  August  1895,  were  not  sufficient  to  accommodate  all  the 
children  attending  school  in  the  district. 

It  has  been  uniformly  the  policy  of  this  Department  to  call  the  attention 
of  the  inhabitants  of  school  districts,  and  the  trustees  and  boards  of  education 
therein,  to  the  condition  and  improvement  of  schoolhouses  and  grounds,  to  the 
end  that  the  comfort  and  health  of  the  pupils  attending  may  be  promoted,  and 


JUDICIAL  decisions:  religious  c.arb  545 

the  best  educational  interests  secured.  It  is  the  poHcy  of  the  school  law  and  of 
this  Department  that  each  of  the  school  districts  of  the  State  should  become 
the  owner  of  a  sclioolhouse  or  school  buildinj;^,  either  by  purchase  or  by  build- 
ing, upon  a  suitable  site  or  sites. 

The  scliool  law  provides  that  in  the  levying  of  taxes  for  the  construction 
of  schoolhouses  such  taxes  may  be  collected  in  instalments,  extending  several 
years,  and  thus  obviate  any  heavy  burden  upon  the  taxpayers  of  such  districts. 
By  section  26  of  the  law  creating  the  West  Troy  school  district  it  is  enacted 
that  in  case  a  tax  shall  be  voted  to  erect  a  suitable  building  for  an  academy  or 
high  school  the  same  may  be  raised  in  instalments,  the  amovuits  of  which  and 
the  times  of  payment  of  which  to  be  left  optional  with  the  board  of  education  ; 
and  it  is  further  enacted  that  the  provisions  of  said  section  shall  extend  to  all 
amounts  required  for  building  schoolhouses  where  the  estimated  cost  exceeds 
$3000. 

It  was  the  duty  of  the  respondents  herein,  admitting  for  the  purposes  of 
argument  that  when  they  entered  upon  their  duties  in  August  1895,  there  were 
not  sufficient  public  school  buildings  in  the  district  to  accommodate  all  the  chil- 
dren desiring  to  attend  school  therein,  to  have  taken  into  consideration  the 
erection  of  a  new  school  building,  and  the  submission  of  the  question  of  such 
construction  and  the  voting  of  a  tax  therefor,  to  a  meeting  of  the  qualified  voters 
of  said  district.  Instead  of  taking  such  action  they  entered  into  a  lease  with 
the  trustees  of  St  Bridget's  Roman  Catholic  Church  for  certain  rooms  in  the 
parochial  school  building  owned  by  the  church,  alleging  as  a  reason  for  such 
leasing  that  the  building  and  furnishing  of  a  new  school  building  wouUl  cost 
the  district  many  thousand  dollars  ;  that  the  board  of  education  of  union  free 
school  district  no.  1  had  for  several  years  previously  hired  the  rooms,  and  that 
the  respondents  believed  that  they  and  the  former  lessees  thereof  saved  the 
taxpayers  of  West  Troy  great  sums  of  money. 

Care  in  the  expenditures  made  by  the  authorities  of  school  districts,  to 
relieve  the  burden  of  taxation,  is  commendable  when  reasonably  exercised,  and 
when  it  does  not  result  unfavora])ly  to  the  best  educational  interests  of  the 
district;  but  when  the  money  saved  to  the  districts  is  obtained  solely  by  the  occu- 
pation of  leased  property  for  school  purposes,  thereby  postponing  the  con- 
struction of  needed  school  buildings,  or  necessary  additions  to  school  buildings 
then  existing,  it  can  not  be  claimed  in  good  faith  that  the  result  is  in  any  sense 
really  of  benefit  to  the  districts. 

If  the  West  Troy  school  district  is  financially  weak,  such  action  might  be 
deemed  excusable ;  but  this  is  not  the  fact. 

From  the  reports  in  this  Department  made  by  the  school  commissioner  of 
the  third  commissioner  district  of  Albany  county,  I  find  that  on  July  31,  1895, 
the  aggregate  assessed  valuation  of  taxable  property  in  union  free  school  district 
no.  I  was  $1,185.501 ;  that  by  the  reports  of  1894,  on  July  31,  i8()4.  the  aggregate 
assessed  valuation  of  taxable  property  in  school  district  no.  2,  town  of  Water- 

18 


54^  TIIK    UXIVEKSITV    OF    Till-:    STATI-:    OF    N  FW    YORK 

vlict,  was  $733,6^2;  that  of  school  district  no.  9,  of  Watervliet,  was  $867,736; 
that  of  school  district  no.  20,  of  Watervliet,  was  $1,013,010. 

Under  chapter  881,  i.aws  of  1895,  the  territory  which  on  February  i,  1895, 
constituted  union  free  school  district  no.  i,  and  districts  nos.  2,  9  and  20,  and  part 
of  no.  22,  of  Watervliet.  were  consolidated  into  the  West  Troy  school  district, 
anrl  in  Aujjust  i8(;5,  in  the  West  Troy  school  district  there  was  an  agg^rcgate 
assessed  valuation  of  taxable  property  therein  of  $4,000,000.  A  tax  of  half  a 
mill  upon  a  dollar  (a  low  rate  for  a  school  tax),  would  produce  the  sum  of 
$20,cxx5.  The  West  Troy  school  district,  by  the  apportioiunent  made  in  March 
1896,  of  the  public  school  money  to  the  district  so  constituted,  received  from  the 
State  between  $5500  and  $6000. 

The  respondents  claim  that  under  the  provisions  of  chapter  881,  Laws  of 
1895,  they  had  and  have  had  the  power  to  hire  schoolhouses  and  rooms.  It  is 
true  they  had  and  have  that  power,  and  such  grant  or  jiower  is  given,  in  like 
language,  to  the  trustees  of  tiie  common  and  union  free  scliool  districts  by  the 
general  school  law  of  the  State;  but  such  provisions  have  never  been  held  to 
authorize  school  authorities  to  lease  rooms  except  to  temporarily  supply  the  lack 
of  schoolhouses  and  rooms  in  buildings  the  ])roperty  of  the  district,  or  during 
a  time  when  the  district  does  not  own  sufficient  school  accommodations,  and 
pending  action  on  the  part  of  the  school  autliorities  or  the  inhabitants  of  the 
district  to  supply  such  deficiency. 

Admitting  for  the  purpose  of  argument  tliat  the  respondents  had  lawful 
authority  to  hire  rooms  in  wliich  to  conduct  a  public  school  in  the  district,  they 
had  no  legal  authority  to  hire  the  schoolrooms  in  St  Bridget's  Parochial  School 
building  or  ebcwhere  for  the  term  of  one  year,  with  the  right  of  control  of  the 
rooms  during  the  school  hours  only  of  eacl:  day  in  which  a  school,  under  the 
direction  of  the  respondents,  should  be  held  during  the  year;  they  consenting  and 
giving  to  the  lessors  comjilcte  control  of  the  rooms  at  all  other  times  except  dur- 
ing school  hours. 

Under  the  lease  entered  into  between  the  respondents  and  the  trustees  of 
St  Bridget's  Roman  Catholic  Church,  the  trustees  thereof  retained  the  use, 
custody  and  control  of  the  leased  rooms  for  and  during  the  term  of  time  men- 
tioned except  between  the  hours  of  9  o'clock  in  the  forenoon  and  4  o'clock  in 
the  afternoon  of  each  day  in  which  the  school  conducted  under  the  direction  of 
the  respondents  should  be  in  session.  The  lessors  had  the  right  to  use  the  rooms 
for  any  puq)Ose  they  desired  during  all  the  time  on  every  day  and  night  of  the 
year,  except  the  school  hours  during  the  school  days  on  which  the  school  was 
in  session.  The  respondents  had  no  control  of  the  janitor  of  the  building,  the 
fires  and  lights  therein,  nor  of  any  school  property  or  apparatus  placed  therein 
by  the  respondents  for  school  puq-ioses,  nor  of  the  books  and  property  of  the 
pupils  attending  such  school  which  might  be  left  in  the  rooms,  as  is  customary 
to  be  left  in  public  school  buildings. 

The  decision  of  Superintendent  Draper,  in  1887,  cited  by  the  respondents,  is 
not  in  point  in  this  appeal  for  the  reason  that  the  lease  taken  by  the  board  of 


JUDICIAL    DECISIONS  :    RELIGIOUS    GARB  547 

education  was  of  the  St  Raphael's  CathoHc  School  hnilding  for  a  period  of  five 
years,  and  not  of  certain  rooms  in  said  huilding  during  school  hours  only. 

I  am  clearly  of  the  opinion  that  the  action  of  the  respondents  in  hiring  the 
rooms  upon  the  conditions  demanded  by  the  trustees  of  the  church,  and  assented 
to  by  the  respondents,  was  an  unwise  exercise  of  the  power  given  to  them  in  rela- 
tion to  the  leasing;  nor  can  I  escape  the  conclusion  that  while  no  direct  instruc- 
tion of  a  religious  character  is,  or  has,  so  far  as  appears  from  the  pleadings,  been 
given  in  this  school,  nevertheless  it  is  worthy  of  inquiry  why  the  church  authori- 
ties are  willing  to  indefinitely  contribute  to  the  school  authorities  the  use  of  this 
valuable  property  for  a  mere  nominal  consideration.  Formerly  the  church 
authorities  had  maintained  a  separate  denominational  school  therein. 

It  is  entirely  natural  to  suppose  that  those  parents  who  now  object  to  its 
present  use,  reason  that  such  school,  with  its  close  proximity  to  the  church  build- 
ing and  convent,  with  the  inscription  over  the  doorway,  the  emblem  surmounting 
the  building  and  the  teachers  therein  employed  with  their  distinctive  garb,  furnish 
an  object  lesson  at  least,  and  all  the  surroundings  of  the  school  therein  maintained 
tend  to  lead  the  mind  of  the  child  toward  this  particular  religious  denomination. 
This  result  is  but  natural,  and  I  am  convinced  is  quite  in  conflict  with  the  trend 
of  American  sentiment  toward  public  schools,  and  the  school  authorities  should 
perform  no  acts  in  their  official  capacity  tending  to  subject  the  schools  under 
their  charge  to  this  criticism. 

Since  this  appeal  was  presented  the  territory  embraced  within  the  village  of 
West  Troy  has  been  incorporated  into  the  city  of  Watervliet,  but  no  provision 
was  made  in  this  legislative  enactment  for  additional  school  facilities,  nor  has 
any  provision  been  made  for  the  ownershi]:)  by  the  new  city,  so  far  as  I  am 
informed,  of  additional  school  facilities.  If  such  neglect  is  to  be  considered 
as  an  indication  that  the  present  system  of  leasing  —  a  system  only  intended  to 
meet  sudden  emergencies  —  is  to  be  continued  indefinitely,  I  can  not  approve 
such  a  course,  and  the  respondents  herein  must  be  directed  to  surrender  said 
rooms  and  discontinue  the  public  school  maintained  therein. 

The  second  question  presented  by  the  appeal  herein  for  my  consideration 
and  decision  is,  in  relation  to  the  action  of  the  respondents  in  the  employment 
as  teachers  in  the  school  conducted  in  the  St  Bridget's  Parochial  School  building 
of  the  six  persons,  members  of  a  sisterhood  or  order  of  the  Roman  Catholic 
Church,  and  the  wearing  by  them  during  school  hours  of  the  particular  dress 
or  garb  of  such  order.  The  appellants  allege  that  these  six  persons,  with  others 
of  their  order,  in  their  examination  under  the  rules  of  uniform  examinations 
for  commissioners'  certificates,  established  by  the  State  Superintendent  of  Public 
Instruction,  occupied  a  separate  room  apart  from  other  persons  taking  such 
examinations ;  that  such  persons  have  not  attended  at  the  teachers  institutes  held 
in  the  school  commissioner  district  in  which  the  school  is  situate ;  that  it  is  con- 
trary to  the  rules  and  regulations  of  the  religious  order  of  which  such  persons 
are  members  for  them  to  attend  mixed  gatherings,  such  as  public  examinations 
and  teachers  institutes. 


54^  THK    UNIVKKSITY    OF   THE   STATE    OF    NEW    YORK 

The  apiiellant.s  liavc  failed  to  establish  by  proof  these  allegations  or  any  of 
them. 

It  appears  that  the  examination  referred  to  by  the  api)ellants  was  conducted 
by  School  Commissioner  Main,  assisted  by  Examination  Clerk  Mr  Finegan,  of 
this  Deixirtment,  and  several  other  examiners  from  this  Department,  in  accord- 
ance with  the  rules  established ;  that  the  six  persons,  with  others,  attended 
thereat  and  complied  with  the  rules;  that  the  six  persons,  with  the  others  attend- 
ing, were  distributed  in  three  rooms,  and  were  under  the  direction  and  subject 
to  the  supervision  of  the  examiners  at  all  times  during  such  examination ;  that 
the  answer  papers  of  all  those  examined  were  forwarded  to  this  Department 
for  examination,  marking  and  filing,  and  that  upon  such  examination,  etc.,  it 
was  found  that  these  six  persons  were  qualified,  and  each  received  the  proper 
certificate  of  qualification,  and  each  became,  under  the  school  law,  a  qualified 
teacher  in  the  common  schools  of  this  State  of  the  grade  and  for  the  term  of 
time  in  the  certificates  respectively  stated. 

As  to  the  allegation  that  these  persons  have  not  attended  at  a  teachers 
institute,  it  appears  that  the  West  Troy  school  district  has  a  population  of  more 
than  5000  and  employs  a  superintendent  of  schools,  and  it  is  therefore  optional 
with  the  board  of  education  as  to  whether  or  not  it  will  close  the  schools  in  the 
district  during  the  time  a  teachers  institute  shall  be  in  session ;  that  it  is  not 
shown  that  the  schools  were  closed  during  any  session  of  a  teachers  institute  in 
the  school  commissioner  district  in  which  the  West  Troy  school  district  is 
situated. 

The  appellants  also  allege  that  the  six  teachers,  members  of  a  religi<^)us 
order  or  sisterhood,  were  usually  addressed  in  school  hours  by  the  scholars,  not 
by  their  family  names,  but  by  the  names  assumed  by  them  in  the  religious  order, 
prefixed  by  the  term  "  Sister."  The  appellants  have  failed  to  sustain  this  alle- 
gation by  proof. 

The  allegation  that  these  six  teachers,  members  of  a  sisterhood  or  order 
of  the  Roman  Catholic  Church,  have  worn,  and  continue  to  wear,  during  school 
hours  the  particular  dress  or  garb  of  the  order,  is  admitted  by  the  respondents. 

It  is  also  established  that  at  the  meeting  of  the  respondents,  on  August  19, 
1895,  when  a  resolution  was  adopted  to  employ  these  six  persons  as  teachers,  it 
was  stated  that  they  would  wear  such  dress  or  garb  while  teaching. 

There  is  no  statutory  law  in  this  State  which  prescribes  that  any  particular 
dress  or  garb  shall  be  worn  by  the  teachers  in  the  public  schools  in  this  State 
during  school  hours,  nor  which  prohibits  the  wearing  by  them  of  any  particular 
dress  or  garb  during  school  hours ;  neither  is  there  any  decision  of  any  court  of 
this  State  upon  the  matter.  Therefore,  the  questions  to  be  determined  are 
whether  such  practice  shall  be  discontinued  as  a  matter  of  school  polity;  and 
what  the  effect  of  the  recent  amendment  of  the  Constitution  is  upon  such  practice. 

In  the  appeal  of  Leander  Colt  v.  the  board  of  education  of  union  free 
school  no.  7,  village  of  Suspension  Bridge,  town  of  Niagara,  county  of  Niagara, 
taken  to  State  Superintendent  Draper  in  1887,  it  was  established  that  the  board  of 


JUDICIAL    DECISIONS  :    RELIGIOHS    GARB  549 

education  on  February  i,  1886,  hired  of  St  Raphael's  (Roman  Catholic)  Church, 
by  a  written  lease,  a  building  owned  by  it  for  the  term  of  five  years  at  a  nominal 
consideration,  and  established  a  school  therein  under  the  board,  and  employed 
in  the  school  three  duly  qualified  and  licensed  teachers,  who  were  members  of  the 
Order  of  St  Joseph,  of  the  Roman  Catholic  Church ;  that  the  teachers  wore  in 
the  schoolroom,  and  at  all  times  in  common  with  all  of  the  members  of  said 
order,  a  particular  dress  or  garb;  that  such  teachers  were  commonly  known  to 
the  world,  and  were  uniformly  addressed  by  their  pupils  by  their  Christian 
names,  with  the  prefix  of  "  Sister,"  as  "  Sister  Martha,"  etc.';  that  there  were  no 
religious  ceremonies  or  exercises  held  in  the  school  during  school  hours.  Super- 
intendent Draper  in  his  decision,  no.  3520,  made  on  March  24,  1887,  held  that: 

''  The  wearing  of  an  unusual  garb,  worn  exclusively  by  members  of  one 
religious  sect  and  for  the  purpose  of  indicating  membership  in  that  sect  by  the 
teachers  in  a  public  school,  constituted  a  sectarian  influence,  which  ought  not  to 
be  persisted  in.  The  same  may  be  said  of  the  pupils  addressing  the  teachers  as 
*  Sister  Mary,'  '  Sister  Martha,'  etc.  The  conclusion  is  irresistible  that  these 
things  may  constitute  a  much  stronger  sectarian  or  denominational  influence  over 
the  minds  of  children  than  the  repetition  of  the  Lord's  prayer  or  the  reading 
of  the  Scriptures  at  the  opening  of  the  schools,  and  yet  these  things  have  been 
prohibited  whenever  objection  has  been  ofifered  by  the  rulings  of  this  Department 
from  the  earliest  days,  because  of  the  purpose  enshrined  in  the  hearts  of  the 
people  and  embedded  in  the  fundamental  law  of  the  State,  that  the  public  school 
system  shall  be  kept  altogether  free  from  matters  not  essential  to  its  primary 
purpose  and  dangerous  to  its  harmony  and  efficiency." 

Superintendent  Draper  directed  the  board  of  education  to  require  that  the 
teachers  should  discontinue  the  use,  in  the  schoolroom,  of  the  distinguishing  dress 
of  the  religious  order  to  which  they  belonged,  and  to  cause  the  pupils  to  address 
such  teachers  by  their  family  names  with  the  prefix  "  Miss,"  as  teachers  are 
ordinarily  addressed.  It  does  not  appear  that  this  decision  has  been  modified 
or  vacated  by  Superintendent  Draper  or  modified  or  disapproved  by  his  succes- 
sors in  the  office  of  State  Superintendent  of  Public  Instruction. 

The  respondents  herein  cite  the  decision  of  the  Supreme  Court  of  the  state 
of  Pennsylvania  in  the  case  of  John  Hysong  et  al.  v.  Gallatzin  Borough  School 
District  et  al.,  decided  in  the  October  term  1894,  164  Penn.  State  Reports, 
p.  629,  etc. 

From  an  examination  of  the  case  it  appears  that  a  bill  in  equity  was  filed 
in  the  Common  Pleas  of  Cambria  county  to  restrain  the  school  directors  of 
Gallatzin  borough  from  permitting  sectarian  teaching  in  the  common  schools 
of  the  borough,  and  from  employing  as  teachers  sisters  or  members  of  the  order 
of  St  Joseph,  a  religious  society  of  the  Roman  Catholic  Church.  It  was  alleged 
in  the  bill  that  the  "  Sisters,"  while  teaching  in  the  public  schools  wore  the  garb, 
insignia  and  emblems  of  their  order,  and  that  they  used  the  garb,  etc.,  in  such 
mai'iner  as  to  impart  to  the  children  under  their  instruction  certain  religious  and 
sectarian  lessons  and  ideas  peculiar  to  the  Roman  Catholic  Church.     The  court 


550  Till-:    UNlVKkSlTV    OF    TlHi    STATK    OF    NEW    YORK 

of  cuniiii..n  pk-as  fouiul  as  a  fad  llial  there  was  no  evidence  of  any  religious 
instruction  or  religious  exercises  of  any  character  whatever  during  school  hours. 
The  fact  heing  admitted  that  such  "  Sisters,"  as  teachers,  wore,  while  teaching, 
the  habit  or  garb  of  their  order,  the  judge  said: 

"  We  conclude,  as  to  this  branch  of  the  case,  that,  in  the  absence  of  proof 
that  religious  sectarian  instruction  was  imparted  by  them  during  school  hours, 
or  religious  sectarian  exercises  engaged  in,  we  can  not  restrain  by  injunction 
members  of  the  order  of  Sisters  of  St  Joseph  from  teaching  in  the  public  schools 
in  the  garb  of  their  order,  nor  the  school  directors  from  employing  or  permitting 
them  to  act  in  that  capacity." 

An  appeal  was  taken  from  the  decision  of  the  common  pleas  to  the  Supreme 
Court,  the  main  assignment  of  error  being  that,  "  the  court  erred  in  tinding  that 
the  employment  of  the  Sisters  of  St  Joseph  as  teachers  in  the  public  schools,  and 
their  acting  as  such  while  wearing  the  distinctive  sectarian  garb,  crucifixes,  and 
rosaries  of  their  order  and  sect,  could  not  be  enjoined." 

The  Supreme  Court  affirmed  the  decree  of  the  court  below  and  dismissed 
the  appeal.  The  opinion  was  written  by  Justice  Dean  and  Justice  Williams 
wrote  a  dissenting  opinion.  The  decision  of  the  court  appears  to  be  made  upon 
the  ground  that  the  school  directors  of  Gallatzin,  in  the  absence  of  any  special 
provisions  of  law  upon  the  subject,  had  the  discretion  to  employ  the  sisters  as 
teachers  in  the  school  and  to  permit  them  to  wear,  while  teaching,  the  distinctive 
dress  or  garb  of  the  religious  order  of  which  they  were  members,  and  that  the 
court  had  no  power  to  revise  the  exercise  of  such  discretion. 

Justice  Dean,  in  his  opinion,  said :  "  In  thus  expressing  our  full  accord 
with  the  learned  president,  judge  of  the  court  below,  we  intimate  no  opinion  as 
to  the  wisdom  or  unwisdom  of  the  action  of  the  school  board  in  selecting  six 
Catholic  school  teachers,  members  of  an  exclusively  religious  order.  In  this 
matter  was  involved,  solely,  the  exercise  of  discretion  by  the  school  board  in 
the  performance  of  an  official  duty,  for  which  they  alone  are  responsible.  This 
discretion,  when  it  does  not  transgress  the  law,  is  not  reviewable  by  this  or  any 
other  court.  When  a  teacher  of  good  moral  character  applies  for  a  school,  and 
presents  a  certificate  of  qualification  as  to  scholarship  and  aptness  to  teach,  that 
is  the  end  of  judicial  inquiry  into  the  action  of  the  board  in  appointment,  because 
the  law  makes  no  further  inquisition  up  to  this  point.  .  .  .  We  can  not  infer, 
from  the  mere  fact  that  a  school  board  composed  of  Catholics  has  selected  a 
majority  of  Catholics  as  teachers  that,  therefore,  it  has  unlawfully  discriminated 
in  favor  of  Catholics ;  because  the  selection  of  Catholic  teachers  is  not  a  violation 
of  law,  or,  which  is  the  same  thing,  is  not  an  abuse  of  discretion.  Unless  this 
be  the  case,  no  court  has  power  to  revise  the  exercise  of  this  discretion,  for  the 
very  sufficient  reason  that  the  law  has  not  made  the  court  school  directors,  while 
it  has  devolved  on  six  citizens  of  Gallatzin  borough  the  duties  of  that  office." 

Upon  the  contention  that  such  teachers,  wearing  such  distinctive  dress  while 
teaching  in  the  school,  should  be  enjoined  from  wearing  it,  the  court  declined  to 
decide,  as  a  matter  of  law,  that  it  is  sectarian  teaching  for  a  devout  woman  to 


JUDICIAL  decisions:  religious  garb  551 

appear  in  a  schoolroom  in  a  dress  peculiar  to  a  religious  organization  of  a 
Christian  church  and,  as  Judge  Dean  said,  "  We  decline  to  do  so ;  the  law  does  not 
so  say." 

Justice  Williams,  who  dissented  from  his  associates  on  one  point,  namely, 
the  wearing  of  a  distinctive  garb  while  teaching,  said :  "  Clergymen  sometimes 
wear  on  the  street  a  coat  or  hat  that  affords  some  evidence  of  their  profession, 
but  they  do  not  appear  in  churchly  robes  when  about  their  daily  work,  or  in  any 
garb  that  points  out  the  church  to  which  they  belong,  or  the  creed  to  which  they 
adhere;  but  these  six  teachers  in  Gallatzin  do  just  that.  They  wear,  and  must 
wear  at  all  times,  a  prescribed,  unchangeable  ecclesiastical  dress,  which  was 
plainly  intended  to  proclaim  their  nonsecular  and  religious  character,  their  par- 
ticular church  and  order,  and  their  separation  from  the  world.  They  come  into 
the  school  not  as  common  school  teachers,  or  as  civilians,  but  as  the  representa- 
tives of  a  particular  order,  in  a  particular  church,  whose  lives  have  been  dedicated 
to  religious  work  under  the  direction  of  that  church.  Now,  the  point  of  the 
objection  is  not  that  their  religion  disqualifies  them.  It  does  not.  Nor  is  it 
thought  that  church  membership  disqualifies  them.  It  docs  not.  It  is  not  that 
holding  an  ecclesiastical  office  or  position  disqualifies,  for  it  does  not.  It  is  the 
introduction  into  the  schools  as  teachers  of  persons  who  are,  by  their  striking 
and  distinctive  ecclesiastical  robes,  necessarily  and  constantly  asserting  their 
membership  in  a  particular  church,  and  in  a  religious  order  within  that  church, 
and  the  subjection  of  their  lives  to  the  direction  and  control  of  its  officers." 

It  appears  that  at  the  first  session  of  the  Legislature  of  the  state  of  Pennsyl- 
vania, held  after  the  decision  of  the  Supreme  Court  in  Hysong  et  al.,  above 
referred  to,  an  act  was  passed,  which  became  a  law,  prohibiting  any  teacher  in 
any  public  school  of  the  State  from  wearing  any  dress  or  garb  peculiar  to  or 
distinctive  of  any  religious  denomination,  sect  or  society.  So  long  as  such  law 
is  operative  so  much  of  the  decision  in  the  case  of  Hysong  et  al.  as  holds  that 
school  directors  in  the  public  schools  in  that  State  may  permit  teachers  employed 
by  them  to  wear,  while  teaching,  the  garb  of  any  religious  denomination,  order, 
sect  or  society,  is  of  no  force  or  effect. 

The  passage  of  the  act  by  the  Legislature  of  the  state  of  Pennsylvania  pro- 
hibiting any  teacher  in  any  public  school  in  that  state  from  wearing  any  dress  or 
garb  peculiar  to  or  distinctive  of  any  religious  denomination,  order,  sect  or  society, 
ts  indicative  of  the  intention  of  the  people  of  that  state  to  restrain  the  directors 
of  the  public  schools  therein  from  permitting  in  their  schools  anything  that 
would  create  the  impression  or  belief  on  the  part  of  the  patrons  of  such  schools 
that  even  indirectly  the  schools  are  under  the  control  or  direction  of  any  religious 
denomination,  or  in  which  any  denominational  tenet  or  doctrine  is  taught. 

It  has  been  the  policy  of  this  Department,  when  the  matter  has  been  brought 
to  its  attention  and  its  action  invoked,  as  in  the  case  of  the  Colt  appeal  deckled 
by  Superintendent  Draper,  that  when  the  wearing  by  teachers  in  the  public 
schools  of  this  State  of  any  dress  or  garb  peculiar  to  or  distinctive  of  any  religious 
denomination,  order,  sect  or  society,  creates  the  impression  or  belief  on  the  part 


552  IIIK    LMVKKSITY    OF   THE   STATK    OF    NEW    YORK 

ui  the  patrons  of  tlic  school  llial  the  school  was  under  the  control  or  direction 
of  any  reliyious  tk-iiomination,  or  in  which  any  denominational  tenet  or  doctrnie 
was  tauKlit;  or  when  hy  reason  of  said  distinctive  ^^rb  being  so  worn  conten- 
tions and  dissensions  have  arisen  among  the  inhabitants  of  a  school  distiict, 
threatening  the  harmony  therein  and  the  eflficicncy  of  the  school,  and  antagonistic 
to  the  best  educational  interests  therein,  to  advise  that  the  wearing  of  such  dis- 
tinctive garb  should  be  discontinued. 

Hy  section  4  of  article  9  of  the  Constitution  of  the  State,  it  is  enacted: 
•'  Neither  the  State  nor  any  subdivision  thereof  shall  use  its  property  or  credit  or 
any  public  money,  or  authorize  or  permit  either  to  be  used,  directly  or  indirectly, 
in  aid  or  maintenance,  other  than  for  examination  or  inspection,  of  any  school  or 
institution  of  le.irning  wholly  or  in  i)art  under  the  control  or  direction  of  any 
religious  denoniin.ition.  or  in  which  any  denominational  tenet  or  doctrine  is 
taught." 

This  amendment  to  the  organic  law  of  the  State  has  but  recently  been 
adopted  by  an  overwhelming  majority.  It  indicates  very  clearly  an  unmistakable 
and  earnest  desire  on  the  part  of  our  citizens  to  permanently  establish  and  main- 
tain a  public  school  system  that  shall  be  entirely  nonsectarian.  That  this  is  the 
trend  of  i)ublic  opinion,  both  in  this  country  and  in  the  neighboring  provinces  on 
the  western  continent,  is  manifest.  With  this  spirit  I  am  heartily  in  accord.  The 
public  school  system  has  achieved  its  greatest  measure  of  success  where  this  has 
been  insisted  upon.  It  is  my  duty,  as  it  is  the  duty  of  the  school  authorities 
of  the  public  schools  in  the  several  districts  of  the  State,  to  see  that  the  ])rovisions 
of  the  Constitution  above  cited  are  neither  directly  nor  indirectly  violated. 

I  take  great  pleasure  in  stating  that  the  clergy  and  laity  of  the  Roman  Catholic 
Church  have  given  to  this  Department  their  earnest  support  and  aid  in  the  enforce- 
ment of  the  compulsory  education  law,  as  well  as  every  other  act  relating  to  the 
public  school  system  of  the  State. 

The  appellants  ask  that  the  contracts  with  the  six  teachers  herein  referred  to 
be  annulled  and  set  aside.  This  I  have  no  power  to  do.  These  teachers  are  duly 
(lualified  teachers  within  the  provisions  of  the  school  law,  and  having  been  duly 
employed  by  the  respondents  herein,  can  not  be  dismissed  during  their  term  of 
employment  without  sufficient  cause,  and  no  sufficient  cause  has  been  shown. 
Nevertheless,  upon  this  branch  of  the  case  I  desire  to  express  my  disapprobation 
of  the  custom  of  their  dressing,  while  in  the  performance  of  their  duties,  in  the 
garb  peculiar  to  and  indicative  of  the  i)articular  sect  or  order  of  which  they  arc 
members.  Such  dress  or  garb  taken  in  connection  with  the  location,  surroundings 
and  distingui.'^hing  characteristics  of  the  building  leased  by  the  school  authorities 
and  in  which  they  are  emi)loyed.  is  a  constant  and  hourly  reminder  to  the  pupils 
under  their  charge  of  the  existence  of  one  particular  religious  denomination  or 
sect,  and  this  public  declaration  under  all  the  circumstances  is  such  an  object 
lesson  to  the  susceptible  mind  of  the  pupils  under  their  charge  that  it  comes  dan- 
gerously near  the  line  of  prohibition  laid  down  in  the  Constitution  as  herein 
quoted. 


JUDICIAL  decisions:  religious  garb  553 

The  proofs  herein  show  that  it  is  considered  such  by  the  parents  of  upwards 
of  fifty  of  the  pupils  who  would  otherwise  attend  this  school.  They  are  the  people 
■whose  interests  are  to  be  conserved  by  this  particular  school.  The  objections 
herein  urged  against  such  influences  would,  of  course,  apply  to  like  public  declara- 
tion of  religious  preference  or  belief  on  the  part  of  teachers  connected  with  any 
other  denomination.  The  fact  that  but  few,  if  any,  of  the  many  sects  or  denomina- 
tions insist  upon  members  of  their  order  dressing  upon  all  occasions  in  a  distinctive 
garb  adds  force  to  the  objection  as  it  presents  itself  to  my  mind.  I  therefore  con- 
cur in  the  opinion  of  my  predecessor  in  office,  namely,  that  the  teachers  in  the 
public  schools  of  the  State  ought  not  to  wear  the  distinctive  garb  of  any  rbligious 
denomination,  order,  sect  or  society,  but  dress  in  the  usual  costume  worn  by  men 
and  women  generally;  and  that  any  other  costume  or  usage  is  inimical  to  the  best 
educational  interests  of  the  locality  and  should  be  discontinued  by  direction  of  the 
local  school  authorities  whose  duty  it  is  to  so  administer  the  trusts  reposed  in 
them  as  to  bring  about  the  very  best  results  with  the  least  irritation,  and  in 
harmony  with  the  spirit  of  the  section  of  the  organic  law  herein  quoted. 

The  school  best  docs  this  which  avoids  any  reference  directly  or  indirectly 
to  any  particular  denomination,  sect  or  order,  both  in  the  construction  of  the 
buildings  used  for  school  purposes  and  in  the  dress  worn  by  the  teachers  employed 
therein.  To  those  not  satisfied  with  this  complete  and  absolute  severance  of 
secular  and  religious  instructions,  the  private  school  is  open. 

If  we  ask  ourselves  in  what  particulars  this  school  differs  from  the  usual 
parochial  school  as  formerly  maintained  therein,  before  the  adoption  of  the  con- 
stitutional amendment  herein  quoted,  what  rei)ly  shall  we  make?  By  the 
nature  of  the  lease,  by  the  wearing  of  distinctive  garb,  by  the  emblem  surmounting 
the  building,  by  the  inscription  over  the  doorway,  by  the  practical  result  that  only 
the  children  of  one  particular  faith  attend  this  school,  the  conclusion  is  irresistible 
that  the  State,  to  all  external  intents  and  purposes,  is  maintaining  a  sectarian 
school  therein  at  public  expense.  It  was  clearly  the  intent  of  this  amendment  to 
the  organic  law  that  this  practice  should  be  prohibited. 

The  delay  in  rendering  a  decision  in  this  appeal  was  primarily  caused  by  the 
hope  and  expectation  that  in  the  legislative  enactment  incorporating  the  city  of 
\^^lter^■liet  and  providing  for  the  school  system  thereof,  such  legislation  would 
determine  the  questions  raised  in  this  appeal.  No  provision  has,  however,  been 
made  for  school  facilities  to  be  owned  by  the  city,  and  to  take  the  place  of  those 
secured  by  such  lease. 

The  contracts  made  by  the  respondents  herein  both  in  respect  to  leasing  said 
building  and  the  employment  of  the  teachers  engaged  therein  from  which  the 
appeal  herein  is  taken,  having  expired  at  the  termination  of  the  school  year 
1895-96,  this  decision  can  not  be  operative  except  as  a  determination  of  the 
principles  involved,  and  to  that  extent  this  decision  will  be  valuable  only  as  indicat- 
iug  the  policy  to  be  pursued  by  school  authorities. 

'  A  new  appeal  to  reach  the  result  here  indicated  as  the  policy  to  be  pursued 
bv  local  school  authorities  ought  not  to  be  necessary. 


554  Till-:    UNIVF.KSITV    OF   TllK    STATK    OF    NEW    YORK 

I  decide,  That  the  action  of  the  respondents  herein,  in  hirin,c;  the  rooms  in 
St  Bridget's  Parochial  School  Building,  in  which  to  conduct  a  public  school,  with 
the  rii,'ht  of  the  control  of  the  rooms  during  the  school  hours  only  of  each  day, 
in  which  a  school  under  the  direction  of  the  respondents  is  maintained,  and  con- 
senting and  giving  to  tlie  lessors  complete  control  of  the  rooms  at  all  times  other 
than  during  school  hours,  and  the  continuation  of  such  lease  beyond  the  period 
of  emergency  contemplated  by  the  statute,  was  without  legal  authority  on  the  part 
of  the  respondents. 

I  also  decide  that  it  is  the  duty  of  the  respondents  to  require  the  teachers 
employed  by  them  to  discontinue  the  use  in  the  ]niblic  schoolroom  of  the  distin- 
g[uishing  dress  or  garb  of  the  religious  order  to  which  they  belong. 


4546 

In  the  matter  of  the  appeal  of  Samuel  Kennedy,  Edward  M.  Getman  and  James 
I'^orsyth  v.  the  board  of  education  of  the  city  of  \\'atervlict,  Albany 
county. 

The  wearing  of  an  unusual  garb  worn  exclusively  by  members  of  one  religious  sect  for 
the  purpose  of  indicating  membership  in  that  sect,  by  the  teachers  in  a  public  school, 
constitutes  a  sectarian  influence  wliich  ought  not  to  be  persisted  in.  It  is  clearly  the 
duty  of  trustees  of  school  districts  to  require  such  teachers  to  discontinue  the  use  in 
the  public  schoolroom  during  school  hours  of  the  distinguishing  dress  or  garb  of  the 
religious  order  to  which  they  belong. 

Decided  May  15,  1S97 

William  Hollands,  attorney  for  appellants 
John  H.  Gleason,  attorney  for  respondents 

Skinner,  Supcrintciuiott 

The  appellants,  in  the  above-entitled  matter,  as  residents  of,  and  qualified 
voters  in  the  city  of  Watervliet,  Albany  county,  appeal  from  the  action  of  the 
board  of  education  of  such  city,  consisting  of  School  Commissioners  William  H. 
FlewcUin,  James  B,  McLeese,  Isaac  G.  Braman  and  John  H.  McKeever,  in 
refusing  to  rccjuire  six  teachers  now  employed  and  teaching  in  one  of  the  public 
schools  of  such  city,  namely,  Catharine  Walsh,  Anna  G.  Conway,  Kate  Rice, 
Victoria  Melinda,  Hannah  Keefe  and  Jennie  Higgins,  to  discontinue  the  use  in 
the  public  schoolroom  of  the  distinguishing  dress  or  garb  of  the  religious  order 
to  which  they  respectively  belong. 

The  appellants  allege  that  the  teachers  above  mentioned  are  members  of 
a  religious  order  or  sisterhood,  namely: 

Catharine  Walsh,  known  as  Sister  Leonie;  Anna  G.  Conway,  known  as 
Sister  Gertrude ;  Kate  Rice,  known  as  Sister  Ludwina ;  Victoria  Melinda,  known 
as  Sister  Adelaide;  Hannah  Kcefe,  known  as  Sister  Ignatia;  Jeimie  Higgins, 
known  as  Sister  Dechautal ;  and  that  they  were  at  the  time   of  bringing  this 


JUDICIAL    DECISIONS  :    RELIGIOUS    GARB  555 

appeal,  to  wit,  March  i,  1897,  performing  the  duties  of  teachers  in  one  of  the 
public  schools  of  the  city  of  Watervliet,  being  held  and  conducted  in  the  building 
on  the  northeast  corner  of  Fifth  avenue  and  Seventh  street,  commonly  known  as 
"  St  Bridget's  Parochial  School  Building."  and  that  each  of  said  six  persons, 
during  the  school  hours  of  each  school  day,  in  the  performance  of  their  duties 
as  such  teachers  respectively,  is  dressed  in  the  particular  garb  of  the  religious 
order  or  sisterhood  of  which  they  are  respectively  members. 

The  appellants  also  allege  that  at  a  meeting  of  the  board  of  education  of 
said  city  of  Watervliet.  held  February  22,  1897.  ^^  which  all  four  of  the  afore- 
said school  commissioners  were  present,  and  at  which  Michael  J.  Day,  the  mayor 
of  such  city  as  chairman  ex  officio,  presided,  the  following  preamble  and  resolu- 
tion were  introduced  and  their  adoption  moved  and  seconded,  namely : 

Whereas,  the  Superintendent  of  Public  Instruction  recently  decided  on  an 
appeal  from  the  action  of  the  board  of  education  of  the  West  Troy  school  dis- 
trict, that  it  was  the  duty  of  said  board  to  require  teachers  employed  by  them, 
"  to  discontinue  the  use  in  the  public  schoolroom  of  the  distinguished  dress  or 
garb  of  the  religious  order  to  which  they  belong,"  and  the  same  not  having  been 
done,  and  the  school  particularly  referred  to  in  such  decision  being  now  a  part 
of  the  school  system  of  the  city  of  Watervliet,  and  under  the  control  and  man- 
agement of  their  board,  therefore,  be  it 

Resolved,  That  the  clerk  of  this  board  be.  and  is  hereby,  instructed  to  forth- 
with notify  Catharine  Walsh,  Anna  G.  Conway,  Kate  Rice,  Victoria  Melinda. 
Hannah  Keefe  and  Jennie  Higgins,  now  acting  as  teachers  in  the  public  school 
maintained  in  the  St  Bridget's  school  building,  to  discontinue  the  use  in  the  public 
schoolroom  of  the  distinguishing  dress  or  garb  of  the  religious  order  to  which 
they  belong. 

It  is  also  alleged  by  the  appellants  that  upon  a  vote  being  taken  thereupon 
such  resolution  was  declared  lost  by  a  tie  vote,  two  of  such  commissioners  voting 
in  the  affirmative,  and  two  of  the  commissioners  voting  in  the  negative,  the 
chairman  ex  officio,  not  being  a  member  of  said  board  and  not  being  entitled, 
under  the  law,  to  vote  in  the  proceedings  of  said  board. 

The  appellants  further  allege  that  the  school  referred  to  in  their  appeal  was, 
until  and  including  the  31st  day  of  December  1896,  one  of  the  public  schools 
of  the  West  Troy  school  district,  and  the  same  school  referred  to  in  decision 
in  appeal  case  no.  4516  of  the  Department  of  Public  Instruction  made  by  the 
State  Superintendent  November  25,  1896;  that  according  to  the  provisions  of 
chapter  905  of  the  Laws  of  1896  (the  act  incorporating  the  city  of  Watervliet) 
from  and  after  said  31st  day  of  December  1896,  the  said  West  Troy  school  dis- 
trict ceased  to  exist,  and  all  the  public  schools  within  the  city  of  Watervliet  and 
under  the  control  of  the  board  of  education  of  such  city,  which  board  has,  "  to 
the  exclusion  of  all  boards  and  officers,  except  the  Superintendent  of  Public 
Instruction  of  this  State,  the  entire  supervision  and  management  of  the  schools 
of  said  city";  that  by  the  provisions  of  said  chapter  905  of  the  Laws  of  1896, 
sucb  board  of  education  is  required  annually  to  make  and  transmit  to  the  State 
Superintendent  of  Public  Instruction  a  report  in  writing,  which  report  shall  be 


55^  THE   UNIVERSITY    OF   THE   STATE    OF    NEW   YORK 

in  all  respects  as  is  required  by  law  of  trustees  of  school  districts,  and  deposit 
and  flic  the  same  as  re(|uired  by  law. 

The  appellants  ask  that  the  State  Superintendent  of  Pul)lic  Instruction  issue 
an  order  directing  said  board  of  education  of  the  city  of  Watervliet  to  forth- 
with re(|uire  the  aforesaid  teachers  to  discontinue  the  use  in  the  public  school- 
rooms in  such  citv  durinjj  school  hours  of  the  distinguishing  dress  or  garb  of  the 
religious  order  of  which  they  are  members. 

Two  of  the  members  only  of  such  board  of  education  of  the  city  of  Water- 
vliet, namelv,  School  Commissioner  McKeever  and  School  Commissioner  A'lc- 
I.ecsc.  have  made  answer  to  tiic  appeal  herein.  The  answer  does  not  contain  any 
denial  of  the  allegations  contained  in  the  api)eal. 

The  respondents  in  substance  allege: 

That  the  teachers  n^.nicd  in  the  appeal  are  legally  qualified  to  teach  in  the 
public  schools  of  the  city  of  Watervliet,  and  each  is  legally  employed  to  teach 
pursuant  to  the  terms  of  a  written  contract  duly  executed  until  the  close  of  the 
l)resent  .school  year;  that  as  the  respondents  are  informed  and  believe  such 
teachers  refuse  to  wear,  while  engaged  in  the  discharge  of  their  duties  in  such 
school  any  other  than  the  apparel,  dress  or  garb  which  they  have  worn  while 
thus  engaged  for  many  years  last  past ;  that  the  adoption  of  the  resolution  men- 
tioned in  the  ap|)eal,  and  its  attempted  enforcement  by  the  board  of  education  of 
said  city  would  be  an  infringement  upon  the  legal  rights  and  an  unlawful  and 
unwarranted  interference  with  the  personal  freedom  of  each  of  such  teachers, 
and  a  violation  of  the  written  contract,  and  ef|uivalcnt  to  an  illegal  and  unwar- 
ranted dismissal  and  discharge  of  each  of  such  teachers  before  the  end  of  the 
contract  term,  and  the  city  would  be  liable  for  compensation  without  securing 
the  service;  that  the  employment  of  other  teachers,  which  the  adoption  and 
enforcement  of  the  resolution  would  necessitate,  would  be  a  serious  injury  to 
the  present  school  system;  that  they  (the  res])ondents)  were  prior  to  February 
22,  1897.  and  are  now  advised,  and  believe  that  the  board  of  education  of  such 
city  has  no  legal  authority  to  adopt  or  enforce  the  resolution  mentioned  in  the 
ai)peal ;  that  the  respondents  deny  that  the  wearing  by  the  teachers,  during  school 
hours,  of  the  garb  objected  to  by  the  appellants  is  in  violation  of,  or  conflicts 
with,  any  law  of  the  State  of  New  York,  and  that  the  adoption  by  said  board  of 
education  and  the  enforcement  or  attempted  enforcement  of  said  resolution, 
would  be  in  violation  of  law,  and  void  and  of  no  legal  eflfect. 

Ujion  the  facts  established  herein,  and  the  law  and  decisions  of  the  State 
Superintendents  of  Public  Instruction,  the  contentions  of  the  respondents  herein 
are  not  tenable  and  the  appeal  herein  should  be  sustained. 

Under  the  laws  relating  to  the  public  schools  of  the  State  the  State  Superin- 
tendent of  Public  Instruction  has  supervisory  powers  over  all  public  schools 
withm  the  State.  He  posses.ses  the  power  to  entertain  and  examine  an  appeal 
brought  to  him  by  any  person  considering  himself  aggrieved,  concerning  any 
matter  under  the  school  law,  or  any  other  act  pertaining  to  common  schools, 
and  to  decide  the  same.  Such  decisions  when  so  made  have  all  the  force  and 
eflfect  of  statutes  and  are  binrling  upon  school  officers  until  modified  or  reversed. 


JUDICIAL  decisions:  religious  garb  557 

Under  the  provisions  of  subdivision  lo  of  section  12,  title  5  of  chapter  905 
of  the  Laws  of  1896,  entitled,  "An  act  to  incorporate  the  city  of  Watervliet," 
the  power  given  to  the  board  of  education  of  such  city  to  supervise  and  manage 
the  schools  therein,  is  subject  to  the  supervision  of  the  State  Superintendent  of 
Public  Instruction. 

State  Superintendent  of  Public  Instruction  Draper,  in  his  decision  no.  3520, 
made  on  March  24,  18S7,  in  the  appeal  taken  to  him  by  Leandcr  Colt  v.  the  board 
of  education  of  union  free  district  no.  7,  village  of  Suspension  Bridge,  town  and 
county  of  Niagara,  held  that : 

"  The  wearing  of  an  unusual  garb,  worn  exclusively  by  members  of  one 
religious  sect  and  for  the  purpose  of  indicating  membership  in  that  sect  by  the 
teachers  in  a  public  school,  constituted  a  sectarian  influence,  which  ought  not  to 
be  persisted  in.  The  same  may  be  said  of  the  pupils  addressing  the  teachers  as 
'  Sister  Mary,'  '  Sister  Martha,'  etc.  The  conclusion  is  irresistible  that  these 
things  may  constitute  a  much  stronger  sectarian  or  denominational  influence  over 
the  minds  of  children  than  the  repetition  of  the  Lord's  prayer  or  the  reading 
of  the  Scriptures  at  the  opening  of  the  schools,  and  yet  these  things  have  been 
prohibited  whenever  objection  has  been  offered  by  the  rulings  of  this  Department 
from  tlie  earliest  days,  because  of  the  purpose  enshrined  in  the  hearts  of  the 
people  and  embedded  in  the  fundamental  law  of  the  State,  that  the  public  school 
system  shall  be  kept  altogether  free  from  matters  not  essential  to  its  primary 
purpose  and  dangerous  to  its  harmony  and  efficiency." 

Superintendent  Draper  directed  the  board  of  education  to  require  that  the 
teachers  in  such  school  should  discontinue  the  use  in  the  schoolroom,  of  the  dis- 
tinguishing dress  of  the  religious  order  to  which  they  belong.  It  does  not 
appear  that  Superintendent  Draper  ever  modified  or  vacated  such  decision,  nor 
that  his  successors  in  the  office  of  State  Superintendent  of  Public  Instruction 
have  ever  modified  or  disapproved  of  such  rulings  and  decision.  Such  decision 
had  the  force  and  efi'ect  of  a  statute  in  relation  to  the  matter  examined  and  deter- 
mined therein,  and  became  binding  upon  the  school  authorities  of  the  several 
public  schools  of  the  State. 

On  November  25,  1896,  in  a  decision  made  by  me,  no.  4516,  in  the  appeal 
of  Fayette  B.  Durant  and  others  v.  board  of  education  of  West  Troy  school  dis- 
trict, relative  to  the  employment  of  the  same  six  teachers  mentioned  in  the  appeal 
herein,  and  the  wearing  by  them  in  the  schoolroom  during  school  hours,  of  the 
particular  dress  or  garb  of  the  religious  order  or  sisterhood  of  which  they  were 
respectively  members,  I  approved  of  and  concurred  in  said  decision  of  Superin- 
tendent Draper,  and  stated : 

"  I  therefore  concur  in  the  opinion  of  my  predecessor  in  office,  namely :  that 
the  teachers  in  the  public  schools  of  the  State  ought  not  to  wear  the  distinctive 
garb  of  any  religious  denomination,  order,  sect  or  society,  but  dress  in  the  usual 
costume  worn  by  men  and  women  generally;  and  that  any  other  costume  or 
usage  is  inimical  to  the  best  educational  interests  of  the  locality  and  should  be 


558  nil':  umvkkshv  of  Tiiii  srATi-:  of  new  vokk 

discontimic'l  by  the  dircilion  of  the  local  school  authorities  whose  duty  it  is  to 
so  administer  the  trusts  reposed  iu  theui  as  to  bring  a!)out  the  very  best  results 
with  the  least  irritation,  and  in  harmony  with  the  spirit  of  the  section  of  the 
organic  law  herein  (luoted. 

"  The  school  best  ilocs  this  which  avoids  any  reference  directly  or  indirectly 
to  any  particular  denomination,  sect  or  order,  both  in  the  construction  of  the 
buildings  used  for  school  purposes  and  in  the  dress  worn  by  the  teachers 
employed  therein.  To  those  not  satisfied  with  this  complete  and  absolute  sever- 
ance of  secular  and  religious  instruction,  the  private  school  is  open. 

"  If  we  ask  ourselves  in  what  particulars  this  school  differs  from  the  usual 
parochial  school  as  formerly  maintained  therein,  before  the  adoption  of  the 
con.stilutional  amendment  herein  ([noted,  what  reply  shall  we  make?  By  the 
nature  of  the  lease,  by  the  wearing  of  a  distinctive  garb,  by  the  emblem  sur- 
mounting the  building,  by  the  inscription  over  the  doorway,  by  the  practical 
result  that  only  the  children  of  one  particular  faith  attend  this  school,  the  con- 
clusion is  irresistible  that  the  State,  to  all  external  intents  and  purposes,  is  main- 
taining a  sectarian  school  therein  at  public  expense.  It  was  clearly  the  intent 
of  this  amendment  to  the  organic  law  that  this  practice  should  be  prohibited, 
and  that  a  new  appeal  to  reach  the  result  here  indicated  as  the  policy  to  be 
pursued  by  local  school  authorities  ought  not  to  be  necessary." 

I  decided  that  it  was  the  duty  of  the  respondents  therein  to  require  the 
teachers  employed  by  them  to  discontinue  the  use  in  the  public  schoolroom  of 
the  distinguishing  dress  or  garb  of  the  religious  order  to  which  they  belong. 

Such  decision  was  duly  hied  with  the  clerk  of  such  West  Troy  school  district 
and  notice  thereof  given  to  the  appellants  and  respondents  in  such  appeal ;  that 
the  respondents  herein  were  two  of  the  members  of  the  board  of  education  of 
such  West  Troy  school  district. 

It  was  clearly  the  duty  of  the  board  of  education  of  such  West  Troy  school 
district  to  re(iuire  such  teachers  to  discontinue  the  use  in  the  public  schoolroom 
during  school  hours  of  the  distinguishing  dress  or  garb  of  the  religious  order 
to  which  they  belonged. 

No  new  or  ditTerent  state  of  facts  are  established  in  this  appeal  from  those 
presented  in  the  appeal  of  Durant  and  others  v.  board  of  education  of  West 
Troy  school  district. 

The  board  of  education  of  the  city  of  Watervliet  is  conducting  one  of  the 
schools  of  such  city  in  the  St  Bridget's  Parochial  School  Building  and  employing 
the  same  six  persons  as  teachers  therein  that  were  employed  by  the  authorities 
of  the  West  Troy  school  district,  each  of  whom  wears,  during  school  hours,  and 
in  the  |)ublic  schoolroom,  the  distinctive  dress  or  garb  of  the  religious  order  to 
which  she  belongs  or  of  which  she  is  a  member. 

There  is  nothing  presented  in  this  appeal  to  alter,  change  or  modify  my 
ruling  and  decision,  as  contained  in  said  decision  no.  4516,  and  such  decision  is 
in  all  things  affirmed 


JUDICIAL  decisions:  religious  garb  559 

It  was,  and  is,  the  duty  of  the  board  of  education  of  the  city  of  Watervliet, 
under  the  aforesaid  decision  of  Superintendent  Draper  and  my  decision  no.  4516, 
as  aforesaid,  to  require  of  each  of  said  six  persons,  teaching  in  said  school,  to 
discontinue  the  use  in  such  public  schoolroom  and  during  school  hours,  of  the 
distinguishing  dress  or  garb  of  the  religious  order  to  which  they  severally  belong. 

The  appeal  herein  is  sustained. 

It  is  ordered : 

That  the  board  of  education  of  the  city  of  Watervliet  be,  and  it  is,  hereby 
directed  forthwith  to  notify  and  require  Catharine  Walsh,  Anna  G.  Conway, 
Kate  Rice,  Victoria  Melinda,  Hannah  Keefe  and  Jennie  Higgins,  and  each  of 
them,  now  teaching  in  one  of  the  public  schools  of  said  city,  which  school  is 
conducted  and  maintained  in  the  building  known  as  the  St  Bridget's  Parochial 
School  Building,  situate  on  the  northeast  corner  of  Fifth  avenue  and  Seventh 
street  of  said  city,  to  forthwith  discontinue  the  use  and  wearing  by  them,  and. 
each  of  them,  during  the  school  hours  of  each  school  day  such  public  school  is 
held  and  maintained  and  is  taught  by  them  or  either  of  them,  of  the  distinctive 
or  distinguishing  garb  of  dress  of  the  religious  sect  or  order  to  which  they,  and 
each  of  them,  belong  or  of  which  they  are  members. 

It  is  further  ordered : 

That  in  the  event  such  teachers  above  named,  or  either  of  them,  after  such 
notification  and  requirement  to  them  by  said  board  of  education,  refuse  to  comply 
therewith  or  obey  such  requirement  and  the  decisions  of  the  State  Superintendent 
of  Public  Instruction,  as  set  forth  in  the  foregoing  decision,  and  continue  the 
use  and  wearing,  in  school  hours,  in  such  public  schoolroom  or  rooms,  as  such 
teachers,  such  distinctive  garb  or  dress  of  the  religious  order  of  which  they  are 
members,  that  said  board  of  education  forthwith  dismiss  the  above-named  per- 
sons, and  each  of  them,  as  teachers  in  such  public  schools. 

It  is  further  ordered : 

That  such  board  of  education  of  the  city  of  Watervliet,  report  in  writing 
to  the  State  Superintendent  of  Public  Instruction  on  or  before  June  i,  1897, 
all  acts  performed  and  proceedings  had  and  taken  by  such  lioard  of  education, 
and  by  the  said  six  teachers,  and  each  of  them,  under  and  pursuant  to  the  fore- 
going decision  and  the  orders  made  to  carry  such  decision  into  effect. 

Whereas,  on  March  10,  1897,  I  made  an  order  in  the  appeal  herein  directing 
E.  L.  Barckley,  county  treasurer  of  the  county  of  Albany,  to  retain  in  his  hands 
and  withholding  payment  to  the  city  of  Watervliet  of  the  school  funds  there- 
tofore apportioned  by  me  to  said  city  in  the  annual  apportionment  made  in 
January  1897,  until  the  hearing  and  final  determination  of  the  above-entitled 
appeal,  or  until  my  further  order  in  the  premises. 

It  is,  therefore,  further  ordered : 

That  said  order  of  March  10,  1897,  directing  the  retention  in  his  hands  by 
the  county  treasurer  of  Albany  county  of  such  school  funds  apportioned  to 
such  city,  and  the  withholding  by  him  of  the  payment  thereof  to  such  city,  be. 
and  the  same  hereby  is  continued  in  full  force  and  efl'ect  until  a  further  order  in 
relation  thereto  shall  be  made  by  me. 


50O  T1II£    UNIVEKSITV    UK   THE    STATE    OF   -NEW    VOKK 

This  decision  must  be  filed  with  the  clerk  of  the  board  of  education  of  the 
city  of  Watervliet  and  that  notice  thereof  be  by  him  given  to  the  appellants  and 
respomleius  herein,  with  opportunity  to  examine  the  same;  and  that  a  copy  of 
such  decision  be  forthwith  served  personally  upon  the  treasurer  of  the  county 
of  Albany  and  the  city  chamberlain  of  the  city  of  \\  atervliet,  and  each  of  them. 


4722 

In  the  matter  of  the  appeal  of  Edward  Keyser  v.  the  board  of  education  of  the 

city  of  Poughkeepsie. 

Since  iX)4  it  lias  been  the  settled  policy  of  the  State  that  localities  must  own  school 
builditifis  in  which  their  public  schools  are  conducted;  that  the  leasing  and  renting  of 
rooms  and  buildings  for  school  purposes  are  not  authorized  except  under  extraordinary 
condilinns,  and  to  provide  for  emergency. 

The  wearing  of  an  unusual  garb  worn  exclusively  by  members  of  one  religious  sect,  and  for 
the  purpose  of  indicating  membership  in  that  sect,  by  the  teachers  in  the  public  schools, 
constitutes  a  sectarian  influence  which  ought  not  to  be  persisted  in.  The  fact  that 
such  members  do  not  associate  in  public  places  with  the  world  at  large,  and  will  not  be 
employed  in  any  building  not  consecrated  or  devoted  under  the  rules  of  the  denomina- 
tion of  which  they  are  comnnmicants,  to  charitable  or  religious  purposes,  and  their 
right,  while  thus  attired,  and  Ii'-bling  these  strict  views,  to  be  employed  as  teachers  in 
tlic  public  school  ^\stem  of  the  State  goes  far  beyond  ihe  mere  question  of  the  garb 
or  distinctive  dress  worn  by  them.  It  is  fundamental  that  teachers  employed  in  the 
public  schools  of  the  State,  in  fitting  children  for  useful  citizens,  should  keep  them- 
selves in  close  touch  with  everything  that  will  enhance  their  usefulness  in  this  direction. 
To  do  this  requires  association  with  others  engaged  in  like  employment,  and  familiarity 
to  the  cvcry-day  affairs  of  life  with  which  such  pupils  in  future  years  will  be  engaged. 
They  should  be  in  touch  with  men  and  women  in  the  every-day  affairs  of  life,  and 
above  all,  the  professional  training  which  comes  from  association  with  educational 
representatives  ought  never  to  be  barred  from  any  teacher  employed  in  the  public 
schools.  Transfers  from  one  position  to  another,  as  the  needs  of  a  city  school  system 
may  require,  ought  always  to  be  possible,  and  no  teacher  should  be  employed  who 
owes  such  allegiance  to  any  other  institution,  organization  or  denomination  as  makes 
such  transfers  impossible.  It  is  the  duty  of  the  school  authorities  to  require  such 
teachers  to  discontinue,  while  in  the  public  schoolroom,  and  in  the  performance  of  their 
duty  as  teachers  therein,  the  wearing  of  such  dress  or  garb. 

Decided  December  23,  1898 

P.  Alver?on  Lee,  attorney  for  appellant 
J.  L.  Williams,  attorney  for  respondent 

Skinner,  Sut^cnntcndctit 

The  above-named  appellant  appeals  from  the  action  of  the  board  of  educa- 
tion of  the  city  of  Poughkeepsie  in  leasing  for  school  purposes  the  building 
known  as  school  11.  situate  on  North  Clover  street  in  the  city  of  Poughkeepsie, 
and  the  building  known  as  school  12,  situate. at  loi  Mill  street  in  said  city,  both 
of  said  buildings  being  the  property  of  St  Peter's  Roman  Catholic  chu/ch,  and 
in  the  employment  of  two  teachers  in  school  11,  and  two  in  school  12,  each  of 


JUDICIAL  decisions:  religious  garb  561 

whom  are  members  of  the  order  known  as  the  Sisters  of  Charity,  Vvho  dress  in 
the  garb  pecuHar  to  their  rehgious  sect,  and  are  addressed  usually  in  the  school 
by  their  christian  names  prehxed  by  the  term  "  sister." 

It  is  contended  on  the  part  of  the  appellant  that  by  reason  of  the  sectarian 
character  of  the  school  thus  maintained  in  these  two  buildings,  parents  residing 
witliin  the  first  ward  of  said  city  where  said  schools  are  situate,  object  to  sending 
their  children  thereto,  and  parents  residing  at  long  distances  from  said  schools 
send  their  children  thereto  in  order  to  obtain  the  religious  instruction  given 
therein. 

The  respondents  admit  the  leasing  of  such  buildings  at  the  rental  alleged,  and 
admit  the  employment  of  teachers  who  are  dressed  in  the  garb  described  in  the 
appellant's  papers,  but  they  deny  that  there  is  any  religious  instruction  imparted 
in  such  schools,  and  deny  that  any  "  denominational  doctrines  or  tenets  are 
taught  in  these  buildings  at  any  time  during  the  school  days  of  the  week."  They 
a^lso  allege  that  the  board  of  education  has  no  power  under  the  provisions  of 
the  charter  of  said  city  to  provide  buildings  or  rooms  for  school  purposes,  except 
by  renting  the  same ;  that  buildings  can  only  be  purchased  or  erected  by  the 
afhrmative  vote  of  the  taxpayers,  and  allege  that  the  present  bonded  indebtedness 
of  said  city  bears  such  a  relation  to  the  total  assessed  valuation  thereof  that  the 
constitutional  prohiliition  precludes  the  city  from  incurring  any  further 
indebtedness. 

The  material  allegations  are  therefore  admitted  except  as  to  the  teaching 
of  religious  doctrines  or  tenets  in  these  schools,  and  the  power  of  the  city  to  pur- 
chase or  erect  new  buildings  by  reason  of  its  bonded  indebtedness. 

The  right  of  boards  of  education  to  employ  teachers  who  dress  in  the 
peculiar  and  distinctive  garb  of  any  religious  denomination  and  who  arc 
addressed  by  the  pupils  under  their  charge  by  their  christian  names  with  the 
prefix  "  sister "  thereto,  has  been  determined  by  this  Department  in  several 
decisions,  and  I  can  not  state  the  settled  policy  of  the  Department  of  Public 
Instruction  in  this  State  upon  this  question  more  aptly  than  to  quote  the  follow- 
ing language  from  Superintendent  Draper's  decision,  3520,  rendered  March  24, 
1887: 

"The  wearing  of  an  unusual  garb  worn  exclusively  by  members  of  one 
religious  sect  and  for  the  purpose  of  indicating  membership  in  that  sect  by  the 
teachers  in  the  public  schools,  constitutes  a  sectarian  influence  which  ought  not 
to  be  persisted  in.  The  same  may  be  said  of  the  pupils  addressing  the  teachers 
as  '  Sister  ^lary,'  '  Sister  Martha,'  etc.  The  conclusion  is  irresistible  that  these 
things  may  constitute  a  much  stronger  sectarian  or  denominational  influence 
over  the  minds  of  the  children  than  the  repetition  of  the  Lord's  prayer  or  the 
reading  of  the  Scriptures  at  the  opening  of  the  schools,  and  yet  these  things 
have  been  prohibited  whenever  objection  has  been  offered  by  the  rulings  of  this 
Department  from  the  earliest  days,  because  of  the  purpose  enshrined  in  the 
hearts  of  the  people  and  embedded  in  the  fundamental  law  of  the  state  that  the 
public  school  system  shall  be  kept  altogether  free  from  matters  not  essential  to 
its  primary  purpose  and  dangerous  to  its  harmony  and  efficiency." 


562  TIIR    UNI\  KKSITY    <1F   TIIR    ST  ATI-:    OF    NEW    YORK 

riu-  teachers  rcfcrrcil  to  herein  ;iic  inenihcrs  of  a  religious  and  charitable 
order  known  as  "  Sisters  of  Charity,"  who  wear  at  all  times  a  garb  peculiar  to 
their  order.  It  is  well  known  that  they  do  not  associate  in  public  places  with  the 
world  at  large,  and  will  not  be  employed  in  any  building  not  consecrated  or 
devoted  by  the  rules  of  the  denomination  of  which  they  are  communicants,  to 
cliaritalile  or  religious  purposes,  and  their  right  while  thus  attired  and  holding 
these  strict  views  to  be  employed  as  teachers  in  the  public  school  system  of  the 
.^tate  goes  far  beyoml  the  mere  question  of  the  garb  or  distinctive  dress  worn 
by  them. 

To  my  mind,  it  is  fundamental  that  teachers  employed  in  the  public  schools 
of  the  .State  in  fitting  our  children  for  useful  citizens,  should  keep  themselves  in 
close  touch  with  everything  that  will  enhance  their  usefulness  in  this  direction. 
To  do  this  requires  association  with  others  engaged  in  like  employment  and 
fanuliarity  with  the  everj'-day  alTairs  of  life  with  which  the  pupil  in  future  years 
must  battle  for  his  own  existence.  They  should  touch  men  and  women  in  the 
mnllitudinous  and  intricate  affairs  of  life  which  perplex  and  discipline  us,  and 
above  all,  the  jirofessional  training  which  comes  from  association  with  educa- 
tional rcjiresentatives  ought  never  to  be  barred  from  any  teacher  em[)loyed  in 
the  public  schools.  Transfers  from  one  position  to  another,  as  the  needs  of 
a  great  city  school  system  may  require,  ought  always  to  be  possible,  and  no  teacher 
should  be  employed  who  owes  such  allegiance  to  any  other  institution,  organiza- 
tion or  denomination  as  to  make  such  transfers  impossible. 

Upon  the  susceptible  mind  of  a  child  the  influence  of  a  teacher  always 
wearing  the  garb  of  a  particular  denomination  with  the  insignia  of  a  religious 
order  upon  her  person,  who  is  never  seen  by  the  child  except  under  the  protec- 
tion imposed  by  the  rules  of  that  order,  employed  in  a  building  thus  consecrated 
and  known  to  the  child  to  be  in  the  opinion  of  the  teacher  a  sacred  and  holy 
place,  and  surmounted  by  an  emblem  everywhere  known  as  a  religious  symbol, 
is,  to  my  mind,  the  identical  influence  which  is  sought  to  be  excluded  from  the 
public  schools  by  the  organic  law  of  our  State.  This  State  annually  spends  many 
thousand  dollars  for  visual  instruction,  recognizing  it  as  one  of  the  legitimate 
and  most  useful  methods  of  imparting  instruction.  It  is  idle,  in  my  judgment, 
to  recognize  this  educational  influence  and  close  our  eyes  to  the  fact  that  the 
teacher  described  herein  exerts  a  like  influence  upon  the  susceptible  minds  of 
the  children.  The  principle  laid  down  in  the  language  herein  quoted  from  the 
decision  of  Superintendent  Draper  has  been  followed  in  several  cases  and  must 
be  considered  as  the  settled  and  established  policy  of  this  State. 

W  ith  reference  to  the  renting  of  the  buildings  complained  of  by  the  appellant 
lierein.  the  proof  submitted  by  the  respondent  establishes  the  fact  that  on  the  21st 
day  of  August  1873,  the  board  of  education  of  the  city  of  Poughkeepsie  entered 
mto  an  agreement  with  the  Right  Reverend  John  McCloskey,  archbishop,  etc. 
wherebv  the  city  leased  the  land  and  buildings  thereon  situate  on  the  north  side 
of  Mill  street  in  the  city  of  Poughkeepsie,  known  as  "  St  Peter's  Church  School 
for  Boys,    and  the  school  furniture  and  facilities  connected  therewith,  and  also 


JUDICIAL  decisions:  religious  garb  563 

the  land  and  school  buiUling  and  outbuildings  situate  on  the  lot  in  the  rear  of 
the  dwelling  house  of  the  Sisters  of  Charity  on  the  west  side  of  Clover  street, 
known  as  the  "  Girls'  or  Female  School  of  St  Peter's  Church,"  and  the  school 
furniture  and  fixtures  belonging  thereto,  for  a  period  of  ten  years  from  the  1st 
day  of  September  1875,  ^t  the  yearly  rental  of  one  dollar,  to  be  paid  in  yearly 
payments,  the  said  city  also  to  pay  the  premiums  of  insurance  on  the  leased 
property  during  the  continuance  of  this  lease.  By  the  terms  thereof  the  board 
of  education  were  to  have  the  absolute  control  and  use  of  such  buildings  and 
lands  and  school  furniture  for  the  use  and  purpose  of  public  schools  "  during 
the  school  hours  fixed  or  to  be  fixed  by  said  board,"  and  before  and  after  school 
hours  the  said  building,  land  and  school  furniture  were  to  be  under  the  control 
of  the  lessor. 

It  appears  that  at  the  expiration  of  such  term  said  buildings  continued  to  be 
occupied  by  the  board  of  education  and  respectively  designated  as  schools  11 
and  12,  and  are  and  since  that  date  have  been  part  of  the  public  school  system  of 
the  city.  No  new  or  other  lease  seems  to  have  been  executed  between  the  church 
authorities  and  the  board  of  education,  but  the  board  continued  in  possession  of 
such  property  after  the  expiration  of  their  lease  without  any  other  agreement, 
further  than  that  the  respondents  allege  that  in  the  year  1897  it  was  verbally 
agreed  between  the  parties  to  such  lease  that  all  religious  or  denominational 
instruction  therein  during  school  days  should  be  discontinued,  and  the  right  to 
use  such  buildings  for  such  purposes  was  waived  by  the  lessor.  The  buildings 
thus  leased  are  each  surmounted  by  a  cross,  and  over  the  doorway  of  one  is  the 
following  inscription  cut  in  stone,  "  St  Peter's  Male  Academy,  1869,"  while  the 
other  building  stands  partially  in  the  rear  of  a  dwelling  house  owned  by  the 
church  authorities,  which  is  occupied  as  a  residence  by  the  sisters  teaching  in  the 
above-named  schools. 

It  appears  from  the  evidence  that  prior  to  the  leasing  of  the  buildings  herein 
described,  a  parochial  school  was  maintained  in  each  of  said  buildings,  and 
teachers  then  employed  were  continued  in  the  school  by  the  board  of  education. 
As  their  places  have  become  vacant  by  resignation  or  otherwise,  care  has  always 
been  taken  that  their  successors  should  be  members  of  the  same  order  or  sect, 
wearing  a  like  attire,  whether  in  pursuance  of  any  understanding  with  the  church 
authorities  or  not,  is  not  clear,  but  it  is  fair  to  assume  that  some  agreement  of 
that  character  outside  of  the  written  lease  must  have  existed.  The  teachers 
thus  employed  have  been  paid  by  checks  drawn  by  the  board  of  education  upon 
one  of  the  banks  of  that  city,  payable  to  the  teacher  by  her  full  christian  name, 
and  such  checks  prior  to  the  commencement  of  these  proceedings  all  bore  the 
indorsement  when  presented  for  payment,  of  "  Sister  Alexis,"  alleged  to  be  the 
sister  in  charge  of  the  parish  house  in  which  the  teachers  resided. 

I  am  asked  by  the  board  of  education  to  hold  that  the  employment  of 
teachers  thus  attired,  teaching  in  buildings  of  the  character  described  and  per- 
manently leased  in  the  manner  set  forth,  is  not  a  violation  of  the  Constitution  of 
this  State.     In  my  judgment  such  action  of  this  board  of  education  is  unwise  as 


564  THK    UN'IVEKSrrV    OK  Tllli   STATE   UF    NEW    YORK 

a  matter  of  school  polity,  is  a  violation  of  the  letter  ami  spirit  of  the  Constitution, 
and  such  leasinjj  of  huildings  is  without  warrant  of  law. 

The  charter  of  the  city  of  Poughkeepsie  makes  provision  for  its  public  school 
system.  It  provides  for  the  election  of  a  board  of  education,  whose  powers  and 
duties  arc  dellned  in  section  189  thereof.  Subdivision  4  of  this  section  provides 
that  "  said  board  of  education  are  to  exercise  the  powers  and  discharge  the  duties 
of  said  schools  the  same  as  trustees  of  school  districts  under  the  statutes  of  this 
State."  No  provision  is  made  in  the  charter  for  the  renting  of  buildings  or 
rooms  for  school  purposes.  Section  192,  however,  makes  ample  provision  for 
the  "  purchase  or  erection  of  an  additional  schoolhouse,  if  the  board  of  educa- 
tion deems  such  course  proper  or  necessary."  Hence  we  must  look  to  the  pro- 
visions of  the  Consolidated  School  Law  for  the  authority  of  the  board  of  educa- 
tion of  this  city  to  lease  property  for  school  purposes.  Such  authority  is  given  to 
them  only  by  section  50  of  title  7  of  the  Consolidated  School  Law,  which  reads 
as  follows : 

*■  Whenever  it  shall  be  necessary  for  the  due  accommodation  of  the  children 
of  the  district,  by  reason  of  any  considerable  number  of  said  children  residing 
in  portions  of  said  district  remote  from  the  schoolhouse  in  said  district,  thereby 
rendering  it  ditTicult  for  them  in  inclement  weather  and  in  winter  to  attend  school 
at  such  schoolhouse,  or  by  reason  of  the  room  or  rooms  in  said  schoolhouse  being 
overcrowded,  or  for  any  other  sutticient  reason  the  due  accommodation  of  said 
children  can  not  be  made  in  said  schoolhouse,  they  shall  establish  temporary  or 
branch  school  or  schools  in  such  place  or  places  in  said  district  as  shall  best 
accommodate  such  children,  and  hire  any  room  or  rooms  for  the  keeping  of  said 
temporary  l)ranch  school  or  schools,  and  fit  up  and  furnish  said  room  or  rooms 
in  a  suitable  manner  for  conducting  such  school  or  schools  therein.  Any  expendi- 
ture made  or  liability  incurred  in  pursuance  to  this  section  shall  be  a  charge  upon 
the  district." 

This  language  clearly  contemplates  only  the  temporary  leasing  of  property 
for  school  purposes  by  school  authorities,  and  was  not  intended  to  authorize 
school  boards  to  permanently  maintain  schools  in  leased  rooms  or  buildings. 
Prior  to  1894  trustees  were  authorized  by  subdivision  5  of  section  49  of  title  7 
of  the  Consolidated  School  Law  of  1864  "  to  purchase  or  lease  a  site  for  the 
district  schoolhouse  or  schoolhouses  as  designated  by  the  meeting  of  the  district, 
and  to  build,  hire  or  purchase  such  schoolhouse  as  may  be  so  designated,  and  to 
keep  in  repair  and  furnish  such  house  with  necessary  fuel  and  appendages  and 
pay  the  expense  thereof  by  tax."  But  in  the  consolidation  of  the  school  law 
in  1894,  the  power  of  leasing  school  buildings  was  hedged  about  with  certain 
conditions  not  in  the  former  statute,  clearly  indicating  the  intent  on  the  part  of 
the  Legislature  to  limit  such  leasing  to  temporary  and  extraordinary  conditions. 
Since  1894  it  Ivis  been  the  settled  policy  of  the  State  that  localities  must  own 
the  school  buildings  in  which  their  schools  are  conducted,  and  that  the  leasing  and 
renting  of  property  for  school  purposes  was  not  authorized  except  under  extraor- 
dinary conditions. 


JUDICIAL    DECISIONS  :    RELIGIOUS    GARB  565 

The  condition  existing  in  the  city  of  Poughkeepsie  for  the  past  fifty  years 
is  the  best  illustration  possible  of  the  wisdom  of  the  State  in  taking  away  from 
school  officers  the  power  to  perpetually  rent  property  for  school  purposes.  Since 
1843  the  schools  in  that  city  have  been  wholly  or  partially  conducted  in  buildings 
and  rooms  rented  for  the  purpose.  In  1843  ^'^e  village  corporation  owned  no 
school  buildings,  and  the  board  supplied  the  want  by  the  rental  of  a  building 
formerly  occupied  as  a  theater,  situate  in  Market  near  Jay  street.  Since  that 
time  there  have  been  rented  rooms  in  buildings  situate  on  the  corner  of  Clinton 
and  Thompson  streets,  in  the  coach  factory  at  the  junction  of  Mill  street  and 
Dutchess  avenue,  in  the  basement  of  the  Universalist  church,  in  a  building  rented 
of  the  Baptist  church,  known  as  the  Hofifman  street  chapel,  in  Faith  chapel  on 
Union  street,  in  the  primitive  Methodist  church  on  Church  street,  and  the  present 
board  of  education  is  now  renting  in  addition  to  schools  11  and  12,  described  in 
the  petition  of  appeal  herein,  the  Hofifman  street  chapel  of  the  Baptist  church,  at 
an  annual  rental  of  $185,  the  building  known  as  the  "  Poughkeepsie  Military 
Institute,"  formerly  Waring's  Military  School,  a  frame  building  erected  over 
thirty  years  ago,  paying  an  annual  rent  of  $1000  therefor,  and  also  a  building 
rented  of  St  Mary's  parish  in  which  school  9  is  conducted. 

The  deplorable  condition  of  school  facilities  in  this  city  is  best  shown,  by 
stating  the  exact  facts.  Out  of  thirteen  buildings  in  which  schools  are  main- 
tained, five  are  rented,  one  is  a  building  formerly  used  as  a  dwelling  house,  one 
is  an  old  machine  shop  repaired  and  converted  into  a  school  building,  and  with 
the  exception  of  school  5,  not  a  single  building  has  any  system  of  ventilation, 
and  no  means  of  heating  except  by  coal  stoves,  in  some  cases  within  twenty  inches 
of  the  desks  occupied  by  the  pupils,  consuming  the  oxygen  of  the  overcrowded 
schoolroom.  No  provision  is  made  for  children's  wraps,  which  hang  about  the 
schoolroom  four  and  fi.ve  deep  upon  an  insufficient  number  of  hooks,  a  most 
unsanitary  condition.  Some  of  these  buildings  have  water-closets  in  the  base- 
ments, the  odors  from  which  permeate  the  whole  building;  in  some  the  rooms 
are  separated  from  others  by  glass  partitions  where  the  school  exercises  con- 
ducted in  one  room  confuse  the  school  work  in  the  room  adjoining.  Narrow 
aisles,  in  some  cases  but  fifteen  inches  wide,  temporary  outside  frame  stairways, 
built  upon  those  old  buildings  as  afterthoughts  to  meet  the  growing  wants  of 
the  city ;  and  insufficient  seating  accommodations  for  an  attendance  in  some  cases 
larger  than  the  total  seating  capacity  of  the  room,  are  among  the  bad  conditions 
that  prevail.  Taken  altogether,  I  know  of  no  other  city  in  the  State  with  such 
deplorable  school  facilities  as  this  city  possesses. 

If  it  be  said  that  the  limit  of  bonded  indebtedness  has  been  reached  by  this 
municipality,  I  can  only  say  that  that  city  is  now  engaged  in  erecting  a  brick  and 
stone  building  for  its  fire  department;  has  erected  three  such  buildings  within 
five  years ;  has  erected  a  commodious  building  for  the  use  of  its  police  and  public 
-works  department  within  ten  years;  has  found  means  for  paving  its  streets  with 
asphalt  and  Belgian  block  pavements,  and  if  the  choice  has  been  presented 
between  adequate  school  facilities  and  these  improvements,  the  city  seems  delib- 
erately to  have  chosen  the  latter  in  preference  to  the  former. 


e^Uj  THE   UMVEKSITV    nl"   TlIK   STATK   OK   NEW    YORK 

The  two  IniiUlings  described  in  the  ai)])ellant's  petition  herein  are  not  adapted 
to  school  purposes.  Access  to  the  upper  floor  of  one  is  had  by  a  winding  narrow 
stairway.  One  is  upon  low,  undesirable  ground.  They  can  not  be  properly 
heated  and  neither  l.as  any  satisfactory  means  of  ventilation.  The  extrava.o^ance 
of  the  present  system  is  clearly  manifest  when  we  consider  that  the  building 
rented  of  the  Baptist  church  is  scarcely  worth,  including  the  land  on  which  it 
staiuls.  one  year's  rental  paid  therefor.  It  is  an  antiquated  structure  with  small 
windows,  low  ceilings  and  dark  rooms.  The  rear  room  is  reached  by  a  narrow 
passage,  the  entrance  to  which  does  not  exceed  twenty  inches  in  width.  The  old 
I'oughkeepsie  Military  Institute,  while  it  is  an  antiquated  frame  building  built 
more  than  thirty  years  ago  is  still  probably  the  most  comfortable  school  building 
in  use  in  the  city  of  Poughkccpsie.  Its  rental,  however,  is  $1000  a  year.  This 
represents  an  investment  of  .$25,000  at  4  per  cent,  while  that  amount  would  build 
at  least  two  modern  school  buildings,  with  modern  heating,  lighting  and  ventila- 
tion and  slate  blackboards,  not  at  present  possessed  by  any  school  building  in  the 
citv.  with  the  possible  cxcei)tii)n  of  a  portion  of  school  5. 

Xotwithstanding  the  continued  leasing  of  school  buildings  in  this  city,  there 
ha^  been  such  an  utter  lack  of  .school  facilities  that  prior  to  September  i,  1898, 
icj^)4  of  the  school  children  in  this  city  who  by  the  laws  of  our  State  were  entitled 
to  free  instruction,  were  compelled  to  alternate  in  their  attendance  and  were  able 
to  obtain  but  two  and  one- fourth  hours'  instruction  each  day. 

No  evidence  whatever  is  presented  to  me  as  to  the  amount  of  bonded 
indebtedness  of  this  city.  Hence  I  have  no  means  of  knowing  whether  the 
local  authorities  are  permitted  under  the  constitutional  limitations  to  create  any 
further  bonded  indebtedness.  No  evidence  is  presented  that  any  efifort  has  been 
ma*^  in  recent  years  by  the  board  of  education  to  supply  this  woeful  lack  of 
school  facilities  by  taxation.  The  respondents  allege  as  a  matter  of  belief  that 
the  inhabitants  of  that  city  would  not  vote  the  necessary  funds  for  the  erection 
of  new  school  buildings,  although  I  am  at  a  loss  to  determine  upon  what  such 
opitiiou  is  founded.  They  do  not  allege  that  any  effort  has  been  made  to  test 
public  sentiment  upon  that  question. 

I  shall  be  loath  indeed  to  believe  that  a  city  possessing  the  wealth  of  Pough- 
kecpsie  and  citizens  of  acknowledged  intelligence  would  refuse  to  appropriate 
money  sufhcient  to  enable  her  board  of  education  to  comply  with  the  school  laws 
of  the  State,  or  to  furnish  reasonable  accommodations  for  her  children  while 
in  attendance  upon  the  public  schools. 

I  am  very  clearly  of  the  opinion  that  the  statutes  of  this  State  do  not  contem- 
plate the  leasing  of  school  property  as  practised  by  this  city  and  that  such  leasing 
is  clearly  contrary  to  the  provisions  of  the  charter  of  Poughkeepsie  and  of  the 
school  law  of  the  State,  although  I  am  not  unmindful  of  the  fact  that  this  system, 
known  as  the  '*  Poughkeepsie  plan,"  has  been  widely  commented  upon  and  in 
many  quarters  ha<;  been  regarded  as  wise  and  practical. 

How  far  the  desires  of  those  interested  in  its  continuance  may  have 
influenced  the  board  of  education  in  the  course  pursued  by  it  in  regard  to  the 


JUDICIAL    DliCISlONS  :    RELIGIOUS    GARB  567 

erection  of  new  buildings,  I  do  not  know.  That  it  has  been  eminently  satis- 
factory to  the  lessors  of  these  buildings  is  apparent.  That  the  board  of  educa- 
tion has  always  considered  that  the  employment  as  teachers  of  members  of  the 
religious  order  named,  was  to  be  some  equivalent  for  rent,  is  evident  from  the 
fact  that  the  rental  of  these  comparatively  large  buildings  has  been  but  nominal, 
while  to  the  other  denominations,  renting  inferior  buildings  but  with  no  effort 
to  have  their  communicants  employed  as  teachers  therein,  has  been  paid  a  sum 
fully  equal  to  or  in  excess  of  the  real  rental  value  of  the  property.  That  the 
lessors  of  these  buildings  have  always  so  regarded  the  arrangement  is  evident 
from  the  fact  that  for  upwards  of  twenty-five  years  this  large  amount  of  prop- 
erty has  been  practically  donated  to  the  uses  of  the  public  school  system  of  the 
city,  and  from  the  further  fact  that  since  the  commencement  of  these  proceedings 
great  anxiety  has  been  manifest  to  have  the  system  continued. 

This  union  of  interests  is  no  longer  desirable,  nor  for  the  best  interests 
of  the  schools  of  the  city.  It  has  been  and  is  a  cause  of  irritation  and  discord 
among  the  patrons  of  the  schools,  is  against  the  spirit  of  our  institutions  which 
calls  for  a  complete  and  total  severance  of  church  and  state,  and  in  my  judg- 
ment is  against  the  letter  and  spirit  of  the  Constitution.  Our  public  school 
system  must  be  conducted  in  such  a  broad  and  catholic  spirit  thati  Jew,  and 
Protestant,  and  Catholic  alike  shall  find  therein  absolutely  no  cause  for  com- 
plaint as  to  the  exercise,  directly  or  indirectly,  of  any  denominational  influence. 
In  this  respect  every  school  maintained  at  public  expense  should  be  free,  open 
and  accessible  without  reasonable  ground  for  objection  from  any  source  whatever. 

While  the  discussion  of  the  facts  in  connection  with  the  school  system  of 
this  city  has  been  somewhat  broader  than  the  issues  raised  by  the  pleadings 
herein,  nevertheless  the  rental  of  other  church  property  and  private  property 
by  the  board  of  education  of  this  city  has  been  and  is  so  clearly  a  violation  of 
the  principle  laid  down  herein  that  I  deemed  it  advisable  to  treat  the  whole 
question  in  this  opinion.  I  have  also  desired  that  this  decision  should  state 
without  uncertainty  the  position  of  the  Department  with  reference  to  all  questions 
raised  herein.  Cities,  villages  and  school  districts  must  own  the  buildings  in 
which  their  schools  are  conducted  save  only  when  temporary  hiring  of  rooms  or 
buildings  is  made  necessary  by  some  sudden  emergency. 

The  renting  by  the  respondents  of  the  property  of  the  Baptist  church  and 
the  renting  of  rooms  or  buildings  by  their  predecessors  from  the  Methodist  or 
Uni\-ersalist  denominations,  in  which  to  permanently  conduct  the  schools  in  said 
city  is  equally  reprehensible,  and  I  desire  it  to  be  hereafter  clearly  understood 
that  the  prohibition  extends  to  all  denominations,  as  well  as  to  all  individuals. 
All  other  questions  raised  herein  are  but  incidental  to  this. 

I  decide  that  the  action  of  the  respondents  herein  in  hiring  rooms  and  build- 
ings in  which  to  conduct  any  of  the  schools  of  said  city  and  in  continuing  the 
lease  of  buildings,  rented  by  a  former  board,  and  in  conducting  schools  therein 
beyond  the  period  of  emergency  contemplated  by  the  statute,  is  without  legal 
authority  on  the  part  of  the  respondents. 


568  THE    i;\IVEKSITV    OF   TIIF.   STATE    OF    NEW    YORK 

I  also  decide  that  it  is  the  duty  of  the  respondents  to  require  teachers 
employed  by  (hem  to  fliscontinuc  in  the  pul)lic  schoolroom  the  use  of  distinguish- 
ing,' dress  or  garb  of  any  religious  order. 


4642 

In  the  matter  of  the  ai)peal  of  Eugene  Lockwood  and  others  v.  hoard  of  educa- 
tion of  school  district  9,  Corning,  Steuben  county. 

It  is  the  policy  of  the  scliool  law  tliat  each  of  the  .•school  districts  of  the  State  should 
hecomc  tin-  owmr  of  the  schoollinuse  or  houses  or  school  building  or  buildings,  either  by 
purciiasc  or  by  building  upon  a  suitable  site  or  sites;  and  where  power  is  given  to  lease 
rooms  or  buildings  it  is  only  for  a  limited  time  to  provide  for  an  emergency. 

The  wearing  of  an  unusual  garb,  worn  exclusively  by  members  of  one  religious  denomina- 
tion, for  the  purpose  of  indicating  membership  in  that  denomination,  by  the  teachers 
in  the  public  school  during  school  hours  while  teaching  therein,  constitutes  a  sectarian 
influence  which  ought  not  to  be  persisted  in.  It  is  the  duty  of  the  school  authorities  to 
require  such  teachers  to  discontinue,  while  in  the  public  schoolroom  and  in  the  per- 
formance of  their  duty  as  teachers  therein,  the  wearing  of  such  dress  or  garb. 

Decided  March  31,   1898 

Skinner,  Superintendent 

This  is  an  apjjcal  by  the  appellants  in  the  above-entitled  matter,  as  residents 
and  qualified  voters  of  school  district  9,  city  of  Corning,  froin  the  action  of  the 
board  of  education  of  such  district  in  refusing  to  take  action  upon,  or  to  comply 
with  the  rccjuest  contained  in,  a  petition  or  memorial  signed  by  the  appellant  Lock- 
wood  and  twenty  other  qualified  voters  of  such  district,  and  dated  September 
27.  i8<)7,  that  certain  teachers  named  therein,  teaching  in  the  .schools  in  such 
district,  be  required  by  such  board  of  education  to  forthwith  discontinue  the 
use  and  wearing  by  them,  during  the  school  hours  of  each  school  day  held  and 
taught  by  theni,  of  the  distinctive  garb,  dress  or  badge  of  the  religious  sect  or 
order  to  which  they  belong. 

The  appellants  herein  also  appeal  from  the  action  of  said  board  of  educa- 
tion in  leasing  and  paying  rent  for  the  brick  building  in  which  school  2  in  such 
school  district  is  being  maintained. 

Annexed  to  such  appeal  is  a  copy  of  the  i)etition  or  memorial  delivered  to 
said  board  of  education,  dated  September  27,  1897,  as  hereinbefore  stated,  and 
the  separate  alVidavit  of  one  Ira  W.  Ten  Broeck  and  the  api>ellant  herein,  Eugene 
Lockwood. 

The  appeal  herein  was  filed  in  this  Department  on  November  29,  1897. 
Ihe  respondents,  the  board  of  education,  applied  for  and  received  an  extension 
of  time  to  answer  the  appeal,  and  on  January  8,  1898,  such  answer  was  filed  in 
this  Department. 

The  following  facts  are  admitted: 

That  the  api)cllants  herein  are  residents  of  school  district  9.  city  of  Corning, 
county  of  Steuben,  and  are  (pialified  voters  therein;  that  Amory  Houghton,  jr, 


JUDICIAL  decisions:  religious  garb  569 

George  R.  Brown,  John  L.  Lewis,  O.  P.  Robinson,  David  S.  Drake  and  William 
E.  Gorton  are  members  of,  and  compose,  the  board  of  education  of  such  school 
district;  that  the  following  named  persons  were  employed  by  such  board  of 
education  to  teach  during  the  school  year  of  1897-98  and  are  now  teaching  in 
the  school  designated  as  2  in  such  school  district  9,  namely,  Genevieve  Levett, 
Bercham  Holway,  Philomena  Walsh,  Beatrice  Brown,  Michel  Donovan,  Joseph 
ine  O'Connor  and  Rita  Connors,  all  of  whom  are  members  of  a  religious  society, 
order  of  sisterhood,  known  as  the  "  Sisters  of  Mercy,"  and  are  the  only  teachers 
employed  and  teaching  in  such  school  except  one  other  not  named;  that  during 
all  the  time  that  such  persons  have  been  employed  as  such  teachers  in  such  school, 
and  during  each  school  hour  of  each  school  day  in  which  they  have  been  employed 
in  the  instruction  of  the  scholars  in  such  school,  they  have  worn  the  particular, 
distinctive,  distinguishing  garb  or  dress  of  the  sisters  of  mercy,  the  religious 
society,  order  or  sisterhood  of  which  they  are  members,  and  wear  upon  their 
persons,  conspicuously  displayed,  a  cross,  rosary  or  other  badge  or  insignia 
peculiar  to  such  religious  order;  that  on  or  about  October  2,  1897,  a  memorial 
or  petition,  addressed  to  the  board  of  education  of  such  school  district  and  dated 
September  27,  1897,  signed  by  the  appellant  Lockwood  and  twenty  others,  resi- 
dents and  voters  in  such  school  district,  was  delivered  to  George  Hitchcock,  the 
secretary  of  such  board  of  education,  in  which,  after  stating  the  employment 
of  the  said  teachers  and  that  they  wore  during  school  hours  and  wdiile  teaching 
in  the  school,  the  distinctive  dress  or  garb  of  the  religious  order  of  which  they 
were  members,  together  with  the  badge  or  insignia  of  the  order,  alleging  that  the 
wearing  of  such  garb,  they  believe,  constitutes  a  sectarian  inlluence  within  the 
prohibition  contained  in  section  4  of  article  9  of  the  Constitution  of  this  State, 
and  requesting  the  board  of  education  to  require  such  teachers  to  forthwith  dis- 
continue the  wearing  of  the  distinctive  garb  or  dress  during  school  hours  and 
while  teaching  in  such  school ;  that  annexed  to  the  memorial  or  petition  were  the 
separate  affidavits  of  the  appellant  Lockwood  and  one  Ten  Broeck  in  support  of 
the  statements  contained  in  the  memorial;  that  one  meeting  of  such  board  ot 
education  was  held  after  the  delivering  to  the  secretary  of  the  memorial  and 
affidavits  before  the  appeal  herein  was  taken,  but  no  action  was  taken  at  such 
meeting  by  the  board  relative  to  the  memorial ;  that  the  board  of  erlucation  has 
not  interfered  with  the  style  and  mode  of  dress  of  any  of  the  teachers  employed 
by  it. 

The  appellants  allege  that  the  scholars  attending  at  said  school  2  are  expected 
to,  and  do,  address  such  teachers  habitually  as  "  sisters."     The  respondents  in 
their  answer  deny,  upon  information  and  belief,  "  that  there  is  any  rule  as  to 
the  manner  of  address  to  said  teachers  by  the  pupils  of  the  school." 
It  is  established  by  the  proofs  filed  herein: 

That  the  building  in  which  said  school  2  is  maintained  is  a  brick  structure, 
located  in  the  fourth  ward  of  the  city  of  Corning,  opposite  St  Mary's  Roman 
Cathblic  church,  and  was  formerly  used  as  a  parochial  school  building ;  that  for 
the  past  ten  years  such  building  has  been  leased  to  the  board  of  education  of 


570  THE    UNIVERSITY    OF   THE   STATE    OE    NEW    YORK 

school  district  9  for  use  for  tlic  maintenance  therein  of  one  of  the  schools  under 
its  char^'e;  that  on  Sei)teniher  i,  1893.  the  board  of  education  of  district  9  leasetl 
from  one  IVtcr  Coljjan.  a  priest  of  such  church,  said  building  for  the  term  of 
five  years,  at  the  animal  rent  of  $1000,  such  rental  to  include  the  keeping  of  the 
building  in  repair  and  to  be  furm'shed  with  school  furniture,  properly  plumbed 
and  supplied  with  water-closets,  gas  fixtures,  etc.  and  the  ground  probably  graded 
and  clraincd;  also  the  heating  of  the  building  with  steam  heat,  and  the  services  of 
a  janitor;  that  said  board  during  such  term  has  the  full  and  absolute  control  of 
such  building. 

The  appellants  herein  appeal  from  the  action  of  the  board  of  education  in 
leasing  and  paying  rent  for  the  brick  building  in  which  school  2  is  maintained. 
Such  lease,  by  its  terms,  will  expire  on  September  i,  1898,  and  in  my  opinion, 
should  not  be  thereafter  renewed  or  continued;  but  measures  should  be  immedi- 
ately taken  for  the  construction  of  a  new  school  building  for  such  district. 

The  resjiondents  state,  as  the  grounds  for  their  action  in  leasing  such  build- 
ing that  by  reason  of  the  increase  of  population  and  of  pui)ils  requiring  accom- 
modation, the  board  of  education  since  and  including  the  year  18S3,  had  erected 
three  school  buildings,  the  last  of  which  was  erected  in  1895,  '^"^l  that  on  this 
account  the  bonds  of  the  district  to  the  amount  of  $55,000  are  outstanding,  the 
last  of  which  will  mature  in  the  year  1931 ;  that  to  be  comi)cllcd  now  to  erect 
another  building  would  greatly  embarrass  the  district,  as  the  aggregate  assessed 
valuation  of  the  real  and  personal  property  therein  docs  not  exceed  $3,000,000. 

It  has  uniformly  been  the  policy  of  this  Department  to  call  the  attention 
of  inhabitants  of  school  districts,  and  of  trustees  and  boards  of  education  therein, 
to  the  condition  of  their  schoolhouses  and  grounds  and  the  necessity  of  erecting 
schoolhouses  when  necessary  to  properly  accommodate  the  pupils  therein.  It 
is  true  the  respondents  herein  have  the  power  to  hire  schoolrooms  in  their  school 
district,  and  such  power  is  given  to  trustees  and  boards  of  education  under  the 
general  school  law  and  special  acts  relating  to  schools ;  but  such  provisions  have 
been  held  to  authorize  such  school  authorities  to  lease  rooms  and  buildings  to 
supi)ly  temporarily  only  the  lack  of  schoolhouses  in  the  district,  or  where  the 
same  are  not  in  condition  for  use,  or  are  being  repaired  or  added  to,  or  pending 
action  on  the  part  of  the  school  authorities,  or  the  inhabitants  to  supply 
deficiencies. 

School  district  9,  Corning,  is  financially  a  strong  district,  having  at  present 
an  aggregate  assessed  valuation  of  $3,000,000,  and  is  abundantly  able  to  erect 
the  additional  schoolhouse  needed  therein.  It  has  been  decided  and  must  be 
accepted  as  the  settled  i)olicy  of  the  State  that,  except  in  cases  of  extreme  tem- 
porary emergency,  localities  must  provide  and  in  their  corporate  capacities,  must 
own  all  necessary  school  buildings  and  their  equipments. 

The  respondents  herein  are  in  error  in  assuming  that  the  appeal  herein  is 
from  their  action  in  making  the  contracts  with  the  seven  teachers  named  in  the 
appeal,  and  that  as  such  contracts  were  made  in  April  1897,  the  appeal  herein 
was  not  taken  in  time. 


JUDICIAL    decisions:    religious    GARli  5/1 

The  appellants  herein  do  not  appeal  from  the  action  of  the  respondent  in 
employing  such  persons  as  teachers,  but  in  refusing  or  neglecting  to  take  action 
upon  the  memorial  presented  to  the  respondents,  and  in  refusing  or  neglecting  to 
require  such  teachers  to  discontinue  the  wearing,  during  school  hours  and  while 
teaching  in  the  school,  of  the  distinctive  dress  or  garb  of  the  religious  order  or 
society  of  which  they  are  members. 

I  decide : 

That  the  appellants  having  given  a  satisfactory  reason  for  their  delay  in 
bringing  such  appeal,  the  appeal  in  that  regard  was  taken  in  time,  under  the 
rules  of  this  Department. 

The  question  raised  by  the  appellants  herein,  in  relation  to  the  wearing  by 
teachers  in  the  public  schools  of  this  state  of  the  distinctive  garb  or  dress  of  the 
religious  order  of  which  such  teachers  are  members,  and  in  being  known  and 
addressed  by  the  pupils  as  "  Sister  ]\Iary,  etc."  has  several  times  been  brought 
to  the  attention  of  and  has  received  the  consideration  of  this  Department. 

It  has  been  uniformly  held  that  the  wearing  of  an  unusual  garb,  worn 
exclusively  by  members  of  one  religious  denomination,  and  for  the  purpose  of 
indicating  membership  in  that  denomination,  by  the  teachers  in  a  public  school, 
during  school  hours,  while  teaching  therein,  constitutes  a  sectarian  influence 
which  ought  not  to  be  persisted  in.  The  same  may  be  said  of  the  pupils  addressing 
such  teachers  as  "  Sister  Mary,  etc."  School  authorities  should  require  their 
teachers  to  discontinue  the  use  in  the  schoolroom  of  the  distinguishing  dress 
of  the  religious  order  to  which  they  belong,  and  should  cause  the  pupils  to 
address  them  by  their  family  name  with  the  prefix  of  "  IMiss  or  Mrs "  as 
teachers  are  ordinarily  addressed. 

(Decision  3520  of  Superintendent  Draper,  decided  March  24,  1887,  in  the 
appeal  of  Lcander  Colt  v.  the  board  of  education  of  union  free  school  district 
7  of  the  village  of  Suspension  Bridge,  Niagara  county,  page  854,  etc.  of  the 
Report  of  the  State  Superintendent  of  Public  Instruction  for  the  year  ending 
1888;  also,  decision  4516,  decided  November  25,  1896,  in  the  appeal  of  Fayette 
B.  Durant  and  others  v.  board  of  education  of  West  Troy  school  district,  page 
174,  etc.  of  the  Report  of  the  State  Superintendent  of  Public  Instruction  for  the 
year  1897;  also,  decision  4546,  decided  May  17,  1897,  in  the  appeal  of  Samuel 
Kennedy  and  others  v.  the  board  of  education  of  city  of  Watervliet,  Albany 
county,  in  the  Report  of  the  State  Superintendent  of  Public  Instruction  for  the 
year  1898.) 

Nothing  is  presented  in  the  appeal  herein  to  alter,  change  or  modify  the 
decisions  of  this  Department  as  hereinbefore  cited,  and  such  decisions  are 
affirmed,  and  made  operative  and  obligatory  upon  the  respondents  herein. 

It  appearing  that  each  of  the  seven  teachers  mentioned  in  the  appeal  herein 
is  under  contract  to  teach  in  the  school  in  such  district  until  the  end  of  the  present 
school  year,  and  that  the  dismissal  of  such  teachers  by  the  board  of  education  for 
the  refusal  of  such  teachers  to  discontinue  the  wearing  of  their  distinctive  garb 
during  school  hours  and  while  teaching  in  such  school,  would  necessitate  the 


^7-^  THE    U.\I\KkSITY    OK   THK   STATK    OF   NEW    YORK 

employment  rtf  olltcr  teachers  ior  the  halance  of  the  school  year,  and  cause 
complications  in  the  school  district,  the  directions  hereinafter  given  to  the 
respondents  are  not  to  take  elTect  until  the  end  of  the  present  school  year. 

The  appeal  herein  is  sustained. 

It  is  onlered,  That  the  board  of  education  of  school  district  9,  city  of  Corn- 
ing, Steuben  county,  be,  and  they  are  hereby,  directed  to  require  all  teachers 
employed  by  them,  to  iliscontinue  the  wearing  during  the  school  hours  of  each 
school  day  in  which  the  school  is  taught  by  them,  of  the  distinctive  or  distinguish- 
ing garb  or  dress  of  the  religious  order,  society  or  sisterhood  of  which  they 
are  members. 

It  is  further  ordered.  That  said  board  of  education  be,  and  it  hereby  is, 
enjoincil  antl  restrained  from  leasing  or  using,  on  or  after  September  i,  1898, 
the  brick  building  in  which  school  2  is  now  maintained,  for  the  purpose  of  main- 
taining or  conducting  therein  any  of  the  public  schools  of  the  city  of  Corning. 


5010 

In  the  matter  of  the  appeal  of  William  A.  Ferris,  Gcrrit  S.  Preston,  Horace  A. 
Crane  and  Alfred  K.  Bates  v.  Henry  Allen  Sylvester,  sole  trustee  of  school 
district  no.  9,  Lima,  Livingston  county. 

It  has  been  the  settled  policy  of  the  State  since  1848  that  localities  must  own  the  school 
huildinys  in  which  their  public  schools  are  conducted;  that  the  renting  of  rooms  and 
buildings  for  school  purposes  is  not  authorized,  except  under  extraordinary  conditions 
and  to  provide  for  emergencies. 

The  wearing  by  the  teachers  in  the  public  schools,  during  school  hours,  while  teaching 
therein,  of  an  unusual  garb  worn  exclusively  by  members  of  one  religious  denomination 
for  the  purpose  of  indicating  membership  therein,  constitutes  a  sectarian  influence, 
which  ought  not  to  be  persisted  in.  It  is  the  duty  of  the  school  authorities  to  require 
such  teachers  to  discontinue,  while  in  the  public  schoolroom,  and  in  the  performance 
of  their  duties  as  teachers  therein,  the  wearing  of  such  dress  or  garb. 

Decided  June  5,   iyo2 

Albert  H.  Stearns,  attorney  for  appellants 
(ieorge  W.  At  well,  jr,  attorney  for  respondent 

Skinner,  Superintendent 

On  April  16,  1902,  the  above-named  appellants  filed  in  this  Department  their 
ai>peal  from  the  action  of  Henry  Allen  Sylvester,  sole  trustee  of  school  district 
9.  Lima,  Livingston  county,  in  leasing  for  school  purposes  certain  rooms  in  the 
building  known  as  "  Brendans  Hall,"  situated  on  Lake  avenue  in  the  village  of 
Lima,  in  said  district,  and  in  furnishing  heat,  light  etc.,  therein,  on  the  ground 
that  such  leasing  is  illegal  and  void  under  the  Constitution  and  laws  of  this 
State. 

The  api)ellants  also  appeal  from  the  action  of  such  trustee  in  the  employ- 
ment of  two  teachers  in  the  school  in  "Brendans  iLall,"  both  of  whom  they 


JUDICIAL    DECISIONS  :    RELIGIOUS    GARB  5/3 

allege  are  members  of  the  religious  order  or  sisterhood  known  as  "  Sisters  of 
Charity,"  and  both  of  whom,  during  school  hours,  dress  in  the  garb  or  dress 
peculiar  to  such  order,  and  are  usually  addressed  by  the  scholars  as  "  sister  " 
instead  of  '"miss."' 

They  allege  that  the  use  of  public  school  money  by  the  trustee  in  paying 
said  teachers  is  contrary  to  the  Constitution  and  laws  of  this  State. 

On  April  i8,  1902,  the  above-named  William  A.  Ferris  and  Gerritt  S.  Pres- 
ton filed  in  this  Department  their  withdrawal  as  appellants  in  this  appeal. 

Issue  has  been  joined  by  service  of  the  usual  answer  herein. 

The  following  facts  are  established  from  the  pleadings  and  proofs  filed 
herein,  and  the  records  in  this  Department. 

School  district  9,  Lima,  Livingston  county,  is  a  common  school  district 
formed  many  years  ago,  and  comprises  the  village  of  Lima,  with  certain  con- 
tiguous portions  of  the  town  of  Lima,  and  having  a  population  of  over  1000. 
The  number  of  children  of  school  age  residing  in  the  district,  according  to  the 
school  census  of  1901,  was  205.  The  schoolhouse  of  the  district  is  a  one-story 
brick  building  erected  in  i860,  having  two  rooms,  the  larger  room  having  a 
capacity  for  seating  40  pupils,  and  the  smaller  room  a  capacity  for  seating  36 
pupils,  making  a  total  of  76  pupils.  During  the  present  school  year  the  trustee 
of  such  district  has  hired  a  room  in  the  second  story  of  a  block  of  stores  on 
Rochester  street  in  the  village  of  Lima,  in  wdiich  a  school  of  20  pupils  has  been 
conducted.  For  a  number  of  years  a  school  of  the  district,  known  as  the  "  South 
School,"  has  been  maintained  in  a  brick  building  situated  on  Lake  avenue  in  the 
district,  owned  by  a  religious  corporation  of  Lima,  under  a  contract  by  which 
the  school  district  pays  the  sum  of  $100  annually  for  heating  the  rooms  in  such 
building  in  which  such  "South  School"  is  conducted.  On  August  22,  1901, 
Respondent  Sylvester,  as  trustee  of  such  district,  employed  as  teachers  in  such 
"  South  School  "  Nora  O'Connor,  at  a  compensation  of  $9  per  week,  and  Cath- 
erine Dougherty  at  a  compensation  of  $7  per  week,  each  of  whom  was  a  duly 
qualified  teacher  under  the  Consolidated  School  Law  of  1894,  and  each  of  them 
is  teaching  in  such  school.  The  Misses  O'Connor  and  Dougherty  are  both  mem- 
bers of  a  religious  order  or  sisterhood,  and  are  habitually  addressed  by  the 
scholars  attending  such  school  by  the  prefix  '*  Sister  "  instead  of  "  Miss."  The 
assessed  valuation  of  property  subject  to  taxation  for  school  purposes  in  such 
district  as  stated  in  the  report  of  the  trustee  for  the  school  year  1900-1,  was 
$550,680. 

Since  1848  it  has  been  the  settled  policy  of  the  State  that  localities  must 
own  the  school  buildings  in  which  their  public  schools  are  conducted;  that  the 
renting  of  rooms  and  buildings  for  school  purposes  is  not  authorized  except 
under  extraordinary  conditions  and  to  provide  for  emergencies. 

The  wearing  of  an  unusual  garb,  worn  exclusively  by  members  of  one  reli- 
gious denomination  for  the  purpose  of  indicating  membership  in  that  denomina- 
tion, by  the  teachers  in  the  public  schools  during  school  hours  while  teaching 
therein,  constitutes  a  sectarian  influence  which  ought  not  to  be  persisted  in.     It 


57-4  TIIK    UMVKKSITY    Ol-    T!IK    STATK    OF    NEW    YOKK 

is  the  (Intv  of  the  school  authorities  to  require  such  teachers  to  discontinue,  while 
in  the  puhlic  schoolroom  and  in  the  performance  of  their  duties  as  such  teachers 
therein,  the  wearing  f)f  such  dress  or  garb.  (See  decision  3250,  dated  March 
24.  1SX7.  hy  Superintendent  Draper  in  Lcander  Colt  v.  board  of  education  of 
union  free  school  district  7.  villa.c^e  of  Suspension  r.rids^e,  Nia.j^ara  county. 
Decision  4516,  in  the  appeal  of  Durant  and  others  v.  board  of  education  of 
West  Troy  .school  district,  dated  November  25.  1S96,  made  by  me.  Decision 
454^).  in  the  ajipeal  of  Kennedy  and  others  v.  board  of  education  of  the  city  of 
Watervliet,  Albany  county,  dated  May  15.  1897,  made  by  me.  Decision  4642, 
in  the  appeal  of  Lockwood  and  others  v.  board  of  education  of  school  district 
»),  Corninj;.  Steuben  county,  dated  March  31,  1S9S,  made  by  me,  and  decision 
4722.  in  the  appeal  of  Edward  Keyser  v.  board  of  education  of  the  city  of  Pough- 
keepsie.  dated  December  23,  1898.  made  by  me.) 

I  decide  that  the  action  of  the  respondent  herein,  in  hiring  rooms  in  which 
to  conduct  any  of  the  schools  of  such  district  9,  Lima,  Livingston  county,  and 
in  continuing  the  lease  of  rooms  rented  by  his  predecessors  in  ofifice,  and  in  con- 
ducting schools  therein  beyond  the  period  of  emergency  contemplated  by  the 
school  law.  was  and  is  without  legal  authority. 

I  further  decide  that  it  is  the  duty  of  the  respondent  herein  to  require 
teachers  em])loyed  by  him  to  discontinue  in  the  public  schoolroom  or  rooms  the 
use  of  the  distinguishing  dress  or  garb  of  any  religious  order. 

The  appeal  herein  is  sustained. 

It  is  ordered  that  Henry  Allen  Sylvester,  as  sole  trustee  of  school  district 
9,  Lima,  Livingston  county,  be  and  he  is  hereby  directed  to  require  any  and  all 
teachers  employed  by  him  in  the  school  or  schools  of  such  district  to  discontinue 
wearing,  during  the  school  hours  of  each  school  day  in  which  school  is  taught 
by  them,  the  distinctive  or  distinguishing  garb  or  dress  of  the  religious  order, 
society  or  sisterhood  of  which  they  are  members. 

It  is  further  ordered  that  said  Sylvester,  as  such  trustee,  be  and  he  is  hereby 
enjoined  and  restrained  from  hiring  or  using,  on  and  after  June  30,  1902,  the 
room  in  the  block  or  store  on  Rochester  street,  in  the  village  of  Lima,  and  the 
room  or  rooms  in  the  building  on  Lake  avenue  known  as  "  Brendans  Hall,"  in 
which  the  .school  known  as  the  South  school  is  now  maintained,  for  the  purpose 
of  maintaining  and  conducting  therein  any  of  the  public  schools  of  such  district 
9.  Lima,  Livingston  county. 


RESIDENCE 

4901 

In  the  matter  of  the  appeal  of  Francis  B.  Taylor  from  proceedings  of  annual 
meeting  held  August  7,  1900,  in  school  district  no.  17,  Hempstead,  Nassau 
county. 

To  acquire  a  domicile  or  residence  in  a  school  district  two  things  are  necessary,  the  fact 
of  a  residence  in  a  place,  and  the  intent  to  make  it  a  home.  A  domicile  or  residence 
once  acquired  remains  until  a  new  one  is  acquired.  Mere  intention  to  remove  without 
the  fact  of  removing  will  not  change  the  domicile ;  nor  will  the  fact  of  removal  with- 
out the  intention  to  change  the  residence.  A  person,  once  established  in  any  place,  the 
presumption  of  residence  continues  unless  rebutted,  and  the  burden  of  proof  is  upon 
the  party  alleging  the  same. 

Decided  November   10,   1900 

John  Lyon,  attorney  for  respondents 

Skinner,  Superintendent 

This  is  an  appeal  from  the  action  of  the  annual  meeting  held  on  August  7, 
1900,  in  school  district  17,  Hempstead,  Nassau  county,  in  the  election  of  L.  Pflug 
as  a  trustee  of  such  district  for  the  term  of  two  years,  as  a  successor  to  the 
appellant  herein,  who  it  was  claimed  had  ceased  to  be  a  resident  of  such  district. 

The  grounds  alleged  by  the  appellant  for  bringing  his  appeal  is  that  he  was, 
at  the  time  of  the  said  annual  meeting,  a  resident  of,  and  a  qualified  voter  in, 
such  district,  and  hence,  there  was  no  vacancy  created  by  his  removal  from  the 
district  or  otherwise,  which  could  be  legally  filled  by  the  election  of  any  person 
as  trustee,  for  the  unexiMred  term  for  which  he  was  elected  a  trustee. 

Messrs  Lauer  and  Hartung,  two  of  the  trustees,  have  united  in  an  answer 
to  the  appeal,  and  to  such  answer  the  appellant  has  made  a  reply. 

It  is  admitted  that  the  appellant  is  unmarried  and  was,  on  August  i,  1899,  and 
until  about  the  middle  of  October,  1899,  a  resident  of  school  district  17,  Hemp- 
stead, Nassau  county;  that  at  the  annual  meeting  held  in  such  district  August 
I,  1899,  he  was  elected  a  trustee  of  such  district  for  the  term  of  three  years  to 
succeed  one  S.  Elderd,  whose  term  of  office  as  a  trustee  then  expired ;  that  dur- 
ing the  school  year  of  1899-1900  he  acted  as  one  of  the  trustees  of  such  district 
and  performed  all  the  duties  thereof,  including  the  signing,  on  August  i,  1900, 
of  the  annual  report  of  the  Iward  of  trustees  presented  to  the  annual  meeting 
therein  held  on  August  7,  1900,  and  that  he  was  present  at  such  annual  meeting: 
that  at  such  annual  meeting,  after  the  election  of  Jacob  Lauer  as  a  trustee  for 
three  years,  a  motion  was  made  to  fill  the  vacancy  in  the  term  of  appellant  as  a 
trnstee,  upon  the  ground  of  his  not  being  a  resident  of  the  district,  upon  which 
the  appellant  stated  that  he  was  then  a  resident  of  the  district  and  had  been, 
since  1890;  that  the  chairman  ordered  a  vote  to  be  taken  of  the  sentiment  of 

[575I 


570  THE    UNIVKKSITV    OK   THE   STATE    l)K    XEW    YORK 

the  voters  as  to  whctlicr  the  appellant  was  then  a  resident  of  the  district,  with 
the  following  result:  4  yeas,  iS  noes  and  5  blanks;  that  after  the  announcement 
of  the  result  of  such  vote  the  ajjpellant  a^e^ain  objected  to  the  election  of  a  trus- 
tee for  two  years  to  fill  out  his  (api)ellant's)  term  of  office;  that  a  ballot  was 
taken  for  a  trustee  for  two  years  to  fill  out  the  term  of  api)cllant  which  resulted 
in  the  election  of  I..  Pllug. 

It  is  established  by  the  proofs  filed  herein  that  the  apj^ellant  is  a  lawyer, 
having  an  office  in  the  village  of  Hempstead,  Nassau  county,  in  school  district  i, 
and  less  than  a  mile  from  the  boundary  line  between  districts  i  and  17;  that  the 
appellant  is  the  owner  of  certain  real  property  situated  in  school  district  17, 
known  as  the  "  Bedell  homestead  "  and,  since  October  1890,  has  resided  and 
still  resides  in  said  homestead,  and  in  such  district  17;  that  the  appellant  is,  and 
for  the  past  10  years  has  been,  a  voter  in  the  twelfth  election  district  of  Hemp- 
stead, in  which  election  district  part  of  school  district  17  is  situated,  and  in 
which  election  district  the  "  Bedell  homestead  "  is  situated. 

Inhabitancy  and  residence  mean  a  fixed  and  permanent  abode  or  dwelling 
place  for  the  time  being,  as  distinguished  from  a  mere  temporary  locality  of 
existence.  To  acquire  a  domicile  or  residence  two  things  are  necessary  —  the 
fact  of  a  residence  in  a  place,  and  the  intent  to  make  it  a  home.  To  retain  a 
residence  once  acquired,  actual  residence,  however,  is  not  indispensable,  but  it 
is  retained  by  the  mere  intention  not  to  change  it  or  to  ado])t  another,  or  rather 
by  the  absence  of  any  present  intention  not  to  change  it  or  adopt  another,  or  by 
the  absence  of  any  present  intention  of  removing  therefrom.  A  domicile  once 
accjuired  remains  until  a  new  one  is  acquired.  Mere  intention  to  remove  with- 
out the  fact  of  removal  will  not  change  a  domicile ;  nor  will  the  fact  of  removal 
without  intention  to  change  the  residence.  Once  established  in  any  place  the 
presumption  of  residence  continues  unless  rebutted,  and  the  burden  of  proof  is 
upon  the  party  alleging  the  change. 

I  decide  (i)  that  the  respondents  herein  hive  failed  to  establish  by  a  pre- 
ponderance of  proof  that  the  appellant  herein,  in  October  1899  or  at  any  time 
since  October  igoo,  changed  his  domicile  or  residence  from  school  district  17, 
town  of  Hempstead,  Nassau  county;  (2)  that  the  appellant  herein,  on  August 
7,  1900,  was,  and  still  is,  a  resident  of,  and  a  qualified  voter  in,  said  school  dis- 
trict 17;  (3)  that  the  appellant  herein  was,  on  August  7,  1900,  and  still  is,  a 
trustee  of  said  school  district  17,  having  been  elected  such  trustee  in  August 
1899  for  the  term  of  three  years;  (4)  that  the  action  taken  at  the  annual  meet- 
ing, held  in  said  district  17.  August  7,  1900,  that  the  appellant  herein  w^as  not 
then  a  resident  of  such  district,  was  without  authority  of  law  and  void;  (5)  that 
the  action  taken  at  such  annual  meeting,  held  in  such  school  district  17,  August 
7,  1900.  in  the  election  of  Pflug  as  a  trustee  of  such  district,  was  without 
authority  of  law  and  void. 

The  appeal  herein  is  sustained. 

It  is  ordered  that  the  proceedings  taken  at  the  annual  meeting,  held  August 
7,  1900,  in  school  district  17,  Hempstead,  Nassau  county,  that  Francis  B.  Taylor, 


JUDICIAL  decisions:  residence  577 

the  appellant  herein  was  not  then  a  resident  of  such  district  be,  and  the  same 
are,  hereby  vacated  and  set  aside. 

It  is  further  ordered  that  the  proceedings  taken  at  such  annual  meeting  in 
such  school  district  17,  Hempstead,  August  7,  1900,  in  the  election  of  L.  Pflug 
as  a  trustee  of  such  school  district,  be,  and  the  same  are,  hereby  vacated  and 
set  aside. 


4229 

In  the  matter  of  the  appeal  of  Edward  T.  McEnany  v.  union  free  school  district 
no.  2,  town  of  Highlands,  Orange  county. 

Where  a  person  has  acquired  a  domicile  or  residence  in  any  school  district  in  the  State  and 
has  children  of  school  age,  and  enters  into  the  employment  or  service  of  the  United 
States,  such  person  does  not  lose  his  residence  and  domicile  in  such  school  district  by 
reason  of  his  employment  elsewhere  in  the  service  of  the  United  States,  and  is  entitled 
to  send  his  children  to  school  in  the  school  district  in  which  he  had  acquired  such 
domicile  or  residence. 

Decided  March  28,  1894 

M.  H.  Hirschberg.  attorney  for  respondent 

Crooker,  Superintendent 

This  is  an  appeal  from  the  action  and  decision  of  the  board  of  education 
oif  union  free  school  district  no.  2,  town  of  Highlands,  Orange  county,  in  refus- 
ing to  permit  the  four  children  of  the  appellant  to  attend  the  school  in  said  dis- 
trict free.    An  answer  to  the  appeal  herein  has  been  interposed  by  the  respondent. 

It  appears  from  the  papers  presented  upon  this  appeal : 

That  from  December  1879,  to  May  1882,  the  appellant  resided  with  his 
family  in  said  school  district  no.  2,  town  of  Highlands,  and  appellant  was  a 
qualified  voter  in  said  school  district,  and  was  then  and  for  a  period  of  five  years 
prior  thereto  ifi  the  employ  of  the  United  States  on  the  military  post  or  reserva- 
tion at  West  Point;  that  about  May  i,  1881,  he  moved  with  his  family  to  West 
Point  upon  said  military  tract  or  reservation  into  a  United  States  government 
building,  where  he  and  his  family  have  since  resided  and  still  do  reside;  that  the 
appellant  is  now  and  has  been  since  May  1882,  in  the  employ  and  service  of  the 
United  States;  that  the  respondents  refuse  to  allow  the  children  of  the  appellant 
to  attend  the  schools  in  such  district  without  payment  of  tuition. 

The  appellant  on  and  prior  to  May  1882,  had  acquired  a  domicile  or  resi- 
dence in  the  town  of  Highlands,  Orange  county,  and  in  said  school  district  no. 
2,  town  of  Highlands,  Orange  county ;  such  domicile  and  residence  of  the  appel- 
lant was  that  of  his  minor  children  unless  such  minors  had  been  emancipated 
from  parental  control  or  had  been  adopted  into  a  new  family,  and  such  does 
not  appear  to  have  taken  place.  To  retain  a  domicile  or  residence  once  acquired, 
actyal  residence,  however,  is  not  indispensable,  but  is  retained  by  the  mere  inten- 
tion'not  to  change  it,  and  a  domicile  or  residence  once  acquired  remains  until  a 
new  one  is  acquired. 
19 


578  Till'.    LNIVF.KSrrV    of   THK    STATF.    of    NFW    YORK 

There  is  no  proof  that  the  ai)i)ellaiU  has  any  intent  to  change  or  has  changed 
the  domicile  and  residence  ac(|nircd  hy  him  in  such  school  (hstrict.  The  fact  of 
his  removal  of  himself  and  his  family  upon  the  West  I'oint  reservation  while 
employed  in  the  service  of  the  Unitcil  States  did  not  lose  him  his  residence  and 
domicile  in  such  school  district,  nor  gain  him  a  residence  or  domicile  in  West 
Point. 

Hy  section  3  of  article  2  of  the  Constitution  of  the  State  of  New  York,  it 
is  provided  that  no  person  shall  he  deemed  to  have  gained  or  lost  a  residence 
by  reason  of  his  presence  or  absence  while  employed  in  the  service  of  the  United 
States. 

I  find  and  decide  that  the  appellant  herein  is  a  resident  in  union  free  school 
district  no.  2,  town  of  Highlands,  Orange  county,  and  entitled,  under  the  school 
laws,  to  send  all  and  any  of  his  children  of  school  age  free  to  the  school  in  said 
school  district. 

The  appeal  herein  is  sustained. 

It  is  ordered.  That  the  hoard  of  education  of  union  free  school  district  no. 
2.  town  of  Highlands,  Orange  county,  be,  and  said  board  is.  hereby  directed  to 
receive  into  the  schools  in  said  district,  all  and  any  children  of  school  age  of  the 
appellant  herein,  Edward  T.  Mcl*Lnany,  free. 


4238 

In  the  matter  of  the  appeal  of  Airs  E.  G.  Cuddeback  v.  board  of  education  of 
uniiin  free  school  district  no.  10,  town  of  Skaneateles,  Onondaga  county. 

A  pcr.son  who  has  acquired  a  residence  and  domicile  within  a  union  free  school  district  and 
whose  business  necessarily  takes  him  away  from  the  district  a  large  part  of  the  time, 
and  whose  wife  and  son  are  also  temporarily  absent  from  said  district,  does  not  lose  his 
residence  and  domicile  in  said  district,  and  his  domicile  and  residence  is'that  of  his  wife 
and  their  child,  and  such  child  is  entitled  to  attend  the  school  in  the  district  without 
payment  of  tuiliDii. 

Decided  April  24.  1894 

M.  F.  Dillon,  attorney  for  appellant 

Crooker,  Superintendent 

The  appellant  appeals  from  a  decision  of  the  respondent,  made  on  Novem- 
ber 21,  iX«)3.  in  refusing  to  permit  her  son  to  attend  the  school  under  their 
jurisdiction  without  payment  of  tuition. 

It  appears  from  the  paj^ers  presented  that  the  appellant  is  a  married  woman 
riving  with  her  husband.  Egbert  G.  Cuddeback,  and  they  have  a  son,  Clarence 
Cuddeback.  residing  with  them;  that  said  Egbert  G.  Cuddeback  is  engaged 
in  the  wholesale  produce  business,  and  that  such  business  calls  him  away  from 
liis  home  the  greater  portion  of  his  time;  that  the  residence  of  said  Cuddeback 
is  in  the  village  of  Skaneateles  and  in  union  free  school  district  no.  10  of  Skane- 
ateles; that  the  appellant  owns  a  house  and  lot  in  said  school  district  and  has 


juDiciAi.  decisions:  residence  579 

resided  there  for  the  past  sixteen  years;  that  on  April  i,  1893,  she  leased  her 
house  until  October  i,  1893,  and  since  April  i,  1893,  has  been  temporarily  absent 
from  said  school  district  with  her  son.  It  affirmatively  appears  that  Mr  Cudde- 
back  is  a  resident  of  the  village  of  Skaneateles  and  of  school  district  no.  10,  and 
that  the  marital  relations  existing  between  Mr  and  Mrs  Cuddeback  still  exist. 
There  can  not  be  any  doubt  but  that  Mr  Cuddeback  acquired  a  domicile  and  resi- 
dence in  said  school  district.  To  retain  such  domicile  when  once  acquired, 
actual  residence,  however,  is  not  indispensable,  but  it  is  retained  by  the  mere 
intention  not  to  change  it  or  adopt  another,  or  rather,  by  the  absence  of  any 
present  intention  of  removing  therefrom.  A  domicile  once  acquired  remains 
until  a  new  one  is  acquired.  A  married  woman  follows  the  domicile  of  her  hus- 
band. The  domicile  of  the  parent  is  the  domicile  of  a  minor,  unless  such  minor 
has  been  emancipated  from  parental  control  or  adopted  into  a  new  family,  and 
there  is  no  proof  that  the  son  of  Mr  Cuddeback  has  been  so  emancipated  or 
so  adopted. 

I  find  and  decide  that  Egbert  G.  Cuddeback  was  in  the  year  1893  a  resident 
of  union  free  school  district  no.  10,  Skaneateles ;  that  the  domicile  and  residence 
of  the  appellant  herein  in  1893  was  that  of  her  husband;  that  the  residence  of 
Clarence  Cuddeback,  the  minor  son  of  said  Mr  and  Mrs  Cuddeback,  in  1893,  was 
that  of  his  parents. 

The  appeal  herein  is  sustained. 

It  is  ordered,  That  the  board  of  education  of  union  free  school  district  no. 
10,  Skaneateles,  do  receive  into  the  schools  in  said  district  Clarence  Cuddeback, 
the  minor  son  of  Mr  and  Mrs  Cuddeback,  free  as  a  resident  pupil  in  said  dis- 
trict, and  without  demanding  or  receiving  any  tuition  fees  for  his  admission  to 
and  attendance  in  said  schools. 


5259 

In  the  matter  of  the  appeal  of  John  S.  Dennis,  Thomas  li.  Colder  and  Edmund 
T.  Ker,  from  the  acts  of  Wm.  Bunselmeyer  in  claiming  to  be  trustee  of 
union  free  school  district  no.  9,  town  of  Greenburg,  Westchester  county. 
Renting  a   room   in   a   school   district   for  the  purpose   of   storing  household   goods   is   not 
sufficient  to  maintain  a  residence   in  the   district  when  an   actual   home   is   maintained 
elsewhere. 
Decided  May  25,   1906 

Henry  C.  Griffin,  attorney  for  appellants 
Frank  V.  Millard,  attorney  for  respondent 

Draper,  Commissioner 

There  is  no  dispute  as  to  the  facts  in  this  case.  The  only  question  to  be 
det^mined  is  whether  certain  acts  of  respondent  constitute  a  removal  from  the 
district.  Respondent  Bunselmeyer  was  elected  trustee  of  school  district  no.  9, 
town  of  Greenburg.  Westchester  co.,  on  August  2,  1905.  His  wife  owned  a 
house  and  lot  in  the  district  in  which  Bunselmeyer  and  his  family  resided.     In 


5^0       '  Tin:    UNIVERSITY    OF   TIIIC    STATK    QV   NEW    YORK 

March  io<>'>  Mfs  lluiisclmcycr  sold  the  lioiisc  and  lot.  Resiiondent  was  unable 
to  rent  anotiicr  house  in  the  district  and  on  April  2,  190C,  moved  his  family  into 
another  district  in  which  he  had  rented  a  house.  Since  that  lime  his  child  has 
attcndet!  .school  in  the  district  into  which  he  has  moved.  It  does  not  appear  that 
he  has  any  business  interests  in  district  no.  9.  He  also  rented  one  room  in  a 
house  in  district  no.  9,  (ireenburg,  and  placed  therein  certain  pieces  of  property. 
Respondent  also  claims  that  he  owns  a  lot  in  district  no.  9  and  that  he  intends 
to  erect  a  house  on  such  lot.  He  does  not  show  when  he  intends  to  erect  such 
house  or  that  he  is  making  any  preparation  to  erect  it.  Renting  a  room  in  a 
school  district  for  the  purpose  of  storing  a  few  household  goods,  is  not  sufficient 
to  maintain  a  residence  in  the  district  when  an  actual  home  is  maintained  else- 
where. A  trustee  of  a  school  district  should  be  accessible  to  the  residents  of 
the  district  and  should  actually  reside  in  the  district  so  that  he  may  be  in  touch 
with  the  needs  of  the  school  and  the  wishes  of  the  inhabitants  of  the  district. 
Under  section  29.  title  7  of  the  Consolidated  School  Law  removal  from  the  dis- 
trict vacates  the  ofiicc  of  trustee. 

I  decide,  That  the  acts  of  respondent  constitute  a  removal  from  the  district 
and  that  he  thereby  vacated  the  office  of  trustee.  This  vacancy  has  existed  since 
April  2,  1906  and  Respondent  Bunselmeyer  has  not  been  a  legal  trustee  of  dis- 
trict no.  9,  Greenburg,  since  that  date  and  has  not  therefore  been  legally  entitled 
to  meet  with  the  board  of  education  of  that  district  since  such  date.  As  more 
than  thirty  days  have  elapsed  since  such  vacancy  occurred  the  school  commis- 
sioner has  the  power  to  fill  such  vacancy  by  appointment.  The  board  of  educa- 
tion may  fill  such  vacancy  if  action  is  taken  before  the  school  commissioner 
makes  an  appointment. 


5228 

In  the  matter  of  the  ajipeal  of  Orvillc  T.  Smith  from  the  action  of  the  board  of 
education  of  school  district  no.  i,  town  of  Catskill,  Greene  county. 

A  board  of  education  may  legally  .suspend  a  nonresident  pupil  until  the  tuition  for  wliich 
he  is  cliargeable  is  paid. 

A  man  who  hires  a  house  and  lives  in  a  district  a  portion  of  the  time  for  the  "  comfort  and 
convenience  of  business"  is  not  necessarily  a  resident  of  such  district. 

If  such  arrangement  is  only  temporary  and  he  has  an  established  permanent  home  else- 
where his  residence  must  be  regarded  in  the  district  of  such  permanent  home. 

Decided  December  5,  1905 

James  H.  Van  Gelder,  attorney  for  appellant 
H.  L.  Austin,  attorney  for  respondent 

Draper,  Commissioner 

On  October  31,  1905,  the  board  of  education  of  school  district  no.  i,  Catskill, 
Greene  county,  suspended  the  12  year  old  son  of  appellant  from  the  school 
privileges  of  said  district.  The  cause  of  this  suspension  was  the  failure  or  refusal 
of  appellant  to  pay  the  regular  tuition  charged  to  him  for  the  attendance  of  his 


JUDICIAL  decisions:  residence  581 

son  at  the  schools  of  said  district  as  a  nonresident  pupil.  After  his  son  had  been 
suspended  by  the  board  of  education  appellant,  under  protest,  paid  the  tuition 
in  cpestion  so  that  his  son  might  be  accorded  the  school  privileges  of  the  Catskill 
schools.  He  then  brought  this  appeal  from  the  action  of  the  board  of  education 
in  charging  him  tuition  for  his  son's  attendance  and  also  from  th^  action  of  the 
board  in  suspending  his  son. 

It  is  not  clear  from  the  moving  papers  in  this  appeal  on  what  ground  appel- 
lant claims  the  right  to  send  his  child  to  the  Catskill  school  without  the  payment 
of  tuition.  The  inference  is  that  he  claims  a  bona  fide  residence  in  the  Catskill 
district,  although  he  does  not,  as  pointed  out  by  the  attorney  for  respondent, 
even  allege  that  he  is  a  resident  of  such  district.  Appellant  states  that  he  rents 
certain  property  in  the  district ;  that  he  is  engaged  in  business  in  the  district  and 
that  during  a  portion  of  the  year  his  family  lives  or  resides  in  the  district.  These 
conditions  are  not  sufficient  to  make  him  a  resident  of  this  district.  He  states 
that  "  for  the  comfort  and  convenience  of  business  he  hires  a  house  in  Catskill 
and  moves  there  in  the  fall.''  He  could  do  this  and  still  be  a  nonresident.  If 
appellant  claims  to  be  a  resident  of  district  no.  i,  Catskill,  and  therefore  entitled 
to  send  his  children  to  school  in  that  district  he  must  affirmatively  show  that  he 
is  an  actual  resident  of  the  district.  His  pleadings  do  not  show  this  and  on  his 
moving  papers  the  appeal  should  be  dismissed.  The  pleadings  of  respondent 
show  conclusively  that  appellant  is  not  a  resident  of  the  district,  that  he  owns 
real  estate  and  maintains  a  permanent  residence  in  school  district  no.  2,  Catskill, 
that  at  the  last  general  election  he  voted  in  the  election  district  in  which  his  resi- 
dence is  located  and  that  such  election  district  does  not  include  any  part  of  the 
village  of  Catskill,  and  that  his  residence  in  district  no.  I,  Catskill,  is  only  tem- 
porary and  for  his  "  comfort  and  convenience  "  in  business  matters  and  to  ol)tain 
for  his  son  the  advantages  afforded  by  the  Catskill  schools. 

The  board  of  education  was  lawfully  protecting  the  interests  of  the  district 
in  charging  appellant  tuition  for  his  son's  attendance  at  school  and  appellant's 
failure  or  refusal  to  pay  such  tuition  was  good  ground  for  suspending  the  child 
from  school  privileges. 

The  appeal  herein  is  dismissed. 


4084 

In  the  matter  of  the  appeal  of  D.  L.  Spaulding  v.  board  of  trustees  of  union 
free  school  district  no.  i,  town  of  Austerlitz,  Columbia  county. 

Right  to  attend  school.  When  cliiklren  whose  home  has  been  broken  up  are  brought  to 
the  residence  of  one  who  stands  in  the  place  of  the  parent,  to  find  care  and  protection 
for  an  indetinite  period,  they  become  residents  of  the  district  in  which  said  person 
resides. 

Decided  June  3,  1892 

Crooker,  Superintendent 

This  appeal  is  brought  from  the  refusal  of  the  board  of  trustees  of  union  free 
school  district  no.  i  of  Austerlitz,  Columbia  county,  N.  Y.,  to  allow  one  Roscoe 


582  THE    UMVKKSITV    Ul-    TlIK   STATK    OF   NEW    YORK 

Ilaniiii  to  alkiul  the  public  school  in  said  di^lrict  witliout  paying  tuition  therefor, 
aiul  for  suspcndiii;^^  him  from  schcml  until  such  tuition  shall  be  paid. 
The  following  facts  appear  from  the  papers  ujion  this  appeal : 
The  appellant,  with  his  family,  resides  in  union  free  school  district  no.  i, 
town  of  Austerlitz,  Columbia  county,  N.  Y.  Roscoe  llamni,  a  nephew  of  api)el- 
laiit,  of  the  age  of  12  years,  resides  with  the  ai)pellant.  The  mother  of  said 
Roscoe  liamm  is  dead.  His  father  is  a  poor  man,  and  a  day  laborer,  ha\ing  no 
permanent  domicile,  and  at  present  working  in  the  state  of  Connecticut,  and 
unmarried.  The  appellant,  under  authority  from  the  father,  has  taken  the  said 
boy  into  his  family,  to  care  for.  manage  and  correct  him  as  if  he  were  the  son 
of  the  appellant,  and  without  receiving  any  com])ensation  therefor  from  the 
father.  Tlie  boy  has  been  attending  the  school  in  said  district.  That  on  April 
29,  1S92,  the  respondents,  by  resolutions  adopted,  declared  that  the  said  Roscoe 
Hamm,  in  their  opinion,  was  not  a  resident  of  said  district,  and  that  the  secre- 
tary of  respondents  be  instructed  to  present  a  tuition  bill  for  the  last  two  terms 
to  the  appellant,  and  to  notify  appellant  that  if  such  bill  was  not  paid  by  him  or 
other  relatives  of  said  boy,  the  said  Roscoe  Hamm  could  no  longer  be  allowed 
to  altenil  said  school.  The  bill  for  tuition  was  presented  to  appellant,  who 
declined  to  pay  it.  The  boy  attended  the  school  the  following  week,  when  the 
principal  of  the  school,  acting  under  directions  of  respondents,  suspended  the 
boy  from  attendance  at  school  until  the  tuition  bill  should  be  paid. 

The  question  involved  in  this  ap])eal  is  that  of  residence,  and  it  is  often  a 
dillicult  one  to  decide.  The  facts  in  this  case  establish  that  the  appellant  has 
taken  the  boy  for  an  indefinite  period  to  care  for  and  manage,  and  establishes 
such  a  substantial  adoption  of  the  boy  as  to  make  him  a  resident  of  the  district 
and  entitled  to  the  privileges  of  the  school.  It  has  been  the  rule  of  this  Depart- 
meiU  that  when  children,  whose  home  has  been  broken  up,  are  brought  to  the 
residence  of  one  who  stands  in  the  place  of  the  parent,  to  fmd  care  and  protec- 
tion for  an  indelinite  jjeriod,  they  become  residents  of  the  district  in  which  said 
person  lives. 

The  appeal  is  sustained,  and  the  board  of  trustees  of  union  free  school  dis- 
trict no.  I  of  the  town  of  Austerlitz,  county  of  Columbia,  is  hereby  directed  to 
admit  Roscoe  Hamm  to  the  privileges  of  the  school  in  said  district  as  a  resident 
thereof. 


4088 

In  the  matter  of  the  appeal  of  Joseph  S.  Hamlin  v.  the  board  of  education  of 
union  free  school  district  no.  2  of  the  town  of  Trenton,  county  of 
Oneida. 

The  granddaughter  of  the  appellant,  whose  parents  reside  in  the  state  of  Missouri,  and, 
from  anything  that  appears,  are  able  to  maintain  and  educate  their  children,  is  temporarily 
residmg  with  the  appellant  in  Trenton,  Oneida  county.     Such  residence  is  subject  to  be 


JUDICIAL  decisions:  residence  583 

terminated  at  her  option  or  that  of  her  parents.     The  appellant  does  not  occupy  the 
relation   of  a  parent   or  guardian   to  his   said   granddaughter.     Held,  that  such   grand- 
daughter is  not  entitled  to  the  privileges  of  the  school  in  the  district  where  the  appellant 
resides  without  payment  of  tuition. 
Decided  June  10,  1892 

Crooker,  Superintendent 

This  is  an  appeal  from  a  resolution  and  decision  of  the  board  of  education 
of  union  free  school  district  no.  2  of  the  town  of  Trenton,  county  of  Oneida, 
refusing  to  allow  Louisa  Gosnell,  a  grandchild  of  the  appellant,  residing  with 
him,  to  attend  said  school  without  the  payment  of  tuition. 

From  the  papers  filed  with  this  Department  upon  said  appeal,  the  following 
facts  are  established: 

That  the  appellant  resides  and  is  a  taxpayer  in  said  school  district.  That 
he  is  about  82  years  of  age.  That  his  family  consists  of  his  wife,  who  is  about 
74  years  of  age;  his  daughter,  Ada  Hamlin;  his  grandson,  Walter  Hamlin,  and  a 
servant,  Harriet  Carpenter.  That  his  granddaughter,  Louisa  Gosnell,  who 
resided  with  her  parents  in  Westport,  Mo.,  at  the  request  of  her  grandmother 
and  her  aunt,  in  or  about  February  1891,  with  the  consent  of  her  parents,  catne 
to  reside  in  the  family  of  the  appellant.  That  the  appellant  had  no  knowledge 
that  his  said  granddaughter  was  to  come  to  his  residence  until  her  arrival.  That 
the  traveling  expenses  of  said  granddaughter  from  JMissotiri  were  paid  by  appel- 
lant or  some  of  his  family.  That  the  arrangement  under  which  the  said  grand- 
daughter came  to  reside  in  the  family  of  the  appellant,  as  appears  from  the 
testimony  of  Miss  Hamlin,  was  that  a  servant  who  had  been  in  the  employ  of  the 
family  of  appellant  for  some  years  left  said  employment.  That  in  a  conversation 
had  betv/een  the  mother  of  the  granddaughter  and  Miss  Hamlin,  the  mother  had 
stated  that  if  said  servant  left  she  (the  mother)  wotild  let  one  of  her  dauditers 
come  to  appellants  to  assist  them.  That  Miss  Hamlin  wrote  to  the  mother 
requesting  that  said  Louisa  come  and  remain  a  year  or  two  or  more 
and  they  would  pay  her  traveling  expenses.  That  in  about  three  weeks 
the  said  Louisa  came  to  appellant's  residence.  That  during  the  residence 
of  said  Louisa  with  appellant,  he  has  furnished  her  board  and  clothes  and  she 
has  taken  lessons  in  music  from  Aiiss  Hamlin.  That  the  said  Louisa  does  the 
cooking,  fine  ironing,  helps  with  the  sweeping,  and  looks  after  her  grandfather. 
That  she  is  about  17  years  of  age.  That  the  mother  of  said  Louisa  stated  to  her 
daughter  and  wrote  to  Miss  Hamlin  that  she  did  not  want  her  daughter  to  go  to 
school,  but  desired  her  to  devote  her  time  to  music.  That  said  Louisa  did  not 
wish  to  attend  school,  but  upon  the  request  and  advice  of  Aliss  Hamlin  in  or 
about  September  1891,  commenced  to  attend  the  union  free  school  in  district  no. 
2,  in  Trenton,  Oneida  county,  and  continued  to  attend  said  school  during  the 
term  in  the  months  of  September  and  October  1891.  That  on  or  about  October 
30,  1891,  the  respondents  adopted  the  following  resolution:  "Resolved.  That 
Lo.uisa  Gosnell  and  Walter  Hamlin  are  not  considered  by  this  board  as  resident 
pupils,  and  that  Joseph  Hamlin,  the  person  with  whom  they  reside,  be  notified 


5^4  THE    UNIVERSITY    OV   TIIK   STATK    OF   NEW    YORK 

that  iIkv  imi>t  pay  tuition  witliin  one  week  from  date  (October  30,  1891),  or 
they  will  not  be  allowed  to  attend  the  school  after  that  time."  That  a  letter  of 
II.  A.  I'ridc,  secretary  of  respondents,  under  date  of  November  2,  1891,  con- 
taininjij  such  resolution,  was  delivered  to  the  appellant.  That  at  a  meetini,^  of 
respondiiits  held  on  or  about  November  7,  1891,  said  respondents  decided  that 
.•^aid  Walter  Handin  was  entitled  to  the  privile,<,a's  of  said  school.  That  the  appel- 
lant thereupon  brou.i,dit  an  a|)peal  from  the  decision  of  respondents  that  said 
l-ouisa  r;(isncll  was  not  a  resident  of  said  district  and  not  entitletl  to  the  privileges 
of  said  school  without  payment  for  tuition. 

It  is  dearly  established  by  the  foregoing  facts  thai  the  said  Louisa  Gosnell 
did  not  come  to  reside  in  the  family  of  the  appellant  for  the  purpose  of  attend- 
ing school.  The  sole  question  presented  by  this  appeal  is  as  to  the  residence  of 
Louisa  Gosnell.  'I'he  question  of  residence  is  often  one  difficult  to  decide.  The 
residence  of  a  minor  is  usually  that  of  the  parents  or  guardian.  The  residence 
of  the  parents  of  Louisa  (losnell  is  in  the  state  of  Missouri.  They  are  possessed 
there  of  a  home,  at  which,  for  anything  that  appears  upon  this  appeal,  they  are 
able  to  maintain,  care  for  and  educate  their  children.  The  a])pellant  does  not 
occu|)y  the  relation  of  a  parent  or  guardian  to  his  granddaughter.  Her  residence 
in  his  family  is  but  tem])orary,  subject  to  be  terminated  at  her  option  or  that  of 
her  parents.  In  my  opinion  the  said  Louisa  (lOsnell  is  not  a  resident  of  union 
free  school  district  no.  2  of  the  town  of  Trenton,  and  not  therefore  entitled  to 
the  privileges  of  the  school  in  said  district  without  payment  of  tuition. 

The  appeal  is  disiri    ed. 


SCHOOLS 

3993 
In  the  matter  of  the  appeal  of  citizens  of  Ehnira,  N.  Y.,  v.  the  hoard  of  education 

of  the  city  of  Ehnira. 

The  corporate  authorities  of  a  city  having  neglected  to  provide  by  tax  the  sums  needed  for 
the  support  of  the  public  schools  of  such  city  for  the  school  year,  the  board  of  educa- 
tion assumed  to  close  the  schools  and  dismiss  the  teachers  employed;  held.  That  the 
closure  of  the  public  schools,  except  in  special  cases,  is  contrary  to  the  laws  of  the 
State. 

The  board  of  education  directed  to  open  the  schools.  The  corporate  authorities  directed  to 
levy  a  tax  for  the  amount  needed  for  school  purposes  for  the  school  year. 

Decided  Septeruber  4,  1891 

D  raper ,  Superintend  en  t 

Chapter  113  of  the  Laws  of  1859,  as  amended  from  time  to  time,  is  a  some- 
what comprehensive  special  statute  providing  for  the  administration  of  the 
schools  of  the  city  of  Elmira.  Among  other  things  this  act  provides  (section 
20,  subdivision  11)  that  the  board  of  education  shall  annually,  before  the  day 
for  the  last  meeting  of  the  common  council  in  March,  determine  and  certify  to 
the  common  council  the  sums  deemed  necessary  for  the  maintenance  of  the 
schools  for  the  year  commencing  on  the  ist  day  of  September  thereafter. 

In  accordance  with  this  direction  the  board  of  education  duly  determined 
and  certified  that  the  sum  of  $49,340  would  be  needed  for  the  purposes  named. 

The  statute  (section  21)  directs  the  common  council,  upon  the  receipt  of 
the  estimates  of  the  board  of  education,  to  proceed  to  consider  the  same  and  to 
approve,  increase  or  diminish  the  same,  but  prohibits  the  council  from  reducing 
the  sum  below  a  sum  sufficient  to  defray  all  the  necessary  expenses  of  the  pul)lic 
schools,  including  the  academy,  and  after  fixing  the  amount  to  be  expended  for 
the  purposes  named,  to  certify  the  same  back  to  the  board  of  education,  which 
body  is  required  to  limit  its  expenditures  to  the  amount  so  fixed. 

The  common  council  proceeded  to  the  discharge  of  this  statutory  duty  and 
on  the  25th  day  of  May  fixed  and  determined  the  amount  deemed  necessary  for 
school  purposes  for  the  ensuing  year,  at  the  said  sum  of  $49,340. 

Section  12  of  the  act  makes  it  the  duty  of  the  common  council  to  raise  by 
tax  the  sum  so  determined  upon,  and  section  13  directs  that  it  "  shall  be  levied 
and  collected  in  the  same  manner,  by  the  same  collector  and  at  the  same  time 
that  other  city  taxes  are." 

The  charter  of  the  city  provides  the  machinery  for  collecting  city  taxes,  but 
instead  of  being  in  operation  as  to  the  special  school  act  contemplated  is  at  a 
'sfandstill  in  consequence  of  disagreement  in  the  council  as  to  the  amount  to  be 
raised  for  such  city  taxes.     Although  the  statute  reciuires  that  the  assessment 

I585] 


5-%  TilE    L'NIVKkSITY    (•!■    Till-:   STATK    Ol-    NKW    YORK 

rolls  with  the  tax  warrant  shall  be  delivered  to  the  city  chamberlain  as  the  col- 
lecting officer  on  or  before  the  15th  day  of  June  in  each  year,  this  has  not  yet 
been  done  in  the  present  year. 

In  view  of  this  blockade  of  the  machinery  for  raising  taxes  and  because  of 
the  apprehension  that  funds  for  meeting  the  expenses  of  the  schools  would  not 
be  j)rovi(led.  and  of  the  disinclination  to  incur  an  indebtedness  not  provided  for, 
the  board  of  education  on  the  29th  of  July  determined  to  close  the  schools  for 
the  ensuing  school  year  and  took  formal  action  to  that  effect. 

From  this  action  an  ai)peal  was  brought  to  this  Department  by  numerous 
rcsidciUs  of  I-llmira. 

In  comnumications  to  the  board  and  in  conference  with  a  committee  thereof, 
the  Superintendent  informally  expressed  his  opinion  that  the  board,  in  taking 
this  action,  fell  iiUo  an  error.  The  State  undertakes  to  provide  a  common  school 
within  reach  of  every  home.  It  insures  this  by  raising  some  $4,000,000  through  a 
general  State  tax  levy  for  the  sujjport  of  a  general  system  of  common  schools, 
and  by  providing  for  the  organization  and  management  of  such  a  .system.  It 
authorizes  localities  to  do  as  much  more  as  they  will  to  augment  or  perfect  this 
system.  It  does  not  permit  them  to  overthrow  it.  In  one  part  of  the  State  it 
provides  for  raising  moneys,  over  and  above  what  the  State  provides,  in  one  way 
and  in  another  part  in  another  way.  In  one  place  it  causes  this  system  to  be 
administered  by  local  officers  chosen  in  one  way  and  in  another  place  by  officers 
chosen  in  another  way.  The  particular  way  is  largely  left  to  the  wishes  of  the 
locality.  P.ut  everywhere  the  common  schools  are  part  and  parcel  of  a  general 
.system.  This  is  so.  in  Elmira.  No  local  authority,  much  less  the  failure  to  dis- 
charge an  ofTicial  and  statutory  duty  can  be  permitted  to  stop  their  operation. 
Th.e  schools  there  have  fortunately  been  organized  upon  a  broader  basis  than 
the  State  rerjuired.  Local  intelligence  and  pride  may  always  be  relied  upon  to 
do  this.  The  residents  of  Elmira  desired  this.  In  deference  to  their  wishes  the 
Legislature  provided  for  it  by  enacting  special  statutes  for  the  government  of 
the  schools  of  that  city.  These  special  statutes  only  supplement  the  general 
school  laws  of  the  State.  All  must  be  read  and  construed  together.  Having 
organized  a  city  system  of  schools  upon  such  a  basis  it  must  be  operated  on  that 
basis.  The  statute  makes  the  expenses  thereof  a  city  charge.  The  city  authori- 
ties are  directed  by  law  to  raise  the  money  and  how  to  raise  it.  If  they  fail  to 
perform  their  duty  they  may  be  compelled  to  do  it.  If  they  do  not  raise  the 
money  and  are  not  compelled  to,  the  schools  are  to  proceed  all  the  same  and 
teachers,  employees  and  others  acquire  a  right  of  action  against  the  city  for  serv- 
ices or  necessary  supplies,  which  the  courts  will  enforce. 

Acting  upon  this  view  of  their  duty  in  the  premises,  the  board  of  education 
on  August  2Sth,  rescinded  their  resolution  of  July  29th,  determining  to  close  the 
schools,  and  directed  that  they  be  opened  at  the  usual  time  in  September. 

Having  taken  this  step,  the  board,  very  properly  presents  the  question  as  to 
whether  there  is  not  a  way  of  requiring  the  city  authorities  to  proceed  with  the 
collection  of  the  tax  without  forcing  teachers  and  others  to  the  necessity  of  many 
suits  against  the  city. 


JUDICIAL    DECISIONS  :    SCHOOLS  587 

If  there  is  a  way  it  is  manifestly  to  the  interest  of  all  concerned  that  it 
should  be  followed.  As  the  amount  to  be  raised  for  the  schools  is  not  a  subject 
of  controversy,  as  it  has  been  absolutely  fixed  and  determined  in  the  maimer 
provided  by  law,  it  is  undoubtedly  desired  by  the  citizens  of  Elmira  that  its  col- 
lection shall  forthwith  proceed  in  order  to  avoid,  so  far  as  possible,  the  annoy- 
ances which  are  impending. 

The  Elmira  school  act  provides  (section  13)  that  the  amount  to  be  collected 
in  the  city  for  school  purposes  "  shall  be  levied  and  collected  in  the  same  manner, 
by  the  same  collector  and  at  the  same  time  that  other  city  taxes  are." 

The  only  thing  in  the  way  of  the  collection  of  the  school  taxes  proceeding 
at  once,  and  without  av^^aiting  the  solution  of  the  controversy  in  reference  to 
other  city  taxes,  is  the  provision  that  all  sliall  be  collected  at  tJie  same  time.  But 
all  the  statutes  relating  to  the  matter  must  be  read  together.  Tlie  legislative 
purpose  in  the  premises  is  not  to  be  determined  by  the  literal  wording  of  a  single 
clause  separated  out  from  pages  of  statutory  law  bearing  upon  the  matter.  It  is 
clear  that  the  Legislature  intended  that  the  amount  determined  to  be  necessary 
for  the  support  of  the  school  establishment  of  Elmira  should  be  collected.  Its 
collection  was  not  to  take  place  upon  the  happening  of  some  contingency.  The 
moneys  in  question  are  for  the  expenses  of  the  school  year  commencing  Sep- 
tember I,  1891,  which  has  already  been  entered  upon.  They  are  now  needed  to 
meet  the  expenses  of  the  work  which  the  Legislature  directed  to  be  carried  on. 
The  Legislature  intended  that  they  should  be  ready  for  use  when  needed.  The 
direction  that  these  moneys  should  be  collected  at  the  same  time  as  other  city 
taxes,  was  only  for  convenience  and  no  essential  part  of  the  scheme.  Suppose 
it  should  so  happen  that  in  any  year  no  other  city  taxes  are  to  be  collected. 
Would  any  one  contend  that  no  school  moneys  could  be  raised?  The  provision 
as  to  time  was  not  mandatory  but  only  directory,  and  was  made  upon  the  con- 
fident expectation  that  other  city  taxes  would  be  collected  prior  to  the  month  of 
September  in  each  year.  There  would  seem,  therefore,  no  good  reason  why, 
under  existing  circumstances,  the  city  authorities  should  not  have  proceeded 
with  the  collection  of  the  school  moneys,  or  why  they  may  not  do  so  at  any 
time.  Nor  is  there  any  apparent  reason  sufficient  to  prevent  their  being  com- 
pelled to  do  so  by  ordinary  legal  process. 

Rut  regardless  of  this  the  Legislature  has  evidently  intended  that  the  col- 
lection of  taxes  for  school  purposes  shall  not  depend  upon  any  local  considera- 
tions whatever. 

The  Consolidated  School  Act  (chapter  555,  Laws  of  1864,  title  11)  provides 
that  any  person  conceiving  himself  aggrieved  by  any  act  or  decision  concerning 
any  matter  pertaining  to  common  schools  may  appeal  to  the  State  Superintendent, 
and  requires  that  officer  to  hear  and  decide  the  same  and  makes  his  decision 
final  and  conclusive.  Section  2,  subdivision  4  of  the  title  above  named  provides 
■that  the  Superintendent  shall  have  power  "to  make  all  orders  by  directing  the 
levying  of  taxes  or  otlicrzvise  which  may  in  his  judgment  be  necessary  to  give 
effect  to  his  decision." 


5StS  Till-:    UNIVERSITY    OF   THE   STATE    OF    NEW    YORK 

Arriving  ;it  the  dctcrniiiiafion  liercinhefore  set  forth  upon  the  matters  sub- 
mitted, and  in  order  to  give  effect  to  his  decision  that  the  schools  must  be  kept 
in  operation,  the  Superintendent 

Orders  that  the  clerk  of  the  city  of  I-llniira  forthwith  proceed  to  extend  and 
apportion  the  amount  fixed  and  determined  by  the  common  council  of  said  city 
as  necessary  to  be  raised  for  the  expenses  of  the  schools  of  said  city  for  the 
year  coninu-ncinp  September  i,  1891,  namely:  the  sum  of  $49,340  on  the  assess- 
ment rolls  of  said  city,  and  to  CAc  the  same  and  make  a  full  duplicate  or  copy 
thereof  with  the  tax  so  extended  and  apportioned  and  certify  the  same  in  the 
manner  re(|uire(l  by  law,  and  shall  deliver  the  same  to  the  chaml^erlain  of  said 
city,  and  the  said  chamberlain  shall  thereuj^on  proceed  to  collect  from  the  several 
persons  named  in  the  said  assessment  rolls  the  sums  set  opposite  their  respective 
names.  Said  clerk  and  chamberlain  will  in  preparing'  the  rolls  and  collecting  said 
sciiool  taxes  proceed  as  directed  by  the  statutes  relatine^  to  the  levying  and  col- 
lection of  taxes  in  said  city  of  Elmira.  but  without  the  formal  authority  of  the 
coninK»n  council  or  the  warrant  of  the  mayor  of  said  city,  and  this  order  shall  be 
their  warrant  and  authority  for  so  doing. 


CLOSING  OF  PUBLIC  SCHOOLS 

Action  of  a  borrrl  of  education   in   resolving  to  close  public  schools   for  the   reason   that 

the  corj)()r:itc  authorities  upon  whom  the  duty  to  provide  funds  devolves  by  law,  neglect 

to  provide  necessary  means,  will  not  he  upheld. 
Statutes  providing   for  the   raising  by  tax   of   moneys   for   scbnol   purposes   in   tlie   city   of 

Elmira,  set  forth  and  considered. 
Teachers  under  contract  of  employment  would  have  a  remedy  liy  law,  if  wages  provided 

for  by  contracts  were   in  default,  allhough   prevented   from  teacliing  ])y  reason   of   the 

closing  of  the  schof)ls. 

State  of  Neiv  York,  Def^artmcnt  of  Puhlic  Instruction 

Superintendent's  Oitice,  Albany,  N.  Y.,  August  4,  iSqi 

F.  J.  Beardsley,  Esq.,  Superintendent  of  Sclwols.  Jiiniira,  N.^  Y.: 

Sir:  On  the  first  in.stant  I  received  by  your  hand  petitions  signed  by  many 
citizens  of  Rlmira.  addres.sed  to  the  State  Superintendent  of  Public  Instruction, 
praying  him  to  intervene  and  prevent  certain  resolutions  adopted  by  the  board  of 
education  of  said  city  on  the  29th  day  of  July,  and  determining  to  close  the  public 
schools  of  said  city  during  the  next  school  year  from  taking  effect.  You  also 
handed  me  a  paper  signed  by  the  members  of  the  board  of  education  assuring 
me  that  the  statements  contained  in  the  petitions  were  true  and  consenting  that 
I  should  make  whatever  answer  I  deemed  proi)er  in  the  matter,  without  notice 
to  the  board  or  any  of  its  members. 

While  evidently  intending  that  the  matter  shall  be  brought  before  me  by  way 
of  appeal  from  the  action  of  the  board,  the  rules  governing  the  practice  in 
appeals  to  the  Department  have  not  been  complied  with  and  the  usual  course 


JUDICIAL    DECISIONS  :    SCHOOLS  589 

would  be  to  return  the  papers  that  they  might  be  perfected  and  completed.  It 
is  important,  however,  that  there  shall  be  no  unavoidable  delay  in  a  matter  of 
so  much  general  concern,  and  I  have  therefore  deemed  it  advisable  to  at  once 
express  my  views  of  the  subject  rather  than  compel  the  board  and  the  peti- 
tioners to  await  the  slow  progress  of  a  formal  appeal. 

It  seems  that  the  board  following  the  statute  under  which  it  operated  (chap. 
113,  Laws  1859)  certifiL'd  to  the  common  council  of  the  city  that  the  sum  of 
$49,340  would  be  necessary  to  meet  the  expenses  of  the  schools  of  the  city  for 
the  school  year  beginning  September  i,  1891,  and  that  upon  the  25th  day  of  May 
the  common  council  considered  and  approved  the  said  estimate.  The  statute 
provides  that  moneys  for  school  purposes  "  shall  be  levied  and  collected  in  the 
same  manner,  by  the  same  collector  and  at  the  same  time  that  other  city  taxes 
are,"  but  it  is  generally  known  that  the  warrant  for  the  collection  of  other  city 
taxes  has  not  yet  been  issued,  although  the  same  should  have  been  in  the  hands 
of  the  chamberlain  prior  to  the  15th  day  of  June  1891,  in  consequence  of  a  con- 
troversy in  the  common  council  touching  taxes  for  other  than  school  purposes, 
but  of  the  precise  nature  of  which  I  am  not  advised. 

The  board  of  education  therefore  appears  to  conclude  that  funds  may  not 
be  available  for  school  expenses  during  the  next  year,  and  with  manifest  unwill- 
ingness resolves  that  the  schools  be  closed  during  the  year. 

I  have  given  the  subject  such  consideration  as  I  have  been  able  during  the 
limited  time  afforded  me  and  with  the  greatest  respect  for  the  opinion  of  the 
board,  I  am  led  to  say  that  it  seems  clear  to  me  that  the  action  of  the  board  can 
not  be  justified. 

The  public  school  laws  of  the  State,  applicable  in  Elmira  as  elsewhere,  and 
the  special  statutes  particularly  applicable  there,  contemplate  that  schools  shall 
be  continuously  maintained,  save  only  at  such  times  as  may  be  deemed  neces- 
sary for  the  purposes  of  recreation.  It  has  been  repeatedly  held  that  local  boards 
or  oflicers  have  no  power  to  discontinue  schools.  All  the  statutes  exemplify  this 
intention  of  the  Legislature.  Let  us  instance  one  that  is  particularly  applicable 
in  this  case.  The  Elmira  school  law  (section  21  as  amended  February  21,  1866) 
guards  against  the  closure  of  the  schools  by  expressly  providing  that  upon  the 
receipt  of  the  estimates  of  the  board  of  education  "the  common  coiuicil  shall 
proceed  to  consider  the  same,  and  approve,  increase  or  diminish  any  or  all  of 
said  estimates;  provided,  hozcever,  that  the  aggregate  amount  shall  not  fall  belozu 
a  sum  sufficient  to  defray  all  the  necessary  ex{^enses  for  the  support  of  the 
public  schools  in  the  school  district  of  Elmira,  including  the  academy,  for  the 
ensuing  year."  Fortunately  the  common  council  has  performed  this  duty  and 
approved  the  estimates  for  the  expenses  of  the  schools  as  presented  by  the  board 
of  education.  The  statute  requires  the  board  to  limit  its  expenditures  to  the  sum 
so  fixed  and  appro^■ed,  but  does  it  not  justify  the  board  in  assuming  that  such 
sum  will  be  available  for  the  purposes  named? 

'~\  Are  all  the  provisions  of  the  general  school  laws  and  these  special  provi- 
sions in  the  case  of  the  city  of  Elmira  to  be  neutralized  and  set  aside  because  a 


5«jo  Tiiii  l'ni\i;kshv  ui-  iiii-:  siaik  of  nkw  vork 

common  council  has  delayed  the  issuance  of  a  lax  warrant  longer  llian  it  should 
have  done? 

I  am  clearlv  of  the  opinion  tliat  the  board  has  no  authority  to  close  the 
schools  for  a  year  nor  for  any  length  of  time  (usual  vacations  excepted),  unless 
something  occurs  which  necessarily  stops  their  operation,  and  then  only  until 
the  obstacle  can  be  removed.  lias  any  such  thing  yet  occurred  in  Elniira?  I 
think  not.  The  schoolhouses  have  not  been  burned.  There  is  no  contagious 
disease  prevailing.  The  teachers  have  not  refused  to  act.  No  warrant  has  even 
been  dishonored.  An  apprehension  that  one  may  be  at  some  time  in  the  future 
is  not  enough.  In  public  ailministration  it  is  well  not  to  attempt  to  cross  trouble- 
some bridges  until  they  are  reached. 

I  observe  that  the  board  resolved  that  "  persons  engaged  to  teach  be  released 
from  such  engagement."  But  suppose  they  prefer  not  to  be  released?  It  takes 
two  to  make  an  engagement  and  two  to  unmake  one.  The  board  can  not  dis- 
charge the  persons  who  have  been  engaged  to  teach  the  public  schools  of  Elniira 
without  their  consent,  because  of  the  possibility  that  there  may  not  be  money 
with  which  to  jjay  them.  These  teachers  are  entitled  to  have  the  city  fulfill  its 
engagement.  They  will  be  entitled  to  their  pay  or  to  such  legal  damages  as  they 
may  suffer  and  can  re(|uire  the  city  to  make  them  good  by  actions  in  the  courts. 
In  the  event  of  possible  contingencies  let  that  course  be  taken.  Aside  from  the 
re(|uiremcnts  of  the  school  laws,  the  board  would  surely  not  be  justified  in  sub- 
jecting the  city  to  this  liability  without  securing  to  the  city  the  benefit  of  the 
services  of  these  teachers. 

It  occurs  to  me  that  it  is  very  usual  for  city  charters  to  forbid  the  incurring 
of  any  city  liability  beyond  the  amount  in  the  treasury  for  meeting  the  expenses, 
and  that  the  board  may  apprehend  trouble  from  such  a  provision  in  the  Elniira 
charter.  Without  the  facilities  for  conveniently  referring  to  such  provisions 
which  may  exist  and  without  stopping  to  look  them  up,  it  seems  proper  to  me 
to  suggest  to  the  board  that  they  may  well  distinguish  between  a  liability  imposed 
by  law  or  already  legally  incurred,  and  some  new  and  unusual  liability  for  which 
legal  provision  has  not  been  made.  Liability  for  teachers'  wages  and  other  ordi- 
nary expenses  of  the  schools  are  of  the  former  class.  The  city  is  liable  for  such 
expenses  under  the  law  and  without  any  new  or  affirmative  action  of  the  board, 
and  the  board  need  apprehend  no  personal  or  other  liability  from  proceeding  upon 
this  assumption. 

So  I  conclude  that  there  has  been  no  sufficient  justification  for  determining 
to  close  the  schools,  and  accordingly  that  the  board  has  exceeded  its  authority; 
that  it  should  forthwith  rescind  its  action,  open  the  schools  as  usual  and  go  on  in 
the  ordinary  way  until  something  occurs  to  absolutely  prevent  their  operation. 
If  in  the  course  of  time,  funds  are  not  provided  in  the  ordinary  way  for  meet- 
ing the  expenses,  let  legal  claims  be  enforced  by  legal  remedies.  Attempt  to  cross 
streams  only  when  they  are  reached  and  if  bridges  are  then  found  to  be  gone, 
cross  in  some  other  way.  If  any  bridges  are  now  down  it  is  more  than  likely 
that  they  will  be  repaired  before  the  schools  get  there.    In  any  event  I  am  quite 


JUDICIAL    DECISIONS  :    SCHOOLS  59I 

certain  that  the  people  of  Ehnira  will  stand  by  the  board  of  education  in  going 
on  with  the  schools,  even  though  they  be  obliged  to  meet  unusual  dilTiculties  with 
unusual  means.  The  greater  their  embarrassments,  the  more  thoroughly  will 
they  be  sustained.    I  am,  yours  very  respectfully, 

^  A.  S.  Draper, 

Superintendent 


CLOSING  OF   PUBLIC   SCHOOLS 

The  law  contemplates  that  public  schools  shall  be  open  continuously  (save  during  reasonable 

vacations). 
Failure  of  corporate  authorities  to  provide  moneys  required  for  the  support  of  schools,  no 

justiikation  for  the  school  authorities  in  closing  same. 
Liability  incurred  by  the  employment  of  teachers  can  not  be  evaded  by  closure  of  schools. 

State  of  Nczv  York,  Department  of  Public  Instruction 

Superintendent's  Office,  Albany,  N.  Y.,  August  26,  iSpi 

To  the  Board  of  Educalion,  Ehnira,  N.  Y.: 

Referring  to  an  interview  with  Messrs  Joslyn  and  Cooley  on  the  25th 
instant,  in  relation  to  certain  resolutions  adopted  by  your  board  on  the  2<)th  of 
July,  determining  to  close  the  schools  of  tlie  city  of  Ehnira  the  next  school  year, 
in  consequence  of  the  failure  of  the  common  council  of  that  city  to  issue  a 
warrant  for  the  collection  of  taxes  for  the  support  of  the  schools,  I  very  respect- 
fully advise  you  that  my  views  upon  the  subject  were  very  fully  set  forth 
in  a  communication  to  Mr  E.  J.  Beardsley,  superintendent  of  schools  of  the  city 
of  Ehnira,  on  the  4th  instant,  which  I  will  be  glad  to  have  the  board  consider  as 
intended  for  its  information  and  guidance.  I  have  nothing  of  consequence  to 
add  to  that  communication  other  than  that  more  reflection  confirms  the  views 
therein  expressed.  It  seems  to  me  that  the  board  erred  in  determining  to  close 
the  schools.  The  law  contemplates  they  shall  be  open  continuously  (save  reason- 
able vacations),  and  undertakes  to  provide  the  means  for  maintenance  and  make 
certain  that  its  purpose  is  not  thwarted  or  overthrown.  The  board  is  to  assume 
that  the  moneys  for  meeting  expenses  will  be  provided  when  actually  needed. 
If  the  common  council  fails  to  perform  its  duty  in  the  premises,  the  board  of 
education  can  not  help  it.  It  should  continue  to  perform  its  duty  just  the  same. 
The  city  will  become  liable  for  the  expenses  and  the  same  may  be  collected  by 
due  process  of  law.  Even  though  the  city  be  harassed  with  suits  and  saddled 
with  costs  and  expenses,  the  board  w411  not  be  responsible  for  it,  for  it  will  not 
be  the  cause  of  it.  It  will  only  perform  the  duty  w-hich  the  law  imposes  and 
which  its  members  have  sworn  to  perform.  It  can  not  properly  do  less  than 
this.  It  may  very  properly  use  every  reasonable  means  for  removing  the  obstacle 
which  clogs  the  machinery  set  up  for  collecting  school  taxes  but  the  schools  must 
"proceed  with  their  vital  and  beneficent  work  whether  such  efforts  are  successful 
or  not.    If  the  ordinary  processes  for  raising  school  moneys  are  paralyzed,  others 


C^ij2  THE    LMVKKSnV    Ol'   THE   STATE   Ul-"   NEW    VOKK 

will  have  to  be  resorted  to.  If  public  liability  is  incurred,  it  will  not  be  the 
work  of  the  members  of  the  board,  but  of  the  law  which  governs  them  and  which 
will  not  permit  its  purposes  to  be  overthrown.  I  entertain  no  doubt  of  the  duty 
of  the  luiard  in  the  premises.  It  is  clear  to  me  that  it  should  forthwith  rescind 
its  action  of  July  3jth  and  open  the  schools  at  the  usual  time. 

1  am,  very  respectfully 

A.  S.  Draper, 

Superintendent 


3706 

In  the  matter  of  the  ai)pcal  of  L.  Z.  Miller  v.  school  district  no.  39,  town  of 
Hector,  county  of  Schuyler. 

A  scliool  was  cli'Sid  for  one  week  because  of  the  prevalence  or  fear  of  an  epidemic  disease. 
Held,  Tliat  a  teacher  was  entitled  to  pay  for  the  time  the  school  was  so  closed,  within  the 

term  of  lier  employment,  the  same  as  if  school  had  been  continued. 
Decided   .\uk;ust  J4.   1888 

Draper.  Sujhrinlcndent 

The  appellant  was  employed  by  the  board  of  education  of  district  no.  39,  in 
the  town  of  Hector,  Schuyler  county,  to  teach  the  school  in  saiii  district  for  the 
term  of  sixteen  weeks,  commencing  on  the  2()th  day  of  September  1887,  at  three 
dollars  per  day,  and  entered  u])on  his  employment.  Such  employment  afterward 
seems  to  have  been  continued  by  agreement  of  the  parties  up  to  the  summer  of 
1S88.  During  the  week  between  the  15th  and  22d  days  of  November  1887,  the 
school  was  closed  because  of  the  prevalence  or  the  fear  of  an  epidemic  disease. 
The  board  has  never  paid  the  teacher  for  that  week.  The  teacher  has  demanded 
pay  and  been  refused,  and  brings  this  appeal  for  the  purpose  of  determining  his 
right  to  such  compensation.  The  board  admits  the  employment  and  admits 
that  the  school  was  closed  at  the  time  for  the  reason  specified  by  the  teacher, 
and  also  admits  the  demand  for  compensation  for  such  week  and  their  refusal 
to  pay  the  same.  They  set  forth  two  reasons  in  justification  of  such  refusal: 
first,  they  say  that  the  school  was  closed  but  not  by  order  of  the  board  of  educa- 
tion ;  second,  they  say  that  they  had  settled  with  the  appellant  from  time  to  tiine 
and  that  no  claim  was  made  for  compensation  for  the  week  during  which  the 
school  was  closed  until  about  the  time  of  the  close  of  the  school  for  the  year. 

There  is  no  force  in  the  claim  of  the  board  that  the  school  was  closed 
without  permission  or  action  on  the  part  of  the  board.  It  is  clear,  from  the 
papers,  that  it  was  closed  by  the  consent  of  all  three  members  of  the  board,  and 
indeed  in  accordance  with  their  judgment  and  wish.  If  the  business  of  the  board 
was  transacted  in  an  irregular  way,  it  certainly  is  not  for  them  to  take  advantage 
of  it.  The  second  reason  assigned  by  the  board  for  refusing  the  claim  of  the 
teacher,  has  addressed  itself  to  my  mind  much  more  seriously.  It  is  clear  that 
when  in  the  midst  of  a  term  of  employment  the  school  is  closed  by  reason  of 


JUDICIAL  decisions:  schools  593 

circumstances  for  which  the  teacher  is  in  no  wise  responsible  and  he  continues 
ready  to  fulfill  his  agreement  at  all  times,  he  is  entitled  to  pay  the  same  as  though 
the  school  had  been  in  operation.  It  is  true  that  such  claim  ought  to  be  asserted 
by  the  teacher  promptly.  lie  ought  not  to  settle  accounts  with  the  board,  receiv- 
ing no  pay  for  a  portion  of  his  time,  and,  at  the  same  time  disclosing  no  claim  to 
it.  I  have  carefully  weighed  what  is  said  by  the  respective  parties  touching  this 
point  of  the  case.  From  it  I  conclude  that  there  never  was  any  conclusive  settle- 
ment between  the  parties.  The  board  paid  the  teacher,  on  account,  wages  from 
time  to  time ;  it  is  probable  that  they  may  have  paid  him  all  they  understood  they 
owed  him ;  but  I  am  unable  to  find  that  at  any  time  the  teacher  did  anything 
which  must  be  licld  as  a  waiver  of  his  claim.  No  receipts  are  produced  and  no 
proof  is  offered  tliat  he  in  any  way  acknowledged  that  he  had  received  all  that 
was  due  him.  It  is  to  be  borne  in  mind  also  that  the  teacher  was  an  employee  of 
the  board  and  that  his  employment  was  continued  until  the  summer  of  1888, 
and  that  he  was  in  a  position  which  might,  although  it  ought  not  to,  cause  him  to 
be  less  independent  about  the  matter  than  he  otherwise  would.  It  is  also  shown 
that  he  made  claim  to  this  week's  compensation  ujjon  the  termination  of  his 
employment.  It  is  clear  that  under  the  law  he  was  entitled  to  pay  for  the  week 
in  question  and  that  he  never  has  been  paid.  The  only  question  is,  whether  his 
course  was  such  as  to  bar  him  from  now  asserting  his  right  to  the  compensation 
in  dispute.  I  am  of  the  opinion  that  it  would  have  been  better  for  him  to  have 
made  his  claim  more  promptly,  but  I  can  not  conclude  that  he  has  waived  his 
rights  in  the  premises. 

I  therefore  sustain  the  appeal  and  direct  the  respondents  to  draw  their 
order  in  settlement  of  one  week's  wages  of  the  appellant,  according  to  the  terms 
of  their  agreement  with  him. 


3973 
In  the  matter  of  the  appeal  of  Robert  C.  Roberts  and  others  v.  school  district 

no.  9,  town  of  Marcy,  county  of  Oneida. 
A  school  district  meeting  voted  to  close  the  district  school.     From  such  action  an  appeal  is 
taken.     The  evidence  shows  that  the  school  was  not  closed.     Held,  that  the  appeal  was 
prematurely  taken;  that  the  action  of  the  district  was  not  controlling  upon  the  trustee. 
Decided  April  21,  1891 

Draper,  Superintendent 

This  appeal  is  brought  by  three  electors  of  school  district  no.  9,  town  of 
Marcy,  county  of  Oneida,  upon  the  following  ground: 

That,  at  a  special  meeting  of  the  district,  held  February  24.  1891,  the  meet- 
ing voted  to  close  the  school  in  said  district  until  the  next  annual  meeting.  They 
allege  that  they  are  parents  of  children  of  school  age,  residing  in  the  district, 
aTid  object  to  the  closing  of  the  school. 


594  i'"'-  LNivi-.Ksnv  (»i-  Till-:  stati;:  ok  ni:\v  york 

From  the  answer  of  llic  rcspniuk-iil,  it  appears  that  this  action  was  taken  by 
llic  district  meeting,  hiit  tliat  the  school  has  not  been  closed  and  is  still  in  session. 
It  is  also  made  to  appear  by  the  answer,  allhou-h  it  is  unnecessary  to  consider  it 
upon  this  appeal,  that  there  has  been  a  very  small  attendance  at  the  school  held 
in  the  district,  for  some  time  past.  At  times,  there  has  been  no  attendance  by 
pupils,  and  the  average  daily  attendance  has  not.  during  the  past  term,  amounted 
to  four. 

This  appeal  has  been  taken  prematurely.  The  action  of  the  district  meeting 
is  not  controlling  upon  the  trustee.  If  I  were  to  reverse  the  action  of  the  meeting, 
it  would  in  no  way  change  the  condition  of  affairs  in  the  district. 

I  therefore  dismiss  the  appeal. 


3794 

In  the  matter  of  the  appeal  of  Silas  C.  Kimm  v.  tlic  board  of  education  of  union 
free  school  district  no.  i,  of  the  town  of  Ilcrmon,  county  of  .St  Lawrence. 

The  law  directs  that  .sclmols  he  closed  during  the  time  a  teachers  institute  is  being  held,  and 
requires  attendance  at  the  institute  of  teachers  without  loss  of  pay. 

Boards  of  education  arc  not  authorized  to  determine  whether  a  teacher  shall  attend  or  not; 
they  have  no  discretion  in  the  matter. 

.\  memorandum  of  hiring,  which  authorized  a  teacher  to  attend  a  teachers  institute,  pro- 
vided the  Icaclier  would  make  up  the  time  so  spent  at  the  end  of  a  term;  held  an 
attempt  to  avoid  the  effect  of  a  plain  provision  of  law,  namely,  that  teachers  shall  be  paid 
for  time  spent  in  attendance  at  institutes,  just  as  if  school  had  been  taught  by  them  that 
week,  and  therefore  void. 

Decided  July  29,  1889 

De  Coster  &  Newberry,  attorneys  for  appellant 
Worth  Chamberlain,  attorney  for  respondent 

Draper,  Supcrintcudcnt 

The  appellant  was  employed  to  teach  the  school  in  the  above-named  district 
during  the  school  year  188S-89.  The  memorandum  of  employment  was  as 
follows : 

Hcrmon,  N.  Y.,  May  2,  1888 

This  is  to  certify  that  I  have  been  empowered  by  the  board  of  education  of 
the  Ilcrmon  school  to  employ  S.  C.  Kimm  to  teach  said  school  for  one  vear  of 
thirty-nine  weeks,  beginning  on  such  a  day  in  August  of  1888,  as  the  board  may 
desire,  with  the  usual  vacations  between  terms.  I  hereby  promise  to  pay  him 
the  sum  of  J^Soo  for  said  year's  term  of  service.  But  if.  at  the  close  of  any  term 
of  school,  it  is  found  that  he  is  not  working  for  the  interests  of  said  school,  we 
reserve  the  right  to  refuse  to  continue  him  in  our  service. 

I  also  agree  to  allow  him  to  attend  a  teachers  institute  which  may  be  held 
in  this  commissioner  district,  provided  that  he  will  make  up  such  time  at  end  of 
the  term  during  which  said  institute  occurs. 

S.  C.  Kimm  q  H.  Risley 

Teacher  President 


JUDICIAL  decisions:  schools  595 

The  appellant  taught  thirty-nine  weeks  and  also  attended  the  teachers  insti- 
tute one  week.  He  claims  an  extra  week's  pay  therefor.  His  appeal  is  from  a 
refusal  to  pay  the  same. 

The  board  admit  the  contract,  but  contend  that  under  it  the  teacher  was  to 
teach  thirty-nine  weeks  and  attend  the  institute  one  week,  for  $800.  The  board 
also  claims  that  the  teacher  failed  to  perform  his  agreement  in  other  particulars. 
They  say  he  agreed  to  spend  his  time  for  four  weeks,  prior  to  the  opening  of  the 
school,  looking  up  pupils  for  the  school,  by  which,  I  suppose  they  mean,  he  was 
to  exert  himself  to  induce  nonresident  pupils  to  attend  the  school,  and  also  that 
he  promised  to  hold  a  school  exhibition  to  raise  money  for  the  benefit  of  the 
district,  and  that  he  failed  to  keep  these  promises.  They  claim  the  right  to  offset 
the  loss  which  they  allege  they  sustained  through  such  failure  against  his  claim 
for  an  extra  week's  wages. 

It  may  be  well  doubted  whether  a  contract  with  a  teacher  that  he  should 
spend  time  endeavoring  to  secure  the  attendance'  of  nonresident  pupils,  and 
that  he  should  hold  an  exhibition  to  raise  money  for  the  district  could  be  upheld 
and  enforced.  But  independent  of  that  question,  it  is  apparent  to  me  that  this 
claim  of  an  offset  is  an  afterthought  on  the  part  of  the  board.  They  have  ten- 
dered him  the  balance  of  the  year's  salary  without  claiming  any  right  to  make  a 
deduction  for  failure  to  fulfil  his  agreement,  and  it  does  not  seem  to  me  that  their 
claim  of  that  character,  under  the  present  circumstances,  is  entitled  to  much 
weight. 

The  paragraph  in  the  memorandum  of  employment,  concerning  attendance 
upon  the  institute,  shows  a  misconception  of  the  law  in  that  connection  on  the 
part  of  the  board.  In  this  memorandum,  the  president  of  the  board  says :  "  I 
also  agree  to  allow  him  to  attend  a  teachers  institute  which  may  be  held  in  this 
commissioner  district,  provided  that  he  will  make  up  such  time,"  etc.  It  is  not 
for  the  board  to  allow  a  teacher  to  attend  an  institute.  The  law  does  that.  The 
board  can  not  require  time  spent  in  attendance  upon  an  institute  to  be  made  up. 
The  law  directs  that  the  schools  shall  be  closed;  that  the  teachers  shall  attend 
the  institute,  and  shall  be  paid  for  their  time  in  so  doing.  The  board  has  no 
discretion  in  the  matter,  nor  can  it  by  any  circumlocution  avoid  the  payment  of 
teachers'  wages  while  attending  the  institute. 

It  is  impossible  for  me  to  arrive  at  any  other  conclusion  than  that  the  board 
undertook  to  rid  itself  of  all  responsibility  for  the  teacher's  wages  while  he 
should  attend  the  institute.  The  memorandum  certifies  that  the  employment  was 
for  thirty-nine  weeks  for  $800.  If  the  teacher  attended  the  institute,  the  board 
would  allow  it,  provided  the  week  was  made  up.  This  is  precisely  what  the 
statute  forbids.  There  is  an  institute  in  every  district  every  year.  The  district 
has  no  option  in  the  matter.  The  law  does  not  contemplate  any  making  up  of 
time  spent  in  the  institute.  It  does  require  that  the  district  shall  pay  wages  if 
the  teacher  attends  the  institute,  precisely  as  though  he  had  taught  school. 


59^  Tilt:  L  .M\  i.K.-i  i  »   tiK  Tiiii:  state  uf  new  vork 

I  have  considered  the  question  whether  the  teacher  did  not  har  himself 
from  exactinj^  an  extra  week's  pay,  by  reason  of  the  fact  that  he  accepted  this 
nienioranduin  without  raisin^ij  any  question  about  the  provisions  in  reference  to 
institutes.  I  am  of  the  opinion  that  he  came  short  of  doini^  what  ho  shuidd  have 
done  at  that  time.  Me  should  have  had  a  clear  understanding,  at  once,  about  the 
institute  matter.  lUit  I  do  not  think  he  can  be  held  to  have  waived  his  rights 
under  the  statute. 

rile  appeal  is  therefore  sustained,  and  the  district  directed  to  settle  with 
the  ajjpellant  for  one  extra  week  of  service  at  the  rate  of  $800  for  thirty-nine 
weeks. 


SCHOOL   DISTRICTS -ALTERATION   OF 

The  provision   requiring  three  months'  notice  to  trustees  of  an   aUcration   in  their  school 

district  is  intended  for  their  protection,  and  to  that  end  is  to  be  benignly  construed. 
Decided  December  26,  1828 

Flagg,  Superintendent 

In  September  1827,  Messrs  Reuben  Stearns  and  Nathaniel  W.  Ingraham 
were  set  off  from  district  no.  10  in  the  town  of  Locke,  and  attached  to  district 
no.  9  in  the  same  town.  In  November  ensuing,  Ingraham  was  elected  a  trustee 
of  the  latter  district,  and  officiated  in  that  capacity  until  November  1828.  There 
was  no  evidence  on  record  of  the  alteration  above  mentioned  having  been  made 
with  the  consent  of  the  trustees  of  district  no.  10,  or  that  any  notice  had  been 
served  on  them  by  the  commissioners ;  but  they  were  notified  of  the  intention 
of  the  commissioners  to  set  off  the  two  individuals  referred  to,  and  of  the  time 
and  place  of  meeting  for  the  purpose.  In  November  1828,  a  tax  was  voted  in 
district  no.  9  to  build  a  schoolhouse,  when  a  doubt  was  raised  by  one  of  them, 
whether  they  had  been  legally  set  oft'  from  no.  10.  The  facts  were  submitted  to 
the  Superintendent  for  his  opinion. 

Messrs  Stearns  and  Ingraham  petitioned  the  commissioners  of  common 
schools  to  be  detached  from  district  no.  10  to  no.  9,  and  in  September  1827,  their 
petition  was  granted ;  and  Ingraham  was  elected  a  trustee  of  no.  9,  in  which 
capacity  he  served  until  November  1828.  The  alteration  of  district  no.  10  by 
attaching  them  to  no.  9,  appears  to  have  been  recorded  in  the  usual  manner  under 
the  old  law.  Whether  the  trustees  of  no.  10  were  originally  willing  to  gratify 
Messrs  Stearns  and  Ingraham  in  their  request  to  be  annexed  to  no.  9  or  not, 
and  whether  notice  was  served  or  not,  can  not  after  so  long  a  time  affect  the 
relations  of  Messrs  S.  and  I.  with  the  trustees  and  inhabitants  of  no.  9.  The 
provision  requiring  the  consent  of  trustees  to  detach  persons  from  their  district. 
and  holding  them  three  months  without  such  consent,  was  made  for  the  bcnelit 
and  protection  of  the  trustees,  to  whose  injury  the  alteration  might  operate.  For 
instance,  trustees  might  have  made  contracts  and  incurred  responsibilities,  which 
would  operate  oppressively,  if  some  of  the  most  wealthy  were  detached  before 
they  had  time  to  collect  the  tax.  In  such  cases  the  trustees  are  effectually  pro- 
tected by  their  veto  upon  the  formation  of  the  district  for  three  months,  in 
which  time  they  can  collect  their  tax.  And  to  carry  this  intention  into  effect, 
the  act  should  be  benignly  and  favorably  construed  for  the  protection  of  the 
trustees.  But  in  relation  to  Messrs  Stearns  and  Ingraham,  none  of  these  reasons 
can  avail  them;  they  desired  to  be  set  to  no.  9,  and  were  gratified.  The  trustees 
of \no.  10,  from  their  silence  in  the  matter,  seem  to  have  acquiesced ;  and  as  the 
trustees  have  not  sought  to  retain  Messrs  S.  and  I.,  and  more  than  a  year  has 
elapsed,  they  must  be  considered  as  having  been  legally  attached  to  no.  9. 

[597I 


598  Tllli    LMVKKSITY    OF   TlIK   STATK    OF   NEW    YORK 

Town  superinteiuliiits  (school  commissioners)  have  no  authority  to  alter  the  boundaries 
of  a  school  district,  if  the  same  have  been  established  by  this  Department  upon  appeal, 
until  after  the  lapse  of  lincc  years  from  the  time  they  were  so  established,  without 
c.\|)rcss  permission  of  tlie  State  Superintendent. 

Decided  May   i^,   1855 

Rice,  Supcriulctidcut 

The  ai)i)cllaiits,  in  making  their  annual  report,  enumerated,  ainong  the 
children  of  their  (Hstrict,  the  five  children  of  Mr  William  Raynor.  In  making 
his  apportionment,  the  town  superintendent  deducted  these  children  from  the 
enumeration  of  district  no.  22,  on  the  ground  that  they  and  their  father  were 
residents  of  the  adjoining  district,  no.  21.  The  trustees  of  the  latter  district 
answered  the  appeal. 

It  api>cars  from  the  evidence  that  the  farm  of  Mr  Raynor  was  taken  from 
district  no.  22,  some  five  or  six  years  since,  and  annexed  to  district  110.  21,  by 
an  order  of  the  town  superintendent,  that  officer  not  being  aware  that  the  line 
between  the  said  districts  had  been  established  in  1830,  by  the  State  Superin- 
tendent, upon  appeal. 

It  has  been  held  that  town  superintendents  have  no  power  to  alter  the  boun- 
daries of  a  school  district,  if  the  same  have  been  established  by  this  Department, 
upon  appeal,  unless  consent  shall  have  been  previously  given  by  the  State  Super- 
intendent for  such  alteration.  This  rule  was  established  to  prevent  the  decisions 
of  the  Department  from  being  deprived  of  any  practical  effect,  as  might  be  the 
case,  if  immediately  after  the  decision  a  new  order  could  be  made  precisely  or 
substantially  similar  to  the  one  which  has  been  set  aside. 

This  reason  fails,  however,  when  lapse  of  tiine  and  a  consequent  change  of 
circumstances  may  have  made  the  reasons  no  longer  applicable  which  controlled 
the  decision.  As  this  is  a  subject  of  regulation,  it  will  hereafter  be  held  that, 
after  a  lapse  of  three  years  from  the  tiiue  when  the  boundary  of  a  district  shall 
have  been  established  by  this  Department,  upon  appeal,  it  shall  no  longer  be 
requisite  to  apply  for  express  permission  of  the  State  Superintendent  to  author- 
ize a  local  officer  to  make  an  alteration  of  the  same. 

In  the  case  under  consideration,  the  appeal  should  be  sustained,  without 
reference  to  the  above-mentioned  objection.  It  is  the  duty  of  the  town  superin- 
tendent to  apportion  the  public  money  according  to  the  number  of  children  in 
the  several  districts  "as  the  same  shall  have  appeared  from  the  last  annual 
reports  of  the  trustees,"  and  not  otherwise.  If  he  deems  the  report  incorrect, 
It  is  proper  for  him  to  call  upon  the  trustees  to  correct  it,  and  if  they  refuse  to 
do  so,  they  may,  perhaps,  render  themselves  liable  to  the  penalty  iinposed  for 
wilfully  signing  a  false  report,  with  the  intention  of  causing  the  town  superin- 
tendent to  apportion  and  pay  to  their  district  a  larger  sum  than  its  just  propor- 
tion of  the  school  moneys  of  the  town.  The  report,  however,  is  conclusive  until 
it  shall  be  amended  by  the  trustees,  or  the  question  be  determined  on  appeal. 


JUDICIAL   decisions:    school    districts ALTERATION    OF  599 

4917 

In  the  matter  of  the  appeal  of  Fred  J.  Saunders  v.  N.  F.  Benedict  as  school 
commissioner,  third  commissioner  district,  Onondaga  county. 

It  is  against  the  settled  policy  of  this  Department  to  allow  real  property  to  be  transferred 
from  a  comparatively  weak  district  to  a  stronger  one  when  it  is  not  clearly  shown  that 
it  would  give  increased  convenience  to  the  persons  occupying  the  transferred  territory. 

A  trustee  of  a  school  district  has  no  pov/er,  in  the  name  of  the  district,  to  consent  to  an 
order  for  the  alteration  of  school  district  territory  which  would  take  him  out  of  the  dis- 
trict of  which  he  is  trustee,  and  by  its  operation,  vacate  his  office. 

Decided  December  ig,  igoo. 

Dougherty  &  Aliller,  attorneys  for  appellant 

Skinner,  Superintendent 

This  is  an  appeal  from  an  order  made,  August  17,  1900,  by  N.  F.  Benedict, 
as  school  commissioner,  third  commissioner  district,  Onondaga  county,  altering 
joint  school  district  13,  Fabius,  Onondaga  county,  and  Truxton,  Cortland  county, 
and  the  consequent  alteration  of  union  school  district  9,  Fabius,  Onondaga 
county.  The  appellant,  alleges,  in  substance,  as  the  grounds  for  bringing  his 
appeal,  that  such  order  was  improvidently  and  improperly  made  in  that  it  trans- 
fers territory  from  a  weak  to  a  strong  district,  and  is  an  abuse  of  power  on  the 
part  of  the  commissioner ;  that  the  order  is  irregular  in  that  the  territory  set  oil 
is  not  described  by  metes  and  bounds;  that  said  commissioner  had  no  jurisdiction 
to  make  the  order  without  the  concurrence  or  knowledge  of  the  school  commis- 
sioner of  the  second  commissioner  district  of  Cortland  county,  such  district  13 
being  a  joint  district  located  in  said  second  commissioner  district  of  Cortland 
county,  and  third  commissioner  district  of  Onondaga  county,  and  said  order  hav- 
ing been  made  without  the  knowledge  of,  and  without  any  notice  to,  the  school 
commissioner  of  the  second  commissioner  district  of  Cortland  county,  of  the  pro- 
ceedings leading  up  to  the  making  of  such  order,  and  without  her  concurrence 
in  such  order. 

Commissioner  Benedict  has  answered  the  appeal,  to  such  answer  the  appel- 
lant has  replied,  and  to  such  reply  such  commissioner  has  made  a  rejoinder. 

Since  the  appeal  herein  was  taken  school  commissioner  Benedict  applied  to 
me  for  permission  to  amend  his  said  order  of  August  17,  1900,  by  describing 
therein  more  definitely  the  territory  aflfected  by  said  order.  Permission  was 
given  him  to  so  amend  such  order,  and  November  14,  1900,  such  amended  order 
was  made  by  him,  describing  such  territory  by  metes  and  bounds,  and  such  order 
was  filed  in  the  otifice  of  the  clerk  of  the  town  of  Fabius,  Onondaga  county.  A 
copy  of  such  amended  order  was  annexed  to  the  answer  made  herein  by  such 
conmiissioner. 

The  following  facts  are  established  by  the  pleadings  and  proofs  filed  herein: 

-.On  August  17,  1900,  and  for  many  years  prior  thereto,  there  was  a  school 

district  known  as  joint  school  district  13,  Fabius,  Onondaga  county,  and  Truxton, 

Cortland  county,  and  within  the  third  commissioner  district  of  Onondaga  county 

and  second  commissioner  district  of  Cortland  county.     The  assessed  valuation 


()00  TlIK    UNIVMRSrrV    OF   TlIF    STATF.    OF    NF.W    YORK 

of  such  (iistrict  was  .$18,750,  and  there  were  residing  therein  cigliteen  chil(h-en 
between  the  ages  of  5  and  21  years.  There  was  situated  in  said  town  of  Fabius, 
union  school  (h'strict  9.  having  an  assessed  valuation  of  $200,100,  and  about 
one  hundred  and  fifteen  children  between  the  ages  of  5  and  21  years,  residing 
therein.  (Jne  J.  M.  Crandal  was  sole  trustee  of  such  joint  school  district  13, 
and  resided  with  his  wife,  Helen  C  Crandal,  upon  a  tract  of  land  consisting  of 
about  2jS  acres  in  lots  34  and  35  of  the  town  of  Fabius,  which  land  was  owned 
by  F.lizabeth  Rowley  and  Franklin  B.  Rowley,  and  assessed  for  school  taxes  at 
the  sum  of  $3c/x).  Said  tract  of  land  was  occupied  by  Trustee  Crandal  and  his 
wife,  Helen  ('.  Crandal,  under  lease  thereof  either  to  said  trustee  or  his  wife  or 
to  both  of  them.  Trustee  Crandal  and  his  wife  had  residing  with  them  four 
children  of  school  age.  On  August  17,  1900,  school  commissioner  Benedict,  with 
the  written  consent  of  Trustee  Crandal,  and  the  president  of  the  board  of  edu- 
cation of  union  school  district  9,  made  the  order  appealed  from  herein,  transfer- 
ring said  tract  of  land  upon  which  such  Trustee  Crandal  resided,  from  district  13, 
of  which  he  was  sole  trustee,  to  union  school  district  9,  town  of  Fabius,  thereby 
taking  Trustee  Crandal  out  of  district  13,  and  vacating  his  office  of  trustee. 

It  is  in  proof  that  the  distance  from  the  residence  of  Trustee  Crandal  and 
his  wife  to  the  schoolhouse  in  district  13  is  from  one  mile  to  one  and  one-fourth 
miles,  and  that  the  distance  from  such  residence  of  Trustee  Crandal  to  the  school- 
house  in  union  school  district  9  is  two  miles. 

It  is  against  the  settled  policy  of  this  Department  to  allow  property  to  be 
transferred  from  a  comparatively  weak  district  to  a  stronger  one  when  it  is  not 
clearly  shown  that  it  will  give  increased  convenience  to  the  persons  occupying 
the  transferred  territory. 

State  Superintendent  Ruggles,  in  decision  3419,  dated  ]\Iay  5,  1885,  held 
"  that  a  trustee  of  a  school  district  has  no  power,  in  the  name  of  the  district, 
to  consent  to  an  order  for  the  alteration  of  school  district  territory  zvhich  will 
take  him  nut  of  the  district  of  which  he  is  trustee,  and  by  its  operation,  vacate  his 
office."     I  concur  in  said  decision  of  Superintendent  Ruggles. 

The  appeal  herein  is  sustained,  and  the  order  of  School  Commissioner  Bene- 
dict, dated  August  17,  1900,  appealed  from,  and  his  amended  order,  dated 
November  14,  1900,  are,  and  each  of  them  is,  hereby  vacated  and  set  aside. 


3938 
In  the  matter  of  the  appeal  of  Alfred  Ward  and  others  v.  J-  Freeman  Wells, 

school  commissioner  of  Warren  county. 
.\n  order  of  a  school  commissioner  setting  off  lands  from  one  district  to  another,  and  based 
upon  the  consent  of  a  trustee  whose  lands  upon  which  he  resides,  are  set  off,  and  the 
cfTcct  of  wliich  is  to  take  him  from  the  district  of  which  he  is  trustee,  and  thus  vacate 
his  office.    Hctd  to  be  inoperative  and  void. 
Order  set  aside. 
IJecided  December  3,  1890 

L.  C.  (loodrich,  Fsq.,  attorney  for  appellant 


JUDICIAL    DECISIONS  :    SCHOOL    DISTRICTS ALTERATION    OF  6oi 

Draper,  Siipcrintcndoit 

This  appeal  is  brought  by  resident  taxpayers  of  school  districts  nos.  5  and  7 
of  the  town  of  Thurman,  Warren  county,  from  an  order  made  and  issued  by 
J.  Freeman  Wells,  school  commissioner  of  Warren  county,  transferring  lands 
from  district  no.  7  to  district  no.  5  aforesaid.  The  order  was  made  upon  the 
consent  of  the  sole  trustees  of  the  districts  affected,  and  bears  date  September  i, 
i8go.  One  objection  raised  by  the  appellants  to  the  validity  of  the  order,  is  a 
fatal  one.  and  renders  necessary  no  further  investigation  of  the  matters  raised 
by  the  appeal. 

It  is  clearly  shown  that  the  trustee  of  district  no.  7,  upon  whose  consent  the 
order  was  made,  was  the  owner  of  and  resided  upon  land  affected  by  the  order, 
and  transferred  from  the  district  in  which  he  was  trustee,  to  another. 

Ruggles,  Superintendent,  in  deciding  appeal  no.  3419,  May  5,  1885,  in  which 
the  same  question  arose,  said : 

"  It  is  clear  to  my  mind  that  the  trustee  of  a  school  district  has  no  power, 
in  the  name  of  the  district,  to  consent  to  an  order  for  the  alteration  of  school 
district  territory,  which  will  take  him  out  of  the  district  of  which  he  is  trustee, 
and  by  its  operation,  vacate  his  oflice." 

I  concur  in  the  opinion  of  my  learned  predecessor,  and  hold,  in  this  case, 
accordingly. 

The  order  appealed  from  is  set  aside,  and  the  appeal  sustained. 


4903 

In  the  matter  of  the  appeal  of  Fanny  E.  Sawyer  and  others  v.  Everett  A.  Chick 
as  school  commissioner  third  commissioner  district  of  Jefferson  county. 

This  Department  has  never  favored  the  alteration  of  school  districts,  in  taking  property 
from  a  comparatively  weak  district  financially,  and  annexing  it  to  a  district  financially 
strong. 

Decided  November  10,   1900 

A.  M.  Leffingwell,  attorney  for  appellants 

Skinner,  Superintendent 

This  appeal,  while  in  form  is  taken  l)y  the  appellants  against  Everett  A. 
Chick  as  school  commissioner  of  the  third  commissioner  district  of  Jelfersou 
county,  is  in  fact  an  appeal  from  the  action  of  a  local  board,  consisting  of  School 
Commissioner  Chick,  A.  A.  Scott,  supervisor,  and  Lee  M.  Whitney,  clerk  of  the 
town  of  Henderson,  taken  on  September  22,  i«/^o,  in  vacating  a  preliminary  order 
made  by  Commissioner  Chick,  dated  September  15,  1900,  to  take  effect  on 
December  15,  1900,  and  filed  on  said  September  15,  1900,  in  the  office  of  the 
clerk  of  the  town  of  Flenderson,  altering  school  districts  5  and  8,  Henderson, 
by   the  transfer  of   certain   real  property   described  therein   from   district  5   to 

district  8. 

An  answer  to  su.ch  appeal  has  been  made  by  the  persons  constituting  such 

local  board. 


C02  TIIF.    UNIXEKSITY    i H-     illi;    STATIi    OF   NKW    YORK 

The  fullowinj;  fads  arc  cstahlishccl  by  the  proofs  filed  herein: 
A  petition,  in  writing,  dated  September  u,  1900,  signed  by  ihe  appellants, 
was  lielivered  to  Commissioner  Chick,  reijuesting  him  to  make  an  order  altering 
the  boundaries  of  school  district  5  and  school  district  8,  Henderson.  Jefferson 
county,  by  the  transfer  of  certain  real  property,  described  therein,  and  owned 
or  occupied  by  the  petitioners,  from  district  5  to  district  8;  that  Commissioner 
Chick,  on  September  15.  Kjoo,  made  a  preliminary  order  of  alteration,  the  trustee 
of  district  5  not  consenting  thereto,  of  such  districts  5  and  8,  said  order  -to  take 
effect  December  15,  1900,  transferring  the  real  property  described  therein  and 
in  said  petition  of  the  appellants,  from  said  district  5  to  district  8,  which  order 
was  liled  in  the  oftice  of  the  clerk  of  the  town  of  Henderson  September  15,  1900; 
that  on  September  15,  1900,  Commissioner  Chick  gave  notice,  in  writing,  to  the 
trustee  of  each  of  districts  5  and  8,  which  districts  were  affected  by  his  said  pre- 
liminary order  of  alteration,  of  the  said  order  of  alteration  so  made  by  him, 
and  notice  that  on  the  22d  day  of  September  1900  at  10  o'clock  a.  ni.,  at  the 
oftice  of  A.  M.  Leftingwell.  in  the  village  of  Henderson,  N.  Y.,  he  would  attend 
and  hear  objections  to  the  said  preliminary  order  of  alteration  of  such  districts; 
that  said  trustees  might  request  the  supervisor  and  town  clerk  of  the  town  ra 
whicli  their  school  districts  lie  to  be  associated  with  said  school  commissioner 
at  such  time  and  place  for  the  purpose  of  confirming  or  vacating  the  said  order ; 
that  on  September  22,  1900,  at  the  office  of  said  Leffingwell,  in  the  village  of 
Henderson,  Commissioner  Chick  attended  and  heard  proofs  and  arguments  in 
objection  to,  and  proofs  and  arguments  in  favor  of,  said  alteration  of  such  school 
districts,  and  that  at  such  place  and  time  there  were  also  present  A.  A.  Scott, 
supervisor,  and  Lee  AI.  Whitney,  clerk  of  said  town  of  Henderson,  each  of  whom 
producetl  proof  that  he  had  been  requested  by  the  trustee  of  school  district  5, 
situated  in  said  town,  to  be  associated  with  said  school  commissioner  upon  such 
hearing;  that  opportunity  to  be  heard  was  then  and  there  given  to  all  persons 
who  desireil  to  present  objections  against  or  arguments  in  favor  of  such  altera- 
tions, and  after  due  deliberation  the  said  local  board  rendered  its  decision  that 
the  said  preliminary  order  of  Commissioner  Chick  be  vacated;  that  September  25, 
19:0,  a  record  of  said  action  of  such  local  board  was  filed  in  the  office  of  the 
clerk  of  said  town  of  Henderson.  It  further  appears  that  the  nuniljcr  of  children 
of  school  age  residing  in  school  district  8  is  eighty-six,  and  the  aggregate  amount 
of  property  subject  to  taxation  therein  is  $246,568;  that  the  number  of  children 
of  school  age  residing  in  school  district  5  is  seventeen,  and  the  aggregate  amount 
of  property  subject  to  taxation  therein  is  $36,408;  that  the  aggregate  valuation  of 
the  real  property  sought  to  be  transferred  by  said  preliminary  order,  from  district 
5  to  district  8  is  $4100,  aiid  the  aggregate  number  of  children  of  school  age  resid- 
ing upon  such  property  is  five ;  that  the  appellant.  Fannie  E.  Sawyer,  is  the  ow  ner 
of  a  farm  situated  in  district  5,  assessed  at  $3000,  but  resides  with  her  husband, 
Charles  Sawyer,  in  the  village  of  Henderson  in  district  8,  and  has  no  children; 
that  the  appellant.  Alfred  Wilson,  resides  upon  the  farm  owned  by  Mrs  Sawyer, 
untler  a  lease  which  will  expire  :\Iarch  i,  1901,  and  in  the  hearing  before  the  local 
board,  did  not  allege  any  expectation  of  remaining  on  such  farm  after  said  date. 


JUDICIAL    DECISIONS  :    SCHOOL    DISTRICTS ALTERATION    OF  603 

and  has  three  children,  one  of  whom  is  13  years  old,  one  17  years  old  and  the 
third  not  as  yet  5  years  old ;  that  the  appellant  Julia  E.  Penney  owns  real  prop- 
erty assessed  at  $500  situated  in  district  5,  upon  which  she  resides  with  her  hus- 
band Adolphus  Penney,  and  they  have  two  children  of  the  ages  respectively  of 
10  and  13  years;  that  the  appellant.  James  Ellis,  owns  real  property  situated  in 
district  5,  assessed  at  $400,  and  has  residing  with  him  one  child  of  the  age  of 
17  years;  that  the  schoolhouse  in  district  5  is  nearer  the  residences  respectively 
of  the  appellants  herein  who  have  children  attending  the  school  therein,  than  the 
schoolhouse  in  district  8;  that  the  road  over  which  such  children  are  required  to 
travel  to  attend  school  is  a  fairly  well-traveled  road  and  is  not  more  obstructed 
by  snow  than  ordinary  country  roads;  that  most  of  the  travel  between  Sacket's 
Harbor  and  Henderson  village  is  upon  said  road  on  which  the  schoolhouse  in 
district  5  is  located  and  any  obstruction  by  reason  of  snow  is  more  often  greater 
between  the  residence  of  Penney  and  Henderson  village  than  between  the  resi- 
dence of  Oilman  near  the  schoolhouse  in  district  5 ;  that  the  teacher  employed  in 
the  school  in  district  5  is  of  sufficient  learning  and  ability  to  teach  any  study  that 
any  child  or  children  attending  such  school  would  wish  to  pursue;  that  the  school 
in  such  district  has  been  maintained  for  at  least  160  days  in  each  school  year, 
and  can  be  maintained  for  a  longer  period  if  the  educational  interests  of  the  dis- 
trict require  it. 

This  Department  has  never  favored  the  alteration  of  school  districts  in 
taking  property  from  a  comparatively  weak  district  financially,  and  annexing  it 
to  a  district  strong  financially. 

I  am  clearly  of  opinion,  from  the  facts  established  herein,  that  the  action 
of  the  local  board  in  vacating  the  preliminary  order  made  by  Commissioner 
Chick,  September  15,  1900,  in  the  alteration  of  school  districts  5  and  8,  Hender- 
son, Jefferson  county,  was  a  wise  exercise  of  the  power  vested  in  said  board,  and 
should  be  affirmed  by  me. 

The  appeal  herein  is  dismissed,  and  said  decision  of  said  local  board  is 
affirmed. 


3693 

In  the  matter  of  the  appeal  of  R.  W.  Parks,  trustee  of  school  district  no.  2; 

P.   W.   Wilbur,  trustee  of   school   district  no.   3;   Hugh   Boyle,   trustee  of 

school  district  no.  7;  H.  B.  Pike,  trustee  of  school  district  no.  11,  all  of  the 

town  of  Burke,  in  the  county  of  Franklin,  and  others,  v.  James  M.  Wardner. 

school  commissioner,  and  others. 

A  commissioner's  order,  taking  territory  from  weak  districts  and  annexing  it  to  a  strong 

district,  will  not  be  upheld  unless  it  is  clearly  shown  that  such  change  is  benelkial  to 

patrons   of    schools,   or   that    district   boundaries   would   by   the   change   be   made   more 

regular. 

Failure  of  the  supervisor  and  town  clerk  to  affix  their  signatures  to  an  order  changmg 

•district  boundaries,  not  fatal;    they  may  affix  their  signatures  at  any  time. 
A  public  officer  will  not  be  allowed  to  impeach  his  own  official  act. 
Decided  June  8,  1888 


604  THE   UNIVKKSITY    OF   TIIK   STATE    OF    NIvW    YORK 

Draper,  Superintendent 

This  is  an  appeal  from  the  action  of  the  school  commissioner  of  the  first 
school  commissioner  district  of  Franklin  county,  in  making  an  order,  dated 
Novcinher  jS,  iScSj,  cutting  off  certain  territory  embraced  in  school  districts 
nos.  2,  3,  7  and  11,  in  the  town  of  IJurke,  and  adding  such  territory  to  school 
district  no.  16  of  said  town,  and  also  from  an  atfirmatory  order  made  by  the 
school  commissioner  in  conjunction  with  the  suj)erA'isor  and  town  clerk  of  said 
town,  made  on  the  17th  day  of  December  i(S87. 

'I'iie  proceedings  of  the  school  conmiissioner  and  of  the  board,  consisting  of 
the  school  commissioner,  the  supervisor  and  the  town  clerk,  seem  to  have  been 
regularly  taken  and  in  the  form  and  manner  prescribed  by  statute.  I  observe 
that  the  aflirmatory  order  is  only  signed  by  the  school  commissioner,  when  it 
should  have  been  by  the  supervisor  and  town  clerk  as  well;  but  I  do  not  think 
the  omission  vital.  It  is  not  contended  that  they  did  not  assent  to  the  order,  and 
their  signatures  could  be  attached  at  any  time.  I  also  notice  a  written  statement 
by  the  town  clerk,  to  the  effect  that  he  acted  under  the  influence  of  the  school 
comnnssioner  aiul  without  much  regard  to  the  merits  of  the  question  involved. 
1  his  statement  is  of  no  consequence  whatever.  An  officer  can  not  be  allowed  to 
impeach  his  own  otilicial  act. 

I  come  then  to  consider  the  advisability  of  the  action  appealed  from.  A 
full  exann'nation  of  all  the  papers  and  maps  submitted  leads  me  to  doubt  the 
advisability  of  it.  The  efTect  of  it  is  to  cut  olT  from  four  districts,  none  of  which 
is  very  strong,  taxable  property  of  considerable  consequence  to  them,  and  to 
add  the  same  to  a  district  which,  in  valuation,  is  stronger  than  any  of  the  four 
adversely  aiTected.  It  seems  that,  before  the  change,  the  assessed  valuation  of 
taxable  property  in  school  district  no.  2  was  about  $32,000,  and  about  the  same 
in  school  district  no.  3,  while  in  school  district  no.  7  it  was  $34,000,  and  in 
school  district  no.  11  it  was  less  than  $12,000.  In  district  no.  16  (the  one  added 
to)  it  was  $Ck),ooo  before  the  change.  Inquiring  as  to  the  number  of  children 
of  school  age  in  the  several  districts  before  the  change.  I  find  that  in  no.  2  it  was 
forty-seven,  in  no.  3  it  was  thirty-three,  in  no.  7  it  was  eighteen,  and  in  no.  ii 
it  was  seventeen,  while  in  no.  16  it  was  one  hundred  and  thirteen.  It  is  not  con- 
tended that  the  alteration  is  made  for  the  convenience  of  the  persons  aflfected 
thereby.  It  is  not  shown  that  it  brings  them  any  nearer  a  schoolhouse.  The 
most,  and  about  all,  that  can  be  said  for  it  is  that  district  no.  16  is  stronger  and 
more  thickly  settled;  that  it  has  establish  a  graded  school;  that  it  proposes  to 
make  still  better  schools,  and  that  it  needs  the  benefit  of  the  added  property  in 
order  to  to  enable  it  to  do  so;  but  it  seems  to  me  that  this  ought  not  to  be  done 
at  the  expense  of  making  districts  which  can  not  afford  it,  poorer  than  they  are 
against  their  protest.  They  say  that  they  have  endeavored  to  maintain  good  schools 
with  suitable  schoolhouses  and  through  the  employment  of  capable  teachers. 
They  show  that  they  have,  within  a  short  time,  improved  their  school  property  at 
some  expense,  and  that  they  have  been  obliged  to,  and  have  taxed  themselves  to 
a  reasonable  extent,  for  the  support  of  the  schools.    They  insist  that  the  opera- 


JUDICIAL    decisions:    school   districts ALTERATION    OF  605 

tion  of  the  orders  appealed  from  would  mainly  be  to  increase  taxation  for  school 
purposes  in  their  districts,  and  lower  it  in  the  district  added  to,  and  it  seems 
to  me  that  their  papers  establish  the  fact.  No  person  who  is  a  resident  of  die 
territory  taken  from  the  four  districts  named,  and  added  to  no.  i6,  appears  to 
sustain  the  order:  An  examination  of  the  map  seems  to  show  that  the  effect  of 
the  order  does  not  cure  or  remove  irregtdarities  in  district  Ijoundaries.  I  do 
not  see  that  the  boundaries,  after  the  change,  would  be  any  more  regular,  or 
that  the  districts  would  be  in  better  form  and  shape  than  before  it.  A  piece  of 
the  line  of  the  Ogdensburgh  and  Lake  Champlain  Railroad  Company  runs 
through  the  town,  and  it  seems  to  have  been  the  purpose  to  bring  a  still  larger 
portion  of  said  road  within  district  no.  i6  than  it  had  before.  In  short,  the 
only  result  of  the  change  which  I  can  see,  is  to  make  one  district,  which  is 
already  reasonably  strong  in  valuation,  still  stronger,  and  that  at  the  expense  of 
four  districts  which  are  as  weak  in  that  direction  as  school  districts  ought  to  l)e. 
It  has  been  repeatedly  held  by  this  Department  that  that  should  not  be  done 
unless  it  was  shown  that  there  were  other  reasons  for  the  change  which  were 
overpowering.  If  it  could  be  shown  that  the  advantages  arising  from  the  change 
would  be  sufficient  to  outweigh  the  disadvantages,  the  order  could  be  upheld, 
\mt  the  papers  before  me  fail  to  satisfy  mc  of  that  fact  in  the  present  case.  I 
think  they  establish  the  contrary. 

I  am  therefore  obliged  to  sustain  the  appeal,  overrule  the  action  of  the 
commissioner,  and  of  the  board  consisting  of  the  school  commissioner,  super- 
visor and  town  clerk,  and  declare  the  orders  appealed  from  to  be  of  no  force 
and  effect. 


3774 

In  the  matter  of  the  appeal  of  Lemon  Thomson  and  John  A.  Dix  v.  William  N. 
Harris,  school  commissioner  of  the  second  district  of  Saratoga  county. 

Experience  has  demonstrated  that  the  affairs  of  districts  which  are  formed  of  parts  of  two 
or  more  counties,  are  not,  as  a  general  rule,  as  smoothly  administered  as  those  which 
lie  wholly  within  a  county. 

In  a  district  in  which  the  larger  proportion  of  the  children  reside  in  one  county  and  the 
schoolhouse  is  located  in  another,  to  reach  which  they  are  compelled  to  cross  a  river 
by  a  bridge  which  it  is  claimed  is  not  in  a  safe  condition;  ordered,  that  the  school 
commissioners,  from  whose  refusal  to  join  m  a  preliminary  order  dividing  the  district 
by  the  county  line  an  appeal  is  taken,  should  make  such  preliminary  order. 

Decided  March  23,  1889 

Draper,  Superintendent 

This  appeal  is  brought  by  residents,  taxpayers  and  electors  of  joint  school 
district  no.  lo  of  the  towns  of  Greenwich,  Washington  county,  and  Northumber- 
Tand,  Saratoga  county,  from  the  refusal  of  the  respondent  to  join  with  Com- 
missioner J.  W.  Barbur,  of  Washington  county,  in  an  order  dissolving  said  dis- 
trict and  detaching  so  much  of  the  district  situate  in  Washington  county  to 
district  no.  17  in  the  same  county. 


Oo6  Till-:    l'\I\  KRSITV    OK    TIIK    STATK    OF    NKW    VOKK 

From  the  i)lca(lini,'>  ii  .ti-i-ciirs  that  the  district  is  now  divided  by  the  Hudson 
river,  and  the  Greenwich  jjortion  of  the  district  is  separated  from  the  North- 
imiherland  portion  by  said  river.  Joint  district  no.  lo  has  but  one  trustee,  and 
he  has  refused  to  consent  to  the  aUerations.  The  trustee  of  district  no.  17  has 
consented,  and  Commi.ssioner  Joseph  W.  Barl)ur  is  ready  to  join  in  a  prehminary 
order  with  the  resjiondent,  making  the  alteration  desired  by  the  ai)pellants. 

It  has  been  found  by  experience  that  districts  which  are  formed  of  parts  of 
two  or  more  counties,  are  not,  as  a  general  rule,  as  smoothly  run  as  those  which 
lie  wholly  within  a  comity.  In  this  case  it  appears  that  the  schoolhouse  of  the 
joint  district  is  located  in  Saratoga  county,  and  that  the  larger  proportion  of  the 
children  of  the  district  reside  in  Washington  county,  and  in  order  to  reach  the 
schoolhouse  are  compelled  to  cross  the  river  by  a  bridge  which,  the  appellants 
allege,  is  not  in  a  safe  condition,  but  this  is  disputed  by  the  respondent. 

I  have  reached  a  conclusion  in  this  matter,  and  it  is  not  necessary  for  me  to 
examine  at  this  time  very  closely,  into  the  merits  of  this  particular  case. 

I  liave  concluded  to  sustain  the  appeal,  and  hereby  direct  the  respondent, 
Commissioner  William  N.  Harris,  to  join  with  Commissioner  Joseph  W.  Barbur 
in  making  a  preliminary  order,  taking  so  much  of  the  territory  from  joint  district 
no.  10  as  is  situate  in  Washington  county,  and  annexing  the  same  to  district 
no.  17  of  the  town  of  (Ireenwich  in  said  county.  The  consent  of  the  trustee  of 
district  no.  10,  having  been  secured,  the  order  must  be  made  to  take  effect  at 
least  three  months  after  the  date  of  the  order.  The  trustees  may  then  call  a 
meeting  of  the  supervisors  and  town  clerks  of  the  towns,  to  be  associated  with 
the  commissioners,  and  determine  whether  a  confirmatory  order  shall  be  made 
or  not.  From  the  action  of  this  local  board,  any  jjerson  feeling  aggrieved  may 
take  an  appeal  to  this  Department. 


4909 

In  the  matter  of  the  appeal  of  A.  Coleman  Smith  and  Leonard  S.  Sherwood  as 
trustees  of   school   district  4,   Ossining  and    Mount   Pleasant,  Westchester 
county  V.  Bertha  E.  H.  Berbert  as  school  commissioner  second  commissioner 
district  of  Westchester  county. 
The  power  to  form,  alter  and   dissolve  school   districts  is  given  to  school   commissioners, 
under  the  provisions  contained  in  title  6  of  the  Consolidated  School  Law  of  1894,  and 
the  acts  amendatory  thereof,  and  such  provisions  must  be  strictly  complied  with. 
The  description  of  a  district   should  be  so  complete  and  definite  that  a  surveyor,   at  any 
future  day,  may  be  able  to  run  its  boundaries  without  reference  to  any  other  document 
than  the  order  forminp,  altering  or  dissolving  it. 
A   preliminary   ordir,   altering   the   boundaries   of   school    districts   is   defective   in   not   re- 
citing the  refusal  of  the  trustee  of  any  of  the  districts  to  consent  thereto,  and  in  direct- 
ing tliat  the  order  take  effect  iu  less  than  three  months  after  the  notice  given  by  the 
commissioner  of  a  time  and  place  when  he  or  she  would  attend  and  hear  objections  to 
■  such   order. 


JUDICIAL    decisions:    school    districts ALTERATION    OF  607 

The  first  imperative  duty  of  a  school  commissioner  after  making  and  filing  the  preliminary 
order,  is  within  10  days  thereafter  to  give  at  least  a  week's  notice  in  writing  to  the 
assenting  and  dissenting  trustees  of  the  district  to  be  affected,  of  a  time  and  place  named 
when  he  or  she  will  hear  objections  to  such  order,  and  that  the  trustees  may  request 
the  supervisor  and  the  town  clerk  of  the  town  or  towns  within  which  such  district 
shall  wholly  or  partly  lie  to  be  associated  with  the  commissioner  in  such  hearing.  If 
such  local  board  shall  affirm  such  preliminary  order  the  commissioner  must  then  make 
and  file  a  confirmatory  order,  the  board  uniting  in  the  order;  that  such  confirmatory 
order  must  recite  the  preliminary  order  and  all  proceedings  taken  thereafter,  including 
the  actions  of  the  local  board,  and  concluding  with  the  final  order  of  alteration  made 
by  the  com.missioner. 

Decided  November  30,  1900 

Aug.  Coleman  Smith,  attorney  for  appellants 
Baldwin  &  Boston,  attorneys  for  respondent 

Skinner,  Superintendent 

This  is  an  appeal  from  an  order  or  orders,  made  by  Bertha  E.  H.  Berbert 
as  school  commissioner  of  the  second  commissioner  district  of  Westchester 
coimty,  altering  the  boundaries  of  school  district  4,  Ossining  and  Mount  Pleasant, 
Westchester  county,  and  the  consequent  alteration  of  school  district  6,  Ossining, 
Westchester  county. 

The  ground  alleged  by  the  appellants  for  bringing  their  appeal  is,  that  the 
proceedings  taken,  and  the  order  or  orders  made  by  Commissioner  Berbert,  are 
not  in  accordance  with  the  provisions  contained  in  sections  2  and  3,  and  section 
4  as  amended  by  section  4,  chapter  264  of  the  Law^s  of  1896,  of  title  6  of  the  Con- 
solidated School  Law  of  1894,  and  the  rulings  of  this  Department. 

School  Commissioner  Berbert  has  answered  the  appeal  and  to  such  answer 
the  appellants  have  made  a  reply. 

From  the  proofs  filed  herein,  it  appears  that  School  Commissioner  Berbert, 
on  or  about  June  i,  1900,  made  an  order,  in  writing,  addressed  to  the  trustees  of 
school  districts  4  and  6,  Ossining,  Westchester  county,  which  order  was  to  take 
effect  August  30,  1900,  making  certain  alterations,  stated  therein,  of  the  bound- 
aries of  said  district  by  the  transfer  of  certain  lands  from  district  4  to  district  6; 
that  said  order  was  filed  with  the  clerk  of  the  town  of  Ossining,  but  at  what 
date  does  not  appear;  that  notice  of  such  order  came  to  Trustee  Sherwood  and 
Trustee  Harris  of  school  district  4,  and  Trustee  Bayles  of  district  6;  that  on  or 
about  July  31,  1900,  a  protest  to  said  order  was  made  by  the  trustees  of  district 
4  and  filed  with  the  clerk  of  the  town  of  Ossining.  upon  the  ground  that  the  said 
order  was  in  violation  of  sections  2,  3  and  4  of  title  6  of  the  Consolidated  School 
Law  of  1894;  that  on  or  about  August  9,  1900,  the  trustees  of  said  districts  4  and 
6  were  notified  by  School  Commissioner  Berbert  that  she  wotild  hold  a  meeting 
August  15,  1900,  at  three  o'clock  p.  m..  at  the  office  of  the  clerk  of  the  town  of 
Ossining  in  Sing  Sing  for  the  purpose  of  hearing  arguments  upon  said  order; 
tliaton  said  date,  said  commissioner.  Trustee  Sherwood  of  district  4  and  Trustee 
Bayles  of  district  6,  met  at  said  office  of  the  town  clerk,  and  Trustee  Sherwood 


6o8  TIIK    UNIVF.RSITY    OF    TIIF.    STATK    OF    NEW    YORK 

was  heard  in  opposition  and  Trustee  Piayles  on  behalf  of  siicli  order;  that  there- 
upon Coniniissinncr  Herbert  sustained  said  order. 

Sections  2  and  3  of  title  6,  and  section  4  of  title  6  as  amended  by  section  4 
of  chapter  264  of  the  Laws  of  i8</),  of  the  Consolidated  School  Law  of  1894,  pre- 
scribe the  method  to  be  pursued  by  school  commissioners  in  the  alteration  of 
school  districts,  in  which  no  dissolution  of  a  district  is  made. 

This  Department  has  uniformly  ruled  that  under  the  provisions  of  section  2 
of  title  (\  whenever  a  school  commissioner  decides  to  alter  any  school  district  or 
districts,  he  or  she  should  first  endeavor  to  obtain  the  consent  of  the  trustees  of 
the  districts  to  be  affected,  that  such  consent  must  be  in  writing,  and  accurately 
state  the  alteration  to  which  they  consent.  Having  o])t.'iincd  such  consent  of  all 
the  trustees,  the  school  commissioner  next  proceeds  to  draw  and  file  the  order. 
The  order  must  recite  that  the  consents  had  been  given,  and  such  written  con- 
sents must  be  attached  to.  and  made  a  part  of,  the  order  of  proceeding. 

Sections  3  and  4  prescribe  the  proceedings  to  be  taken  when  the  consent  of 
the  trustees  of  all  the  districts  affected  is  not  obtained.  The  proceedings  are 
purely  statutory,  and  any  failure  to  follow  the  statute  strictly  will  vitiate  the  order. 
Although  the  trustees  of  all  the  districts  to  be  affected  will  not  consent  to  the 
alteration,  the  school  commissioner  can  make  the  order  and  file  it  with  the  clerk 
or  clerks  of  the  town  or  towns  in  w  hich  the  districts  affected  are  situated,  which 
order  is  termed  a  preiuuinary  order.  Two  things  are  required  to  be  inserted  in 
such  order,  namely,  i,  the  order  must  recite  the  refusal  of  the  trustee  or  trustees 
of  any  district  or  districts  to  give  his  or  their  consent  to  such  alteration;  2,  the 
commissioner  must  direct  that  the  order,  as  a  whole,  shall  not  take  effect  until 
a  date  fixed  therein,  which  date  shall  not  be  less  than  three  months  after  the 
notice  re(|uired  to  be  given  in  section  4  as  amended.  Such  order  should  be 
promptly  filed  in  the  office  of  the  clerk  of  the  town  in  which  the  school  districts 
to  be    affected  thereby  are  situated. 

Section  4,  as  amended,  prescribes  that  within  10  days  after  making  and  filing 
such  order,  the  school  commissioner  shall  give  at  least  a  zirek's  notice  in  zvriting 
to  one  or  more  of  the  trustees  of  the  district  to  be  affected  by  the  proposed 
alterations,  that  at  a  special  meeting,  and  at  a  named  i)lace  within  the  town  in 
which  cither  of  the  districts  to  be  affected  lies,  he  or  she  will  hear  objections  to 
such  alterations.  The  trustees  of  any  district  to  be  affected  by  such  order  may 
refjuest  the  sui)crvisor  and  town  clerk  of  the  town  or  towns  within  which  such  dis- 
tricts shall  wholly  or  partly  lie,  to  be  associated  with  the  commissioner.  Such  notice 
must  state  therein  the  making  of  such  order,  giving  the  date  thereof  and  when 
It  was  filed  in  the  office  of  the  town  clerk  or  clerks,  and  must  give  a  copy  of  such 
order  in  full :  and  in  addition  to  giving  the  time  and  place  in  which  the  commis- 
sioner will  attend  to  hear  objections  to  such  order,  and  to  the  proposed  altera- 
tions, it  must  also  state  that  such  trustee  may  request  the  supervisor  and  town 
clerk  of  the  town  or  towns  within  which  such  school  district  or  districts  do 
wholly  or  partly  lie.  to  be  associated  with  such  commissioner  at  such  time  and- 
place  for  the  purpose  of  affirming  or  vacating  such  order. 


JUDICIAL    decisions:    school   districts ALTERATION    OF  609 

Upon  receipt  of  such  written  notice  of  the  commissioner  the  trustees,  if  they 
decide  to  do  so,  may  request,  in  writing,  the  supervisor  and  clerk  of  such  town 
or  towns  to  be  associated  with  the  commissioner  at  the  time  and  place  for  hearing 
objections,  and  if  such  town  officers  attend  at  such  time  and  place  they  should 
present  such  request,  with  proof  of  service,  so  as  to  establish  their  jurisdiction 
to  act  with  the  commissioner.  The  commissioner  and  such  supervisor  and  town 
clerk,  when  requested,  should  attend  at  the  place  and  hour  named  in  such  notice 
and  organize  what  is  known  as  a  "  local  board."  Such  board  has  authority  to 
adjourn  from  time  to  time  as  it  may  determine;  but  can  not  adjourn  the  time 
of  meeting  to  any  day  later  than  three  months  after  the  date  of  the  preliminary 
order.  Such  hoard,  whether  it  consists  of  the  commissioner  alone,  or  such  com- 
missioner and  supervisor  and  town  clerk,  may  hear  testimony  and  arguments 
for  and  against  such  proposed  alterations,  and  when  such  proofs  and  argument.s 
have  been  finished  each  member  of  said  board  has  a  vote  upon  the  question  as 
to  whether  such  preliminary  order  of  the  commissioner  shall  be  affirmed  or 
vacated;  and  their  decision  is  final  unless  appealed  from.  If  they  decide,  by  a 
majority  vote,  to  vacate  such  order,  the  whole  matter  terminates  with  such 
decision,  and  a  record  of  the  action  of  the  local  board  must  be  filed  with  the  clerk 
of  the  town  or  towns  in  which  the  districts  aflfected  are  situated.  If,  on  the  other 
hand,  the  board  decides  to  affirm  the  order  of  the  commissioner,  it  then  becomes 
necessary  for  the  commissioner  to  make  and  file  the  final  order  or  order  of  con- 
firmation, known  as  the  "  confirmatory  order."  Such  board  does  not  make  the 
alteration,  this  the  commissioner  must  do,  the  board  uniting  with  him  or  her  in 
the  order,  which  order  must  recite  the  first  or  preliminary  order,  and  all  proceed- 
ings taken  thereafter,  including  the  action  of  the  local  board,  and  concluding  with 
the  final  order  of  alteration  made  by  the  commissioner. 

The  confirmatory  order  is  the  one  by  tvhich  the  alteration  is  made,  and  the 
first  order  is  merely  preliminary,  inchoate  and  of  no  effect  whatever  until  the 
same  is  duly  affirmed  by  the  local  board. 

Under  the  provisions  of  title  6  of  the  Consolidated  School  Law  of  1894  and 
the  uniform  rulings  of  this  Department,  it  is  clear  that  the  action,  proceedings 
and  orders  of  School  Commissioner  Berbert,  relative  to  the  alteration  of  school 
district  4,  Ossining  and  Mount  Pleasant,  Westchester  county,  and  the  conseciuent 
alteration  of  school  district  6,  Ossining,  Westchester  county,  were  not  duly  and 
legally  taken,  and  no  alteration  of  such  school  districts  has  been  duly  and  legally 
made ;  that  the  contention  of  the  appellants,  that  the  acts,  proceedings  and  orders 
on  the  part  of  Commissioner  Berbert,  in  the  attempted  alteration  of  said  districts 
4  and  6,  were  not  in  compliance  with  the  provisions  contained  in  sections  3  and  4 
of  title  6  of  the  Consolidated  School  Law,  and  the  rulings  of  this  Department,  is 
fully  sustained. 

I  decide  that  the  alleged  order  made  on  June  i,  1900,  to  take  effect  August 
30,  1900,  is  defective  in  not  reciting  the  refusal  of  the  trustees  of  district  4.  to 
consent  to  such  alteration ;  is  defective  in  not  describing  the  territor}'  to  be  trans- 
ferred by  well  knovv-n  tracts,  lot  lines  or  metes  and  bounds;  is  defective  in  direct- 
20 


6lO  THE    UNIVKKSITY    OF    TIIK    STATE    OF    XEW    YORK 

ing  that  the  order  take  effect  in  less  than  three  months  after  the  notice  required 
by  section  4  of  title  6;  that  no  notice,  as  required  hy  section  4  of  title  6,  was  ever 
given  to  the  trustees  of  said  districts  4  and  6;  that  no  notice  of  the  time  and 
place  when  such  commissioner  would  attend  and  hear  objections,  and  that  tlie 
trustees  of  such  districts  mi^ht  request  the  sui)crvisor  and  town  clerk  of  the 
towns  of  Ossining  and  Mount  Pleasant  to  be  associated  with  such  commissioner, 
as  required  by  said  section  4.  was  ever  given ;  that  no  confirmatory  order  was 
ever  made  as  required  by  said  section  4,  and  the  rulings  of  this  Department. 

I  further  decide  that  said  alleged  order  of  June  i,  1900.  and  such  alleged 
order  of  August  15,  IQOO,  relating  to  the  alteration  of  said  school  districts  4  and 
6,  are,  and  each  of  them  is,  void. 

The  appeal  herein  is  sustained. 

It  is  ordered  that  the  alleged  order  of  June  i,  1900,  and  the  alleged  order  of 
August  15,  if>oo,  and  all  proceedings  alleged  to  have  been  taken  at  the  office  of 
the  clerk  of  the  town  of  Ossining,  Westchester  county,  August  15,  1900,  in  rela- 
tion to  the  alterations  of  said  school  district  4,  Ossining  and  Mount  Pleasant,  and 
district  6.  Ossining.  Westchester  county,  be,  and  the  same  are,  and  each  of  them 
is,  vacated  and  set  aside. 


3642 

In  the  matter  of  the  appeal  of  Lemuel  K.  Tinncy  v.  J.  Russell  Parsons,  jr,  school 
commissioner  of  the  first  commissioner  district  of  Rensselaer  county,  and 
Lewis  N.  S.  Miller,  school  commissioner  of  the  second  commissioner  district 
of  said  county. 

Orders  of  school  commissioners  altering  school  districts,  where  the  statutory  proceeding 
has  been  observed,  will  not  be  disturbed  by  the  Superintendent,  unless  it  is  shown  by 
a  clear  preponderance  of  evidence  that  the  action  taken  was  unwise,  adverse  to  the 
interests  of  education  and  decidedly  against  the  convenience  of  the  greater  number 
of  people  affected  thereby. 

Decided  November  9,  1887 

Warren,  Patterson  &  Gambell,  attorneys  for  appellant 
Thomas  &  Pattison,  attorneys  for  respondents 

Draper,  Superintendent 

On  the  i6th  day  of  June  1887,  the  school  commissioners  of  the  first  and  second 
commissioner  districts  in  Rensselaer  county  made  an  order  dissolving  joint  district 
no.  II,  of  the  towns  of  Brunswick,  Grafton  and  Poestenkill,  of  said  county,  and 
divided  said  district  into  three  portions.  That  portion  lying  in  the  town  of 
Brunswick  was  annexed  to  district  no.  3,  of  that  town ;  that  portion  lying  in  the 
town  of  Grafton  was  annexed  to  district  no.  7,  of  that  town;  and  that  portion 
lying  in  the  town  of  Poestenkill  was  annexed  to  district  no.  4,  of  that  town.  The 
appellant,  being  a  resident  and  taxpayer  of  said  district  no.  11,  and,  feeling 
aggrieved  at  the  order  of  the  commissioners,  brings  an  appeal  therefrom  to  this 
Department. 


JUDICIAL    decisions:    school   districts ALTERATION    OF  6X1 

In  considering  appeals  of  this  nature,  it  is  customary  to  inquire,  first, 
whether  the  commissioners  proceeded  with  regularity,  and  in  the  manner  pro- 
vided by  the  statutes.  The  proceeding  is  a  statutory  one,  and  the  several  steps 
provided  by  the  statutes  must  be  strictly  followed.  If  it  is  found  that  the  com- 
missioners failed  to  comply  with  the  requirements  of  the  statutes,  then  their 
acts  must  necessarily  be  set  aside.  If  it  is  found  that  they  committed  no  error, 
it  then  becomes  necessary  to  inquire  whether  the  thing  which  they  did  was  an 
advisable  thing  to  do ;  whether  it  is  calculated  to  promote  the  interests  of  educa- 
tion. Touching  the  propriety  or  advisability  of  an  order,  it  is  always  assumed 
that  the  officer  making  it  acted  with  sound  discretion  and  good  judgment;  that 
he,  being  upon  the  ground  and  familiar  with  local  circumstances,  was  the  better 
able  to  determine  intelligently  as  to  the  course  which  ought  to  be  taken  in  the 
matter  concerning  which  the  order  is  made  than  the  Superintendent  can  at  his 
distance  from  the  scene ;  and  orders  of  this  nature  are  commonly  sustained  and 
followed  unless  the  appellant  shows  by  clear  preponderance  of  evidence  that  the 
action  taken  was  unwise,  not  to  the  advantage  of  education,  and  decidedly  against 
the  interests  of  the  greater  number  of  people  afifected  thereby. 

There  is  no  claim  that  the  steps  taken  by  the  commissioners  in  this  case  were 
not  regularly  taken,  and  it  must  therefore  at  once  be  assumed  that  they  followed 
the  requirements  of  the  statutes. 

Now,  touching  the  advisability  or  expediency  of  the  order,  I  have  arrived 
at  the  conclusion,  after  most  carefully  reading  the  papers  submitted,  that  the 
appellant  fails  to  show,  in  any  such  conclusive  manner  as  is  required  to  override 
the  order,  that  the  action  taken  was  not  advisable.  I  find  that  the  order  which  is 
appealed  from  was  made  with  the  written  consent  of  the  trustees  of  all  of  the 
districts  in  which  portions  of  the  dissolved  district  were  annexed,  and  with  the 
consent  of  two  of  the  three  trustees  of  the  dissolved  district.  This  circumstance 
is  certainly  of  great  weight  in  determining  the  matter.  It  is  not  to  be  supposed 
that  the  order  could  work  great  injustice  to  residents  of  the  dissolved  district, 
or  be  prejudicial  to  the  educational  interests  of  the  territory  affected,  and,  at 
the  same  time,  have  the  approval  of  all  of  these  trustees.  It  is  always  desirable, 
also,  that  school  districts  shall  lie  wholly  in  a  single  town,  and  the  order  seems 
to  have  been  made  to  bring  this  about.  The  school  commissioner  of  the  first 
commissioner  district  says  that  he  visited  the  school  in  district  no.  ii  upon  four 
different  occasions,  and  each  time  found  not  to  exceed  five  children  in  attendance. 
The  district  seems  to  have  been  a  weak  one,  and  there  is  everything  to  indicate 
that  the  children  of  the  district  will  have  the  advantages  of  better  schools,  under 
the  operation  of  the  order,  than  they  had  before.  It  is  true  that  they  may,  in  one 
or  two  instances,  be  obliged  to  go  further,  in  order  to  attend  school,  than  at 
present,  but  these  unfortunate  cases  ought  not  to  be  permitted  to  overthrow  a 
proceeding  taken  evidently  with  great  deliberation,  and  after  carefully  investi- 
gating and  considering  all  the  circumstances  concerning  the  matter. 

•I  am,  therefore,  led  to  dismiss  the  appeal. 


()I2  mii    LNIVEKSITV    UK    J  H  K   STATL:    UK    NKW    YORK 

49^3 

ill  the  matter  of  the  appeal  of  John  Pettis  as  trustee  of  school  district  no.   lo, 
Wilton,  Saratoga  county,  v.  John  T.  Rice  as  scliool  commissioner,  second 
commissioner  district  of  Saratoga  county. 
Tliis  Di-partmcnt  has  uniformly  held  that  the  order  of  a  school  commissioner  altering  the 
bniiiKJarics  of  school  districts  should  be  sustained  when  on  appeal  it  appears  that  the 
commissioner  has  acted  in  good  faith  and  by  the  order  has  restored  to  a  district  territory 
whicli   had   been   uninUntionally   and   under   a   misapprehension   of    facts    set   otf    from 
such   district. 
Decided  December  31,  njoo 

I""rank  Gick,  attorney  for  appellant 

William  1).  McXulty,  attorney  for  respondent 

Skinner,  Superintendent 

This  is  an  appeal  from  the  decision  of  a  local  board,  confirming  a  prcluninary 
order,  dated  September  27,  1900,  to  take  effect  January  21,  1901,  made  by  John 
T.  Rice  as  school  commissioner  of  the  second  commissioner  district  of  Saratoga 
county,  altering  the  boundary  of  school  district  10,  Wilton,  Saratoga  county,  and 
consequently  altering  the  boundaries  of  school  district  6,  Northumberland,  Sara- 
toga county,  in  the  transfer  of  a  parcel  of  land,  known  as  the  Giiiford  farm  from 
said  district  10  to  said  district  6. 

The  appellant  alleges  several  grounds  for  bringing  his  appeal. 

School  Commissioner  Rice  has  filed  an  answer  to  the  appeal. 

From  the  facts  established  by  the  appeal  and  answer  herein,  Commissioner 
Rice  in  making  his  preliminary  order,  and  the  local  board  in  confirming  said 
order,  acted  in  good  faith  and  for  the  purpose  of  restoring  to  school  district  6, 
Northumberland,  Saratoga  county,  territory  which  had  been  unintentionally  and 
under  misapprehension  of  facts  set  off  from  said  district  6,  Northumberland,  to 
district  10,  Wilton,  Saratoga  coimty. 

It  is  in  proof  that  in  July,  1899,  the  appellant  herein  was  sole  trustee  of 
school  district  10.  Wilton,  and  a  Mr  Washburn  was  the  sole  trustee  of  school 
district  6.  Northumberland ;  that  the  appellant,  Pettis,  was  the  owner  of  a  parcel 
of  land  known  as  the  Gitiford  farm,  situated  in  school  district  6,  Northumberland, 
assessed  for  school  purposes  at  the  sum  of  $350;  that  a  portion  of  the  roadbed 
of  the  Delaware  &  Hudson  Railroad  Company  lies  in  district  6,  Northumberland 
and  in  10,  Wilton,  a  part  of  said  roadbed  being  located  upon  said  parcel  of  land 
known  as  the  Gifford  farm ;  that  the  appellant  applied  to  Trustee  Washburn  for 
his  consent  that  said  G'.fTord  farm  be  transferred  from  said  district  6.  North- 
umberland, to  said  district  10,  Wilton,  for  the  reason  that  it  would  be  a  con- 
venience to  the  appellant;  that  on  July  13,  1899,  Commissioner  Rice,  upon  the 
application  of  the  appellant,  and  the  written  consent  of  the  appellant  as  trustee 
of  district  10.  Wilton,  and  said  Washburn  as  trustee  of  district  6,  Northumber- 
land, transferred  the  Gifford  farm  from  district  6,  Northumberland,  to  district 
10,  Wilton;  that  at  the  time  said  order  was  made,  neither  Commissioner  Rice 


JUDICIAL    decisions:    school   districts ALTERATION    OF  613 

nor  Trustee  Washburn  knew  that  said  order  included  the  track  of  said  railroad, 
located  upon  the  land  so  transferred ;  that  Trustee  Washburn,  having  within  a 
few  days  after  the  order  of  July  13,  1899,  was  made,  learned  that  such  order 
transferred  from  district  6,  to  district  10,  property  of  said  railroad  of  the  assessed 
value  of  $6000,  saw  Commissioner  Rice  and  informed  him  of  the  effect  of  such 
order,  and  his  (Washburn's)  ignorance  of  the  fact  that  the  transfer  of  the  Gif- 
ford  farm  carried  with  it  the  property  of  said  railroad,  and  requested  said  Rice 
to  make  an  order  setting  back  said  Gifford  farm  in  district  6  in  order  to  correct 
the  error  and  misapprehension  of  facts  under  which  such  order  was  made ; 
that  thereupon,  and  by  reason  of  the  misapprehension  of  facts  on  the  part  of 
Trustee  Washburn  and  Commissioner  Rice,  said  commissioner,  July  28,  1899, 
made  a  preliminary  order  to  take  effect  October  28,  1899,  Trustee  Pettis  refusing 
his  consent  thereto,  transferring  said  Gifford  farm  back  to  said  district  6;  that 
subsequently  a  hearing  was  had  before  a  local  board  and  a  confirmatory  order 
was  made  from  which  the  appellant  herein  appealed  to  me,  and  on  October  31, 
1899,  I  made  my  decision,  4814,  dismissing  the  appeal  on  the  ground  of  irregu- 
larities in  the  confirmatory  order  and  the  filing  thereof,  and  vacated  said  order; 
that  September  2.^,  1900,  Commissioner  Rice  made  a  preliminary  order  to  take 
effect  October  8,  1900,  setting  off  from  district  10,  Wilton,  to  district  6,  North- 
umberland, said  parcel  of  land  known  as  the  Gifford  farm,  and  on  the  same  day 
gave  notice  thereof  to  the  trustees  of  each  of  such  districts ;  that  October  8,  1900, 
at  the  schoolhouse  in  Gansevort,  Saratoga  county,  he  would  hear  objections  to 
such  order;  that  October  8  and  13,  1900,  a  hearing  was  had  before  a  local  board 
consisting  of  Commissioner  Rice  and  the  supervisors  and  town  clerks  of  the  towns 
of  Northumberland  and  Wilton,  the  trustees  of  district  10,  Wilton,  and  6,  North- 
umberland, being  present,  and  the  preliminary  order  of  September  27,  1900,  was 
affirmed,  and  a  confirmatory  order  was  made,  signed  and  filed  In  the  office  of  the 
clerk  of  each  of  said  towns  of  Northumberland  and  Wilton,  Saratoga  county. 

This  Department  has  held  that  an  order  made  by  a  school  commissioner, 
setting  off  real  property  from  one  school  district  to  another  under  a  misappre- 
hension of  facts,  will  be  vacated.  See  decision  of  Superintendent  Weaver,  May 
20,  1869. 

Superintendent  Draper,  in  decision  3518,  made  August  18,  1886,  held,  that 
a  commissioner's  order,  altering  the  boundaries  of  school  districts  should  be  sus- 
tained, when  on  appeal  it  appears  that  the  commissioner  has  acted  in  good  faith, 
and  by  the  order  has  restored  to  a  district  territory  which  has  been  uninten- 
tionally and  under  a  misapprehension  of  facts,  set  off  from  such  district. 

From  the  facts  established  it  is  clear  that  on  July  13.  1899,  the  order  made 
by  Commissioner  Rice,  transferring  the  Gifford  farm  from  district  6,  North- 
umberland, to  district  10,  Wilton,  was  so  made  under  a  misapprehension  of  facts 
and  mistake  on  the  part  of  the  commissioner  and  of  Trustee  Washburn  of  dis- 
trkt  6,  in  consenting  thereto. 

^'•Tt  is  in  proof  that  on  July  13,  1899.  there  were  no  children  residing  on  the 
territory  known  as  the  Gifford  farm ;  that  the  assessed  valuation  of  the  property 


6l4  THE    UNIVERSITY    OF   THE   STATE   OF    NEW    YORK 

situated  in  district  lo,  Wilton,  was  $62,789;  that  there  were  twenty  children  of 
school  age  therein  and  one  teacher  employed:  that  the  expense  of  maintaining  a 
school  therein  for  a  school  year  was  $321.06;  that  the  assessed  valuation  of  dis- 
trict 6,  Northumherland,  was  $131,630.  with  sixty  children  of  school  age  therein 
and  two  teachers  employed ;  that  the  expense  of  maintaining  a  school  for  a  scliool 
year  was  $670.28. 

The  appeal  herein  is  dismissed,  and  the  confirmatory  order,  appealed  from 
herein,  dated  October  13,  1900.  to  take  effect  January  21,  1900,  is  hereby 
affirmed. 


3518 

Luther  L.  Ackerson,  trustee  of  school  district  no.  6,  town  of  Sterling,  Cayuga 
county,  N.  Y.,  from  an  order  of  Josiah  Gailey,  school  commissioner  of  the 
first  commissioner  district  of  Cayuga  county,  dated  March  26,  1886,  changing 
the  boundaries  of  said  district. 

Commissioner's  order  altering  the  boundaries  of  a  school  district  sustained,  when  on  an 
appeal  it  appears  that  the  commissioner  has  acted  in  good  faith,  and  by  the  order  has 
restored  to  a  district  territory  which  had  been  unintentionally  and  under  a  misappre- 
hension of  facts  set  off  from  such  district. 

Decided  August  18,  1886 

Draper,  Superintendent 

This  is  a  proceeding  by  Luther  L.  Ackerson,  trustee  of  school  district  no.  6 
of  the  town  of  Sterling,  Cayuga  county,  appealing  from  an  order  of  Josiah  Gailey, 
school  commissioner  of  the  first  commissioner  district  in  said  county,  altering  the 
said  district  no.  6  by  taking  therefrom  lands  and  annexing  them  to  the  adjoining 
district  no.  17. 

The  commissioner's  order  bears  date  March  26,  1886. 

The  grounds  of  appeal  are  as  follows : 

1  That  the  lands  in  question  were  formerly  a  part  of  district  no.  17,  and 
were,  by  an  order  bearing  date  March  24,  1877,  with  the  consent  of  the  trustees 
of  both  districts  affected,  annexed  to  district  no.  6. 

2  That  the  property  set  over  does  not  contain  a  dwelling  house,  and,  there- 
fore, the  change  does  not  bring  any  child  of  school  age  nearer  to  a  public  school 
building. 

3  That  district  no.  17  was,  before  the  granting  of  the  order  appealed  from, 
already  a  stronger  district  than  district  no.  6,  and  that  consequently  the  change 
weakens  the  weaker  district. 

4  The  real  objection  seems  to  be  that  a  portion  of  the  Rome,  Watertown 
and  Ogdensburgh  Railroad,  which,  for  a  number  of  years,  had  been  taxed  in  dis- 
trict no.  6,  will  hereafter  be  taxable  in  district  no.  17. 

I  have  very  carefully  examined  the  pleadings  and  papers  filed  upon  this 
appeal,  and  from  such  examination  I  find  the  facts  to  be  • 


JUDICIAL    decisions:    school    districts ALTERATION    OF  615 

That  previous  to  the  granting  of  an  order  by  then  School  Commissioner 
Morehouse,  some  doubt  and  confusion  had  arisen  as  to  the  boundary  hne  between 
districts  nos.  6  and  17  in  the  town  of  Sterling.  That  an  order  was  consented  to 
by  the  trustees  of  districts  nos.  6  and  17  and  granted  by  the  school  commissioner 
taking  certain  farm  lands  claimed  by  district  no.  17,  and  annexing  them  to  dis- 
trict no.  6.  That  the  present  school  commissioner  at  that  time  acted  as  an  adviser 
to  the  trustees  of  district  no.  17,  and  advised  such  trustees  to  consent.  That 
neither  the  commissioner  nor  the  trustee  of  district  no.  17,  nor  the  present  com- 
missioner intended  to  consent  or  advise  that  the  lands  covered  by  the  tracks  of 
the  said  railroad  should  be  included  in  such  transfer.  That  in  describing  the 
line  between  said  districts  nos.  6  and  17,  the  south  side  of  the  farm  of  one  Jesse 
Carris  was  used,  the  commissioner  and  trustee  of  said  district  no.  17  supposing 
that  to  carry  the  line  south  of  the  railroad  bed.  But  it  appears  that  Carris 
had  changed  his  south  line  by  parting  with  a  part  of  his  farm  on  the  south  so 
that  this  south  line  was  north  instead  of  south  of  the  track,  and  the  effect  of 
using  his  south  line  to  divide  the  districts  was  to  include  the  railroad  in  district 
no.  6  instead  of  district  no.  17.  This  change  was  unknown  to  both  commissioner 
and  trustee.  Upon  the  discovery  of  the  error  the  present  commissioner  by  the 
order  appealed  from  has  set  back  to  the  district  from  which  it  was  so  taken  by 
misapprehension,  the  lands  north  of  Carris's  old  south  line.  It  is  not  claimed  that 
any  attempt  was  made  to  deceive  the  commissioner  or  the  trustee  of  school  dis- 
trict no.  17  at  the  time  the  original  order  was  granted,  but  no  mention  of  the 
change  of  the  boundary  of  Carris's  farm  was  made,  and  the  commissioner  and 
trustee  of  said  district  no.  17  were  not  informed  of  it,  and  the  commissioner  in 
describing  the  boundary  of  the  districts  was  misled  thereby. 

From  all  the  facts  so  found,  I  am  led  to  the  conclusion  that  when  the  order 
of  March  27,  1877,  was  granted  by  the  commissioner  and  consented  to  by  the 
trustees  of  districts  nos.  6  and  17,  the  commissioner  and  the  trustee  of  school 
district  no.  17  acted  under  a  misapprehension  of  facts  and  did  not  intend  to 
transfer  the  lands  mentioned  from  district  no.  17  to  district  no.  6. 

A  similar  case  came  up  on  appeal  to  this  Department  in  1869,  and  Superin- 
tendent Weaver  decided  the  order,  made  under  misapprehension  of  facts,  void 
and  set  the  same  aside. 

But  I  have  also  considered  the  question  of  the  relative  strength  of  the  dis- 
tricts and  fail  to  discover  that  there  is  any  great  difference.  Both  are  and  will 
be  sufficiently  strong  to  support  suitable  schools  and  provide  instruction  for  the 
number  of  children  of  school  age  in  their  respective  districts.  The  commissioner 
having  acted  in  good  faith  and  in  the  absence  of  contrary  proof,  I  shall  hold 
with  good  judgment  and  in  accord  with  the  statute.  I  must,  from  all  the  facts 
presented  to  me  on  this  appeal,  overrule  the  appeal  and  sustain  the  order  appealed 
from. 


6l6  Till:    UNIVERSITY    OK   THE   STATE    OF    NEW    YORK 

4314 

In  the  matter  of  the  appeal  of  John  Greenan  v.  Stephen  Pollard,  school  commis- 
sioner second  commissioner  district,  Allegany  county. 

Where  it  appears  that  an  order  of  a  school  commissioner,  setting  off  a  portion  of  one 
district  and  annexing  such  portion  to  another  will  give  better  school  facilities  and 
increased  convenience  to  the  persons  occupying  the  transferred  territory  and,  at  the 
same  time,  leave  the  district  from  which  such  territory  was  taken  sufficient  resources 
with  which  to  maintain  a  good  and  sufficient  school  therein,  this  Department  can  find 
no  justification  in  setting  aside  the  action  of  said  officers. 

Decided  January  3,  1895 

Crooker,  Superintendent 

This  appeal  is  taken  froin  the  final  order  of  the  respondent,  as  school  com- 
missioner of  the  second  commissioner  district  of  Allegany  county,  made  on  June 
30,  1894,  in  the  alteration  of  the  boundaries  of  school  district  no.  9,  town  of 
Wcllsville.  Allegany  county,  and  the  consequent  alteration  of  the  boundaries  of 
school  district  no.  7,  town  of  Wellsvillc,  Allegany  county,  in  taking  "  All  that 
part  of  sublet  "y^,  within  great  lot  31  of  the  Schermerhorn  tract,  in  township  3, 
range  3-1,  of  Morris  reserve,  as  lies  south  of  the  Erie  Railway  lands,  being  about 
165  acres."  and  attaching  the  same  to  district  no.  7,  town  of  Wellsville;  said 
order  to  take  effect  on  October  i,  1894. 

An  answer  has  been  made  to  the  appeal,  and  to  the  answer  a  reply,  and  to 
the  reply  a  rejoinder. 

The  following  material  facts  are  established : 

That  prior  to  the  aforesaid  order  of  the  respondent,  said  part  of  sublot  73, 
consisting  of  about  165  acres  of  land,  was  situate  within  said  school  district  no. 
9,  town  of  Wellsville ;  that  one  Nathan  Williams  resided  upon  said  lot  of  land, 
having  residing  with  hiin  six  children,  four  of  whom  are  of  school  age ;  that  the 
distance  from  the  dwelling  house  of  said  Williams  to  the  schoolhouse  in  district 
no.  9,  by  the  nearest  highway,  is  over  three  iniles ;  that  to  attend  the  school  in 
district  no.  9,  said  children  would  be  obliged  to  travel  the  same  highway  which 
leads  to  and  past  the  schoolhouse  in  district  no.  7,  and  that  after  reaching  said 
schoolhouse  they  would  be  compelled  to  travel  about  one  and  three-fourth  miles 
to  reach  the  schoolhouse  in  district  no.  9;  that  the  schoolhouse  in  district  no.  7  is 
about  one  and  three-fourth  miles  from  the  residence  of  said  Williams,  and  can  be 
reached  by  the  main  traveled  valley  road  leading  from  the  village  of  Wellsvillc 
to  the  village  of  Andover;  that  there  is  no  road,  public  or  private,  including  log 
roads,  leading  from  the  dwelling  house  of  said  Williains,  excepting  the  public 
highways,  as  shown  upon  the  map  annexed  to  the  appeal  herein,  over  which  said 
children  of  Williams  could  reach  the  schoolhouse  in  district  no.  9;  that  there 
is  no  road  across  said  lot  73  from  the  residence  of  said  Williams  to  said  school- 
house  in  district  no.  9 ;  that  said  Williams  resides  on  what  is  known  as  Dyke's 
Creek,  which  is  in  a  valley,  and  that  the  schoolhouse  in  said  district  no.  9  is  situ- 
ate on  the  uplands,  and  that  running  parallel  with  said  creek  is  a  high  steep  hill, 
higher  than  any  other  hill  in  the  school  district,  over  which  hill  the  children  of 


JUDICIAL    decisions:    school   districts  —  ALTERATION    OF  617 

Williams  would  have  to  go  to  attend  at  the  schoolhouse  in  said  district  no.  9, 
unless  they  traveled  the  aforesaid  highways ;  that  much  of  the  time  during  the 
school  year  said  Williams  has  sent  his  children  to  school  in  the  village  of  Andover 
for  the  reason  that  it  was  impossible  for  them  to  attend  the  school  in  said  dis- 
trict no.  9. 

It  also  appears  that  prior  to  June  15,  1894,  the  aggregate  valuation  of  the 
property  liable  to  taxation  in  said  school  district  no.  9  was  the  sum  of  $34,237, 
and  there  were  thirty-seven  children  of  school  age  residing  therein;  that  the 
assessed  valuation  of  the  land  in  said  lot  j}^,  owned  by  said  Williams,  was  the 
sum  of  $1750;  that  the  United  Pipe  Line  runs  over  and  across  the  said  land  of 
said  Williams  in  said  lot  73  and  between  the  residence  of  said  Williams  and  the 
highway  in  front  of  said  residence,  and  hence  in  taking  said  lot  73  from  said  dis- 
trict no.  9  it  was  impracticable  to  do  so  without  transferring  the  said  pipe  line 
therewith;  that  the  assessed  value  of  said  pipe  line  was  $1714;  that  aggregate 
value  of  the  property  set  ofif  by  said  order  of  respondent,  was  the  sum  of  $3464, 
leaving  said  district  no.  9  with  property  of  the  aggregate  assessed  valuation  of 

$30773- 

It  further  appears  that  application  was  made  by  said  Williams  to  the 
respondent  to  set  off  said  lot  73  from  said  district  no.  9  to  said  district  no.  7,  and 
that  the  respondent  after  careful  investigation  of  the  subject,  on  June  15,  1894, 
made  a  preliminary  order  for  such  alteration ;  that  the  appellant  as  trustee  of 
said  district  no.  9,  not  consenting,  on  June  16,  1894.  the  respondent  gave  due 
notice,  under  the  school  law,  to  the  trustees  of  both  districts  nos.  7  and  9,  that 
on  June  30,  1894,  at  2  o'clock  p.  m.,  at  the  town  clerk's  office  in  Wellsville  he 
would  attend  and  hear  objections  to  the  proposed  alterations;  that  the  respondent 
attended  at  said  time  and  place,  when  an  opportunity  to  all  persons  who  desired 
to  be  heard  to  present  their  objections  was  given,  and  no  sufficient  objection 
being  given,  the  respondent,  on  June  30,  1894,  made  his  confirmatory  order, 
dated  on  that  day,  to  take  effect  on  October  i,  1894,  and  duly  filed  the  same  with 
the  town  clerk  of  the  town  of  Wellsville. 

There  is  no  claim  on  the  part  of  the  appellant  of  any  irregularity  in  the  pro- 
ceedings had  and  taken  by  the  respondent. 

The  main  ground  upon  which  the  appeal  is  taken  appears  to  be:  (i)  that 
the  children  of  Williams  could  reach  the  schoolhouse  in  district  no.  9  by  going 
across  lots  or  on  private  or  log  roads ;  (2)  that  many  children  residing  in  the  dis- 
trict are  obliged  to  travel  a  greater  distance  to  reach  said  schoolhouse  than  the 
children  of  Williams;  (3)  that  by  taking  property  from  the  district  of  the  aggre- 
gate value  of  $3464.  the  financial  condition  of  district  no.  9  is  materially 
weakened. 

As  to  the  first  ground  above  stated  the  proofs  clearly  establish  that  it  is 
almost  impracticable  for  the  children  of  Williams  to  reach  the  schoolhouse  in  dis- 
trict no.  9  other  than  by  the  public  highways,  by  reason  of  the  high  ground  and 
the- absence  of  roads  of  any  kind  across  lots.  As  to  the  second  ground  above 
stated  it  is  equally  clear  that  many  children  in  said  district  reside  at  a  greater  dis- 


6l8  THE    UMVERSITY    OF   THE   STATE    OF    NEW     YORK 

tance  by  the  j)ublic  highways  from  said  schoolhouse  than  do  the  children  of 
Williams,  hut  they  have  no  such  elevation  to  climb  as  the  children  of  Williams, 
and  there  are  j)rivatc  and  log  roads  by  which  they  can  reach  the  said  schoolhouse 
at  a  great  saving  of  distance;  that  it  also  appears  no  application  has  been  made 
by  the  i)arents  of  such  children  to  the  school  commissioner  to  set  them  off  from 
said  district.  As  to  the  third  ground  stated  above,  school  district  no.  9  has  an 
aggregate  assessed  valuation  of  $20,773,  ^  sum  amply  sufficient  to  raise,  without 
being  burdensome,  sufficient  money  to  maintain  a  good  and  sufficient  school  in 
said  district. 

This  Department  has  held  that  where  it  api)cars  that  an  order  of  the  school 
conunissioncr,  setting  off  a  portion  of  one  district  and  uniting  it  to  another,  will 
give  hotter  school  facilities  and  increased  convenience  to  the  persons  occupying  the 
transferred  territory,  and  at  the  same  time  leave  the  district  from  which  the 
transferred  territory  was  taken  sufficient  resources  with  which  to  maintain  a  good 
and  sullicient  school,  this  Department  can  find  no  justification  in  setting  aside  the 
action  of  such  officer. 

In  my  opinion  the  respondent  herein,  in  making  the  order  appealed  from, 
has  wisely  exercised  the  power  and  discretion  vested  in  him  by  the  school  law, 
and  that  the  school  district  no.  9  possesses  sufficient  resources  with  which  to 
maintain  a  good  and  sufficient  school  therein. 

The  appeal  herein  is  dismissed,  and  the  order  of  School  Commissioner  Pol- 
lard, of  June  30,  1894,  is  confirmed. 


3705 
In  the  matter  of  the  appeal  of  Charles  Cady,  as  trustee  of  school  district  no.  14. 
town  of  Hounsfield,  Jefferson  county  v.  S.  W.  Maxson  and  T.   S.   Gray, 
school  commissioners  of  said  county. 
An  order  altering  school  districts  will  not  be  disturbed  where  the  change  was  made  to 
beUer  accommodate  patrons  of  the  school  and  the  change  does  not  materially  affect 
the  size  or  the  assessal)le  valuation  of  the  district  from   which  a  portion  of  territory 
lias  been  cut  off. 
Decided  August  22,  1888 

Draper,  Superintendent 

By  the  order  of  the  two  commissioners  of  Jefferson  county,  made  upon 
the  nth  day  of  May  1888,  a  portion  of  district  no.  9  of  the  town  of  Hounsfield 
was  cut  off  and  annexed  to  joint  district  no.  14  of  the  towns  of  Hounsfield 
and  Watertown.  Inasmuch  as  the  trustees  of  the  districts  affected  did  not  all 
consent  to  such  order,  notice  was  given  that  the  commissioners  would  attend  at 
the  schoolhouse  in  district  no.  9  of  Hounsfield  at  10  o'clock  in  the  forenoon  on 
the  24th  day  of  May  1888,  to  hear  objections  thereto.  At  the  time  and  place 
named  the  supervisor  and  town  clerk  of  the  town  of  Watertown  and  the  town 
clerk  of  the  town  of  Hounsfield  were  associated  with  the  commissioners  to  hear 


JUDICIAL    DECISIONS  :    SCHOOL   DISTRICTS  —  ALTERATION    OF  619 

objections.  After  such  hearing  and  after  due  dehberation,  the  board  confirmed 
the  order  of  the  commissioners  by  a  unanimous  vote.  This  appeal  is  brought  for 
the  purpose  of  setting  aside  the  orders  making  the  alteration.  Numerous  objec- 
tions are  ottered  to  the  change  by  the  appellants.  It  is  claimed  that  the  new 
boundary  lines  are  not  properly  set  forth ;  that  the  only  house  upon  the  territory 
afifected  is  nearer  the  schoolhouse  in  district  no.  9  than  in  district  no.  14;  that 
the  change  weakens  the  district  from  which  the  territory  is  taken.  It  is  insisted 
with  considerable  energy  that  the  descriptions  of  the  boundary  lines  in  the  first 
order  of  the  commissioners  and  the  subsequent  order  of  confirmation  are  not 
the  same. 

In  answer,  the  commissioners  insist  that  the  descriptions  of  boundary  lines 
are  proper,  except  that  they  admit  that  there  was  a  slight  clerical  error  in  the  first 
order,  which  was  corrected  in  the  subsequent  one.  They  say  that  more  than 
thirty  days  elapsed  after  the  making  of  the  order  before  the  appeal  was  taken ; 
that  no  map  accompanied  the  appeal;  that  the  house  upon  the  territory  aflfected 
is  only  about  two-thirds  as  far  from  the  school  in  district  no.  9  as  it  is  from  the 
one  in  no.  14,  and  that  the  road  to  district  no.  9  is  a  main  public  highway,  always 
open  for  travel,  which  is  not  the  case  as  to  the  roads  to  no.  14.  They  show 
also  that  after  the  alterations  the  assessable  valuation  of  property  in  no.  14  is 
$74,990,  while  in  no.  9  it  is  $51,150. 

I  have  carefully  considered  all  that  has  been  said  by  the  parties  on  both  sides. 
It  seems  to  me  that  the  commissioners  were  justified  in  the  action  which  is 
appealed  from.  The  only  material  question  which  is  raised  is  as  to  the  variation 
in  the  orders,  but  that  is  shown  to  have  been  a  clerical  error  only,  and  one 
which  misled  nobody;  and  I  do  not  deem  it  to  be  of  sufficient  moment  to  justify 
me  in  requiring  the  commissioners  to  retrace  their  steps  and  go  through  the 
proceedings  again.  It  seems  to  be  clear  that  the  alteration  is  made  for  the 
benefit  of  one  family  in  order  to  bring  such  family  in  closer  proximity  to  a 
schoolhouse,  and  I  see  no  reason  why  it  could  not  be  made  for  that  purpose 
inasmuch  as  it  does  not  materially  afifect  the  size  or  the  assessable  valuation  of 
the  district  from  which  a  portion  of  territory  was  cut  oflF.  I  have  determined  to 
dismiss  the  appeal. 


3893 

In  the  matter  of  the  appeal  of  Thomas  G.  Parsons  and  Mary  B.  Parsons  v. 
William  J.  Barr,  school  commissioner  of  Genesee  county. 

The  setting  off  of  lands  from  one  district  to  another  will  be  ordered  by  the  State  Super- 
intendent when  the  effect  will  be  to  give  the  occupants  of  such  lands  school  advantages 
which  they  did  not  possess,  and  when  a  district  will  not  be  materially  weakened  by 
such  transfer,  nor  the  symmetry  of  the  district  lines  be  affected. 

Decided  July  24,  1S90 

Draper,  Superintendent 

Appellants  are  residents  of  school  district  no.  3,  of  the  town  of  Batavia, 
Genesee  county.     The  appellant,  Mary  B.  Parsons,  is  the  owner  of  real  estate 


620  THE    L'\r\EKSITY    OF   TIIK    STATE    OF    NEW    YORK 

in  said  district.  The  appellants  arc  the  parents  of  four  children  of  school  age, 
three  of  whom  are  over  15  years  of  age.  All  the  children  now  attend  and  for 
some  time  past  have  attended  the  school  in  district  no.  2,  of  the  town  of  Batavia, 
where  appellants  are  required  to  pay  for  their  tuition.  The  appellants,  whose 
property  adjoins  district  no.  2,  and  from  the  map  of  the  district  before  me  would 
seem  naturally  to  belong  thereto,  are  desirous  of  being  set  ofif  to  district  no.  2. 
They  allege  that  district  no.  3  has  taxable  proi)crty  to  the  amount  of  $159,795, 
a  sufiiciently  large  amount  of  taxable  property  so  that  the  district  would  not  be 
materially  weakened  by  the  loss  of  appellants'  land ;  that  the  road  to  be  traveled 
to  reach  the  school  in  district  no.  2,  is  one  leading  to  Batavia  where  appellants 
receive  their  mail  and  transact  their  business,  while  the  road  to  the  school  in 
district  no.  3  leads  them  away  therefrom.  That  the  school  facilities  in  no.  3 
are  not  adequate  for  children  as  far  advanced  as  the  appellants*  children  are, 
and  that  appellants  are  now  doubly  taxed  for  tuition,  paying  taxes  in  district 
no.  3,  and  for  tuition  in  no.  2.  It  is  also  alleged  that  the  school  which  appellants' 
children  attend  in  district  no.  2  is  nearer  to  appellants'  home  and  much  easier 
reached.  The  respondent  avers  that  the  distance  to  district  school  no.  3  is 
about  the  same  as  to  no.  2,  and  that  a  good  school  is  usually  maintained  in 
district  no.  3,  and  the  instruction  there  given  is  sufficiently  advanced  for  appel- 
lants' children.  He  alleges  that  the  supervisor  and  town  clerk  oppose  the  change, 
and  for  these  reasons  he  has  declined  to  make  the  order. 

I  have  reached  a  conclusion  in  this  case  with  some  hesitation.  Ordinarily, 
the  judgment  of  the  local  school  authorities  will  be  upheld,  but  I  feel  that  in 
this  case  that  the  educational  interests  of  district  no  3  will  not  suffer,  and  that 
the  symmetry  of  the  district  lines  will  not  be  affected  by  the  transfer.  The  chil- 
dren do  not  attend  in  district  no.  3,  and  that  an  unfair  burden  is  imposed  upon 
the  appellants,  is  evident  to  me. 

The  appeal  is  sustained  and  the  commissioner  is  hereby  directed  to  make  an 
order  setting  off  the  lands  of  the  appellants  as  shown  on  the  map  filed  with  this 
appeal,  from  district  no.  3,  of  the  town  of  Batavia,  to  district  no.  2,  of  the  same 
town. 


3669 

In  the  matter  of  the  appeal  of  Nathan  Marsh,  of  school  district  no.  6,  town  of 
Conesus,  Livingston  county,  v.  R.  Austin  Kneeland,  jr,  school  commissioner 
of  the  first  district  of  Livingston  county. 

A  school  commissioner's  refusal  to  make  an  order  setting  off  land  from  one  district  to 
another  m  order  that  certain  children  residing  on  said  land  might  be  given  school 
facilities  which,  at  certain  seasons  of  the  year,  they  were  denied,  because  of  the  con- 
dition of  the  roads  leading  to  the  schoolhouse,  upon  the  ground  that  by  the  change  a 
weak  district  would  be  injured,  will  not  be  upheld,  when  it  appears  that  the  district 
will  not  be  materially  weakened  by  the  change,  but  will  still  have  sufficient  taxable 
property  to  maintain  a  good  school. 

Decided  May  29,  1888 


JUDICIAL    decisions:    school    districts ALTERATION    OF  62I 

Draper,  Superintendent 

This  is  an  appeal  by  a  resident  taxpayer  of  school  district  no.  6,  town  of 
Conesus,  Livingston  county,  from  the  refusal  of  the  school  commissioner  to  set 
off  and  annex  his  lands  to  district  no.  8  of  said  town. 

The  appellant  alleges  that  the  change  sought  for  will  enable  him  to  send 
his  children  to  school ;  that  owing  to  the  condition  of  the  road  leading  from  his 
residence  to  the  schoolhouse  in  district  no.  6  in  the  winter  seasons  and  the  fact 
that  no  persons  reside  on  the  road  between  his  residence  and  the  schoolhouse, 
and  because  the  road  is,  consequently,  not  generally  traveled,  it  becomes  impas- 
sable, and,  as  his  children  are  young,  they  are  not  able  to  attend  the  school ; 
that  the  road  leading  to  the  schoolhouse  in  district  no.  8  is  largely  traveled  and 
kept  open. 

The  commissioner  answers  and  alleges  that  district  no.  6  is  relatively  weaker 
than  district  no.  8  and  that  it  would  weaken  materially  a  weak  district  to  make 
the  change. 

It  appears  that  each  district  contains  a  good  schoolhouse  and  maintains  a 
satisfactory  school;  that  the  number  of  children  in  each  district  is  about  the 
same;  that  the  assessed  valuation  of  district  no.  6  is  $65,200  and  district  no.  8, 
$87,450;  that  the  appellant's  property  lies  largely  in  district  no.  8,  but  is  taxed 
in  district  no.  6,  he  residing  on  that  part  of  his  property  lying  in  district  no.  6. 

It  can  not  be  doubted  that  the  change  will  be  beneficial  to  the  family  of  the 
appellant,  and  the  district  from  which  he  would  be  taken  would  still  be  suffi- 
ciently strong  to  maintain  a  good  school.  I  do  not  consider  the  objection  urged 
by  the  commissioner  sufficient  to  sustain  his  refusal  to  grant  the  order. 

I  have  concluded  to  sustain  the  appeal  and  hereby  direct  R.  Austin  Knee- 
land,  jr,  school  commissioner  of  the  first  district  of  Livingston  county,  to  make 
an  order,  within  thirty  days  from  the  date  hereof,  transferring  the  lands  of  the 
appellant  Tying  in  district  no.  6,  and  abutting  lands  in  district  no.  8,  to  district 
no,  8  of  the  town  of  Conesus  in  the  county  of  Livingston, 


3813 
In  the  matter  of  the  appeal  of  Thomas  O'Connell  v.  Eber  S.   Devine,  school 

commissioner  of  the  first  district  of  Broome  county. 
A    farm  will  be   set  off   from   district  and  annexed  to   another,   when   it  will   enable  the 
occupant  thereof,  who  has  a  large  family  of  children  of   school  age,  to  have  school 
accommodations  for  his  children,  and  the  change  will  not  materially  reduce  the  amount 
of  taxable  property  in  a  strong  district. 
Decided  September  24,  1889 

D.  H.  Carver,  attorney  for  appellant 

Draper,  Superintendent 

The  appellant  resided  in  school  district  no.  6.  of  the  town  of  Conklin,  in 
the  county  of  Broome.     He  desires  to  have  his  farm  annexed  to  school  district 


622  THE    UNIVERSITY    OF   THE   STATE    OF    NEW    YORK 

no.  4,  of  the  town  of  Binghamton.  The  town  of  Conklin  is  in  the  first  school 
commissioner  district  of  Broome  connty.  and  the  town  of  Bins^hamton  is  in  the 
second  commissioner  district.  Mr  O'Connell  shows  that  he  has  from  time  to 
time  made  application  to  Commissioner  Devine  to  make  the  alteration,  but  that 
the  commissioner  has  declined  and  refused  to  do  so.  This  appeal  is  brought  for 
the  purpose  of  procuring  a  determination  of  the  matter. 

The  appellant  shows  that  he  resides  at  a  point  which  practically  prevents 
his  children  from  attending  the  school  in  his  school  district.  His  house  is 
nearly  three  miles  from  the  schoolhouse.  The  road  is  but  little  traveled,  and 
during  a  considerable  portion  of  the  year  is  shown  to  be  impassable.  He  has 
nine  children.  He  has  for  several  years  sent  his  children,  who  were  capable  of 
attending  school,  to  a  school  across  the  line  in  the  state  of  Pennsylvania.  He 
shows  that,  if  he  were  annexed  to  school  district  no.  6,  of  the  town  of  Bing- 
hamton, he  could  send  his  children  to  school  in  that  district,  the  road  being 
better  and  being  more  convenient  for  him  because  of  the  frequency  with  which 
he  goes  to  the  city  of  Binghamton  on  business  errands.  The  school  district  in 
which  he  resides  is  a  strong  district.  The  assessable  valuation  is  over  $40,000. 
He  presents  the  consent  of  the  majority  of  the  taxpayers  in  his  district,  and 
also  of  the  trustees  of  both  of  the  districts  which  would  be  affected  by  the  change. 
He  also  presents  a  certificate  from  Commissioner  James  L.  Lusk,  of  the  second 
commissioner  district  of  Broome  county,  saying  that  he  thinks  the  change  ought 
to  be  made. 

The  respondent  has  made  no  answer  to  the  appeal,  and  the  facts  alleged 
by  the  appellant  must,  therefore,  be  assumed  to  be  true.  I  have  no  hesitation 
in  saying  that,  upon  this  showing  of  facts,  the  appellant  seems  to  me  to  be 
clearly  entitled  to  the  relief  he  seeks. 

The  appeal  is  sustained  and  the  respondent  is  directed  to  join  with  the  other 
commissioner  having  jurisdiction  in  an  order  making  the  proposed  alteration. 


3795 

In  the  matter  of  the  appeal  of  J.  A.  Wright  v.  George  Peckham,  school  commis- 
sioner of  the  second  district  of  Cayuga  county. 

Territory  may  properly  be  detached  from  one  district  and  annexed  to  an  adjoining  district, 
when  it  appears  that  it  is  in  close  proximity  to  the  schoolhouse  in  the  latter  district 
and  a  very  considerable  distance  from  the  schoolhouse  in  the  former  district,  and  there 
are  children  to  be  accommodated  with  school  advantages,  to  whom  the  alteration  is  no 
inconsiderable  matter,  and  the  former  school  will  be  left  sufficiently  strong  to  maintain 
a  satisfactory  school. 

Decided  July  29,  1889 


JUDICIAL    DECISIONS  :    SCHOOL   DISTRICTS ALTERATION    OF  623 

Draper,  Superintendent 

On  the  1st  day  of  April  1889,  the  respondent  made  an  order  detaching  a 
certain  portion  of  territory,  including  the  residence  of  appellant,  from  district 
no.  5,  of  the  town  of  Moravia,  and  annexing  the  same  to  district  no.  i  of  said 
town.  Inasmuch  as  the  consent  of  the  trustee  of  district  no.  5  to  the  alteration 
was  not  given,  it  was  directed,  pursuant  to  statute,  that  said  order  should  not 
take  effect  for  ninety  days.  Subsequently  the  commissioner  heard  objections  to 
the  order  going  into  effect,  at  a  time  and  place  named  by  him,  as  required  by 
statute,  and  on  the  15th  of  April  made  a  second  order  annulling  the  first.  From 
this  second  order  this  appeal  is  taken. 

It  does  not  appear  that  either  the  supervisor  or  town  clerk  of  the  town  of 
Moravia  was  associated  with  the  commissioner  in  determining  upon  the  advisa- 
bility of  the  alteration. 

District  no.  i  is  the  village  of  Moravia,  and  the  fact  is  undoubtedly,  as 
claimed,  that  the  school  facilities  are  better  there  than  in  the  outlying  district 
no.  5.  The  residence  of  the  appellant  is  nearer,  by  half,  to  the  schoolhouse  in 
no.  I  than  that  in  no.  5.  The  walks  are  better  and  more  passable.  He  has 
children  to  whom  the  advantages  of  getting  to  the  school,  in  district  no.  i,  is  no 
inconsiderable  matter.  It  must  be  conceded,  I  think,  that  the  appellant  should 
be  given  the  enhanced  advantages  of  the  school  in  the  village,  when  he  is  in 
sight  of  the  schoolhouse,  and,  indeed,  so  near,  as  he  says,  as  to  hear  the  opening 
exercises  at  his  house,  unless  there  is  some  insuperable  reason  why  it  should 
not  be  so.  The  only  reason  which  can  be  advanced  against  the  alteration  is 
that  it  would  weaken  district  no.  5.  If  the  alteration  is  made,  it  would  transfer 
property  of  the  valuation  of  $6350  from  no.  5  to  no.  i,  and  leave  an  assessable 
valuation  of  over  $70,000  in  no.  5.  There  are  fifty-nine  children  of  school  age 
in  no.  5  at  present,  and  the  change  would  leave  nearly  fifty,  as  large  a  number 
as  can  well  and  advantageously  be  provided  for  in  an  ordinary  common 
school  district  in  the  country.  So  I  can  not  see  that  district  no.  5  would  be 
materially  injured  by  the  change.  While  there  is  wide  disparagement  in  the 
strength  of  the  two  districts,  it  must  be  remembered  that  one  is  an  ordinary 
school  district,  and  the  other  a  union  free  school  district;  and  it  may  well  be 
doubted  if  the  former  is  not  as  well  able  to  provide  the  school  facilities  which 
it  does  provide  for  its  children,  as  the  other  is  to  provide  such  as  it  does  pro- 
vide for  its  children.  This  being  so,  I  can  not  escape  the  conclusion  that  the 
first  impression  of  the  school  commissioner  was  correct,  and  that  this  appellant 
should  be  transferred  to  the  village  district. 

The  appeal  is  sustained;  the  order  of  the  school  commissioner  of  date  of 
April  15,  1889,  is  set  aside  and  annulled,  and  the  one  of  the  date  of  April  ist  is 
eanfirmed. 


0J4  TUli    UMVEKSITV    OF    THE   STATE   OF    NEW    YORK 

4534 

In  the  matter  of  the  appeal  of  E.  A.  Barton,  sole  trustee,  school  district  no.  2, 
town  of  I'-lko,  Cattaraugus  county,  from  proceedings  for  the  alteration  of 
school  districts  nos.  2  and  3.  town  of  Elko,  Cattaraugus  county. 

The  notice  by  school  commissioners  required  to  be  given  under  section  4  of  title  6  of  the 
Consolidated  School  Law  of  i8y4  of  a  time  when  and  place  where  he  or  she  will  hear 
objections  to  a  preliminary  order  for  the  alteration  of  school  districts  must  be  served 
personally  upon  tlic  assenting  and  dissenting  trustees,  or  left  at  his  or  their  residence 
with  some  person  of  suital)lc  age  and  discretion,  and  can  not  be  served  by  mail. 

The  order  of  the  local  board  affirming  the  preliminary  order  of  the  school  commissioner 
must  be  made  by  the  school  commissioner,  and  signed  by  him  or  her  and  all  the 
mcmliers  of  the  local  board  must  unite  with  the  commissioner  in  such  order. 

Decided  March  4,  1897 

O.  S.  Vreeland,  attorney  for  appellant 

Skinner,  Superintendent 

This  is  an  appeal  from  certain  proceedings  had  and  talcen  in  the  alteration 
of  school  districts  nos.  2  and  3,  town  of  Elko,  Cattaraugus  county.  In  August 
1896,  a  petition,  signed  by  certain  residents  of  school  district  no.  3,  town  of 
Elko,  Cattaraugus  county  and  presented  to  the  trustee  of  such  district,  requesting 
upon  several  grounds  stated  therein,  that  such  district  be  extended  by  annex- 
ing thereto  the  whole  of  lot  8  (in  district  no.  2)  which  petition  was  presented 
to  Martha  Van  Rensselaer,  school  commissioner  of  the  second  district  of  Catta- 
raugus county,  by  such  trustee,  together  with  his  written  consent  to  the  altera- 
tions asked  for  in  the  petition.  That  subsequently,  School  Cominissioner  Van 
Rensselaer,  the  trustee  of  district  no.  2,  refusing  to  consent  to  such  altera- 
tions, made  a  preliminary  order  making  the  alterations  asked  for,  which  order 
was  to  take  effect  January  27,  1897,  and  such  order  was  filed  in  the  oflke  of  the 
clerk  of  the  town  of  Elko  on  October  9,  1896.  That  on  October  10,  1896,  the 
appellant  herein  received  by  mail  a  notice  signed  by  School  Commissioner  Van 
Rensselaer,  of  which  the  following  is  a  copy: 

To  the  trustee  of  school  district  no.  2,  tozvn  of  Elko,  county  of  Cattaraugus, 

Take  notice  that  I,  Martha  Van  Rensselaer,  school  commissioner  of   the 

second   commissioner   district  of   Cattaraugus   county,   New   York,   did   on   the 

day  of  October  1896,  make  an  order  altering  districts  nos.  2  and  3,  town 

of  Elko,  as  does  appear  from  the  order  hereto  attached,  and  that  said  order 

was  filed  in  the  town  clerk's  office  on  the  day  of  October  1896. 

You  are  also  notified  that  on  the  9th  day  of  October  1896.  at  10.30  o'clock, 
a.  m.,  and  at  the  town  hall,  Quaker  Bridge,  in  the  town  of  Elko,  I  will  attend 
and  hear  objections  to  the  foregoing  order  and  to  proposed  alterations. 

You  are  also  notified  that  you  may  request  the  supervisor  and  town  clerk 
of  the  to\yns  or  town  in  which  your  school  district  lies,  to  be  associated  with  me 
at  such  time  and  place  for  the  purpose  of  confirming  or  vacating  said  order. 

Martha  Van  Rensselaer 
School  Commissioner,  Second  District,  Cattaraugus  County 


JUDICIAL    DECISIONS  :    SCHOOL   DISTRICTS ALTERATION    OF  625 

That  the  appellant  on  October  lo,  1896,  went  to  Quaker  Bridge,  town  of 
Elko,  and  saw  the  town  clerk  and  was  informed  by  him  that  no  meeting  pursuant 
to  such  notice  was  held  on  October  10,  1896;  that  no  other  notice  was  ever 
received  by  the  appellant.  That  on  October  27,  1896,  at  10.30  a.  m..  School 
Commissioner  Van  Rensselaer  attended  at  the  town  hall  at  Quaker  Bridge,  town 
of  Elko,  and  at  such  place  and  time  D.  H.  Andrews,  supervisor  of  such  town 
also  attended  at  the  request  of  the  trustee  of  district  no.  3,  of  such  town,  to  be 
associated  with  such  school  commissioner  upon  such  hearing,  and  opportunity 
being  given  to  all  persons  who  desired  to  be  heard,  a  vote  was  taken  upon  con- 
firming such  preliminary  order  made  by  such  school  commissioner,  and  said 
Andrews,  as  supervisor,  voted  in  favor  of  such  confirmation,  and  said  school 
commissioner  voted  against  such  confirmation,  and  thereupon  such  school  com- 
missioner made  a  confirmatory  order,  to  take  efifect  on  January  27,  1897,  which 
order  was  not  signed  by  her  associate  in  the  local  board,  and  such  order  was 
filed  with  the  clerk  of  the  town  of  Elko.  That  the  appellant  received  a  letter 
from  School  Commissioner  Van  Rensselaer,  dated,  October  31,  1896,  informing 
him  of  the  proceedings  of  the  meeting  of  October  27,  1896,  and  of  such  con- 
firmatory order  and  the  filing  thereof.  That  on  or  about  December  26,  1896, 
the  appellant  brought  his  appeal  herein. 

School  Commissioner  Van  Rensselaer,  and  Eben  Seekins,  trustee  of  district 
no.  3,  have  each  answered  the  appeal. 

Trustee  Seekins  alleges  that  the  appeal  herein  was  not  taken  within  the 
time  prescribed  by  the  rules  of  practice  of  this  Department  relating  to  appeals. 
I  decide  that  the  appellant  has  rendered  a  satisfactory  excuse  for  his  delay  in 
bringing  his  appeal. 

It  is  admitted  that  the  trustee  of  district  no.  3,  consented  to  the  alterations 
of  districts  nos.  2  and  3,  and  that  the  trustee  of  district  no.  2,  refused  his  consent. 

Section  4,  title  6.  of  the  Consolidated  School  Law  of  1894,  as  amended, 
enacts  among  other  things,  that  within  ten  days  after  making  and  filing  a  pre- 
liminary order  for  the  alteration  of  school  districts,  the  school  commissioner 
shall  give  at  least  a  week's  notice  in  writing  to  one  or  more  of  the  assenting 
and  dissenting  trustees  of  any  district  or  districts  to  be  affected  by  the  proposed 
alterations;  that  at  a  specified  time,  and  at  a  named  place  within  the  town  in 
which  either  of  the  districts  to  be  affected  lies,  such  commissioner  will  hear  the 
objections  to  the  alteration,  etc.  The  section  does  not  provide  that  such  notice 
shall  be  served  on  the  trustees  by  mail,  and  in  the  absence  of  any  such  provision 
such  notices  must  be  served  personally  upon  such  trustees,  and  if  any  such 
trustee  shall  be  absent  from  home,  or  can  not  after  due  diligence  be  found,  then 
by  leaving  the  notice  at  his  or  her  residence  with  some  person  of  suitable  age 
and  discretion,  between  six  o'clock  in  the  morning,  and  nine  o'clock  in  the 
evening. 

It  is  clear,  from  the  proofs  filed  herein,  that  School  Commissioner  Van 
Rensselaer  did  not  serve  personally,  or  cause  or  attempt  to  serve  personally, 
either  of  the  trustees  of  said  districts  nos.  2  and  3  with  the  notice  required  by 


626  THE    UNIVERSITY    OF    TIIR    STATE   OF    NEW    YORK 

section  4,  above  cited.  On  the  contrary,  it  appears  by  an  affidavit  of  such 
scliool  commissioner,  sworn  to  on  November  5,  1896,  that  the  service  of  such 
notice  upon  both  such  trustees  was  made  by  depositing,  on  October  8,  1896,  in 
the  post  office  at  Randolph,  Cattaraugus  county,  such  notice  inclosed  in  prepaid 
wrappers,  directed  respectively  to  E.  A.  Barton,  Tunesassa,  Cattaraugus  county, 
N.  Y.,  and  E.  Seckins,  Elko,  Cattaraugus  county,  N.  Y. 

I  decide  that  no  legal  notice  under  the  provisions  of  said  section  4,  title  6 
of  the  school  law  was  served  upon  the  trustees  of  such  districts  nos.  2  and  3,  or 
cither  of  them  by  School  Commissioner  Van  Rensselaer,  of  a  meeting  to  hear 
objections  to  the  preliminary  order  made  by  her  on  October  8,  1896,  and  the 
meeting  held  on  October  27,  1896,  at  which  she  and  Supervisor  Andrews  were 
present,  was  without  authority  of  law. 

Admitting,  for  the  purpose  of  argument  only,  that  School  Commissioner 
Van  Rensselaer  had  legal  authority  to  give  the  notice  required  by  such  section 
4  to  such  trustees,  by  mail,  it  clearly  appears  that  the  notice  mailed  by  her  to 
the  appellant  herein,  was  that  she  would  attend  at  the  town  hall  at  Quaker 
Bridge  on  October  9,  1896,  and  not  on  October  27,  1896,  to  hear  objections  to 
such  preliminary  order  made  by  her. 

The  appellant  has  annexed  to  his  appeal  the  notice  received  by  him  by  mail 
on  October  10,  1896,  a  copy  of  which  is  hereinbefore  set  out  in  full.  Such  notice 
is  typewritten  with  the  exceptions  that  the  day  and  month  w^ien  she  would  attend, 
etc.,  are  written  9th  and  "  October,"  and  her  signature  is  written.  The  notice 
fails  to  show  that  any  erasures  or  alterations  have  been  made  therein.  The 
dates  in  October  on  which  she  made  the  preliminary  order  and  on  which  said 
order  was  filed  with  the  town  clerk  of  the  town  of  Elko,  are  left  blank  in  such 
notice. 

It  is  w^ell  settled  that  the  first  or  preliminary  order  made  in  the  alterations 
of  school  districts  is  but  one  step  in  the  proceedings  and  is  of  no  effect  whatever 
until  the  same  has  been  duly  confirmed.  That  the  first  imperative  duty  of  the 
school  commissioner,  after  making  and  filing  the  preliminary  order  of  alteration, 
is  to  give  at  least  one  week's  notice  in  \vriting  to  the  trustees  of  all  the  districts 
affected  by  such  proposed  alteration,  and  such  notice  must  state  that  he  or  she 
has  made  an  order  of  alteration,  reciting  such  order,  and  that  at  a  stated  time 
and  place  within  the  town  in  which  either  of  the  districts  to  be  aft'ected  lies, 
he  or  she  will  hear  the  objections  to  the  alteration.  When  the  local  board 
decides  to  confirm  the  order  of  the  commissioner,  it  becomes  necessary  for  the 
commissioner  to  make  and  file  the  final  order,  or  the  order  of  alteration.  The 
local  board  does  not  make  the  alteration.  The  commissioner  must  do  this,  the 
board  uniting  with  him  or  her  in  the  order. 

The  confirmatory  order  appealed  from  has  the  signature  of  School  Com- 
missioner Van  Rensselaer,  but  does  not  have  the  signature  of  D.  H.  Andrews, 
supervisor  of  the  town  of  Elko,  who  was  associated  with  her  in  hearing  objec- 
tions to  such  alterations. 

The  appellant  also  alleges  that  Eben  Seekins  is  not  trustee  of  school  district 
no.  3,  town  of  Elko,  for  the  reason  that  at  the  time  of  his  election  as  trustee,  on 


JUDICIAL    DECISIONS  :    SCHOOL   DISTRICTS ALTERATION    OF  627 

the  first  Tuesday  of  August  1896,  he  was  not,  has  not  since  been,  nor  was  he  at 
the  time  of  bringing  the  appeal  herein,  a  resident  of  such  school  district.  It 
appears  that  at  the  annual  school  meeting  held  in  said  district  on  the  first  Tues- 
day of  August  1896,  said  Seekins  was,  by  the  color  or  form  of  an  election, 
elected  trustee  of  the  district,  and  ever  since  has  been,  and  still  is,  acting  as  such 
trustee;  that  no  appeal  from  such  election  upon  the  ground  that  he  was  not 
eligible  to  hold  such  office,  or  any  other  ground,  has  ever  been  taken  to  the  State 
Superintendent  of  Public  Instruction.  Until  an  order  shall  be  made  by  such 
State  Superintendent  that  such  election  of  Seekins  was  illegal  or  that  he  is 
ineligible  to  hold  the  office  of  trustee,  he  is  deemed  to  be  trustee  de  facto  of 
said  district,  and  as  such,  authorized  to  perform  the  duties  of  the  office  of  trustee 
under  the  school  law. 

I  find  and  decide  that  the  appellant  herein  never  received,  in  accordance 
with  the  provisions  of  section  4,  title  6,  of  the  school  law,  any  notice  that  School 
Commissioner  Van  Rensselaer  would  attend  at  the  town  hall,  Quaker  Bridge, 
in  the  town  of  Elko,  on  the  27th  day  of  October,  1896,  at  10.30  a.  m.,  to  hear 
objections  to  the  order  made  by  her  on  October  8,  1896,  altering  school  districts 
nos.  2  and  3,  town  of  Elko ;  that  no  notice  of  a  time  and  place  at  which  she 
would  attend  to  hear  objections  to  such  order  was  ever  duly  and  legally  given 
by  her  to  the  appellant  herein ;  that  all  proceedings  had  and  taken  by  such  school 
commissioner  relating  to  alterations  of  the  districts  subsequent  to  October  8, 
1896,  including  the  proceedings  taken  on  October  27,  1896,  and  the  alleged  con- 
firmatory order  made  therein,  were,  and  are,  and  each  of  them  was,  and  is, 
illegal  and  void,  and  should  be  vacated  and  set  aside;  that  the  appeal  herein 
should  be  sustained. 

The  appeal  herein  is  sustained. 

It  is  ordered,  That  the  order  made  by  School  Commissioner  Van  Rensselaer, 
dated  October  8,  1896,  altering  school  districts  nos.  2  and  3,  town  of  Elko, 
Cattaraugus  county,  and  the  proceedings  had  and  taken  by  such  school  com- 
missioner and  Supervisor  Andrews  in  relation  to  such  alteration,  on  October 
27,  1896,  and  the  confirmatory  order  altering  said  districts,  signed  by  such 
school  commissioner  and  filed  with  the  town  clerk,  of  the  town  of  Elko,  Cat- 
taraugus county,  be,  and  the  same  hereby  are,  and  each  of  them  is,  vacated  and 
set  aside.  

4544 
In  the  matter  of  the  appeal  of  Fred  W.  Rickmyer  and  others  v.  Cora  A.  Davis, 

school  commissioner,  first  commissioner  district,  Oneida  county. 
The  description  by  a  school  commissioner  in  an  order  forming  a  new  district  or  annexing 
territory  to  another  district  or  districts  should  not  be  described  "As  a  farm  owned  or 
occupied  by  A.  B.,"  or,  "As  known  as  the  Washington  place."  but  should  be  described 
by  great  lot,  tract  or  lot  lines,  or  highways  or  well-known  established  monuments  that 
-  .  survive  the  transfer  of  ownership  in  the  land,  so  complete  and  definite  that  a  surveyor 
"at  any  future  day  may  determine  the  boundaries  of  such  territory  without  any  reference 
to  any  other  document  than  the  order  of  the  commissioner. 
Decided  March  25,  1897 


628  TIIF.    UNIVERSITY    OF    THE    STATE   OF    NEW    YORK 

Skinner,  Supcrintcndcut 

This  ap])cal  is  taken  from  an  order  made  on  January  28.  1897,  by  School 
Commissioner  Davis  of  the  first  commissioner  district  of  Oneida  county,  dissolv- 
ing school  district  no.  7,  town  of  Floyd,  Oneida  county,  and  annexing  the  terri- 
tory of  the  district  so  dissolved  to  other  adjoining  school  districts  in  the  towns  of 
Floyd  and  Rome.  The  order  recites  that  the  annexation  of  tlie  territory  of  such 
dissolved  district  to  such  other  adjoining  districts  was  with  the  consent  of  School 
Commissioner  Harding  of  the  third  district  of  Oneida  county;  that  said  order 
was  filed  in  the  office  of  the  clerk  of  the  town  of  Floyd. 

The  appellants  allege  several  grounds  for  bringing  the  appeal.  School  Com- 
missioner Davis  has  answered  the  appeal  and  alleges  that  in  her  judgment  it  is 
for  the  best  educational  interests  of  the  persons  of  school  age  residing  in  such 
district  that  the  district  be  dissolved  and  its  territory  annexed  to  adjoining 
districts. 

I  do  not  deem  it  necessary  for  me  to  examine  as  to  whether  or  not  School 
Commissioner  Davis  has  wisely  exercised  the  power  and  authority  given  to  her 
by  the  school  law,  to  dissolve  school  district  no.  7  of  Floyd  and  annex  its  terri- 
tory to  other  adjoining  districts  within  her  commissioner  district,  and  acting  with 
Commissioner  Harding  to  annex  other  portions  of  its  territory  to  adjoining  school 
districts  in  the  third  commissioner  district  of  Oneida  county,  as  there  is  an  objec- 
tion to  the  validity  of  the  order  appealed  from  which  appears  to  be  fatal. 

Commissioner  Davis  could  have  made  an  order  dissolving  school  district  no. 
7  of  Floyd,  and  then  different  orders  annexing  the  territory  of  the  dissolved 
district  to  adjoining  districts  within  her  commissioner  district,  and  with  Commis- 
sioner Harding  made  orders  annexing  the  remaining  territory  to  adjoining  school 
districts  within  the  third  commissioner  district. 

She  elected  to  make  one  order  including  therein  the  dissolution  of  school 
district  no.  7  and  annexing  its  territory  to  adjoining  districts,  thereby  altering 
such  districts. 

In  the  order  appealed  from  "  all  property  of.  said  dissolved  district  belonging 
to  Messrs  Moulton,  Lawton,  Vanderpool,  Vanderhoof,  Brown,  Evans  and  Mrs 
Eunice  Crumb"  is  annexed  to  district  no.  i,  Floyd;  property  known  as  the 
Walbran  place  to  district  no.  8,  Floyd.  Like  descriptions  are  given  of  the  prop- 
erty annexed  to  districts  nos.  10  and  16,  Rome;  and  all  property  occupied  by 
Messrs  Holtby,  Pugh,  Briggs  and  Rickmyer,  to  district  no.  14,  Rome. 

This  Department  has  uniformly  held  that  in  the  description  of  territory 
forming  a  new  district,  or  annexed  to  another  district,  the  description  should  be 
so  complete  and  definite  that  a  surveyor,  at  any  future  day,  may  run  its  bound- 
aries without  reference  to  any  other  document  than  the  order  forming,  altering 
or  describing  the  territory.  For  this  purpose  the  exterior  lines  should  be  defined 
by  reference  to  natural  monuments,  marked  trees,  creeks,  etc.,  or  to  township  lines 
of  historical  notoriety,  such  as  the  lines  of  the  great  original  subdivisions  in 
great  lots,  tracts,  or  lots,  or  the  course  of  highways.  Where  these  fail,  the  courses 


JUDICIAL    DECISIONS  :    SCHOOL   DISTRICTS ALTERATION    OF  629 

and  distances  as  ascertained  by  the  compass  and  chain  should  be  given.  Bound- 
aries should  be  defined  by  known  esta1)lished  monuments  and  marks  that  survive 
the  transfer  in  the  ownership  of  the  soil.  Boundaries  by  farms  owned  by  i)er- 
sons  named,  or  other  transitory  and  perishable  lines,  however  clearly  under- 
stood at  the  time,  are  perpetually  subject  to  change,  and  in  a  few  years  become 
vague  and  uncertain,  as  the  memory  of  men  and  the  title  to  their  possessions 
pass  away.  Lines  that  coincide  with  farms  that  have  afterwards  been  cut  up  into 
smaller  lots,  or  consolidated  with  other  farms,  whereby  the  original  boundaries 
have  become  obliterated,  are  a  fruitful  source  of  contentions,  strifes  and  litiga- 
tion in  school  districts. 

The  statements  "  of  the  farm  now  owned  by,  or  the  property  of,  or  occupied 
by  A.  B."  renders  it  very  difficult  to  ascertain  what  territory  was  meant,  as  the 
ownership  or  occupation  of  land  is  continually  shifting. 

In  the  order  appealed  from  "  the  property  "  belonging  to  Messrs  Moulton 
etc.,  or  known  as  the  Walbran  place,  or  occupied  by  Messrs  Holtby,  etc.,  is 
annexed,  etc.,  whereas  certain  land  or  territory  formerly  forming  a  part  of  dis- 
solved school  district  no.  7  of  Floyd,  was  annexed  to  certain  adjoining  school 
districts.  The  Department  has,  therefore,  acted  upon  the  policy  of  setting  aside 
the  action  of  school  commissioners  in  the  alteration  of  districts  where  this  prin- 
ciple of  defining  boundaries  of  territory  annexed  to  districts  by  proper  monu- 
ments and  prominent  landmarks  is  disregarded. 

When  school  commissioners  ascertain  that  school  districts  within  their  com- 
missioner districts  are  weak  financially,  and  weak  in  the  total  resident  school 
population,  and  weak  in  the  average  attendance  upon  instruction,  the  dissolution 
of  such  weak  districts  and  the  annexation  of  the  territory  of  the  dissolved  dis- 
tricts to  adjoining  districts  will  be  approved. 

In  the  orders  made  to  carry  into  effect  such  dissolutions  and  alterations  of 
school  districts,  care  should  be  taken  by  school  commissioners  to  define  the  terri- 
tory annexed  to  the  different  districts  by  proper  monuments  and  prominent 
landmarks. 

The  appeal  herein  is  sustained. 

It  is  ordered,  That  the  order  made  by  Cora  A.  Davis,  school  commissioner 
of  the  first  commissioner  district  of  Oneida  county,  on  January  28,  1897,  i"  which 
Selden  L.  Harding,  school  commissioner  of  the  third  district  of  Oneida  county, 
joined,  dissolving  school  district  no.  7,  town  of  Floyd,  Oneida  county,  and 
annexing  the  territory  of  the  dissolved  district  to  school  districts  nos.  i  and  8, 
town  of  Floyd,  and  nos.  10,  14  and  16,  town  of  Rome,  Oneida  county,  be,  and 
the  same  is,  hereby  vacated  and  set  aside. 


630  Tilt:    UNIVERSITY    OF   THE    STATE   OF    NEW    YORK 

4427 

In  the  matter  of  the  appeal  of  George  W.  Wilson,  trustee,  school  district  no.  5, 
town  of  Lunibcrland,  Sullivan  county,  from  decision  of  local  board  in  the 
matter  of  the  alterations  of  school  districts  nos.  i  and  5,  town  of  Lumber- 
land,  Sullivan  county. 
The  alteration  of  school  districts,  solely  for  the  purpose  of  equalizing  valuations  in  dis- 
tricts afffcted,  is  against  public  policy,  and   will  not  be  sustained  by  this  Department. 
Such  puri)ose  of  equalization  of  values  may  be  an  element  for  consideration,  but  should 
not  be  the  controlling  one. 
Decided  March  3,  1896 

Skinner,  Supcriutcndcut 

John  Z.  Twichell,  school  commissioner  of  the  first  commissioner  district  of 
Sullivan  county,  on  November  22,  1895.  made  an  order  upon  the  consent  of  the 
trustee  of  school  district  no.  5,  but  without  the  consent  of  the  trustee  of  school 
district  no  i,  town  of  Cumberland,  vSullivan  county,  altering  the  boundaries  of 
said  district  no.  5  so  as  to  include  all  the  real  estate  of  lot  36  lying  south  of  the 
foot  of  the  tow  path  of  the  Delaware  and  Hudson  canal ;  and  altering  the 
boundaries  of  said  district  no.  i  so  as  to  take  out  of  said  district  that  part  of 
lot  36  north  of  the  foot  of  the  tow  path  of  said  canal  and  which  order  was  to 
take  effect  on  March  2,  1896.  That  on  December  28,  1895,  a  local  board  com- 
posed of  Commissioner  Twichell  and  Supervisor  Smith  of  the  town  of  Lumber- 
land  (the  clerk  of  said  town,  being  the  trustee  of  said  district  no.  5,  not  sitting), 
after  hearing  all  persons  desiring  to  be  heard  in  relation  to  said  order  rendered 
its  decision,  vacating  said  order  of  Commissioner  Twichell.  From  said  decision 
of  said  local  board  the  appellant  in  the  above-entitled  matter,  as  trustee  of  dis- 
trict no.  5  and  on  behalf  of  said  district,  has  taken  an  appeal. 

It  appears  that  the  aggregate  amount  of  taxable  property  in  district  no.  5 
is  $5885  and  the  amount  raised  therein  for  school  purposes  the  present  school 
year  is  $157,  the  tax  rate  being  2.67  per  cent;  that  the  aggregate  amount  of 
taxable  property  in  district  no.  i,  other  than  the  Delaware  and  Hudson  canal,  is 
$5490,  and  the  valuation  of  such  canal  company  within  the  district  is  $54,101.60, 
making  the  total  valuation  $59,590.60 ;  that  the  amount  raised  therein  for  school 
purposes  for  the  school  year  of  1894-95  is  $625,  the  tax  rate  being  .010488. 

It  further  appears  that  school  district  no.  i  was  formed  by  an  order  made 
February  18,  1850,  by  the  then  town  superintendents  of  schools  fixing  the  bound- 
aries thereof,  which  order  was  recorded  in  the  oflice  of  the  town  clerk  of  said 
town  on  March  23,  1850;  that  the  said  boundaries  had  not  been  changed  up 
to  November  22,  1895. 

It  is  admitted  by  the  parties  to  this  appeal  that  the  alteration  of  said  dis- 
tricts, as  described  in  said  order  of  Commissioner  Twichell,  so  far  as  the  inhabit- 
ants of  district  no.  5  were  concerned,  was  solely  for  the  purpose  of  increasing 
the  amount  of  taxable  property  in  the  district  by  including  within  its  boundaries 
a  section  of  said  Delaware  and  Hudson  canal.  It  appears  that  three  and  nineteen- 
twentieths  miles  of  said  canal  is  within  said  district  no.  i  and  the  order  of  Com- 


JUDICIAL    decisions:    school    districts ALTERATION    OF  63I 

missioner  Twichell  would  take  about  three-quarters  of  a  mile  of  said  canal  from 
district  no.  i  of  the  valuation  of  $10,000  and  annex  it  to  district  no.  5.  It  is  not 
claimed  that  said  order  was  made  for  the  convenience  or  benefit  of  the  residents 
of  the  territory  affected,  nor  would  it  enlarge  their  school  privileges. 

The  decision  of  the  local  board  vacating  the  order  of  Commissioner  Twichell 
was  based  upon  the  decision  of  Superintendent  Draper  in  appeal  no.  3534.  on 
November  13,  1886. 

The  facts  in  appeal  no.  3534  appear  to  have  been  that  in  district  no.  5, 
Poughkeepsie,  there  were  about  two  and  one-half  miles  of  the  New  York  Central 
Railroad,  and  no  portion  thereof  in  district  no.  i ;  that  the  order  therein  appealed 
from  cut  oft'  territory  containing  about  three-quarters  of  a  mile  of  said  railroad 
from  no.  5  and  annexed  it  to  no.  i ;  that  the  fact  was  undisguised  that  the  object 
of  the  order  was  solely  to  increase  the  valuation  of  property  in  district  no.  i. 
Superintendent  Draper  in  his  decision  said :  "  In  any  event,  I  am  not  prepared  to 
give  sanction  to  the  proposition  that  school  districts  should  be  changed  only  for 
the  purpose  of  equalizing  valuations.  Perhaps  it  may  properly  be  an  element  for 
consideration,  but  it  should  not  be  the  controlling  one.  If  districts  are  to  be 
altered  whenever,  and  only  because  one  has  more  valuable  property  than  another, 
the  result  would  be  a  constant  struggle  for  the  annexation  of  such  property,  and 
the  people  and  the  school  system  would  be  endlessly  involved  in  controversy  in 
consequence  of  it.  This  is  against  public  policy,  and  as  it  is  the  essential,  if  not 
the  only,  ground  upon  which  the  change  here  in  question  was  made,  it  can  not  be 
sustained." 

I  concur  in  the  views  stated  by  Superintendent  Draper.  Altering  school  dis- 
tricts only  for  the  purpose  of  equalizing  valuations  is  not  sustained  by  this  Depart- 
ment ;  it  may  be  an  element  for  consideration,  but  it  should  not  be  the  controlling 
one. 

The  appeal  herein  is  dismissed  and  the  decision  of  the  local  board  affirmed. 


4453 
In  the  matter  of  the  appeal  of  John  Fisher,  William  Madden,  Michael  J.  Jackson. 
Joseph  Silk  and  Walter  F.  Jeffers,  individually  and  as  trustees  of  and  com- 
posing the  board  of  education  of  union  free  school  district  no.  i.  town  of 
East  Chester,  Westchester  county,  v.  Walter  S.  Allerton,  school  commis- 
sioner, first  commissioner  district,  Westchester  county.     Charles  Dusenberry, 
jr,  and  others  v.  Walter  S.  Allerton,  school  commissioner,  etc. 
A   school   commissioner   has   no   jurisdiction   to   alter   a   school    district   until   the   trustees 
thereof   have   been   asked  and   have   given,   or   refused   to   give,   their   consent ;   a   pre- 
liminary order  altering  or  dividing  the  school  district  or  erecting  a  new   district,  is 
simply  a  step  in  the  proceeding.     It  is  the  confirmatory  order  by  which  the  district  is 
altered  or  divided  or  the  new  district  is  erected.     School  commissioners  have  no  power 
to  alter  or  divide  school  districts  upon  which  there  is  an  outstanding  bonded  indebted 


•ness. 
Decided  June  8,  li 


Herbert  D.  Lent,  attorney  for  appellants 


6^2  TIIK    UNIVEKSITV    UF    THK    STATIC    OF    NKW    YORK 

Skinner,  Superintendent 

The  two  above-entitled  appeals  are  taken  from  an  order  made  by  Walter  S. 
Alierton,  school  commissioner,  first  school  commissioner  district  of  Westchester 
county,  altering  or  dividing  union  free  school  district  no.  r,  town  of  East  Chester, 
Westchester  county,  by  taking  certain  territory  therefrom  and  forming  a  new 
school  district  to  be  known  as  district  no.  3,  town  of  East  Chester,  Westchester 
county. 

The  two  appeals  being  from  the  same  order,  they  are  consolidated  and  are 
examined  and  decided  as  one  appeal. 

The  principal  ground  upon  which  said  appeals  are  brought  is,  that  at  the 
time  of  making  the  said  order,  altering  or  dividing  said  union  free  school  district 
no.  I,  town  of  East  Chester,  said  district  had  a  bonded  indebtedness  outstanding. 
The  following  facts  are  established  by  the  proofs  filed  herein : 
That  at  the  annual  school  meeting  in  said  union  free  school  district  no.  i, 
East  Chester,  held  on  August  6,  1895,  a  resolution  w^as  duly  adopted  to  raise  by 
tax  the  sum  of  $25,000  for  the  purpose  of  purchasing  a  schoolhouse  site  and 
erecting  a   schoolhouse  thereon,  and  that  said  tax  be  levied  and  collected  by 
instalments ;  that  the  board  of  education  of  said  district,  pursuant  to  the  pro- 
visions of  the  school  law,  gave  public  notice  that  bonds  for  sai  1  $25,000  would 
be  sold  on  January  27,  1896,  said  bonds  to  bear  interest  from  March  r,  1896,  and 
to  be  delivered  on  or  about  that  date;  that  on  January  27,  1896,  the  T3ank  of 
Mount  Vernon  submitted  to  said  board  of  education  a  bid  for  said  bonds;  that 
by  reason  of  an  injunction  granted  by  the  Supreme  Court  restraining  the  sale  of 
said  bonds  no  action  was  taken  by  said  board  of  education  upon  bids  received  for 
said  bonds  until   February   10,    1896    (said  injunction  having  been  vacated  on 
February  7,   1896),  when  said  board  notitied  said  bank  that  its  bid  had  been 
accepted  and  said  bonds  awarded  to  it,  and  that  said  bonds  would  be  delivered  to 
said  bank  on  or  about  March  i,  1896;  that  on  March  4,  1896,  said  board  of  edu- 
cation delivered  said  bonds  amounting  to  $25,000  to  said  Bank  of  Mount  Vernon, 
and  received  from  said  bank  therefor  the  sum  of  $25,400,  being  the  face  thereof 
and  the  premium  thereon ;  that  on  or  about  labruary  10  a  petition  was  presented 
to  the  respondent.  School  Commissioner  Alierton,  asking  him  to  alter  or  divide 
said  union  free  school  district  no.   i  by  taking  therefrom  certain  territory  and 
erecting  said  territory  into  a  new  school  district;  that  on  February  13,  1896,  said 
Commissioner  Alierton  wrote  to  the  president  of  the  board  of  education  of  said 
union  free  school  district  no.  i,  informing  him  of  the  filing  of  said  petition  and 
asking  if  the  trustees  would  consent  to  the  erection  of  the  proposed  new  district, 
and  on  March  4.   1896.  said  Alierton  received  a  letter  from  said  board  dated 
March  2.  1896.  informing  him  that  said  board  had  refused  to  give  its  consent; 
that  on  March  6,  1896,  said  Commissioner  Alierton  made  a  preliminary  order 
erecting  said  new  school  di.strict,  to  be  known  as  district  no.  3,  East  Chester,  to  be 
composed  of  territory  theretofore  contained  in  said  union  free  school  district  no. 
I.  and  reciting  therein  that  the  trustees  of  said  district  did  not  consent  to  said 
order,  and  which  order  was  filed  with  the  town  clerk  of  the  town  of  East  Chester; 


JUDICIAL    decisions:    school   districts ALTERATION    OF  633 

that  on  March  14,  1896,  said  Allerton  gave  notice  in  writing  to  the  trustees  of 
said  district  no.  i,  East  Chester,  that  011  March  25,  1896,  at  8  o'clock  in  the  even- 
ing he  would  attend  at  the  office  of  the  town  clerk  of  the  town  of  East  Chester, 
at  Tuckahoe,  to  hear  ohjections  to  the  erection  of  said  new  school  district;  that 
in  pursuance  of  said  notice  the  said  Allerton  did  attend  at  the  time  and  place 
stated  in  said  notice,  and  due  opportunity  was  given  to  all  persons  who  desired 
to  be  heard  to  present  their  objections,  and  all  such  persons  were  heard,  the  prin- 
cipal objection  as  stated  being  that  said  union  free  school  district  no.  i.  East 
Chester,  could  not  be  legally  altered  or  divided,  as  there  was  upon  said  district 
an  outstanding  bonded  indebtedness;  that  afterward  said  Commissioner  Aller- 
ton decided  to  confirm  said  preliminary  order  made  by  him  on  March  6,  1896, 
and  made  his  confirmatory  order  dated  March  25,  1896,  erecting  said  new  school 
district  out  of  territory  theretofore  contained  in  said  district  no.  I,  thereby  con- 
sequently altering  and  dividing  said  district  no.  i,  which  confirmatory  order  was 
to  take  efifect  on  June  10,  1896,  and  which  order  was  filed  with  the  town  clerk  of 
the  town  of  East  Chester  on  March  31,  1896. 

Section  30  of  article  5,  title  8,  of  the  Consolidated  School  Law  of  1894, 
among  other  things,  enacts  "  And  the  school  commissioner  having  jurisdiction 
may  alter  any  union  free  school  district  whose  limits  do  not  correspond  with 
those  of  any  incorporated  village  or  city,  in  the  manner  provided  by  title  6  of 
this  act,  but  no  such  district  shall  be  altered  or  divided  upon  which  there  is  an 
outstanding  bonded  indebtedness." 

In  section  6,  title  6,  of  said  Consolidated  School  Law  of  1894,  it  is  enacted: 
"  He  (school  commissioner)  may  alter  the  boundaries  of  any  union  free  school 
district  whose  limits  do  not  correspond  with  those  of  any  city  or  incorporated 
village,  in  like  manner  as  alterations  of  common  school  districts  may  be  made 
as  herein  provided ;  but  no  school  district  shall  be  altered  or  divided  which  has 
any  bonded  indebtedness  outstanding." 

The  application  to  Commissioner  Allerton  to  alter  or  divide  said  district 
no.  I  by  taking  therefrom  certain  territory  and  erecting  said  territory  into  a 
new  school  district,  was  made  about  P^bruary  10,  1896,  but  it  was  not  until 
March  4,  1896,  that  he  was  informed  by  the  trustees  of  said  district  no.  i 
that  they  refused  their  consent  to  such  alteration  of  their  district. 

This  Department  has  held  that  a  school  commissioner  has  no  jurisdiction  to 
alter  a  school  district  until  the  trustees  thereof  have  been  asked  and  have  given, 
or  refused  to  give  their  consent.  Commissioner  Allerton,  therefore,  had  no  juris- 
diction to  make  any  order  in  the  premises  until  March  4,  1896,  and  it  appears 
he  did  not  make  any  order  until  March  6,  1896. 

It  is  clear  that  on  March  4,  1896,  there  was  upon  said  union  free  school 
district  no.  i,  East  Chester,  an  outstanding  bonded  indebtedness,  and  that  said 
district  had  a  bonded  indebtedness  outstanding  of  $25,000,  and,  therefore,  under 
the  provisions  of  the  school  law,  said  Commissioner  Allerton  was  forbidden  to 
alter  or  divide  said  district. 

The  preliminary  order  of  March  6,  1896,  did  not  alter  or  divide  said  district 
or  erect  a  new  district,  but  was  inchoate,  simply  a  step  in  the  proceeding,  and 


634  THE    UNIVERSITY    OF    THE    STATE   OF    NEW    YORK 

of  no  efTcct  whatever  until  the  same  was  confirmed  by  his  action,  or  that  of  the 
local  board,  if  the  supervisor  and  town  clerk  were  associated  with  the  com- 
missioner upon  the  hearing  of  objections,  at  the  re(|ucst  of  the  trustees  of  district 
no.  I,  inider  the  provisions  of  the  school  law. 

It  was  the  confirmatory  order  of  March  25,  1896,  which,  by  its  terms,  was 
not  to  take  effect  until  June  10,  1896;  that  said  alteration  or  division  of  said 
district,  and  the  erection  of  the  new  district,  could  be  made  and  become  operative, 
and  on  and  since  March  4,  1896,  said  union  free  school  district  no.  i,  East 
Oiester,  had  and  has  a  bonded  indebtedness  outstanding. 

As  the  provisions  of  the  school  law  prohibited  the  alteration  or  division  of 
said  school  district,  I  have  not  deemed  it  necessary  to  consider  any  other  question 
presented  by  the  appeals  herein. 

The  appeals  are  sustained. 

It  is  ordered,  That  the  preliminary  order  made  by  Walter  S.  Allerton,  school 
commissioner,  on  March  6,  1896,  and  the  confirmatory  order  made  by  him  on 
March  25,  1896,  altering  and  dividing  union  free  school  district  no.  i,  town  of 
East  Chester,  Westchester  county,  and  the  erection  of  a  new  school  district,  to 
be  known  as  school  district  no.  3,  town  of  East  Chester,  Westchester  county, 
out  of  territory  heretofore  contained  in  said  union  free  school  district  no.  i, 
are,  and  each  of  them  is,  hereby  vacated  and  set  aside. 


3512 

William  Morrison,  as  sole  trustee  of  school  district  no.  i,  towns  of  Stockport 
and  Greenport,  Columbia  county,  N.  Y.,  from  an  order  of  the  school  com- 
missioners of  Columbia  county,  and  an  order  affirming  the  same,  altering 
school  districts  no.  i,  Stockport  and  Greenport,  and  no.  2,  Stockport. 

Alteration  of  school  districts  is  a  purely  statutory  proceeding.    Provisions  of  title  6,  chapter 

555,  Laws  of  1864,  must  be  strictly  followed. 
When  a  school  district  lies  within  two  commissioner  districts,  one  commissioner  can   not 

alter  or  divide  it. 
Town  officers  are  not  authorized  to  proceed  to  hear  objections  to  the  alteration  of  a  school 

district  lying  in  two  commissioner  districts,  or  to  make  any  order  in  the  premises  unless 

both  commissioners  attend. 
The  preliminary  order  for  the  formation  of  a  naw  district,  in  case  the  trustees  refuse  to 

consent  thereto,  provided  for  in  section  3,  title  6  of  the  Consolidated  School  Act,  is 

inchoate  and  of  no  effect,  until  confirmed  by  the  order  provided  for  in  section  4. 
Decided  July  24,  1886 

Draper,  Superintendent 

This  is  a  proceeding  by  William  Morrison,  sole  trustee  of  school  district 
no.  I,  Stockport  and  Greenport,  Columbia  county,  N.  Y.,  appealing  from  an  order 
made  by  the  school  commissioners  of  Columbia  county  on  the  26th  day  of 
January  1886,  altering  school  districts  no.  i,  Stockport  and  Greenport,  and  no.  2, 


JUDICIAL    decisions:    school    districts  —  ALTERATION    OF  635 

Stockport,  by  taking  a  part  of  the  territory  of  the  former  district  and  adding  it 
to  the  latter,  and  from  the  order  of  the  local  board  confirming  such  order  on 
the  8th  day  of  February  1886. 

The  objections  raised  to  the  proceedings  appealed  from  are: 

1  That  the  confirmatory  order  is  void  for  the  reason  that  the  school  com- 
missioner of  the  first  commissioner  district  did  not  unite  in  the  same. 

2  That  the  local  board  was  without  jurisdiction  for  the  reason  that  the 
supervisor  and  town 'clerk  of  Greenport  had  not  been  requested  to  participate 
in  the  proceedings  thereof  by  the  trustees  of  district  no.  i. 

3  That  great  wrong  and  injustice  will  be  done  district  no.  i,  by  the  alteration. 
The  facts  relating  to  the  procedure  are  as  follows:     On  the  26th  day  of 

January  1886,  Oliver  W.  Hallenbeck,  school  commissioner,  of  the  first  commis- 
sioner district  of  Columbia  county,  and  Peter  Silvernail,  school  commissioner 
of  the  second  commissioner  district,  duly  made  and  filed  their  order  altering 
school  districts  no.  i,  Stockport  and  Greenport,  and  no.  2,  Stockport,  by  taking 
part  of  the  territory  of  no.  i  and  adding  it  to  no.  2.  The  trustee  of  district 
no.  2,  John  P.  Van  Buren,  duly  consented  to  said  alteration,  and  the  trustee 
of  district  no.  I,  William  Morrison,  dissented,  as  recited  in  the  order.  It 
appears  that  district  no.  2  lies  wholly  in  the  second  commissioner  district  of  the 
county,  and  district  no.  I  partly  in  the  second  and  partly  in  the  first  commissioner 
district.  The  trustee  of  district  no.  i  not  consenting  to  the  alteration,  the  order 
was  made  to  take  effect  not  until  the  15th  of  May  1886.  Copies  of  the  commis- 
sioners' order,  and  of  the  assent  and  dissent  of  the  trustees  of  the  respective 
districts  were  filed  in  the  town  clerks'  offices  of  the  towns  of  Stockport  and 
Greenport  on  the  27th  day  of  January  1886.  On  the  29th  day  of  January  18S6, 
notice  was  served  by  the  commissioners  on  the  trustees  of  both  districts,  that  on 
the  8th  day  of  February  1886,  at  10.30,  a.  m.,  at  Kittle's  Hall,  in  Stockport, 
they  intended  to  make  a  final  order  for  the  alteration  of  said  school  districts. 

The  trustees  of  school  district  no.  2  notified  the  supervisor  and  town  clerk 
of  Stockport  of  the  intention  of  the  commissioners,  and  requested  them  to  be 
associated  with  the  commissioners  at  such  time  and  place.  The  trustee  of  school 
district  no.  i  did  not  request  the  supervisor  and  town  clerk  of  Greenport  to  be 
associated  with  the  commissioner.  It  further  appears  that  on  the  8th  day  of 
February  1886,  at  10.30,  a.  m.,  and  at  Kittle's  Hall,  in  Stockport,  pursuant  to 
the  notices  aforesaid,  the  commissioner  of  the  second  commissioner  district  of 
the  county,  and  the  supervisor  and  town  clerks  of  Stockport  and  Greenport  met 
and  made  an  order  afiirming  the  original  order.  This  order  was  duly  filed  in 
the  proper  town  clerks'  offices. 

The  alteration  of  school  districts  is  a  purely  statutory  proceeding,  and  the 
provisions  of  title  6,  chapter  555,  Laws  of  1864,  must  be  strictly  followed. 

In  the  case  before  me,  the  first  objection  urged  to  the  proceeding  is,  that 
the '-commissioner  of  the  first  commissioner  district  did  not  unite  in  the  con- 
firmatory order  made  February  8,   1886,  and  it  becomes  necessary  to  examine 


636  THE    UNIVERSITY    OF    THE    STATE   OF    NEW    YORK 

the  question  as  to  whether  it  was  necessary  for  both  commissioners  to  unite  in 
this  order. 

The  sections  under  which  this  alteration  was  made  are  3  and  4  of  title  6 
of  the  act  referred  to,  and  read  as  follows : 

"  §  3  If  the  trustees  of  any  such  district  refuse  to  consent,  he  may  make 
and  tile  with  the  town  clerk  his  order  making  the  alteration,  but  reciting  the 
refusal,  and  directing  that  the  order  shall  not  take  efifect  as  to  the  dissenting 
district  or  districts  until  a  day  therein  to  be  named,  and  not  less  than  three  months 
after  the  notice  in  the  next  section  mentioned. 

"  §  4  Within  ten  days  after  making  and  filing  such  order  he  shall  give 
at  least  a  week's  notice,  in  writing,  to  one  or  more  of  the  assenting  and  dissenting 
trustees  of  any  district  or  districts  to  be  afifectcd  by  the  proposed  alterations, 
that  at  a  specified  time  and  a  named  place  within  the  town  in  which  either  of  the 
districts  to  be  afTected  lies,  he  will  hear  the  objections  to  the  alterations.  The 
trustees  of  any  district  to  be  affected  by  such  order  may  request  the  supervisor 
and  town  clerk  of  the  town  or  towns  within  which  such  district  or  districts  shall 
wholly  or  partly  lie  to  be  associated  with  the  commissioner.  At  the  time  and 
place  mentioned  in  the  notice  the  commissioner  or  commissioners,  with  the  super- 
visor and!  town  clerks  if  they  shall  attend  and  act,  shall  hear  and  decide  the 
matter;  and  the  decision  shall  be  final,  unless  duly  appealed  from.  Such  decision 
must  either  confirm  or  vacate  the  order  of  the  commissioner,  and  must  be 
filed  with  and  recorded  by  the  town  clerk  of  the  town  or  towns  in  which  the 
district  or  districts  affected  shall  lie." 

I  must  examine  first  what  jurisdiction,  in  respect  to  territory,  commissioners 
have.  Section  i  of  this  title  reads,  "  it  shall  be  the  duty  of  each  school  commis- 
sioner in  respect  to  the  territory  within  his  district: 

I  To  divide  it,  so  far  as  practicable,  into  a  convenient  number  of  school  dis- 
tricts, and  alter  the  same  as  herein  provided.'' 

The  significance  of  subdivision  i  of  section  i  can  readily  be  seen. 

The  jurisdiction  of  a  school  commissioner  to  alter  districts  is  thereby 
extended  only  over  the  territory  of  his  own  commissioner  district.  But  school 
districts  frequently  lie  in  two  or  more  school  commissioner  districts,  and,  in 
such  cases,  the  jurisdiction  of  one  commissioner  not  extending  over  the  whole 
territory,  section  6  of  the  same  title  provides,  that  "  the  commissioners  within 
whose  districts  any  such  school  district  lies,  or  a  majority  of  them,  may  alter 
or  dissolve  it." 

School  district  no.  i,  Stockport  and  Greenport,  lies  within  two  school  com- 
missioner districts.  For  this  reason  one  commissioner  can  not  alter  or  divide  it, 
but  under  the  authority  in  section  6  "  the  commissioners,  or  a  majority  of  them,'' 
may  make  any  alteration  or  dissolution  thereof.  One  not  being  a  majority  of 
two,  it  will  require  the  concurrent  action  of  both  commissioners  to  make  an 
alteration  of  this  district.  This  presents  the  question  as  to  when  or  by  which 
order  the  alteration  takes  effect.     A  long  line  of  decisions  upon  this  point,  in 


JUDICIAL    DECISIONS  :    SCHOOL    DISTRICTS  —  ALTERATION    OF  637 

which  the  effect  of  the  two  orders,  provided  for  in  cases  similar  to  the  one  here, 
are  ably  discussed,  strengthens  me  in  the  conclusion  that  the  preliminary  order 
provided  for  in  section  3  is  inchoate  and  of  no  effect  whatever  until  the  same 
has  been  duly  confirmed  as  provided  for  in  section  4.  If,  after  making  the 
first  or  preliminary  order,  no  further  proceeding  is  taken,  the  alteration  is  not 
affected.  "  The  commissioner  or  the  commissioners,  with  the  supervisors  and 
town  clerks,  if  they  shall  attend,  shall  hear  and  decide  the  matter."  "  Such 
decision  must  either  confirm  or  vacate  the  order  of  the  commissioner."  This 
language  of  the  statute,  and  the  construction  that  must  be  placed  upon  it  is,  that 
when  a  preliminary  order  for  the  alteration  of  a  school  district  has  been  made, 
and  the  time  fixed  for  the  hearing  of  objections  thereto,  the  commissioner,  if  the 
districts  affected  by  the  order  lie  in  one  commissioner  district,  or  the  commis- 
sioners, when  the  districts  are  located  in  two  or  more  commissioner  districts, 
shall  hear  and  decide  the  matter  and  enter  an  order  vacating  or  confirming  the 
preliminary  order.  The  commissioner  "  shall  attend,"  the  statute  says.  The 
attendance  of  the  supervisors  and  town  clerks  is  provided  for,  so  that  their  respec- 
tive towns  may  have  a  voice  in  the  decision  of  the  matter,  but  the  statute  does 
not  say  they  "  shall  attend." 

The  absence  of  the  town  officers  from  the  board  will  not  in  any  way  prevent 
the  commissioner  or  commissioners  from  acting,  or  invalidate  the  proceedings 
taken  by  the  commissioners  at  the  time  fixed  for  the  hearing  of  the  objections, 
otherwise  regular.  But  if  the  commissioners  do  not  attend,  the  town  officers 
are  not  authorized  by  law  to  make  any  order  in  the  premises,  and  the  preliminary 
order  must  fall.  In  this  case  the  school  commissioner  of  the  first  commissioner 
district  did  not  attend  the  meeting  on  the  8th  of  February  1886,  for  the  purpose 
of  hearing  objections,  and  did  not  unite  with  the  other  commissioner  in  the  con- 
firmatory order.  The  confirmatory  order  is  the  one  by  which  the  alteration  of 
the  districts  is  affected,  and  the  first  order,  merely  preliminary,  being  in  fact 
but  one  step  in  the  procedure  for  the  alteration,  and  if  not  followed  by  the  sub- 
sequent statutory  requirements,  it  is  void. 

The  direction  of  the  statute,  the  "  commissioner  shall  attend,"  was  not  com- 
plied with. 

The  school  conmiissioner  of  the  second  commissioner  district  had  no  author- 
ity under  the  statute  to  make  an  order  altering  a  school  district  lying  wholly  or 
partly  in  another  commissioner  district.  The  failure  of  the  commissioner  of  the 
first  district  to  unite  in  the  confirmatory  order  renders  the  proceedings  irregular, 
and  the  orders  appealed  from  must  be  set  aside. 

The  disposition  of  the  foregoing  questions  makes  it  unnecessary  to  examine 
the  other  objections  raised  by  the  appellants. 

The  appeal  is  sustained,  and  the  order  appealed  from  hereby  vacated  and 
set  aside. 


638  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

3635 

III  tlie  matter  of  the  appeal  of  John  C.  Keller  and  Willis  Baldwin,  trustees  of 
school  district  no.  2,  town  of  Hunter,  in  the  county  of  Cireene,  v.  Henry  B. 
W'hitconih,  school  commissioner  of  the  first  commissioner  district  of  Greene 
county. 

The  power  given  to  a  school  commissioner  to  divide  a  school  district  is  purely  statutory,  and 
the  commissioner  must  follow  the  provisions  of  the  statutes  literally  and  fully. 

Order  vacated  because  of  failure  to  do  so. 

The  advisal>ility  of  dividing  a  village  into  two  districts,  with  two  small  schools,  instead  of 
ct)ntinuing  as  one  district  with  a  good-sized  school,  questioned  and  disapproved. 

Decided  September  19,  1887 

Clarence  E.  Bloodgood,  Esq.,  attorney  for  appellant 
Hallock,  Jennings  &  Chase,  attorneys  for  respondent 

Draper,  Superintendent 

This  is  an  appeal  by  the  trustees  of  district  no.  2  of  the  town  of  Hunter, 
Greene  county,  from  an  order  made  by  the  respondent  upon  the  19th  day  of 
October  1886,  and  also  from  an  order  made  by  said  commissioner  on  the  19th 
day  of  November  1886,  confirming  the  first  mentioned  order,  by  which  orders 
a  portion  of  said  district  no.  2  was  set  ofif  and  constituted  a  separate  school  dis- 
trict, to  be  known  as  district  no.  11. 

The  appellants  claim  that  the  proceedings  of  the  commissioner  were  irregu- 
lar, and  that,  whether  they  were  or  not,  the  order  appealed  from  is  inadvisable 
as  being  against  the  best  interests  of  education  in  the  locality. 

It  is  claimed  that  the  proceedings  were  irregular,  in  that  the  first  order  was 
made  without  the  consent  of  the  trustees  of  the  district  affected,  and  that  no 
such  notice  as  the  statute  requires  was  given  that  the  commissioner  would  hear 
objections,  at  a  specified  time  and  place,  to  the  alterations  made  in  the  order. 

The  notice  given  was  as  follows : 

To  the  Trustees  of  District  No.  2,  in  the  Toxvn  of  Hunter,  Greene  County,  N.  Y.: 
Take  notice  that  I  intend,  on  the  8th  day  of  November  next,  at  two  o'clock 
in  the  afternoon  of  that  day,  at  the  residence  of  Samuel  S.  Mulford,  in  the  town 
of  Hunter.  Greene  county,  New  York,  to  make  an  order  for  the  alteration  of 
school  district  no.  2,  in  the  town  of  Hunter,  aforesaid,  by  cutting  off  a  portion 
of  the  same  and  forming  a  new  school  district,  to  be  known  as  district  no.  11, 
of  said  town. 

The  portion  of  said  district  no.  2,  so  to  be  cut  off  and  to  form  said  new 
district,  is  bounded  and  described  as  follows,  viz :  Bounded  on  the  north  by  the 
north  lines  of  lots  nos.  2,  3,  4,  5  and  6,  in  great  lot  no.  24,  west  part  of  the 
Hardenburgh  patent;  east  by  the  west  line  of  the  east  half  of  said  great  lot  no. 
24,  Hardenburgh  patent;  south  by  the  height  of  lands  next  south  of  the  Schoharie 
kill,  and  west  by  a  line  drawn  parallel  with  said  lot  lines  and  crossing  the  high- 
way running  through  the  village  of  Hunter  at  the  division  line  between  the  lands 
of  W'm.  F.  Greene  and  the  lands  occupied  by  William  A.  Douglass  —  excepting 
therefrom  the  house  and  lands  on  lot  no.  5  of  said  great  lot  no.  24,  west  part  of 


JUDICIAL    DECISIONS  :    SCHOOL   DISTRICTS  —  ALTERATION    OF  639 

Hardenbiirgh  patent,  formerly  occupied  by  Michael  Sax;  also  excepting  there- 
from the  farm  and  lands  on  the  easterly  side  thereof,  now  occupied  by  Samuel 
Brown. 

You  are  therefore  requested  to  meet  without  delay  and  to  adopt  a  resolution 
consenting  to  the  above  proposed  alteration,  in  which  case  you  will  please  furnish 
me  at  the  same  time  and  place  above  mentioned  with  a  copy  thereof,  certified 
under  the  hands  of  a  majority  of  you,  or  to  adopt  a  resolution  applying  to  the 
supervisor  and  town  clerk  of  Hunter  aforesaid  to  be  associated  with  me  at  the 
time  and  place  above  mentioned  in  determining  on  the  propriety  of  such  proposed 
alteration. 

In  the  latter  case  you  will  please  transmit  copies  of  such  resolution,  certified 
under  the  hand  of  a  majority  of  you,  to  the  supervisor  and  town  clerk  without 
delay,  together  with  a  notice  of  the  time  and  place  above  stated  at  which  such 
alteration  will  be  made  by  me  in  case  of  their  nonattendance. 

Dated  October  lo,  1886. 

Henry  B.  Whitcomb 

School  Commissioner 

Section  4  of  title  7  of  the  Consolidated  School  Act  provides  that  "  Within 
ten  days  after  making  and  filing  such  order,  he  (the  commissioner)  shall  give 
at  least  a  week's  notice,  in  writing,  to  one  or  more  of  the  assenting  and  dissent- 
ing trustees  of  any  district  or  districts  to  be  affected  by  the  proposed  alterations, 
that  at  a  specified  time  and  at  a  place  named  within  the  town  in  which  either  of 
the  districts  to  be  affected  lies,  he  will  hear  the  objections  to  the  alterations." 

It  has  always  been  held  that  the  alteration  of  school  districts  can  only  be 
efifected  by  a  strict  construction  of,  and  a  rigid  adherence  to,  all  of  the  require- 
ments of  the  statutes  relating  to  the  subject.  The  several  steps  indicated  in  the 
statutes  must  be  taken  with  care  before  the  alteration  can  be  efifected.  For 
obvious  reasons  this  ought  to  be  so.  The  individual  rights  and  interests  which 
are  involved  in  proceedings  to  alter  school  districts  are  too  numerous  and  too 
important  to  be  lightly  dealt  with.  The  courts  have  uniformly  held  that  when 
power  to  afifect  property  is  conferred  upon  those  who  have  no  personal  interest 
in  it,  such  power  can  be  exercised  only  in  the  precise  manner  specified  in  the  law 
or  instrument  conferring  the  power.  This  rule  has  always  been  rigidly  adhered 
to  by  this  Department  in  considering  appeals  from  orders  altering  the  boundaries 
of  school  districts. 

Now,  applying  these  general  principles  to  the  present  case,  we  find  that  the 
statute  requires  the  commissioner  to  give  notice  of  a  time  and  place,  when  and 
where  he  will  hear  objections  to  the  alteration.  The  gist  and  purpose  of  the 
requirement  is  that  the  trustee  and  other  persons  objecting  to  this  change  shall 
be  clearly  and  plainly  notified,  in  writing,  of  a  time  and  place  when  they  may 
have  a  public  opportunity  to  interpose  their  objections. 

The  statute  likewise  guarantees  them  the  right  of  having  the  matter  deter- 
mined only  after  such  opportunity  shall  have  been  afforded  them.  If  this 
requirement  and  this  right  were  only  technical,  they  would  have  to  be  complied 
with  and  protected;  but  it  seems  to  me  they  are  not  technical.     The  law  confers 


640  TIIK    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

upon  the  objectors  a  substantial  right  to  an  exact  and  specific  notice  of  their 
rights  in  the  premises,  and  sound  public  policy  requires  that  the  requirement 
should  be  literally  and  fully  observed.  In  my  judgment,  the  notice  givcH  by 
the  commissioner  in  this  case,  does  not  meet  the  requirement  of  the  statute.  The 
notice  starts  out  with  the  declaration  that,  upon  a  day  specified,  "  I  intend  to  make 
an  order  for  the  alteration."  The  law  provides  that  the  commissioner  shall  first 
hear  any  objections  offered,  and  then  decide  what  he  ought  to  do.  It  is  true 
that  subsequently  the  notice  contains  the  request  that  the  trustees  shall  adopt  a 
resolution  consenting  to  the  alteration  or  applying  to  the  supervisor  and  town 
clerk  to  be  associated  with  the  commissioner  "  in  determining  upon  the  propriety 
of  such  proposed  alteration."  But  it  nowhere  informs  them  of  their  right  to 
present  their  objections  directly  to  him  or  to  a  board  consisting  of  himself,  the 
supervisor  and  the  town  clerk.     I  think  the  omission  is  fatal. 

The  contention  of  the  respondents  that  the  appellants  were  not  injured  or 
misled  by  the  defect  in  the  notice,  can  not  be  sustained.  They  may  have  been. 
Ihe  fact  that  the  commissioner  followed  the  form  of  notice  laid  down  for  his 
guidance  in  the  Code  of  Public  Instruction  will  go  a  long  way  towards  exculpating 
him  from  any  charge  of  blundering,  but  it  will  not  make  the  notice  a  sufficient  one. 
In  the  later  editions  of  the  Code  the  form  of  notice  had  not  been  changed  as  it 
should  have  been,  to  conform  with  the  changes  in  the  statute. 

'Ihe  conclusions  above  set  forth,  of  course,  render  it  necessary  to  sustain 
the  appeal  and  set  aside  the  orders  appealed  from.  But  the  desire  was  expressed 
by  both  of  the  able  counsel  who  appeared  upon  the  argument  that,  in  any  event, 
the  decision  should  not  be  allowed  to  turn  solely  upon  the  question  raised  as  to 
the  regularity  of  the  proceedings,  for  the  reason  that,  if  the  order  was  set  aside, 
only  because  of  an  irregular  proceeding,  the  ground  w^ould  have  to  be  all  gone 
over  again  in  order  to  get  a  decision  of  the  case  upon  the  merits,  and  that  time, 
trouble  and  expense  would  be  saved  by  a  determination  of  the  case  upon  its 
merits  now.  In  view  of  this  I  listened  to  exhaustive  arguments,  in  which  all  that 
could  well  be  said  upon  the  merits  of  the  case  was  ably  presented. 

It  appears  that  prior  to  1880  the  territory  comprising  district  no.  2  consti- 
tuted three  school  districts,  which  were  joined  in  one  di.strict  by  the  then  school 
commissioner.  It  seems  to  be  generally  agreed  that  the  consolidation  would 
have  been  generally  approved  if  the  schoolhouse  for  the  combined  district  had 
been  located  nearer  to  the  center  of  the  village  of  Hunter.  The  alteration 
now  proposed  makes  the  division  line  to  run  nearly  through  the  center  of  the 
village.  It  would  seem  to  be  an  arbitrary  division.  Why  it  should  be  run  just 
there  it  is  difficult  to  determine.  The  advisability,  in  an  educational  point  of 
view,  of  dividing  a  single  village  into  two  school  districts,  is  doubtful.  Experi- 
ence shows  that  better  results  are  obtained  in  large  schools  where  opportunity  is 
afforded  for  suitably  grading  the  pupils,  than  in  a  small  one  where  all  ages  and 
classes  have  to  be  gathered  into  the  same  room.  It  seems  also  that  in  1882 
application  was  made  to  the  school  commissioner  to  make  the  precise  alteration 
from  the  order  making  which  an  appeal  is  now  taken,  and  that  from  his  refusal 


JUDICIAL    DECISIONS  I    SCHOOL    DISTRICTS ALTERATION    OF  04I 

to  do  SO  an  appeal  was  taken  to  this  Department  and  that  the  Superintendent 
(Gihnour)  overruled  the  appeal.  In  view  of  these  facts,  reasons  more  weighty 
than  those  now  advanced  would  have  to  be  presented,  and  a  substantial  unanimity 
of  desire  on  the  part  of  the  people  of  the  district  affected  would  have  to  be 
shown,  before  I  should  feel  justified  in  sustaining  the  suggested  division. 

The  appeal  is  sustained  and  the  orders  appealed  from  are  set  aside  and  de- 
clared void  and  of  no  effect. 


3620 

In  the  matter  of  charges  against  Charles  F.  White. 

The  order  of  a  school  commissioner  dividing  a  large  school  district  will  be  sustained  when 
it  appears  that  the  proceedings  were  regular  and  that  injustice  has  not  been  clearly 
shown,  or  that  the  action  is  manifestly  against  the  educational  interest  of  the  district. 
Trustees  are  not  bound  to  call  a  special  meeting  for  the  consideration  of  the  question 
of  dividing  a  district.  Such  a  meeting  would  have  been  entirely  proper,  but  this  is  a 
matter  the  responsibility  for  which  rests  with  the  trustees  and  the  school  commissioner. 

Neither  malfeasance  in  office  nor  immoral  character  being  shown,  the  trustees  will  not  be 
removed  from  their  offices. 

Decided  July  16,  1887 

Albert  W.  Seaman,  Esq.,  attorney  for  respondent 

Draper,  Superintendent 

The  matter  first  above  entitled  is  an  appeal  from  the  order  of  the  respondent 
made  on  the  226.  day  of  April  1887,  dividing  school  district  no.  2,  of  the  town 
of  Newtown,  and  setting  off  a  portion  of  said  district  into  a  new  school  district, 
to  be  known  as  district  no.  12. 

A  very  rancorous  controversy  has  been  going  on  in  district  no.  2  of  the 
town  of  Newtown  for  a  long  time,  which  has  been  brought  before  this  Depart- 
ment at  numerous  times  and  in  a  variety  of  forms. 

At  the  annual  school  meeting  in  the  district,  held  August  31,  1886,  action 
was  initiated  looking  to  the  construction  of  a  new  schoolhouse.  At  subsequent 
special  meetings  this  step  was  determined  upon,  and  a  new  site  was  selected 
for  the  purpose.  The  supervisor  of  the  town  refused  to  consent  to  the  change 
of  site,  and  was  overruled  by  the  Department  upon  an  appeal  taken  by  \V.  H. 
Proctor  and  others.  Agreements  were  made  for  the  purchase  of  a  new  site. 
Then  a  movement  was  started  looking  to  the  division  of  the  district.  The  board 
of  trustees  is  divided  in  opinion  as  to  the  advisability  of  such  action.  At  a 
meeting  of  the  board  held  on  the  nth  day  of  April  1887,  a  petition  was  received 
from  Joseph  B.  Denton  and  others,  asking  the  board  to  consent  to  a  division  of 
the  district.  Two  of  the  three  members  voted  to  give  such  consent;  the  third 
voted  against  it.  Taking  this  consent  as  the  basis  of  his  action,  the  school  com- 
missioner made  his  order  dividing  the  district  on  the  22d  day  of  April,  from 
which  order  this  appeal  is  taken. 
21 


64^  THE    UMVEKSITV    UF    THE    STATE   OF    NEW    YORK 

An  appeal  is  also  pending  from  the  neglect  or  refusal  of  the  board  of  trus- 
tees to  call  a  special  meeting  of  the  district  to  consider  the  matter  of  dividing 
the  district,  and  charges  are  also  pending  against  Trustees  George  \\'.  Smith 
ami  Charles  F.  White,  upon  which  it  is  asked  that  they  be  removed  from  office. 

The  voluminous  papers  bearing  upon  all  of  these  proceedings  have  been 
examined  with  care,  and  extended  arguments  of  the  various  counsel  representing 
the  different  interests  have  been  heard. 

The  most  important  of  all  of  the  proceedings  is  the  appeal  from  the  order 
of  the  commissioner  dividing  the  district.  It  was  made  u]5on  the  consent  of  a 
majority  of  the  board  of  trustees  of  the  district.  Xo  irregularity  in  the  proceed- 
ings is  shown.  It  is  objected  that  the  consent  of  the  board  preceded  the  order 
of  the  commissioner,  but  this  was  clearly  right.  The  commissioner  could  not 
have  made  the  order  he  did  except  after  such  consent  had  been  given.  It  is 
objected  also  that  there  was  no  "  deliberation  '"  in  the  board  at  the  time  of  the 
action  giving  consent  was  taken.  All  of  the  members  were  present,  and  there 
was  apj)arently  as  deliberate  procedure  as  the  heated  circumstances  would  allow. 
It  is  not  shown  that  all  of  the  provisions  of  law  governing  the  procedure  were 
not  strictly  observed.  It,  therefore,  is  only  left  for  me  to  determine  whether 
the  order  appealed  from  was  advisable. 

It  is  the  practice  of  this  Department  to  sustain  the  orders  of  school  commis- 
sioners, altering  school  districts,  where  their  proceedings  are  regular,  unless 
the  action  taken  is  .-hown  to  be  clearly  unjust  to  some  interest  which  may  be 
involved,  or  is  manifestly  against  the  educational  interests  of  the  locality. 

It  appears  that  the  assessed  valuation  of  district  no.  2  before  division  was 
about  $445,000.  The  assessed  valuation  in  the  two  districts,  after  division,  is 
respectively  $260,000  and  $184,000.  One  hundred  and  fifteen  children  of  school 
age  reside  in  the  territory  which  has  been  set  off.  The  fact,  which  is  shown  in 
the  papers,  that  less  than  twenty  of  this  number  have  heretofore  attended  the 
public  school,  seems  best  explained  on  the  ground  that  school  facilities  have 
been  either  inadequate  or  inaccessible.  The  district  is  accumulating  in  popula- 
tion. By  common  consent  added  school  accommodations  are  needed.  A  new 
schoolhouse  upon  a  new  site  is  to  be  erected.  The  site  selected  is  some  distance, 
though  not  great,  farther  from  the  proposed  new  district  than  the  one  hereto- 
fore occupied.  It  seems  doubtful  if  the  pupils  of  the  old  district  could  long  be 
accommodated  in  one  building.  It  likewise  seems  impracticable  for  all  of  the 
electors  in  so  large  a  district  to  meet  and  transact  business  intelligently  in  a 
school  meeting.    These  difficulties  will  increase  and  multiply. 

In  view  of  these  considerations,  it  is  impossible  to  say  that  the  commis- 
sioner did  not  exercise  his  discretion  wisely  in  making  the  order  appealed  from. 
It  IS  certainly  not  shown  to  my  satisfaction  that  he  did  not,  and  I  am,  therefore, 
unable  to  sustain  the  appeal. 

Desiring  to  dispose  of  all  matters  pending  before  the  Department  relating 
to  this  district,  I  also  dismiss  the  appeal  from  the  refusal  of  the  board  of  trus- 
tees to  call  a  special  meeting  of  the  district  to  consider  the  question  of  division. 


J  UDICIAL    DECISIONS  :    SCHOOL    DISTRICTS  —  ALTERATION    OF  643 

and  I  dismiss  the  charges  against  Trustees  Smith  and  White.  It  would  have 
been  entirely  proper,  and  perhaps  advisable,  for  the  board  to  have  called  a  meet- 
ing for  the  consideration  of  the  matter.  But  it  was  a  matter,  the  responsibility 
of  which  the  law  placed  upon  the  trustees,  and  they  had  the  legal  right  to  follow 
their  own  judgment  and  act  accordingly.  No  allegations  are  made  against 
Messrs  Smith  and  White  which  would  justify  their  removal  from  office.  No 
immoral  character  or  malfeasance  in  office  is  shown.  They  have  had  part  in 
the  general  conflict  of  opinion  in  the  district,  and  perhaps  have  been  headstrong 
in  carrying  out  their  opinions,  but  probably  no  more  so  than  very  many  others 
have  been  or  would  have  been  in  their  places. 

The  several  above-entitled  appeals  and  charges  are  therefore  dismissed. 


5440 

In  the  matter  of  the  appeal  of  Alfred  G.  Lewis  from  the  dissolution  and  annexa- 
tion of  school  district  no.  8,  town  of  Geneva,  Ontario  county. 

Alteration  of  boundaries  of  district;  desires  of  taxpayers  not  alone  conclusive.  Where 
an  appeal  is  brought  from  an  order  dissolving  a  school  district  and  annexing  the  terri- 
tory thereof  to  another  district,  the  fact  that  the  appellant  is  the  owner  of  a  considerable 
portion  of  the  territory  annexed  will  not  control  the  decision  of  the  appeal,  if  it  appears 
that  the  people  of  the  district  have  profited  educationally  by  the  order. 

Order  modified  so  as  to  conform  to  wishes  of  residents.  Where  a  district  is  dissolved 
and  its  territory  annexed  to  a  union  free  school  district  and  it  appears  that  the  resi- 
dents of  the  district  living  outside  of  the  city  desire  to  retain  the  school  district  organiza- 
tion and  those  residing  within  the  city  desire  to  be  annexed  to  the  union  free  school 
district,  comprising  the  greater  portion  of  such  city,  the  order  should  be  modified  so 
as  to  provide  for  the  maintenance  of  a  district  outside  of  the  city. 

Decided  February  28,  1910 

G.  M.  B.  Hawley.  attorney  for  appellants 

Draper,  Commissioner 

The  appellant,  Alfred  G.  Lewis,  owns  a  large  tract  of  land  located  outside 
of  the  city  of  Geneva,  in  former  school  district  no.  8,  town  of  Geneva,  county  of 
Ontario.  He  paid  more  than  one-quarter  of  the  school  taxes  in  such  district, 
being  assessed  for  school  purposes  in  the  sum  of  $56,270.  He  complains  of  an 
order  granted  by  W.  A.  Ingalls,  school  commissioner  of  Ontario  county,  dissolv- 
ing such  district  no.  8,  town  of  Geneva,  and  annexing  the  territory  thereof  to 
union  free  school  district  no.  i,  town  of  Geneva.  The  latter  district  comprises 
nearly  all  of  the  city  of  Geneva,  although  its  boundaries  are  not  coterminous 
with  those  of  the  city. 

It  is  clear  that  Commissioner  Ingalls  acted  in  good  faith  in  making  this  order. 
Itjs  probably  true  that  a  considerable  portion  of  the  district  would  be  benefited 
by 'annexation  to  the  union  free  school  district.  The  educational  interests  of 
certain  parts  of  district  no.  8  situated  within  the  city  limits  would  doubtless  be 


C44  THE    UNIVERSITY   OF   THE    STATE   OF   NEW   YORK 

promoted  by  such  annexation.  The  school  commissioner,  acting  under  the  advice 
of  the  Department,  directed  the  trustee  of  the  district  to  call  a  special  district 
meeting  to  vote  ui)on  a  proposition  of  raising  money  to  build  a  larger  schoolhouse. 
or  to  have  the  district  dissolved  and  annexed  to  school  district  no.  i.  Such  a 
meeting  was  held  October  11,  1909,  and  thirty  votes  were  cast  upon  the  question 
of  dissolution  and  annexation,  of  which  twenty-four  were  favorable  and  six 
opposed.  The  trustee  of  the  district  gave  his  consent  to  the  action,  and  the  board 
of  education  of  district  no.  i  also  consented.  The  order  dissolving  the  district 
and  annexing  its  territory  to  union  free  school  district  no.  I  was  entered  October 
23d.  to  take  effect  October  25,  1909. 

The  ajjpellant  insists  that  a  large  number  of  the  qualified  electors  were  not 
personally  served  with  notices  of  the  special  meeting  called  to  consider  this  ques- 
tion. The  notices  were  served  on  all  th-j  qualified  electors  so  far  as  known  to 
the  clerk  of  the  district.  It  is  apparent  that  a  number  received  no  notice,  but  the 
failure  was  not  intentional  nor  was  fraud  shown  on  the  part  of  the  clerk.  The 
meeting  was  legally  held  and  was  sufficient  to  give  the  school  commissioner  the 
required  information  as  to  the  sentiment  of  the  district  in  respect  to  annexation. 
After  this  meeting  those  living  outside  of  the  city  proposed  that  the  order  of 
dissolution  and  annexation  be  set  aside  and  a  new  order  be  granted  dividing  the 
district  at  the  city  line,  and  establishing  a  new  district  out  of  that  part  of  the  old 
district  which  was  situated  outside  of  the  city.  This  proposition  was  not  voted 
upon  at  the  special  meeting.  The  appellant  caused  petitions  to  be  circulated 
among  the  taxpayers  of  the  fonner  district  for  the  purpose  of  ascertaining  what 
the  district  thought  about  this  method  of  settling  the  controversy.  It  is  appar- 
ent that  the  greater  part  of  these  taxpayers  desire  a  division  of  the  district,  and 
the  annexation  of  that  part  within  the  city  to  district  no.  i.  The  appellant  asks 
that  the  order  be  annulled  and  that  the  school  commissioner  be  directed  to  issue 
an  orded  dividing  the  district  in  accordance  with  this  petition. 

The  fact  that  the  appellant  is  the  largest  taxpayer  of  the  district,  owning  a 
considerable  portion  of  the  territory  thereof,  should  not  control  the  decision  of 
this  appeal.  It  will  be  his  duty,  as  well  as  that  of  every  other  taxpayer,  to  pay 
what  is  required  for  the  most  advantageous  advancement  of  the  educational 
interests  of  the  community.  The  petition  asking  the  annulment  of  the  order 
appealed  from  is  signed  by  taxpayers  and  does  not  seem  to  have  been  presented 
to  those  electors  who  have  children  in  attendance  at  school,  or  who  rent  taxable 
property-  within  the  district.  The  opinions  of  such  persons  are  entitled  to  the  same 
consideration  as  are  the  opinions  of  those  who  pay  taxes.  An  appeal  based  solely 
upon  the  assertion  that  the  appellant's  financial  interests  are  adversely  affected 
by  the  act  conaplained  of,  will  receive  little  attention,  especially  if  it  appears  that 
the  district  has  profited  educationally  by  such  act.  Notwithstanding  this  defect. 
it  clearly  appears  that  nearly  all  of  those  living  in  the  former  district,  outside 
of  the  city,  are  favorable  to  the  establishment  of  a  new  district  out  of  that  terri- 
tory;  it  also  seems  that  a  majority  of  those  within  the  city  are  willing  to  be 
annexed  to  the  city. 


JUDICIAL    DECISIONS  :    SCHOOL   DISTRICTS ALTERATION    OF  645 

The  question  of  the  effect  of  the  annuhnent  of  this  order  and  a  subsequent 
division  along  the  hue  suggested,  upon  the  educational  prosperity  of  the  com- 
munity, must  be  first  considered.  The  assessed  valuation  of  that  part  of  district 
no.  8,  lying  without  the  city  limits,  is  $99,750,  and  of  that  within  the  city  limits 
is  $85,904.  There  are  at  least  sixteen  pupils  living  within  that  part  of  the  dis- 
trict outside  of  the  city  who  have  been  attending  the  school  in  such  district  since 
its  annexation  to  the  city  district.  It  is  evident  therefore  that  that  part  of  former 
district  no.  8  is  strong  enough  financially  and  in  number  of  pupils  to  maintain  a 
thoroughly  efficient  elementary  school.  The  educational  strength  of  this  com- 
munity will  not  be  lessened  by  the  maintenance  of  a  small  school,  with  a  com- 
petent teacher,  under  a  trustee  who  is  reasonably  desirous  of  promoting  the 
educational  welfare  of  his  own  and  his  neighbors'  children. 

It  would  not  be  just  to  disregard  the  wishes  of  those  living  outside  the  city 
and  within  the  confines  of  the  former  district,  if  such  wishes  may  be  carried  out 
without  seriously  affecting  the  interests  of  the  school  or  of  the  community.  It 
is  therefore  incumbent  upon  me  to  sustain  the  appeal.  The  school  commissioner 
should  make  a  new  order  annexing  to  union  free  school  district  no.  i  all  that 
part  of  district  no.  8  which  lies  within  the  city  of  Geneva  and  altering  the 
boundaries  of  district  no.  8  so  as  to  include  only  so  much  of  its  territory  as  lies 
outside  of  such  city.  The  board  of  education  of  union  free  school  district  no.  i 
was  made  a  party  to  this  appeal.  The  board  did  not  answer,  so  that  it  may  be 
assumed  that  they  have  acquiesced  in  the  relief  sought.  The  board  will  there- 
fore doubtless  agree  to  the  annexation  of  that  part  of  district  no.  8  which  lies 
within  the  city  limits. 

In  sustaining  this  appeal  the  fact  should  be  emphasized  that  the  Commis- 
sioner of  Education  has  not  been  influenced  by  the  argument  that  tlie  order 
appealed  from  has  imposed  an  added  burden  of  taxation  for  school  purposes 
upon  the  taxpayers  of  the  district.  The  tax  of  $6.78  per  thousand  is  not  too 
much  to  pay  for  the  privileges  of  a  school  system  such  as  that  maintained  by  the 
city  of  Geneva.  The  taxpayers  and  patrons  of  the  school,  living  in  district  no.  8 
outside  the  city,  desire  to  run  their  own  school.  The  privilege  will  be  granted 
them,  but  with  the  distinct  understanding  that  liberal  appropriations  must  be 
made  for  repairs  and  alterations,  apparatus  and  equipment,  and  teacher's  salary. 
The  appellant  and  others  who  have  joined  with  him  in  the  petition  will  be  held 
personally  accountable  for  the  maintenance  of  a  first-class  school  in  this  district. 
If  there  be  any  failure  in  this  regard  the  school  commissioner  will  be  directed  to 
issue  an  order  dissolving  the  district  and  annexing  it  to  union  free  school  dis- 
trict no.  I. 

The  appeal  is  sustained. 

It  is  hereby  ordered.  That  the  order  executed  by  Willis  A.  Ingalls,  school 
commissioner  of  the  first  school  commissioner  district,  county  of  Ontario,  dis- 
solving school  district  no.  8.  town  of  Geneva,  and  annexing  its  territory  to  union 
fre'e ^.school  district  no.  i,  town  of  Geneva,  which  order  was  dated  October  23, 
1909,  and  filed  in  the  office  of  the  town  clerk  of  such  town  on  October  25,  1909, 
is  herebv  revoked  and  set  aside. 


646  THE    L'NIVI:KS1TY    of    the    state    of    new    YORK 

It  is  hereby  ordered.  That  the  order  executed  by  Willis  A.  Ingalls,  forthwith 
take  such  action  as  may  be  required  under  article  2  of  the  Education  Law  to 
alter  the  boundaries  of  said  school  district  no.  8,  town  of  Geneva,  and  union  free 
school  district  no.  i.  so  that  all  of  that  part  of  such  district  no.  8,  as  lies  within 
the  limits  of  the  city  of  (icneva,  shall  be  annexed  to,  and  become  a  part  of,  union 
free  school  district  no.  i. 


5354 

In  the  matter  of  the  appeal  of  Benjamin  F.  ■Milks  from  the  action  of  School 
Commissioner  J.  D.  Jones  of  the  second  school  commissioner  district  of 
Allegany  county  in  making  orders  dissolving  school  district  no.  6,  town  of 
Amity,  and  annexing  portions  thereof  to  school  districts  no.  i,  town  of 
Scio,  and  no.  5,  town  of  Amity 

The  fact  that  certain  residents  of  a  district  will  be  somewhat  farther  removed  from  a 
schoolhouse  though  still  within  a  reasonable  distance  of  one  as  such  distances  are 
uoually  determined  in  rural  districts  should  not  be  regarded  as  sufficient  ground  to 
defeat  the  plan  to  give  a  community  affected  the  school  facilities  which  would  follow 
from  the  action  complained  of. 

Decided  October  3,  1907 

D.  D.  Dickson,  attorney  for  appellant 
Jesse  L.  Grantier,  attorney  for  respondent 

Draper,  Commissioner 

(3n  June  15,  1907,  John  D.  Jones,  school  commissioner  of  the  second  school 
commissioner  district  of  Allegany  county,  made  an  order  dissolving  school  dis- 
trict no.  6.  town  of  Amity.  On  the  same  date  he  also  made  concurrent  orders 
annexing  the  northern  portion  of  such  district  to  district  no.  5,  Amity,  and  the 
southern  portion  of  such  district  to  district  no.  I,  Scio.  This  appeal  is  brought 
by  Benjamin  E.  Milks  who  was  trustee  of  school  district  no.  6,  .Amity,  at  the 
time  the  school  commissioner  made  the  order  of  dissolution.  It  appears  that 
there  had  been  considerable  discussion  previous  to  the  issuance  of  these  orders 
in  relation  to  the  annexation  of  the  whole  of  district  no.  6  to  district  no.  i.  To 
this  proposition  the  residents  of  district  no.  6  appeared  to  have  been  unanimously 
opposed.  It  appears  that  every  resident  voter  of  the  district  petitioned  the  school 
commissioner  in  opposition  to  such  annexation. 

The  commissioner  did  not  make  an  order  annexing  the  whole  of  such  dis- 
trict to  district  no.  i,  Scio.  He  dissolved  the  district  and  annexed  one  portion 
to  the  district  north  of  no.  6  and  the  other  portion  to  the  district  south  of  it. 
There  is  nothing  in  the  pleadings  to  show  the  exact  attitude  of  the  residents  of  no. 
6  upon  the  orders  which  the  school  commissioner  did  make.  No  meeting  of  the 
voters  of  the  district  appears  to  have  been  held.  The  trustee  was  not  directed 
by  vote  of  the  district  to  bring  this  proceeding.     He  undoubtedly  represents  the 


JUDICIAL    decisions:    SCHOOi     districts ALTERATION    OF  647 

views  of  a  majority  of  the  voters  of  the  district  upon  such  questions.  While 
there  is  nothing  in  the  pleadings  showing  a  specific  declaration  of  the  voters  of 
the  district  upon  the  orders  made  the  pleadings  do  seem  to  indicate  that  a  decisive 
majority  of  the  inhabitants  of  the  district  is  opposed  to  such  orders. 

During  the  school  year  ending  July  31,  1907,  the  number  of  pupils  attend- 
ing school  in  district  no.  6  was  only  eleven.  Two  of  these  moved  from  the 
district  during  the  year.  The  average  attendance  last  year  was  less  than  eight. 
It  appears  that  the  number  of  pupils  in  attendance  at  school  from  such  district 
and  the  average  attendance  thereof  will  be  still  less  this  year.  The  district  must 
therefore  be  regarded  as  numerically  weak. 

The  school  commissioner's  rearrangement  of  the  territory  of  this  district  has 
been  such  as  to  place  all  children  within  a  reasonable  walking  distance  of  a  school- 
house.  None  of  the  children  will  be  required  to  walk  more  than  two  miles  to 
attend  school.  The  distance  for  many  of  these  children  will  be  much  less.  The 
highways  are  good  hard  roads  and  on  which  there  is  much  travel.  It  is  not 
shown  tliat  the  orders  complained  of  will  operate  as  a  hardship  upon  any  of  the 
children  of  the  district. 

The  prime  object  which  the  school  commissioner  had  in  mind  when  he  made 
these  orders  was  to  establish  a  strong  central  school  at  Scio.  The  appeal  of 
Melvin  H.  Pendleton  from  the  dissolution  of  district  no.  2,  Scio.  is  closely  related 
to  this  proceeding.  The  hamlet  of  Scio  is  located  in  the  northwest  corner  of 
district  no.  i.  The  schoolhouse  of  no.  i  is  located  in  the  hamlet  of  Scio.  Dis- 
trict no.  2,  Scio,  and  district  no.  6,  Amity,  join  no.  i,  Scio.  These  two  districts 
also  extend  to  within  a  short  distance  of  the  schoolhouse  in  district  no.  I.  Dis- 
trict no.  I  has  a  new  modern  schoolhouse  with  proper  equipment.  It  has  the 
facilities  to  accommodate  all  the  children  of  the  territory  annexed  by  the  order 
in  question.  The  school  is  properly  graded,  the  teachers  employed  therein  are 
superior  to  those  that  are  generally  employed  in  rural  schools.  None  of  the 
rooms  will  be  overcrowded.  The  educational  needs  of  the  community  will  be 
greatly  promoted  by  the  establishment  of  this  strong  central  school  through  the 
consolidation  of  the  districts  in  question.  Sufficient  property  and  sufficient  pupils 
will  be  joined  to  enable  the  district  to  maintain  an  academic  department.  The 
school  commissioner  was  justified  in  makir.g  these  orders  to  effect  the  results 
desired  provided  that  thereby  he  did  not  impose  an  injustice  or  a  hardship  upon 
residents  of  the  districts  affected  and  even  if  a  majority  of  the  voters  of  such 
districts  were  opposed  to  such  orders.  The  fact  that  two  families  will  be  some- 
what farther  removed  from  a  sclioolhouse  though  still  within  a  reasonable  dis- 
tance of  one,  as  such  distances  are  usually  determined  in  rural  districts,  should 
not  be  regarded  sufficient  ground  to  defeat  the  plan  to  give  the  comnnmity 
affected  the  school  facilities  which  should  follow  from  the  action  complained  of. 
The  inconvenience  which  any  of  the  residents  of  these  districts  may  suft'er  from 
the  standpoint  of  distance  to  a  schoolhouse  will  be  overcome  by  the  better  school 
facilities  which  will  be  aft'orded.  The  school  commissioner  should  be  sustained 
herein. 

The  appeal  herein  is  dismissed. 


648  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    VUKK 

5341 

In  the  matter  of  the  appeal  of  John  \'an  Duscn  et  al.  from  the  decision  rendered 
by  D.  F.  Ililer,  school  commissioner  of  the  first  school  commissioner  dis- 
trict of  Steuben  county  in  relation  to  the  alteration  of  the  boundaries  of 
school  districts  nos.  13  and  5,  town  of  Bath,  Steuben  county. 

When  it  appears  that  a  portion  of  a  school  district  should  be  annexed  to  an  adjoining 
village  district  in  order  to  afiford  the  residents  of  such  portion  of  the  district  proper 
school  facilities,  and  such  action  may  be  taken  and  still  leave  the  district  with  sufficient 
property  and  sufficient  children  to  maintain  a  good  school,  and  the  trustees  of  the 
districts  affected  give  their  written  consent  to  such  alterations,  the  school  commissioner 
should  make  an  order  accordingly. 

Decided  September  26,  1907 

Thomas  Shannon  &  Clarence  Willis,  attorneys  for  appellants 

Draper,  Commissioner 

On  September  17,  1906,  27  residents  of  school  district  no.  13,  town  of  Bath, 
Steuben  county,  petitioned  D.  F.  Hiler,  school  commissioner  of  the  first  school 
commissioner  district  of  Steuben  county,  to  so  alter  the  boundaries  of  said  dis- 
trict as  to  transfer  therefrom  the  property  owned  by  petitioners  and  situated 
therein  to  union  free  school  district  no.  5,  town  of  Bath.  Attached  to  such 
petition  was  the  written  consent  of  the  trustee  of  school  district  no.  13  and  the 
written  consent  of  the  board  of  education  of  union  free  school  district  no.  5. 
The  school  commissioner  had  the  authority  therefore  to  make  the  order  at  once 
and  without  giving  a  hearing  upon  the  question. 

It  apj-iears  from  the  moving  papers  that  the  school  commissioner  did  not 
render  a  decision  on  such  petition  until  July  29,  1907.  No  explanation  is  given 
for  a  delay,  by  the  school  commissioner,  of  more  than  ten  months  in  passing 
upon  this  important  question. 

School  district  no.  5  is  a  union  free  school  district  maintaining  a  graded 
school  including  an  academic  department  and  is  within  the  incorporated  village 
of  Bath.  The  territory  which  petitioners  desired  transferred  is  also  within  the 
said  village.  Good  sidewalks  are  maintained  from  that  section  of  the  village  to 
the  schoolhouse.  It  also  appears  that  public  conveyances  go  from  this  section 
of  the  village  by  the  schoolhouse  and  return  several  times  during  the  day.  Chil- 
dren could  therefore  find  a  means  of  conveyance  on  stormy  days.  Although 
residents  of  district  no.  13  the  children  from  this  portion  of  the  village  generally 
attend  the  school  in  district  no.  5  and  pay  the  regular  rates  of  tuition.  The 
owners  of  property  must  also  pay  their  taxes  for  school  purposes  in  district 
no.  13.  District  no.  13  is  a  rural  district  in  a  farming  region.  The  schoolhouse 
is  about  two  thirds  of  a  mile  outside  of  the  corporation  limits.  There  are  no  side- 
walks and  the  roads  are  generally  drifted  in  winter.  It  also  appears  that  in  going 
to  the  schoolhouse  in  district  no.  5  the  children  may  cross  the  railroad  tracks  at 
a  guarded  crossing,  but  that  in  going  over  the  tracks  on  the  way  to  and  from 
school  m  district  no.  13  they  are  required  to  use  a  crossing  which  is  unguarded. 


JUDICIAL    DECISIONS  :    SCHOOL    DISTRICTS ALTERATION    OF  649 

It  appears  that  all  the  interests  of  the  residents  of  this  section  of  the  district 
are  associated  with  the  interests  of  district  no.  5. 

Under  all  the  circumstances  it  appears  that  the  logical  place  for  the  terri- 
tory in  question  is  in  school  district  no.  5.  The  property  might  be  transferred 
and  still  leave  district  no.  13  with  an  assessed  valuation  of  $95,000. 

The  school  commissioner  has  declined  to  file  an  answer  to  this  proceeding 
and  it  must  therefore  .be  determined  on  the  moving  papers.  In  view  of  the  fact 
that  the  trustee  of  district  no.  13  gave  his  written  consent  to  the  alteration  pro- 
posed and  the  district  still  possesses  sufficient  property  to  maintaui  a  good 
school,  I  do  not  understand  why  the  school  commissioner  is  unwilling  to  make 
the  order.  It  appears  clear  that  he  erred  in  not  making  such  order.  Petitioners 
are  entitled  to  relief  prayed  for. 

The  appeal  herein  is  sustained. 

It  is  ordered,  That  D.  F.  Hiler,  school  commissioner  of  the  first  school 
commissioner  district  of  the  county  of  Steuben  shall  without  unnecessary  delay, 
make  an  order  altering  the  boujidaries  of  school  district  no.  13,  Bath,  and  the 
consequent  alteration  of  school  district  no.  5.  Bath,  so  as  to  effect  the  transfer  of 
territory  from  said  district  no.  13  to  said  district  no.  5  as  requested  in  the  peti- 
tion hied  with  him  on  the  17th  day  of  September  1906,  and  signed  by  John  Scott 
and  26  other  residents  of  said  district  no.  13,  Bath. 


4376 

In  the  matter  of  the  appeal  of  George  Wolcott  and  others  v.  Ella  Gale,  school 
commissioner,  second  commissioner  district  of  Tompkins  county. 

Where  a  school  district  has  a  board  of  three  trustees  and  an  application  is  made  to  such 
trustees  for  their  consent  in  writing  to  the  alteration  of  their  district,  such  trustees 
must  meet  and  act  as  a  board  upon  such  application,  and  the  fact  of  such  meeting  being 
held  and  consent  given,  should  be  set  forth  in  the  written  consent  signed  by  them, 
presented  to  the  school  commissioner.  It  appearing  that  no  such  meeting  of  the  trustees 
was  held,  but  the  consent  of  two  of  such  trustees  was  obtained  at  different  times,  and 
is  not  the  act  of  the  board;  held,  that  the  school  commissioner  obtained  no  jurisdiction 
to  act  in  altering  the  boundaries  of  the  school  districts  and  such  order  must  be  vacated. 

Decided  September  _/,  i8y5 

C.  R.  Walcott,  attorney  for  appellants 

Skinner,  Superintendent 

Some  time  between  June  24  and  July  17,  1895,  Ella  Gale,  as  school  com- 
missioner of  the  second  commissioner  district  of  Tompkins  county,  made  an 
order,  without  being  dated,  but  which  by  its  terms  was  to  take  effect  on  July  17, 
1895,  and  which  order  purported  to  have  been  made  upon  the  consent  in  writing 
of  the  trustees  of  school  district  no.  9.  town  of  Dryden,  and  no.  12,  town  of 
Caroline,  county  of  Tompkins,  altering  the  boundaries  of  said  district  no.  12  of 


650  THK    UNIVKRSITV    OF    THE    STATE    OF    NEW    YORK 

Caroline,  bv  setting  off  a  certain  farm  belonging  to  one  H.  P.  Banfield  from  said 
district,  and  annexing  said  farm  to  said  district  no.  9.  thereby  altering  the 
boundaries  of  said  district  no.  9.-  That  said  order  was  tiled  in  the  office  of  the 
clerk  of  .said  town  of  Caroline  on  July  ij,  1895. 

On  .August  30.  i8<j5.  an  appeal  by  George  Wolcott  and  others  from  said 
order  of  Commissioner  Gale  was  tiled  in  this  Department  and  on  August  31, 
1895,  ''"  answer  by  V .  D.  Snyder,  trustee  of  said  district  no.  9,  town  of  Dryden, 
to  said  appeal  was  filed. 

The  grounds  stated  in  said  appeal  why  said  order  of  Commissioner  Gale 
should  be  vacated  are  substantially  as  follows:  That  said  order  was  not  dated 
and  by  its  terms  was  to  take  effect  ten  days  prior  to  the  time  said  order  was  filed 
with  the  clerk  of  the  town  of  Caroline ;  that  no  valid  consent  to  the  said  alteration 
of  school  district  no.  12,  town  of  Caroline,  was  given  by  the  trustee  of  said 
district;  that  said  order  does  not  sut^ciently  set  forth  the  boundaries  of  said 
school  districts  no.  u  of  Caroline  and  no.  9  of  Dryden  as  altered  by  said  school 
commissioner. 

The  facts  established  by  the  papers  filed  herein  are  as  follows :  That  on 
and  prior  to  June  24.  1895,  there  was  situate  in  the  town  of  Caroline,  Tompkins 
county,  a  school  district  known  and  designated  as  district  no.  12  of  said  town, 
having  three  trustees,  and  that  there  was  also  situate  in  the  town  of  Dryden 
in  said  county  a  school  district  known  and  designated  as  district  no.  9,  of  said 
town  having  one  trustee;  that  one  H.  P.  Banfield  was  a  resident  of  said  town 
of  Dryden  and  said  school  district  no.  9  of  said  town;  that  said  Banfield  was 
also  the  owner  of  a  farm  of  about  eighty  acres  situate  in  lot  no.  93,  town  of 
Dryden  and  in  said  school  district  no.  12,  Caroline;  that  said  farm  does  not  adjoin 
the  farm  or  premises  on  which  said  Banfield  resides ;  that  said  farm  of  eighty 
acres  was  leased  by  said  H.  P.  Banfield  to  his  son  who  resides  thereon ;  that 
said  H.  P.  Banfield  had  no  children  of  school  age  residing  with  him,  and  that 
his  said  son  had  but  one  child  residing  with  him,  which  child  is  of  the  age  of 
three  years;  that  said  H.  P.  Banfield  applied  to  the  trustees  of  said  school  dis- 
trict no.  12,  Caroline,  individually  and  not  as  a  board,  for  their  consent  that  the 
boundaries  of  said  district  be  altered  by  the  taking  of  said  farm  of  eiohty  acres 
from  said  school  district  and  annexing  the  same  to  said  district  no.  9  of  Dryden, 
and  obtained  the  signature  of  Messrs  Denman  and  Graham,  two  of  said  trus- 
tees to  the  consent  annexed  to  said  order  of  Commissioner  Gale  and  referred  to 
in  said  order,  and  Wolcott  the  third  trustee,  verbally  refused  to  sign  such  con- 
sent ;  that  said  consent  was  signed  by  Mr  Snyder,  the  sole  trustee  of  said  district 
no.  9  of  Dryden;  that  said  consent  was  on  or  about  June  24.  1895,  presented  to 
and  left  with  said  School  Commissioner  Gale,  who  subsequently  made  the  order 
npi)ealed  from,  transferring  said  farm  from  said  school  district  no.  12, 
Caroline,  and  annexing  said  farm  to  said  school  district  no.  9.  Dryden ;  that  said 
order  is  not  dated  but  that  it  is  stated  therein  that  said  order  should  take  effect 
on  July  17,  1895:  that  said  order  does  not  define  and  describe  the  boundaries  of 
said  district  no.  12.  of  Caroline,  as  altered,  nor  of  the  boundaries  of  said  district 


JUDICIAL    decisions:    school   districts ALTERATION    OF  65 1 

no.  9,  Dryden,  as  altered,  which  district  boundaries  became  altered  in  conse- 
quence of  the  alteration  of  the  boundaries  of  district  no.  12,  of  Caroline,  by  the 
transfer  of  said  farm  therefrom  and  the  annexation  of  the  farm  to  district  no. 
9,  of  Dryden ;  that  the  boundary  lines  of  said  farm  of  eighty  acres  are  not  sufli- 
ciently  or  definitely  set  forth  in  said  order  by  well  known  established  monuments 
or  marks,  but  by  lands  owned  by  different  persons. 

Under  the  provisions  of  title  6,  of  the  Consolidated  School  Law  of  1894, 
chapter  556  of  the  Laws  of  1894,  the  school  commissioners  have  power,  with 
the  written  consent  of  the  trustees  of  all  the  districts  to  be  affected  thereby,  to 
alter  any  school  district  within  their  respective  commissioner  districts  by  an 
order,  and  fixing  a  day  in  said  order  when  such  alteration  shall  take  effect. 

This  Department  has  uniformly  held  that  where  a  school  district  has  a  board 
of  three  trustees  and  an  application  is  made  to  such  trustees  for  their  consent 
in  writing  to  the  alteration  of  their  district,  such  trustees  must  meet  as  a  board 
and  act  as  a  board  upon  such  application,  and  the  fact  of  such  meeting  being 
held  and  the  consent  given  should  be  set  forth  in  the  written  consent  signed  by 
them,  presented  to  the  school  commissioner. 

It  is  clear  that  in  the  application  made  by  said  Banfield  to  the  trustees  of 
said  district  no.  12,  town  of  Caroline,  for  their  consent  to  said  alteration  of  said 
district,  no  meeting  of  the  said  board  of  trustees  was  held  to  act  upon  such  appli- 
cation, nor  was  any  consent  to  such  alteration  given  at  any  meeting  of  said  board, 
nor  does  any  notice  of  any  such  meeting  and  consent  appear  upon  the  consent 
presented  to  said  school  commissioner  or  in  the  proceedings  taken  relative  to 
such  alteration,  but  on  the  contrary  it  appears  that  the  consent  of  said  two  trus- 
tees of  said  district  no.  12,  Caroline,  was  obtained  at  dift'erent  times  and  was  not 
the  act  of  the  said  trustees  as  a  board  convened  for  that  purpose. 

•  I  find  and  decide  that  upon  the  consent  as  thus  obtained  from  the  trustees 
of  said  district  no.  12,  town  of  Caroline,  Commissioner  Gale  obtained  no  juris- 
diction to  act  or  make  the  order  of  July  1895.  from  which  this  appeal  is  taken. 

In  the  disposition  of  this  appeal  it  is  not  necessary  for  me  to  pass  upon  the 
other  questions  raised  by  the  papers  presented. 

The  appeal  herein  is  sustained  and  the  said  order  of  Ella  Gale,  school  com- 
missioner of  the  second  commissioner  district  of  Tompkins  county,  is  vacated 
and  set  aside. 


4363 

In  the  matter  of  the  appeal  of  F.  H.  Brennan,  and  others,  v.  Julia  K.  West, 
school  commissioner,  Richmond  county. 

Under  the  provisions  of  section  6,  title  6  of  the  Consolidated  School  Law  of  1894.  no  school 

^  district   shall   be   altered   or   divided   which   has   any   bonded   indebtedness   outstanding. 

This  Department  has  uniformly  held  that  any  change,  however  slight,  m  ^he  cxist-ng 

boundaries  of  a  school  district  makes   it  a  change  or  alteration  of   such   district.     An 


653  THE    UNIVERSITY    OF   THE    STATE   OF    NEW   YORK 

order  of  a  school  commissioner,  transferring  a  portion  of  the  territory  of  the  district 
not  having  any  bonded  indebtedness  outstanding  to  a  district  having  a  bonded  indebted- 
ness outstanding,  is  an  alteration  of  said  district  and  prohibited  by  the  school  law. 
Decided  August  i,  iS<;5 

Jared  Sanford,  of  counsel  for  appellants 

W.  M.  H.  I'.ly.  attorney  for  respondents  except  Mrs  West 

Julia  K.  West,  respondent  in  person 

Skinner.  Superintendent 

On  or  about  March  16.  1895,  Mrs  Julia  K.  West,  school  commissioner  of 
Richmond  county,  made  an  order  entitled,  "  In  the  matter  of  the  alteration  of 
school  district  no.  3,  of  the  town  of  Southfield.  Richmond  county,  and  the  con- 
sequent alteration  of  school  district  no.  6.  of  the  town  of  Southfield,  Richmond 
county,''  whereby  she.  upon  the  consent  in  writing,  as  alleged  in  said  order,  of 
the  trustees  of  said  school  district,  altered  the  boundaries  of  said  districts  as  in 
said  order  set  forth,  and  which  said  order  was  to  take  effect  immediately;  and 
which  said  order,  with  the  papers  accompanying  the  same,  were  duly  filed  in  the 
office  of  the  clerk  of  the  town  of  Southfield,  Richmond  county.  From  said  order 
of  School  Commissioner  West,  F.  H.  Brennan,  Charles  A.  Smith  and  John 
Smith,  (iualified  voters  of  school  district  no.  3,  of  Southfield;  and  John  P.  Pur- 
cell  and  William  K.  Hounslow,  qualified  voters  in  that  portion  of  said  district 
no.  3.  of  Southfield.  set  off  by  said  order  into  school  district  no.  6,  of  Southfield; 
and  D.  J.  Tyson,  a  taxpayer  in  both  of  said  school  districts,  nos.  3  and  6,  of 
Southfield,  have  appealed. 

In  support  of  the  appeal  herein  a  protest  of  thirty-six  of  the  fifty-seven 
qualified  voters  residing  in  that  portion  of  district  no.  3,  set  off  into  district  no. 
6,  against  said  order,  is  filed  herein. 

It  appears  from  the  proofs  presented  herein  that  in  and  by  said  order  of  Com- 
missioner West,  a  strip  of  land,  forming  part  of  school  district  no.  3,  of  South- 
field,  was  set  oft'  into  school  district  no.  6,  of  Southfield,  and  that  by  said  order 
the  track  and  roadbed  of  the  Staten  Island  Railroad  is  made  the  boundary  line 
between  said  districts.  The  appellants  allege  several  grounds  upon  which  their 
appeal  is  taken ;  the  principal  ones  being,  that  at  the  time  of  making  the  order 
by  Commissioner  West,  school  district  no.  6,  of  Southfield,  had  a  bonded 
indebtedness  outstanding,  and  that  school  district  no.  3,  of  Southfield  had  "  vir- 
tually "  a  bonded  indebtedness  outstanding,  and  therefore,  under  the  provisions 
of  section  6,  of  title  6,  of  the  Consolidated  School  Law  of  1894,  neither  of  said 
school  districts  could  be  altered  or  divided  so  long  as  such  bonded  indebtedness 
was  outstanding. 

It  is  conceded  by  the  appellants  and  respondents  herein  that  on  March  16, 
1895.  when  the  aforesaid  order  of  Commissioner  West  was  made,  altering  the 
boundaries  of  both  of  school  districts  nos.  3  and  6,  of  Southfield,  said  school 
district  iio.  6,  of  Southfield,  had  a  bonded  indebtedness  outstanding  of  $4500. 


JUDICIAL    decisions:    school   districts ALTERATION    OF  653 

In  relation  to  the  allegations  contained  in  the  appeal  herein  that  school  dis- 
trict no.  3,  of  Southfield.  had.  on  March  15,  1895,  "  virtually  "  a  bonded  indebted- 
ness outstanding  of  $6500,  the  proofs  presented  herein  establish  the  following 
facts :  That  at  a  special  meeting  of  said  district  no.  3,  of  Southfield,  duly  called 
and  held  on  May  26,  1894,  the  following  resolution  was  duly  and  legally  adopted, 
namely :  "  That  we  build  a  new  schoolhouse  on  the  lot  selected,  and  that  we 
bond  tlie  district  for  $6500.  to  be  paid  by  tax  upon  the  taxable  property  of  the 
district  in  ten  equal  annual  instalments,  the  last  instalment  to  become  due  and 
payable  within  ten  years,  for  the  purpose  of  building  a  schoolhouse  and  furnish- 
ing the  same  " ;  that  at  a  special  meeting  of  the  voters  of  said  district,  duly  called 
and  held  on  June  30,  1894,  the  following  preamble  and  resolution  were  duly  and 
legally  adopted,  namely :  "  That  whereas  at  a  special  meeting  of  this  school  dis- 
trict, held  May  26,  1894,  a  resolution  was  passed,  That  we  build  a  new  school- 
house  on  the  lot  selected  and  that  we  bond  the  district  for  $6500.  to  be  paid  by 
tax  upon  the  taxable  property  of  the  district  in  ten  equal  instalments,  the  last 
instalment  to  become  due  and  payable  within  ten  years  for  the  purpose  of  building 
a  schoolhouse  and  furnishing  the  same ;  and  whereas  the  said  bonds  have  not  been 
issued,  and  whereas  the  new  law  going  into  efifect  this  day  extends  the  time  limit 
within  wdiich  the  bonds  must  be  made  due  and  payable  to  twenty  years,  it  is 
resolved  that  the  time  limit  of  the  bonds  for  $6500,  voted  by  this  district  at  the 
special  school  meeting,  held  May  26,  1894,  be  extended  to  twenty  years,  and  that 
said  bonds  be  paid  by  tax  upon  the  taxable  property  of  the  district  in  twenty 
equal  instahnents,  the  last  instalment  to  become  due  and  payable  within  twenty 
years  from  the  date  of  said  meeting  of  May  26,  1894  " ;  that  on  July  14,  1894, 
Commissioner  West,  pursuant  to  the  provisions  of  section  17,  article  2,  title  7,  of 
the  Consolidated  School  Law  of  1894,  in  writing,  approved  of  the  levying  by 
the  trustees  of  said  district  of  said  sum  of  $6500,  for  the  purpose  of  building  a 
new  schoolhouse  for  said  district ;  that  the  trustees  of  said  district  advertised  for 
proposals  from  persons  who  would  loan  said  district  said  sum  of  $6500,  and  take 
or  purchase  said  bonds  at  the  lowest  rate  of  interest  and  not  below  par :  that  on 
July  16.  1894.  the  firm  of  Edward  C.  Jones  &  Co.,  brokers,  80  Broadway.  Xew 
York  City,  offered  to  give  par  for  said  bonds,  the  same  to  bear  interest  at  the 
rate  of  6  per  cent,  subject  to  proof  of  legality  of  their  issue;  that  on  or  about 
July  17,  1894,  two  of  the  residents  and  taxpayers  of  said  school  district  com- 
menced an  action  in  the  Supreme  Court  of  the  State  against  the  then  trustees 
of  said  district  to  enjoin  and  restrain  the  consummation  of  the  issue  and  sale 
by  the  trustees  of  said  district  of  said  bonds,  and  the  issue  and  sale  of  said  bonds 
were  postponed  until  the  hearing  and  determination  of  said  action ;  that  at  the 
request  of  the  plaintiffs  in  said  action  the  trial  thereof  was  postponed  from  time 
to  time  until  a  term  of  said  court,  held  in  and  for  Richmond  county,  on  the  first 
Monday  of  May  1895,  when  the  complaint  in  said  action  was  dismissed  with 
.<:psts;  that  no  bonds  for  said  $6500  or  any  part  thereof  have  ever  been  executed, 
issued  or  delivered  by  the  trustees  of  said  school  district  no.  3,  nor  any  sum  of 
money  received  by  said  trustees  or  said  district  thereon. 


654  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

The  words  '"  bonded  indebtedness  outstanding  "  of  school  districts  as  con- 
tained in  section  6.  title  6,  of  the  Consolidated  School  Law  of  1894,  means  an 
indebtedness  of  a  district  covered  by  bonds  duly  made  and  delivered,  for  which 
the  district  has  received  the  amount  of  money  expressed  in  said  bonds,  and  that 
such  bonds  are  not  paid. 

In  my  ojiinion  the  trustees  of  said  school  district  no.  3,  of  Southfield,  have 
the  legal  authority,  under  and  pursuant  to  the  action  had  and  taken  by  the  quali- 
fied voters  of  said  district  at  the  special  meetings  of  May  26  and  June  30,  1894, 
to  borrow  the  sum  of  $6500  for  the  building  and  furnishing  of  a  schoolhouse  for 
said  district,  and  to  issue  bonds  payable  in  twenty  equal  annual  instalments,  the 
last  payment  to  be  made  on  May  26,  1914,  or  to  issue  said  bonds  and  sell  the 
same  at  the  best  price  they  can  obtain  therefor,  and  to  levy  annually  a  tax  for  the 
bontl  and  interest  becoming  due  and  to  pay  the  annual  interest  upon  the  bonds 
outstanding;  but  in  my  opinion,  upon  the  proofs  presented  herein,  on  March  15, 
i8(>4,  said  school  district  did  not  have  any  bonded  indebtedness  outstanding 
within  the  meaning  of  the  provisions  of  the  Consolidated  School  Law. 

The  questions  presented  in  this  appeal  for  my  decision  are.  first,  had  School 
Commissioner  West  the  legal  power  and  authority,  under  the  provisions  of  the 
Consolidated  School  Law  of  1894,  chapter  556  of  the  Laws  of  1894,  to  make 
the  order,  dated  March  16,  1895.  from  which  order  the  appeal  herein  is  taken; 
and,  second,  if  said  commissioner  had  such  power  and  authority,  has  there  been 
a  proper  exercise  thereof. 

Prior  to  June  30.  1894.  there  were  no  provisions  of  the  school  law  forbidding 
the  altering  or  dividing  of  school  districts,  having  a  bonded  indebtedness  out- 
standing, but  this  De])artment  had  uniformly  held  that  any  school  district  hav- 
ing a  bonded  indebtedness  outstanding  should  neither  be  altered  nor  divided  so 
long  as  such  indebtedness  remains  outstanding.  By  section  6  of  title  6  of  said 
Consolidated  School  Law  of  1894,  chapter  556  of  the  Laws  of  1894,  that  became 
operative  on  June  30.  1894,  it  was  enacted,  "but  no  school  district  shall  be 
altered  or  divided,  which  has  any  bonded  indebtedness  outstanding." 

It  is  clear  that  since  June  30,  1894.  neither  School  Commissioner  West  nor 
any  school  commissioner  in  this  State,  has  had  any  legal  power  or  authority 
whatever  to  alter  or  divide  any  school  district  which  has  any  bonded  indebtedness 
outstanding ;  but  on  the  contrary,  every  school  commissioner  in  the  State  is  for- 
bidden to  make  any  alteration  or  division  of  any  school  district  having  any  such 
indebtedness  outstanding. 

This  Department  has  uniformly  held  that  any  change,  however  slight,  in  the 
existing  boundaries  of  a  school  district,  makes  it  a  case  of  alteration. 

Admitting  for  the  purpose  of  argument  solely,  that  school  district  no.  3,  of 
Southfield.  on  March  16,  1895.  had  neither  "virtually  "  nor  actually,  any  bonded 
indebtedness  outstanding,  it  is  conceded  that  school  district  no.  6,  of  Southfield, 
had.  at  the  date  aforesaid,  a  bonded  indebtedness  of  $4500  outstanding. 

It  is  clear,  by  the  order  of  Commissioner  West  of  March  16.  1895  (if  she 
had  the  legal  authority  to  make  said  order),  a  portion  of  the  territory  forming 


JUDICIAL    decisions:    school    districts  —  ALTERATION    OF  655 

part  of  said  district  no.  3,  is  taken  from  said  district  and  added  to  said  district 
no.  6,  and  the  boundaries  of  district  no.  6  are  altered  thereby  as  surely  as  the 
boundaries  of  district  no.  3  were  altered. 

I  tind  and  decide,  therefore.  That  School  Commissioner  West  had  no  legal 
power  or  authority  to  make  said  order  of  March  16,  1895,  but  on  the. contrary, 
as  such  school  commissioner,  she  was  forbidden  and  prohibited  from  making 
said  order;  that  the  appeal  herein  from  said  order  must  be  sustained,  and  said 
order  held  to  be  illegal  and  void. 

The  appeal  herein  is  sustained. 

It  is  ordered,  That  the  order  made  by  Julia  K.  West,  school  commissioner 
of  Richmond  county,  bearing  date  March  16,  1895,  which  order  by  its  terms  was 
to  take  effect  immediately ;  and  which  order  was  duly  filed  in  the  office  of  the 
clerk  of  the  town  of  Southfield,  Richmond  county;  and  in  and  by  which  said 
order  the  boundaries  of  school  district  no.  3.  of  the  town  of  Southfield,  Rich- 
mond county,  and  school  district  no.  6,  of  the  town  of  Southfield,  Richmond 
county,  were  altered,  and  each  of  said  districts  was  altered,  as  in  said  order  set 
forth,  be,  and  the  said  order  is,  hereby  vacated  and  set  aside,  as  wholly  illegal 
and  void;  and  that  all  and  every  act  and  proceeding  had  and  taken  by  said 
School  Commissioner  West,  relating  to  said  school  districts  nos.  3  and  6,  since 
March  16,  1895,  ^^PO"  the  assumption  that  said  order  of  alteration  was  legal  and 
valid,  be,  and  is,  and  are  vacated  and  set  aside  as  void. 


4013 
In  the  matter  of  the  appeal  of  Robert   Sagendorph  and  Charles  Dingman  v. 
Orville  Drumm,   school  commissioner  of  the  second  commissioner  district 
of  the  county  of  Columbia. 
Appeal  from  the  refusal  of  a  school  commissioner  to  divide  a  district  recently  bonded  to 
pay  for  a  new  school  building,  and  annex  a  part  to  a  district  in  which  there  is  a  good 
school  building.     Overridcd,  commissioner's  action  sustained. 
Decided  October  13,  1891 

Andrews  &  Longley  and  J.  L.  Crandall,  attorneys  for  appellants 
Hon.  A.  H.  Farrar,  attorney  for  the  respondent 

Draper,  Superintendent 

The  appellants  are  residents  of  the  southern  portion  of  school  district  no.  i, 
of  the  towns  of  Stuyvesant  and  Stockport,  in  the  county  of  Columbia.  The 
school  site  in  said  district  has  recently  been  changed  to  a  point  farther  north 
than  that  formerly  occupied.  A  new  schoolhouse  has  been  erected  upon  the 
new  site  and  bonds  have  been  issued  to  meet  the  expenses  thereof.  The  appel- 
lants claim  that  this  practically  deprives  them  of  school  facilities  in  district  no.  i, 
aiki  they  ask  that  the  southern  portion  of  the  district  be  cut  off  and  annexed  to 
district  no.  3,  of  the  town  of  Stockport.     The  trustee  of  one  of  the  districts 


656  THE    UNIVERSITY   OF   THE    STATE   OF    NEW    YORK 

affected  has  given  his  consent  to  such  chanp^e,  but  not  so  in  the  case  of  the  trustee 
of  the  other  district.  The  school  commissioner  has  declined  to  make  the  pro- 
visional order  cuntemplatcd  by  the  statutes,  and  from  his  refusal  this  appeal  is 
taken. 

I  have  given  the  papers  careful  examination,  and  have  heard  able  counsel 
at  length.  I  conclude  that  two  or  three  families  having  children  to  send  to  school 
are  farther  removed  from  the  schoolhouse  in  their  district  than  before  the  change 
in  site.  Even  before  the  change  of  site,  they  were  farther  from  the  schoolhouse 
than  is  desirable.  I  am  not  certain  but  that  they  ought  to  have  some  relief.  It 
might  be  well  to  create  a  new  school  district  out  of  parts  01  the  two  districts 
under  consideration,  but  I  do  not  feel  justified  in  overruling  the  school  commis- 
sioner upon  the  issue  here  presented.  He  is  to  be  sustained  unless  it  is  clearly 
shown  that  his  refusal  to  make  the  change  requested  operates  very  unjustly  to 
j)arties  aggrieved,  or  is  manifestly  opposed  to  the  educational  interests  of  the 
territory  affected.  The  burden  is  upon  the  appellants  to  show  this,  and  they  do 
now  show  it  to  my  satisfaction.  The  appellants  would  not  be  very  much  nearer  a 
schoolhouse  after  the  alteration  they  desire,  than  they  are  now.  If  the  change 
were  made,  the  sha])e  of  school  district  no.  3  would  be  irregular  in  the  extreme. 
Again,  it  was  held  by  Ruggles,  Superintendent,  in  decision  no.  3315,  rendered 
December  10,  1883,  that  a  district  under  bonds  should  not  in  equity  be  divided 
until  the  bonds  were  paid.  I  should  not  be  willing  to  apply  this  rule  in  all  cases. 
I  think  it  may  be  said  that,  after  a  district  has  issued  bonds  for  the  erection  of  a 
.schoolhouse,  a  portion  of  it  should  not  be  cut  ofif  and  attached  to  a  district  in 
which  there  is  a  good  schoolhouse,  with  the  effect  of  permitting  the  residents 
of  the  detached  portion  to  escape  their  share  of  taxation  for  the  improved  school 
facilities.  It  was  undoubtedly  this  that  Superintendent  Ruggles  meant;  but  that 
would  not  be  the  case  where  a  new  school  district  was  erected  involving  the 
necessity  of  building  a  new  schoolhouse.  The  present  case,  however,  seems  to 
come  entirely  within  the  rule  laid  down  in  the  decision  of  Judge  Ruggles  referred 
to,  and  I  am  not  able  to  see  that  there  are  any  special  circumstances  sufficient  to 
make  it  an  exception  to  that  rule. 

Upon  the  whole,  I  conclude  that  the  appeal  must  be  dismissed,  and  it  is  so 
ordered. 


4384 

In  the  matter  of  the  appeal  of  A.  V.  Van  Liew,  trustee,  school  district  no.  13, 
town  of  Ulysses,  Tompkins  county,  from  action  of  local  board,  vacating 
order  of  Charles  Van  Marter,  school  commissioner,  first  commissioner  dis- 
trict of  Tompkins  county,  dated  March  23,  1895,  altering  school  districts 
no.  13  and  no  15,  town  of  Ulysses,  Tompkins  county. 

It  appearing  by  the  proofs  presented  to  the  local  board  that  no  valid  reason  existed  for  the 
alteration  of  the  school  districts  made  by  the  preliminary  order  of  the  school  com- 
missioner; held,  that  the  action  of  said  board  in  vacating  their  order  was  proper. 

Decided  October  3,  1895 


JUDICIAL    decisions:    school    districts ALTERATION    OF  657 

Skinner,  Superintendent 

A  petition  signed  by  the  appellant  in  the  above-entitled  matter  and  R.  R. 
Updike  as  sole  trustee  of  school  district  no.  15,  town  of  Ulysses,  and  dated 
December  11,  1894,  was  presented  to  Charles  Van  Marter,  school  commissioner 
of  the  first  commissioner  district  of  Tompkins  county,  asking  that  the  boundaries 
of  district  no.  13,  of  Ulysses,  be  altered,  by  transferring  a  certain  farm  known 
as  the  Ralph  Updike  farm,  then  owned  by  one  W.  C.  Van  Liew  and  situate  in 
school  district  no.  15,  of  Ulysses,  from  said  district  and  annexing  the  same  to 
school  district  no.  13  of  Ulysses,  and  consequently  altering  the  boundaries  of 
district  no.  15;  that  on  February  i,  1895,  no  action  having  been  taken  by  said 
school  commissioner,  said  Updike  as  trustee  of  the  district,  withdrew  his  consent 
to  said  alterations  of  said  districts;  that  on  or  about  February  6,  1895,  another 
petition,  signed  by  the  appellant  herein,  and  twenty-four  residents  of  said  district 
no.  13,  Ulysses,  was  presented  to  said  commissioner  requesting  him  to  alter  said 
district  as  aforesaid,  that  said  school  connnissioner  made  an  order  dated  March 
23,  1895,  altering  the  boundaries  of  said  school  districts  nos.  13  and  15,  by 
transferring  said  farm  of  W.  C.  Van  Liew  from  district  no.  13  and  annexing  it 
to  district  no.  15,  which  order  by  its  terms  was  to  take  effect  on  August  i,  1895  ; 
that  said  commissioner  gave  notice,  under  the  provisions  of  the  school  law,  that 
on  May  4,  1895,  at  the  schoolhouse  in  district  no.  15,  he  would  hear  objections 
to  said  order  of  March  23,  1895.  and  on  said  day  said  commissioner  attended 
at  said  schoolhouse,  and  at  the  request  in  writing  of  said  Updike,  as  trustee  of 
school  district  no.  15,  the  supervisor  and  town  clerk  of  the  town  of  Ulysses,  were 
associated  with  the  school  commissioner  in  the  hearing  of  objections  to  said 
order;  that  said  board,  after  hearing  objections,  voted  to  vacate  said  order  of 
said  commissioner;  that  on  May  30,  1895,  the  appellant  herein  appealed  from  the 
action  and  decision  of  said  local  board. 

An  answer  to  said  appeal  by  Robert  R.  Updike,  trustee  of  said  district  no. 

15,  has  been  filed. 

The  appellant  herein  contends  that  said  Updike,  as  trustee  of  school  district 
no.  15,  having  consented  in  writing  to  the  proposed  alteration  of  the  district  of 
which  he  was  trustee,  he  can  not  legally  withdraw  said  consent.  Such  contention 
is  not  tenable.  The  consent  of  Updike  was  withdrawn  before  any  action  had 
been  taken  by  the  school  commissioner  under  the  petition  of  December  11,  1894, 
and  before  the  petition  of  February  6,  1895,  was  presented  to  him. 

The  consent  or  refusal  to  consent  to  the  alteration  of  said  districts  by  the 
trustees  of  said  districts  did  not  give  jurisdiction  to  the  school  commissioner. 
Under  the  school  law  school  commissioners  have  power  to  alter  school  districts 
with  or  without  the  consent  of  the  trustees  of  the  districts  to  be  affected.  It  the 
trustees  consent  the  school  commissioner  may  make  an  order,  making  such 
alterations,  to  take  effect  on  a  day  named,  which  order  will  be  final,  unless 
appealed  from;  but  when  said  trustees  of  said  districts  or  of  any  one  of  said 
districts  to  be  affected  refuse  consent  the  school  commissioner  may  make  a 
preliminary  order  making  such  alterations;  which   order   shall   not  take   ettect 


658  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

until  a  day  named  therein,  and  not  less  than  three  months  after  the  date  of  the 
order,  and  he  must  give  notice  of  a  time  and  place  at  which  he  will  hear  objec- 
tions to  said  alterations.  At  the  time  and  place  of  such  hearing,  upon  the  written 
request  of  the  trustees  of  any  of  the  districts  afifected  the  supervisor  and  town 
clerk  of  the  town  or  towns  in  which  said  districts  are  situated,  may  be  asso- 
ciated with  the  school  commissioner,  thus  forming  a  local  board,  to  hear  objec- 
tions to  said  alterations.  Said  board  must  either  confirm  or  vacate  said  pre- 
liminary order.  If  such  preliminary  order  is  confirmed  a  confirmatory  order 
must  be  drawn  and  signed  by  the  members  of  said  board,  which  confirmatory 
order  makes  the  alterations  and  not  the  preliminary  order  which  is  inchoate.  If 
the  local  board  vacates  the  preliminary  order  the  whole  proceedings  fall. 

The  papers  herein  do  not  show  that  any  proofs  were  presented  to  said  local 
board  establishing  any  valid  reason  why  such  alterations  should  be  made,  nor 
that  there  is  any  valid  reason  why  said  farm  should  be  transferred  from  district 
no.  15  to  district  no.  13. 

It  is  not  shown  that  there  are  any  children  of  school  age  residing  on  said 
farm.  It  is  shown  that  the  owner  of  said  farm  does  not  reside  thereon,  but 
lives  with  his  father,  and  that  he  has  no  children,  and  that  he  lets  the  farm.  The 
distance  from  said  farm  to  the  schoolhouse  in  no.  15  is  substantially  the  same  as 
to  the  schoolhouse  in  district  no.  13,  or  at  most  but  twenty  rods  farther. 

If  the  object  of  the  alteration  proposed  is  for  the  purpose  of  equalizing 
assessments,  I  would  state  that  the  altering  of  districts  for  that  purpose  only 
has  not  been  sanctioned  by  this  Department ;  that  may  be  an  element  for  con- 
sideration, but  should  not  be  the  controlling  one. 

The  appeal  herein  is  dismissed,  and  the  action  of  said  local  board,  vacating 
said  preliminary  order  of  School  Commissioner  Van  Marter,  of  March  23,  1895, 
is  confirmed. 


4353 

In  the  matter  of  the  appeal  of  William  R.  DuMond  and  Lincoln  Butler  from 
decision  of  local  board  vacating  order  of  Frank  L.  Ostrander,  school  com- 
missioner, first  commissioner  district  of  Delaware  county,  altering  boundaries 
of  school  district  no.  6,  town  of  Colchester,  Delaware  county. 

Where  it  is  shown  that  an  order  of  a  school  commissioner,  altering  the  boundaries  of  school 
districts,  is  not  for  the  best  educational  interests  of  the  district  affected  thereby,  the 
action  of  the  local  board  in  vacating  said  order  will  be  confirmed. 

Decided  May  6,  1895 

F.  W.  Hartman,  attorney  for  appellant 

Skinner.  Superintendent 

On  or  about  November  3,  1894,  Frank  L.  Ostrander,  school  commissioner 
of  the  first  commissioner  district  of  Delaware  county,  made  a  preliminary  order, 


JUDICIAL    decisions:    school   districts  —  ALTERATION    OF  659 

with  the  consent  of  the  trustee  of  school  district  no.  20,  town  of  Colchester, 
Delaware  county,  the  trustee  of  school  district  no.  6,  town  of  Colchester,  Dela- 
ware county,  dissenting,  altering  the  boundaries  of  school  districts  nos.  6  and 
20  by  setting  ofif  from  district  no.  20  into  district  no.  6  five  parcels  of  land  and 
including  in  district  no.  6  lots  361  and  362  and  a  "  gore  "  lot  west  of  lot  361, 
which  said  lots  had  never  been  embraced  in  any  school  district  in  said  town  of 
Colchester;  that  said  order  was  to  take  efifect  on  February  5.  1895;  that  said 
Commissioner  Ostrander  gave  to  the  said  assenting  and  dissenting  trustees  due 
notice  under  title  6  of  the  Consolidated  School  Law  of  1894;  that  on  November 
20,  1894,  at  a  time  and  place  within  said  town  of  Colchester,  specified  in  said 
notice,  he  would  hear  objections  to  the  said  alterations  of  the  boundaries  of  said 
school  districts ;  that  the  trustee  of  said  district  no.  6  requested  that  the  supervisor 
and  town  clerk  of  the  town  of  Colchester  be  associated  with  said  commissioner; 
that  on  said  November  20.  1894,  at  the  time  and  place  specified  in  said  notice  the 
said  local  board,  consisting  of  said  commissioner  and  the  supervisor  and  town  clerk 
of  said  town,  duly  organized  and  proceeded  to  hear  objections  to  said  alteration; 
that  the  trustee  of  district  no.  6  appeared  in  person  and  by  counsel,  in  opposition 
to  said  order  of  said  commissioner,  and  the  appellant,  Du  Mond,  herein,  appeared 
in  support  of  said  order;  that  after  hearing  the  proofs  and  testimony  presented 
and  the  arguments  of  counsel  said  local  board  adjourned  to  meet  at  the  office  of 
the  town  clerk  of  the  town  of  Colchester  at  Downsville  on  December  18,  1894. 
at  10  o'clock  in  the  forenoon;  that  said  local  board  met  pursuant  to  said  adjourn- 
ment and  after  due  deliberation,  voted  to  vacate  said  preliminary  order  of  Com- 
missioner Ostrander  of  November  3,  1894. 

From  said  action  and  decision  of  the  said  local  board  the  appeal  in  the  above- 
entitled  matter  has  been  brought. 

An  answer,  by  the  persons  composing  said  local  board,  has  been  made  to 
the  appeal,  and  to  said  answer  the  appellants  herein  have  filed  a  reply. 

The  papers  and  proof  filed  herein  by  the  appellants  and  respondents  contain 
statements  relating  to  former  appeals  from  orders  made  by  school  commissioners, 
and  to  an  order  made  by  Commissioner  Ostrander  since  this  appeal  was  taken 
that  are  not  material  to  the  question  at  issue  raised  by  the  appeal  herein. 

The  question  for  my  decision  in  this  appeal  ii,  whether  or  not,  upon  the 
facts  established  and  admitted  at  the  hearing  had  before  the  local  board  in 
December  1894,  said  board  wisely  exercised  the  power  and  authority  it  had  to 
vacate  the  preliminary  order  made  by  Commissi 3ner  Oitrap.der  on   November 

3,  1894.  ,     .      ,  ( 

It  appears  that  the  appellants  herein  reside  on  lot  no.  361  m  the  town  ot 
Colchester,  Delaware  county,  located  in  what  is  known  as  '  Pelncr  Hollow"; 
that  on  the  east  side  of  Pelner  Hollow,  extending  north  from  the  county  line 
between  the  counties  of  Sullivan  and  Delaware,  there  is  a  hilly  or  mountainous 
Fajige  of  land  covered  with  forest,  across  lots  360,  370  359  i"to  347,  and  westerly 
across  lots  348  and  339  into  school  district  no.  20,  town  of  Colchester,  and  thence 
south,  beginning  in  the  southerly  portion  of  340  and  across  lots  341  and  342  ui 


66o  THE    UNnKKSITV    OF    THE    STATE   OF    NEW    YORK 

said  district  no.  20  and  lots  343,  344  and  345  in  district  no.  14,  town  of  Colches- 
ter; that  there  is  a  public  highway  commencing  northerly  of  the  schoolhouse  in 
district  no.  20.  which  extends  in  soutiierly  direction  through  said  district  no.  20 
and  across  (hstrict  no.  14,  and  near  the  sciioolhouse  in  said  district,  down  to  said 
county  line  of  Sullivan  and  Delaware  counties;  tliat  commencing  in  the  aforesaid 
highway  on  lot  340  in  district  no.  20  there  is  another  public  highway  running 
cast  across  said  lot  340.  through  the  opening  of  said  range  of  hills  on  the  west- 
erly side  of  said  Peltier  Hollow,  and  thence  southeasterly  across  lots  339  and 
part  of  lot  348  hi  clistrict  no.  20,  and  thence  south  across  lots  348,  360,  361 
and  3f)8  down  to  the  public  highway  running  northeasterly  and  southwesterly 
in  Sullivan  county,  between  the  county  line  of  Sullivan  and  Delaware  counties 
and  the  Beaverkill  river;  that  there  is  a  public  highway  commencing  at  a  point 
in  the  said  public  highway  in  Sullivan  county  north  of  the  Beaverkill  river 
easterly  of  the  east  line  of  lot  133  extended,  running  north  to,  and  beyond,  the 
schoolhouse  in  district  no.  6,  town  of  Colchester.  It  further  appears  that  it  is 
impracticable  for  the  children  of  the  appellants  herein,  or  other  children  residing 
in  said  Pelner  Hollow,  to  reach  the  schoolhouse  in  said  district  no.  6  on  account 
of  the  hill  range  extending  as  aforesaid  along  the  easterly  side  of  said  Pelner 
Hollow  except  by  the  public  highway  down  said  Pelner  Hollow  to  the  said  high- 
way northerly  of  the  Beaverkill  river,  and  thence  on  and  up  the  said  road 
to  said  schoolhouse,  a  distance  of  about  live  miles.  It  was  conceded  by  the 
appellant.  I)i;  .Mond,  upon  the  hearing  before  said  local  board,  that  if  the  lots 
in  Pelner  Hollow  were  annexed  to  district  no.  6  that  a  branch  school  must  be 
maintained  in  I'elner  Hollow  for  the  accommodation  of  the  persons  of  school 
age  residing  in  that  locality. 

It  also  appears  that  about  the  year  1886  it  was  assumed  that  the  land  in 
Pelner  Hollow  was  within  the  boundaries  of  said  school  district  no.  6,  and  a 
branch  school  of  said  district  was  established  therein,  in  a  building  erected  by 
the  inhabitants  of  said  Hollow,  which  building  and  the  land  upon  which  it  was 
located  was  conveyed  to  said  district  so  long  as  the  same  was  used  by  said 
<hstrict  for  school  purposes,  and  when  not  so  used,  should  revert  to  the  grantor 
or  grantors;  that  in  the  year  1892  one  Shaver,  then  trustee  of  said  district  no. 
6.  refused  to  maintain  said  branch  school,  and  an  appeal  from  his  decision  was 
taken  to  the  State  Superintendent  of  Public  Instruction,  who  dismissed  the 
appeal  upon  the  ground  that  the  records  of  the  formation  of  said  district  failed 
to  establish  that  the  appellant  in  said  appeal  was  a  resident  of  said  district,  or 
that  the  building  in  which  said  branch  school  was  maintained  was  within  said 
district. 

It  further  appears  that  since  1892  said  district  no.  6  has  not  maintained  a 
branch  school  in  said  Pelner  Hollow,  or  in  the  building  which,  so  as  aforesaid 
with  the  land  on  which  it  is  situate,  was  conveyed  to  said  district;  that  said 
building  is  a  small  building,  badly  dilapidated,  situate  upon  a  small,  rough  and 
s-iony  site,  said  site  and  building  being  worth  about  $25. 


JUDICIAL    decisions:    school    districts ALTERATION    OF  66l 

It  further  appears  that  the  aggregate  assessed  vahiation  of  the  real  and 
personal  estate  within  said  district  no.  6  is  $16,690;  that  the  aggregate  assessed 
valuation  of  the  real  and  personal  estate  of  Pelner  Hollow,  annexed  by  the  pre- 
liminary order  of  Commissioner  Ostrander  to  district  no.  6,  is  about  $2170. 

It  having  been  conceded  that  if  the  said  preliminary  order  of  Commissioner 
Ostrander  was  confirmed  that  said  district  no.  6  would  be  rec[uired  to  establish 
and  maintain  a  branch  school  in  Pelner  Hollow  for  the  persons  of  school  age 
residing  in  that  locality.  I  am  of  the  opinion  that  the  building  in  that  locality  in 
which  the  branch  school  was  maintained  between  1888  and  1892,  assuming  that 
district  no.  6  has  the  legal  right  to  use  such  building,  is  inadequate  to  properly 
accommodate  the  pupils  in  said  locality,  and  that  said  district  would  be  required 
to  erect  and  furnish  a  new  building  for  such  branch  school ;  and  that  the  expense 
of  erecting  and  furnishing  such  building  and  maintaining  such  branch  school, 
Avould  be  burdensome  upon  said  district. 

Commissioner  Ostrander  in  his  answer  to  the  appeal  herein  alleges :  that 
in  making  said  preliminary  order  he  did  not  intend  that  it  should  be  considered 
as  his  final  conclusion  that  that  was  the  proper  disposition  of  the  matter;  that 
he  was  not  then  fully  acquainted  with  all  of  the  facts  and  circumstances  relating 
thereto,  but  desired  a  full  hearing;  that  after  the  hearing  before  the  local  board, 
and  a  consideration  of  the  arguments  and  evidence  presented  he  became  satisfied 
that  the  preliminary  order  did  not  dispose  of  the  matter  in  the  best  way,  and  that 
he  believes  the  action  of  the  local  board  in  vacating  said  order  was  right. 

Upon  the  facts  established  herein,  I  find  and  decide,  that  the  decision  of 
said  local  board,  in  vacating  said  preliminary  order  of  Commissioner  Ostrander 
of  November  3,  1894.  altering  the  boundaries  of  school  districts  nos.  6  and  20, 
town  of  Colchester,  Delaware  county,  was  a  wise  exercise  of  the  power  and 
authority  vested  in  said  board ;  that  the  decision  of  said  local  board  is  confirmed, 
and  the  appeal  herein  should  be  dismissed. 

Appeal  dismissed. 


3918 
In  the  matter  of  the  appeal  of  John  Decker  v.  John  J.  Kenney.  school  commis- 
sioner of  Richmond  county. 
The  territory  of  a  school  district  which  has  been  established  by  a  special  act,  a  provision 
of  which  reads,  "that  the  territory     .     .     .     shall  constitute  a  separate  school  district 
..."  can  only  be  altered  by  legislation.     Held,  that  an  order  of  a  school  commis- 
sioner assuming  to  alter  such  a  district,  can  not  be  upheld. 
Decided  October  30,  1890 

Robert  J.  Scherer.  Esq.,  attorney  for  appellant 

■Draper,  Suf'crintcndent 
'       This  is  an  appeal  froin  the  order  of  the  school  commissioner,  made  on  the 
26th  day  of  May  1890,  cutting  off  a  portion  of  the  territory  of  the  Port  Richmond 


662  THE    UNIVERSITY    OF    THE    STATE   OF    NEW    YORK 

union  school  district  and  annexing  the  same  to  school  district  no.  9.  of  the  town 
of  Northfield.     Section  i  of  chapter  363  of  the  Laws  of  1875  reads  as  follows: 

"  §  I  From  and  after  the  passage  of  this  act,  the  territory  now  known 
as  union  free  school  district  no.  6,  in  the  town  of  Northfield,  county  of  Richmond, 
shall  constitute  a  sejarate  school  district  to  he  known  as  the  Port  Richmond 
union  free  school  district." 

It  seems  clear  to  my  mind  that,  in  view  of  the  fact  that  the  Legislature  has, 
by  a  special  act,  determined  that  the  territory  embraced  within  the  Port  Rich- 
mond union  free  school  district,  shall  constitute  a  separate  school  district,  the 
commissioner  was  powerless  to  change  the  same.  It  is  unnecessary  for  me  to 
consider  the  reasons  which  actuated  the  commissioner,  or  to  make  any  investi- 
gation into  the  merits  of  the  case.  The  district  could  be  altered  only  by  the 
Legislature. 

The  appeal  is  sustained,  and  the  order  of  the  school  commissioner  is  set 
aside  and  declared  to  be  void  and  of  no  effect. 


3534 

Harvey  P..  \''an  Dyne,  trustee  of  school  district  no.  5  of  the  town  of  Pough- 
keepsie,  Dutchess  county,  N.  Y.,  v.  Albert  P.  Smith,  school  commissioner  of 
the  second  commissioner  district  of  Dutchess  county. 

Consent  of  trustees  of  one  district  affected  by  a  commissioner's  order  changing  school  dis- 
tricts not  material  when  the  trustees  of  the  other  district  refuse  consent.  Such  consent 
only  becomes  material  when  there  is  to  be  no  subsequent  meeting  for  hearing  objections. 

A  commissioner  who  failed  to  file  a  confirmatory  order  made  by  himself,  together  with  the 
supervisor  and  town  clerk,  for  nearly  a  month  after  the  same  was  made,  was  derelict 
in  duty;  but  such  negligence  held  not  to  be  fatal  to  the  proceedings. 

Failure  to  give  proper  notice  of  the  meeting  to  hear  objections  would  be  waived  by  the 
appearance  at  the  meeting,  without  objection,  of  all  the  parties  entitled  to  notice. 

.•Mtering  districts  only  for  the  purpose  of  equalizing  valuations  not  sanctioned  liy  the  De- 
partment, may  be  an  element  for  consideration,  but  should  not  be  the  controlling  one. 

Decided  November  13,  1886 

Draper,  Superintendent 

This  is  an  appeal  from  an  order  of  Albert  P.  Smith  as  school  commissioner 
of  the  second  commissioner  district  of  Dutchess  county,  made  on  the  6th  day 
of  August  1886,  and  also  from  an  order  of  said  commissioner  dated  the  14th  day 
of  August  1886,  made  to  confirm  the  first  mentioned  order,  which  orders  set 
off  a  portion  of  school  district  no.  5.  in  the  town  of  Poughkeepsie,  and  attached 
the  same  to  school  district  no.  i  of  said  town.  The  papers  in  the  case  are  very 
voluminous.  From  them  it  is  gathered  that  there  has  been  considerable  local 
controversy  over  the  matter  for  a  long  time.  District  no.  i  seems  to  have  been 
desirous  of  gaining  more  territory  for  the  purpose  of  increasing  its  taxable  prop- 
erty, and  particularly  seems  to  have  been  anxious  to  bring  within  its  limits,  a 


JUDICIAL    decisions:    school    districts ALTERATION    OF  663 

piece  of  the  line  of  the  New  York  Central  and  Hudson  River  Railroad.  The 
order  of  the  commissioner  effects  this  by  cutting  some  three-quarters  of  a  mile  of 
said  road  from  district  no.  5  and  adding  it  to  district  no.  i.  This  is  stoutly 
resisted  by  district  no.  5.  It  is  said  that  the  change  will  be  inconvenient  to  the 
people  living  in  the  territory  which  is  set  off  from  one  district  to  the  other,  and 
they  protest  very  earnestly  against  it.  Two  subjects  are  properly  matters  of 
inquiry,  namely: 

1  Whether  the  commissioner  has  acted  regularly,  and  pursuant  to  the  provi- 
sions of  the  statute ;  and 

2  Whether  in  case  the  proceedings  are  regular,  it  was  an  advisable  thin;; 
to  do. 

The  appellant  urges  numerous  irregularities  in  the  proceedings,  the  leading 
ones  of  which  are: 

a  That  the  trustees  of  district  no.  i  did  not  consent,  in  writing,  to  the  order 
of  April  6th  prior  to  the  time  when  the  order  was  made. 

h  That  the  orders,  notices  etc.,  were  not  filed  in  the  clerk's  office  until 
the  4th  of  September  after  the  making  of  the  orders. 

c  That  the  commissioner  proceeded  to  hear  objections  on  the  14th  day  of 
August  without  proof  of  service  of  notice  on  the  trustees. 

d  That  the  commissioner  made  no  written  decision  or  order  on  the  14th 
of  August. 

I  do  not  think  there  is  sufficient  force  to  these  objections  to  require  that 
the  orders  should,  because  of  them,  be  set  aside.  It  is  probably  true  that  the 
trustees  of  district  no.  i  did  not  make  a  written  consent  to  the  commissioner's 
order  prior  to  the  6th  of  August.  They  severally  swear  that  they  consented  in 
fact,  however,  but  I  do  not  think  that  material.  The  consent  of  the  trustees 
of  the  district  affected  is  only  material  to  the  validity  of  the  commissioner's 
order  changing  districts  where  there  is  no  objection  on  the  part  of  either  of 
the  districts  affected,  and  where  there  is  to  be  no  subsequent  meeting  for  hearing 
objections.  In  this  case  the  trustee  of  district  no.  5  objected  from  the  first, 
and  that  fact  was  recited  in  the  order  of  August  6th.  In  view  of  the  fact 
that  there  was  no  general  assent  to  the  commissioner's  order,  and  of  the  necessity 
for  a  future  hearing  by  the  commissioner  so  that  the  opposing  parties  might 
have  an  opportunity  to  state  their  objections,  it  is  difficult  to  see  any  necessity 
of  consent,  written  or  unwritten,  on  the  part  of  the  trustees. 

That  he  determined  at  the  time  of  the  hearing  of  August  14th  to  confirm 
his  former  order  seems  to  be  beyond  question.  All  accounts  agree  upon  the  fact 
that  he  announced  his  purpose  so  to  do  to  the  end  that  the  matter  might  be 
taken  upon  appeal  to  this  Department,  if  the  opposing  parties  should  so  desire. 

I  think  the  commissioner  was  exceedingly  derelict  in  not  filing  the  papers 
in  the  clerk's  office  before  the  4th  of  September,  but  can  not  think  that  such 
negligence  should  be  held  fatal  to  the  proceedings. 

There  would  not  seem  to  be  much  force  in  the  objection  that  the  commis- 
sioner proceeded  to  hear  objections  on  the  14th  of  August  without  proof  of 
service  of  notice  on  the  trustees  in  view  of  the  fact  that  the  trustees  of  both 


664  THE   UNn-ERSITV   OF   THE    STATE   OF    NEW    YORK 

of  the  districts  affected  were  present  at  such  hearing,  and  participated  in  il, 
and  that  the  record  fails  to  disclose  that  they  raised  any  objections  of  that  nature 
at  that  time. 

It  is  claimed  l)y  the  appellant  that  the  order  of  the  commissioner  afi'ects 
school  district  no.  4.  This  is  denied  by  the  respondent,  and  inasmuch  as  no 
resident  of  that  district  apj^ears  in  the  case,  and  as  the  papers  fail  to  establish 
the  claim  satisfactorily,  it  can  not  be  sustained. 

I  now  come  to  the  consideration  of  the  question  whether  the  order  was 
advisable. 

District  no.  5  had  within  its  limits  about  two  and  one-half  miles  of  the  line 
of  the  Xew  York  Central  and  Hudson  River  Railroad.  District  no.  i  contained 
no  portion  of  the  road.  The  order  appealed  from  cuts  off  territory  containing 
about  three-fourths  of  a  mile  of  the  road  from  district  no.  5.  and  annexes  it  to 
no.  I.  The  fact  is  undisguised  that  it  was  the  object  of  the  order  to  accomplish 
just  this  thing.  Xo  other  purpose  was  advanced  in  support  of  it.  It  is  reasoned 
that  the  railroad  company  is  a  large  taxpayer,  and  that  district  no.  i  is  poor,  while 
district  no.  5  is  well-to-do.  Substantially  the  only  ground  advanced  by  the 
respondent's  answer  in  support  of  the  propriety  of  the  order  is,  that  it  was  to 
help  a  weak  district.  It  is  not  pretended  to  have  been  made  for  the  convenience 
or  benefit  of  residents  of  the  territor}'  aft'ected.  It  will  not  enlarge  their  school 
privileges.  They  feel  it  to  be  very  unjust  to  them,  and  protest  against  it  with  all 
their  strength.  To  carry  the  order  into  operation  will  be  to  disturb  present  rela- 
tions and  force  them  into  new  ones,  which  they  do  not  desire.  It  would  not  be 
at  all  strange  if  the  ill  feeling  which  w'ould  be  brought  into  district  no.  i  by  the 
annexation  would  do  it  more  harm  than  the  added  taxable  property  would  do  it 
good.  In  any  event,  I  am  not  prepared  to  give  sanction  to  the  proposition  that 
school  districts  should  be  changed  only  for  the  purpose  of  equalizing  valuations. 
Perhaps  it  may  properly  be  an  element  for  consideration,  but  it  should  not  be 
the  controlling  one.  If  districts  are  to  be  altered  whenever,  and  only  because  one 
has  more  valuable  property  than  another,  the  result  would  be  a  constant  struggle 
for  the  annexation  of  such  property,  and  the  people  and  the  school  system  would 
be  endlessly  involved  in  controversy  in  consequence  of  it. 

This  is  against  public  policy,  and  as  it  is  the  essential,  if  not  the  only,  ground 
upon  which  the  change  here  in  question  was  made,  it  can  not  be  sustained. 

The  appeal  is  sustained  and  the  orders  of  August  6th  and  14th,  1886,  are 
set  aside  and  declared  to  be  of  no  effect. 


3646 

In  the  matter  of  the  appeal  of  Sophie  Kellogg,  Mary  Rose  and  George  I.  Rose, 
appellants,  v.  school  district  no.  2,  of  the  town  of  West  Bloomfield.  Ontario 
count>'. 

The  district  meeting  refused  to  adopt  a  motion  authorizing  the  trustees  to  consent  to  an 
alteration  of  the  district  so  as  to  transfer  certain  lands  from  one  district  to  another. 


JUDICIAL    decisions:    school   districts ALTERATION    OF  665 

from  which  refusal  an  appeal  is  taken.    Held,  that  this  appeal  is  not  the  proper  remedy. 
Application  must  first  be  made  to  the  school  commissioner.    He  can  act  without  consent. 
From  his  determination  an  appeal  will  lie. 
Decided  December  i,  1887 

George  I.  Rose,  Esq.,  attorney  for  appellant 

Draper,  Superintendent 

The  appellants  above  named  are  owners  of  certain  real  estate  located  in 
district  no.  2.  of  the  town  of  West  Bloomfield.  Ontario  county.  For  various 
reasons,  which  they  indicate,  they  desire  that  the  division  line  between  district 
no.  2  and  district  no.  5.  of  said  towia,  shottld  be  so  changed  as  to  bring  their  lands 
within  district  no.  5.  At  the  last  annual  meeting  in  district  no.  2,  it  was  moved 
that  the  district  authorize  the  trustee  to  give  his  consent  to  such  change.  The 
meeting  refused  to  adopt  the  motion.     From  stich  refusal,  this  appeal  is  taken. 

I  shall  not  consider  the  question  as  to  whether  the  desire  of  the  appellants 
should  be  granted.  I  can  not  properly  do  so  before  an  application  has  been  made 
to  the  school  commissioner  having  jurisdiction,  for  the  alteration.  The  law  pro- 
vides a  way  for  changing  the  boundaries  of  school  districts  without  the  consent 
of  the  trustees  of  the  districts  affected.  The  appellants  must,  at  least,  make  an 
eft'ort  to  accomplish  their  desire  through  the  action  of  the  school  commissioner, 
before  they  can  present  the  question  to  the  State  Department.  An  appeal  would 
lie  from  the  refusal  of  the  commissioner  to  consent. 

The  appeal  is  dismissed. 


3800 

In  the  matter  of  the  appeal  of  Joseph  Horning  and  Roger  McDermott  v.  Henry 
A.  Soule,  school  commissioner  of  the  first  district  of  Cattaraugus  county. 

It  is  not  essential  to  the  validity  of  proceedings  to  alter  a  school  district  that  the  trustees 
should  either,  in  words  give  or  refuse  consent  to  the  alteration.  If  they  consent  in 
writing  the  commissioner  can  take  one  course;  if  consent  is  not  given,  though  no 
formal  refusal  is  made,  he  can  proceed  in  another  way. 

Decided  July  30,  1889 

G.  M.  Rider,  attorney  for  respondent 

Draper,  Superintendent 

The  appellant,  Joseph  Horning,  is  sole  trustee  of  district  no.  3,  of  the  town 
of  EUicottville,  Cattaraugus  county,  and  the  appellant.  Roger  McDermott.  is  sole 
trustee  of  district  no.  6,  of  the  same  town.  The  appeal  is  from  an  order  of  the 
school  commissioner,  made  on  the  7th  day  of  February  1889,  forming  a  new 
school  district  out  of  portions  of  the  two  districts  which  the  appellants  represent, 
together  with  a  portion  of  district  no.  10,  of  the  town  of  Franklinville,  and  also 
from  an  order  by  the  commissioner  and  town  clerk  confirming  the  first  mentioned 
order. 


666  THE    UNIVERSITY   OF    THE    STATE   OF    NEW    YORK 

The  appellants  claim  that  they  were  not  consulted  hy  the  commissioner  as 
to  the  advisabilitv  of  the  alteration,  and  had  no  knowledge  of  it  until  the  order 
of  the  commissioner  had  actually  been  "made.  They  also  contend  that  if  the 
alteration  is  made  it  will  leave  their  own  districts  too  weak  to  be  self-supporting. 

Parties  resident  in  the  proposed  new  district  answer  and  sustain  the  claim 
of  the  commissioner.  It  is  admitted  that  no  application  has  been  made  to  the 
appellants  for  their  consent  to  the  order  of  the  commissioner,  but  it  is  said  that 
the  reason  of  this  is  that  the  matter  had  been  discussed  in  the  neighborhood  for 
a  year;  that  the  commissioner  made  a  similar  order  nine  months  ago,  and  gave 
notice  of  a  time  and  place  to  hear  objections,  but  failed  to  prosecute  the  proceed- 
ing to  a  conclusion,  and  it  accordingly  failed  because  of  the  serious  and  long  ill- 
ness of  the  commissioner,  and  that  each  of  the  appellants  had  openly  and  repeat- 
edly asserted  that  they  would  never  consent  to  the  alteration.  This  would  seem 
a  reasonable  explanation  of  the  seeming  slight.  But  as  a  matter  of  law  it  is  not 
essential  to  the  validity  of  the  proceedings  that  consent  of  the  trustees  of  the  ter- 
ritory affected  should  be  asked  and  refused,  in  words,  before  the  commissioner 
can  proceed.  The  trustees  might  postpone  action  indefinitely  by  neither  saying 
they  would  or  would  not,  if  that  were  the  case.  It  is  sufficient  that  they  do  not 
consent. 

I  have  given  what  the  appellants  have  to  say  concerning  the  circumstances  in 
which  their  districts  will  be  left  after  alteration  very  careful  consideration. 
One  of  the  districts  will  be  left  sufficiently  strong,  beyond  doubt  or  question, 
so  far  as  valuation  is  concerned.  The  other  is  not  as  strong  in  that  regard  as  it 
would  be  well.  Rut  other  circumstances  are  to  be  considered.  The  educational 
advantages  of  the  adjacent  territory  are  to  be  taken  into  account.  The  commis- 
sioner seems  to  have  acted  deliberately.  The  matter  has  been  under  discussion 
a  long  time.  The  appellants  do  not  make  out  a  case  sufficiently  strong  to  satisfy 
me  that  the  order  of  the  commissioner  should  be  overthrown. 

The  appeal,  therefore,  must  be  dismissed. 


3862 

In  the  matter  of  the  appeal  of  Thomas  Riley,  Calvin  Sherman  and  Cyrus  C. 
Terwilliger.  as  trustees  of  school  district  no.  16,  of  the  town  of  Rochester, 
Ulster  county  v.  E.  D.  Lounsbur}'  and  others,  trustees  of  school  district  no.  i, 
of  the  town  of  W'awarsing.  Ulster  county. 

\ppeal  to  compel  the  district  from  which  a  part  was  set  of?  and  constituted  separate,  to 
comply  with  an  alleged  agreement  or  understanding  to  pay  a  proportionate  share  of 
the  value  of  the  district  property  remaining  in  the  old  district,  to  the  newly  created 
district.  Held,  that  the  Department  has  no  jurisdiction  in  the  premises.  The  advis- 
ability of  detaching  from  a  school  district  having  an  assessed  valuation  of  $58,000,  a 
portion  which  has  a  valuation  of  but  $6000,  and  constituting  the  same  a  separate  district, 
questioned. 

Decided  March  5,  i8go 

L.  B.  Haskin,  attorney  for  appellants 


JUDICIAL    DECISIONS  :    SCHOOL    DISTRICTS  —  ALTERATION    OF  667 

Skinner,  Superintendent 

It  seems  that  by  an  order  of  the  school  commissioner  of  the  third  school 
commissioner  district  of  Ulster  county,  made  upon  the  consent  of  the  trustees  of 
the  territory  affected  on  or  about  the  i6th  day  of  December  1889,  a  portion  of 
the  latter  district  was  set  off  and  made  to  constitute  the  district  first  named. 
The  division  left  the  schoolhouse  and  all  its  appurtenances  in  the  old  district. 
The  appellants  claim  that  there  was  an  understanding  and  agreement  to  the  effect 
that  the  old  district  should  pay  to  the  new  one  its  proportionate  share  of  the 
value  of  the  school  property.  The  appellants  have  demanded  this  share  from 
the  respondents.  The  respondents  deny  this  agreement  and  refuse  to  comply 
with  it,  although  they  admit  that  there  was  an  understanding  and  promise  that 
the  old  district  should  pay  to  the  new  one  the  sum  of  $75  as  soon  as  they  should 
open  a  school  of  their  own. 

The  amount  in  dispute  between  two  districts  is  not  great,  but  to  a  district 
having  an  assessable  valuation  of  but  $6000,  as  is  the  fact  in  the  present  case,  it  is 
of  considerable  consequence.  This  appeal  is  brought  for  the  purpose  of  com- 
pelling the  old  district  to  settle  with  the  new  one,  according  to  the  appellants' 
understanding  of  what  the  agreement  was.  The  circumstances  of  the  new  district 
seem  to  be  somewhat  hard.  I  can  not  help  questioning  the  advisability  of  detach- 
ing from  a  school  district  having  an  assessable  valuation  of  $58,000,  a  portion  of 
which  has  a  valuation  of  but  $6000. 

It  is  admitted  that  the  school  facilities  in  the  district  as  formerly  constituted 
were  good.  It  owned  a  good  schoolhouse  and  site  and  had  a  graded  school, 
which  was  liberally  supported.  It  is  said,  however,  that  the  portion  detached 
was  set  off  in  consequence  of  the  fact  that  the  residents  thereof  were  unwilling 
to  pay  their  share  of  the  expenses  of  maintaining  such  a  school,  and  preferred 
to  become  a  separate  district  in  consequence.  This  being  so,  they  have  little 
ground  for  complaint,  although  that  fact  would  hardly  be  sufficient  ground  upon 
which  to  support  the  action  of  the  school  commissioner ;  but  he  was  upon  the 
ground,  knew  all  the  facts,  and  was  better  able  to  judge  of  the  propriety  of  his 
action  than  I  am  here.  I  do  not  think  it  necessary  to  determine  whether  or  not 
there  was  an  agreement  concerning  the  division  of  the  school  property,  or,  if 
there  was  such  an  agreement,  what  its  terms  were.  I  am  clearly  of  the  opinion 
that  the  appellants  can  not  procure  the  fulfilment  of  such  an  agreement  by  an 
appeal  to  the  Department.  I  think  it  may  well  be  doubted  whether  they  can  do 
so  by  any  proceeding;  but  I  know  of  no  authority  of  law  which  would  support 
the  Department  in  requiring  a  district  to  carry  out  such  a  promise. 

This  is  not  an  appeal  from  any  action  of  a  district  meeting  or  district  ofiicer. 
It  is  not  shown  that  the  district,  or  its  officers,  has  either  violated  any  law  or 
failed  to  comply  with  any  legal  requirement.  This  being  so,  I  think  the  appeal 
must  fail. 

The  appellants  incidentally  ask  that,  in  the  apportionment  of  State  school 
moneys  for  the  present  year,  they  may  be  given  their  share.  So  far  as  the 
Department  of  Public  Instruction  is  concerned,  the  apportionment  for  the  present 


668  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

year  has  already  been  completed  and  promulgated.  So  far  as  the  apportionment 
by  the  school  commissioners  of  the  county  of  Ulster  is  concerned,  the  district  fails 
to  siiow  the  facts  which  would  entitle  it  to  an  allotment. 

For  the  foregoing  considerations,  the  appeal  must  be  dismissed. 


3792 

In  the  matter  of  the  appeal  of  l^emon  Thomson  and  others,  residents  of  joint 
school  district  no.  10,  towns  of  Greenwich,  Washington  county,  and  North- 
umberland, Saratoga  county,  from  the  action  of  the  local  board  of  said  joint 
district,  in  refusing  to  ratify  a  commissioner's  order,  bearing  date  April  8, 
1889,  for  the  alteration  of  said  district  and  the  consequent  alteration  of  dis- 
trict no.  17,  town  of  Greenwich. 

In  a  joint  school  district,  by  a  decision  previously  made,  the  school  commissioners  havin;? 
jurisdiction  were  directed  to  make  a  preliminary  order  for  a  division  of  the  district  by 
the  county  line,  so  that  each  part  would  come  under  the  jurisdiction  of  a  single  com- 
missioner. The  preliminary  order  having  been  made,  but  the  consent  of  the  trustees  of 
all  of  the  districts  affected  thereby  not  having  been  obtained,  the  order  was  made  to 
take  effect  at  a  future  day,  and  the  local  board,  consisting  of  commissioners,  supervisors 
and  town  clerks,  was  convened  for  the  purpose  of  determining  whether  the  preliminary 
order  should  be  confirmed  or  not.  The  local  board  refused  to  confirm  the  order.  For 
the  reasons  which  induced  a  former  decision  directing  the  preliminary  order  in  this 
matter,  the  commissioners  are  directed  to  confirm  by  a  final  order  the  change  as  pro- 
posed by  the  preliminary  order. 

Decided  July  13.  1889 

Draper.  Superintendent 

This  is  an  appeal  by  resident  taxpayers  of  joint  school  district  no.  10,  of 
the  towns  of  Greenwich,  county  of  Washington,  and  Northumberland,  county  of 
Saratoga,  from  the  action  of  the  local  board  in  refusing  to  confirm  a  prelimi- 
nary order  made  by  the  commissioners  having  jurisdiction  for  a  division  of  the 
district,  and  the  annexation  of  a  part  to  an  adjoining  district.  The  appellants 
are  residents  of  that  portion  of  the  joint  district  situate  in  Washington  county. 
The  land  is  divided  from  that  portion  of  the  district  lying  in  Saratoga  county  by 
the  Hudson  river. 

Commissioner  Joseph  W.  Barbur  has  jurisdiction  in  Washington  county,  and 
Commissioner  William  X.  Harris  in  Saratoga  county.  The  schoolhouse  in  the 
joint  district  is  located  in  the  Saratoga  portion  of  the  district.  A  majority  of 
the  children  of  the  district  reside  in  Washington  county,  and  in  order  to  attend 
the  public  school  of  their  district,  are  compelled  to  cross  the  river  by  a  long 
bridge  which  is  used  for  canal  purposes.  The  bridge  is  not  properly  guarded 
with  sufficient  side  railings,  and  in  consequence  of  the  bridge  being  used  by 
canal  boatmen,  the  children  are  often  subjected  to  annoyance  and  forced  to  hear 
low  and  obscene  language,  too  often  indulged  in  by  some  persons  employed  on 
the  canal. 


JUDICIAL    DECISIONS  I    SCHOOL    DISTRICTS  —  ALTERATION    OF  669 

At  the  meeting  of  the  local  board,  held  as  provided  by  statute,  there  were 
present  the  school  commissioners,  the  supervisor  and  town  clerk  of  each  of  the 
towns  in  which  the  districts  are  situated.  The  vote  upon  the  question  of  con- 
firming the  prehminary  order  of  the  commissioners  resulted  in  a  tie,  the  members 
of  the  board  residing  in  Washington  county  voting  in  favor  of  the  order  and 
consequent  alteration,  and  those  residing  in  Saratoga  county  voting  in  opposition 
thereto. 

It  is  a  rule  of  this  Department  not  to  interfere  in  a  proceeding  of  this  nature 
where  commissioners  of  a  joint  district  do  not  agree  upon  an  alteration,  unless 
the  propriety  of  the  case  is  clearly  manifest  and  where  a  refusal  to  do  so  would 
necessarily  work  injustice.  By  the  alteration  proposed  the  part  of  the  district 
situated  in  Saratoga  county  would  not  be  so  weakened,  either  in  the  number  ot 
children  of  school  age  or  in  taxable  property,  as  to  prevent  the  maintenance  of 
a  satisfactory  school.  The  fact  that  a  majority  of  the  children  of  the  joint  dis- 
trict are  now  compelled  to  cross  the  river  by  the  bridge  above  referred  to,  in 
order  to  reach  the  schoolhouse,  carries  considerable  weight  in  my  mind  that  the 
alteration  should  be  made.  It  further  appears  that  by  the  annexation  of  that 
part  of  the  joint  district  situate  in  Washington  county  to  an  adjoining  district 
in  the  same  county,  which  is  now  without  a  school  building,  the  same  having 
been  destroyed  by  fire,  and  the  proposition  that  if  the  order  is  allowed,  a  new  site 
will  be  selected  which  will  be  easily  accessible  to  the  children  of  the  district,  and 
upon  which  a  new^  school  building  is  to  be  erected,  would  seem  to  render  this 
an  opportune  time  for  the  change  to  be  made. 

In  view  of  these  facts,  and  that  the  allegations  of  the  appellant  have  not  been 
controverted,  I  must  sustain  the  appeal,  and  hereby  direct  School  Commissioner 
William  X.  Harris,  of  the  second  district  of  Saratoga  county,  to  join  in  an  order 
with  Commissioner  J.  W.  Barbur  of  the  first  district  of  Washington  county,  mak- 
ing a  final  order  for  the  change  as  proposed  by  the  preliminary  order,  and  cause 
the  same  to  be  filed  and  recorded  by  the  town  clerks  of  the  towns  in  which  the 
districts  affected  lie. 


3516 

John  Armstrong  v.  John  J.  Callanan,  school  commissioner  of  the  first  commis- 
sioner district  of  Albany  county. 
Commissioner's  order  declining  to  set  off  a  taxpayer  from  one  school   district  to  another 

for  the  reason  that  such  taxpayer  supposed  when  he  purchased  lands  he  was  mcluded 

in  the  district  he  asked  to  be  attached  to,  sustained. 
Decided  September  2^8,  1886 

Draper.  Superintendent  .   . 

This  is  an  appeal  bv  Tohn  Armstrong,  an  inhabitant  and  taxpayer  of  jomt 
afstrict  no.  3  of  the  town  of  Coeymans.  Albany  county,  and  New  Baltmiore, 
Greene  county,  from  the  action  of  School  Commissioner  John  J.  Callanan  of  the 


6/0  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

first  commissioner  district  of  Albany  county,  refusing  to  set  off  said  appellant  to 
an  adjoining  district. 

The  grounds  stated  by  the  appellant  for  desiring  to  be  set  oft'  are  as  follows : 

1  That  a  railroad  is  operated  through  district  no.  3,  and  between  the 
property  of  ai)pellant  and  the  schoolhouse,  and  that  it  is  extremely  dangerous  for 
school  children  to  cross  and  recross  the  tracks  of  the  railroad  company  because 
of  the  frequent  passage  of  trains  of  cars. 

2  That  the  lands  of  appellant  are  rendered  less  valuable  by  reason  of  the 
same  being  included  in  district  no.  3 ;  that  prospective  tenants  will  not  hire  appel- 
lant's lands  if  it  is  discovered  that  the  lands  are  included  in  district  no.  3,  and 
separated  from  the  schoolhouse  by  the  railroad  tracks. 

The  facts  are : 

That  appellant's  lands  are  near  the  eastern  boundary  of  district  no.  3 ;  that 
a  railroad  is  now  and  for  several  years  has  been  operated  through  the  district 
very  near  appellant's  lands ;  that  appellant  supposed  when  he  bought  the  lands, 
that  he  was  included  in  district  no.  i,  which  is  composed  of  land  wholly  east  of 
said  railroad  land;  that  appellant  has  two  children,  each  16  years  of  age;  that 
the  railroad  company  protects  persons  passing  at  the  crossing  by  gates  and 
signals ;  that  appellant's  children  are  often  seen  about  the  depot  of  the  company 
near  the  crossing,  and  that  they  cross  the  tracks  to  and  fro  when  not  attending 
the  school. 

The  district  to  which  the  appellant  seeks  to  be  set  off  is  possessed  of  a  very- 
large  amount  of  taxable  property,  while  district  no.  3  is  much  weaker.  Other 
taxpayers  are  similarly  situated  in  district  no.  3,  and  object  to  any  change  in  the 
boundary  of  the  district.  District  no.  3  has  a  good  school  and  an  excellent 
teacher,  and  the  school  has  been  conducted  with  good  results. 

Although  the  appellant's  counsel  has  been  repeatedly  notified  to  perfect  his 
appeal  by  furnishing  a  map  and  list  of  taxable  inhabitants  necessary  for  a  com- 
plete understanding  of  the  case,  he  has  neglected  to  do  so,  and  I  am  compelled 
to  consider  the  case  without  the  aid  and  information  such  map  and  list  would 
afford  me. 

The  question  is.  Did  Commissioner  Callanan  exercise  proper  discretion  in 
refusing  the  request  made  to  him  by  appellant? 

From  the  facts  found,  I  am  of  the  opinion  that  he  did.  But,  moreover,  had 
he  granted  the  order  changing  the  district,  it  would  have  been  void  without  the 
concurrence  of  the  commissioner  of  the  adjoining  commissioner  district  of  Greene 
county,  who  has  jurisdiction,  together  with  Commissioner  Callanan,  in  district 
no.  3,  of  which  land  in  Greene  county  forms  a  part ;  and  even  with  the  concurrent 
action  of  the  commissioners  granting  the  alteration,  the  consent  of  a  majority  of 
a  board  composed  of  the  commissioners  acting  with  the  supervisors  and  clerks 
of  the  adjoining  towns  might  be  requisite,  for  the  reason  that  the  trustee  of  dis- 
trict no.  3  declined  to  consent  to  the  proposed  alteration. 

The  appeal  is  overruled,  and  the  action  of  the  commissioner  is  sustained. 


JUDICIAL    decisions;    school   districts  —  ALTERATION    OF  6/1 

5252 

In  the  matter  of  the  appeal  of  William  McLaughlin,  Michael  McGinn  and  John 
T.  Wright  as  trustees  of  school  district  no.  19,  town  of  Skaneateles,  X.  Y., 
from  the  decision  of  J.  J.  Jewell,  school  commissioner  of  the  second  com- 
missioner district  of  the  county  of  Onondaga,  and  H.  T.  Morrison,  school 
commissioner  of  the  first  commissioner  district  of  Cayuga  county  and  others, 
in  affirming  an  order  made  by  said  commissioners  in  altering  school  district 
no.  19  of  the  town  of  Skaneateles. 

A  preliminary  order  changing  the  boundaries  of  a  joint  school  district  may  be  made  when 
the  territory  transferred  lies  wholly  in  one  school  commissioner  district  by  the  school 
commissioner  of  the  district  in  which  such  territory  lies. 

The  confirmatory  order  in  such  case  must  be  a  joint  order  by  the  commissioners  in  whose 
district  the  school  districts  affected  lie. 

Decided  April  10,  1905 

C.  R.  Milford,  attorney  for  appellants 
Johnson  &  Fuggle,  attorneys  for  respondents 

Draper,  Couunissioncr 

On  November  15,  1905,  School  Commissioner  Jewell  of  the  second  commis- 
sioner district  of  Onondaga  county,  and  School  Commissioner  Morrison  of  tlie 
first  commissioner  district  of  Cayuga  county,  made  a  preliminary  order  altering 
the  boundaries  of  school  district  no.  11,  town  of  Skaneateles,  Onondaga  county, 
and  town  of  Sennett,  Cayuga  county,  by  transferring  a  portion  of  the  territory 
of  said  district  no.  11,  to  school  district  no.  19,  Skaneateles.  School  district  no. 
II  is  a  joint  district.  That  part  of  such  district  which  was  in  the  town  of  Skane- 
ateles was  in  School  Commissioner  Jewell's  district  and  that  part  of  such  district 
which  was  in  the  town  of  Sennett  was  in  School  Commissioner  Morrison's  dis- 
trict. The  trustees  of  joint  district  no.  11  consented  in  writing  to  such  altera- 
tion. The  trustees  of  district  no.  19,  Skaneateles,  refused  to  consent.  The 
trustees  of  said  district  no.  19  appeal  from  the  action  of  the  school  commissioners 
in  transferring  the  territory  in  question  from  district  no.  11  to  district  no.  19. 

Appellants  allege  that  the  proceedings  by  which  the  order  was  made  were 
not  conducted  as  the  law  requires  and  that  the  order  is  therefore  void.  It  is 
claimed  that  the  leading  defects  in  such  proceedings  are  as  follows: 

1  That  School  Commissioner  Morrison  had  not  jurisdiction  and  could  not 
legally  join  Commissioner  Jewell  in  making  the  order. 

2  That  the  supervisor  and  town  clerk  of  the  town  of  Skaneateles  were 
illegally  associated  with  the  local  board  which  heard  objections  to  the  preliminary 
order  of  the  commissioners. 

3  That  the  order  was  not  filed  with  the  town  clerks  of  the  towns  in  which 
such  districts  are  located  as  the  law  directs. 

-V     The  legal  objections  raised  by  appellants  are  not  sound. 

Joint  district  no.  ii  is  partly  in  the  town  of  Skaneateles  and  partly  in  the 
town  of  Sennett.     District  no.  19  is  wholly  in  the  town  of  Skaneateles.     That 


6/2  THE    UNIVERSITY    OF    THE    STATE   OF    NEW    YORK 

part  of  110.  II  which  was  transferred  to  no.  19  is  also  wholly  in  the  town  of 
Skaneateles.  Appellants  claim  that  since  the  territory  transferred  and  the  district 
to  which  it  was  attached  were  wholly  in  School  Commissioner  Jewell's  district 
that  Commissioner  Morrison  could  not  legally  jom  in  making  the  order.  This 
claim  is  based  on  the  provisions  of  subdivision  2  of  section  I,  title  6  of  the 
Consolidated  School  Law  which  reads  as  follows: 

In  conjunction  with  the  commissioner  or  commissioners  of  an  adjoining 
school  commissioner  district  or  districts,  to  set  otT  joint  districts  composed  ot 
adjoining  parts  of  their  respective  districts,  and  separately  to  institute  proceed- 
ings to  alter  the  same  in  respect  to  tke  territory  within  his  ozvn  district. 

This  Department  has  held  since  the  above  subdivision  was  amended  in  1895 
that  the  preliminary  order  in  such  proceedings  may  be  made  when  the  territory- 
transferred  lies  wholly  in  one  commissioner  district,  by  the  school  commissioner 
of  the  district  in  which  such  territory  lies.  In  this  case  Commissioner  Jewell 
could  have  made  the  preliminary  order.  The  ruling  has  always  been  however 
that  the  order  affirming  a  preliminary  order  must  be  a  joint  order  by  the  commis- 
sioners in  whose  district  the  school  districts  affected  lie.  It  was  therefore  neces- 
sary that  in  this  case  Commissioner  Jewell  and  Commissioner  Morrison  should 
jointly  make  the  affirming  order.  (See  decision  no.  4449.)  The  fact  that  the 
preliminary  order  was  a  joint  order  does  not  invalidate  it.  The  object  of  the 
preliminary  order  is  to  bring  the  question  of  the  wisdom  of  making  the  proposed 
changes  before  the  local  board,  for  which  provision  is  made  by  section  4  of  title 
6,  for  review  and  determination. 

Section  7  of  title  6  of  the  Consolidated  School  Law  provides  as  follows: 

W  henever  it  may  become  necessary  or  convenient  to  form  a  school  district 
out  of  parcels  of  two  or  more  school  commissioner  districts,  the  commissioners 
of  such  districts,  or  a  majority  of  them,  may  form  such  district;  and  the  commis- 
sioners within  whose  districts  anv  such  school  district  lies,  or  a  majority  of  them, 
may  alter  or  dissolve  it. 

Under  this  provision  of  law  the  commissioners  had  authority  to  jointly  make 
the  preliminary  order.  District  no.  ii  was  a  joint  district  and  none  of  the  terri- 
tory of  that  district  could  be  transferred  to  any  other  district  except  upon  the 
joint  order  of  the  t\vo  school  commissioners  in  whose  districts  said  school  district 
no.  1 1  was  located.     The  order  in  this  respect  was  therefore  legal. 

Appellants  claim  that  the  supervisor  and  town  clerk  of  the  town  of  Sennett 
were  not  lawfully  requested  to  join  the  local  board  which  was  to  hear  objections 
to  the  preliminary  order  and  that  such  officers  had  no  authority  to  act  with  such 
local  board.  Respondents  claim  such  officers  were  properly  requested  to  be  asso- 
ciated with  the  local  board  and  while  the  proof  on  this  point  is  not  clear  the 
burden  to  show  that  such  request  was  not  properly  made  is  upon  appellants  and 
they  have  not  affirmatively  sustained  their  contention.  Appellants  also  raise  the 
question  of  jurisdiction  of  the  town  clerk  and  supervisor  of  Sennett  to  act  in 
the  proceeding  on  the  same  ground  on  which  they  challenged  the  right  of  Com- 
missioner Morrison  to  join  in  the  proceedings.     District  no.  11  was  partly  in  the 


JUDICIAL    DECISIONS  :    SCHOOL   DISTRICTS ALTERATION    OF  673 

town  of  Sennctt.  The  law  provides  that  "  the  trustees  of  any  district  to  be 
affected  by  such  order  may  request  the  supervisor  and  town  clerk  of  the  town 
or  towns  within  which  such  district  or  districts  shall  wholly  or  partly  lie,  to  be 
associated  with  the  commissioner."  District  no.  ii  was  therefore  entitled  to  be 
represented  on  the  local  board  by  the  supervisor  and  town  clerk  of  the  town  of 
Sennett  and  such  officers  possessed  the  lawful  right  to  be  associated  with  the 
local  board  and  participate  in  its  deliberations. 

I  think  the  pleadings  clearly  show  that  the  orders  were  properly  and  legally 
made  and  filed  as  the  law  directs.  The  further  question  to  be  determined  is 
whether  or  not  the  school  commissioners  and  the  majority  of  the  local  board 
exercised  an  improper  and  unwise  discretion  in  making  the  order.  Two  school 
commissioners  in  making  the  order  certify  that  the  children  of  school  age  residing 
within  the  territory  transferred  are  unable  to  attend  school  regularly  because 
of  the  great  distance  they  are  required  to  travel  to  attend  school  in  no.  ii  and 
often  because  of  the  impassable  condition  of  the  roads.  They  also  certify  that 
these  children  may  receive  proper  and  regular  school  privileges  by  being  trans- 
ferred to  district  no.  19.  It  also  appears  that  inspectors  of  this  Department  have 
recommended  that  such  action  should  be  taken.  No  unjust  burden  is  imposed 
upon  district  no.  19  by  this  action.  The  pleadings  show  that  district  no.  19  has  a 
good  modern  school  building  with  a  seating  capacity  of  eighty-six  and  the  average 
attendance  of  pupils  in  that  district  during  the  past  year  was  fifty.  The  number 
of  pupils  of  school  age  in  the  territory  transferred  is  only  fifteen  and  it  is  not 
probable  that  all  of  these  will  attend  school.  District  no.  19  will  therefore  be 
able  to  accord  school  privileges  to  the  additional  pupils  in  that  district  caused  by 
the  transferring  of  the  territory  in  question  without  any  material  additional 
expense  or  without  any  apparent  embarrassment.  The  action  of  the  local  board 
in  affirming  the  preliminary  order  of  the  commissioners  is  sustained. 

The  appeal  herein  is  dismissed. 
22 


SCHOOL  DISTRICTS  — BOUNDARIES 

Where  inhahitants  liavc  laen  properly  set  off  from  one  district  to  another,  and  the  town 
clerk  has  omitted  to  record  the  order,  they  will  be  regarded  as  inhabitants  of  the 
district  to  which  they  have  been  annexed  after  it  has  been  acquiesced  in  for  five  years. 

Decided  May  I2,  1854 

Rice,  Supcr'uitciidcnt 

This  is  an  ai)peal  from  the  proceedings  of  a  special  meeting  held  on  the  28th 
of  March  last,  authorizing  the  trustees  to  levy  a  tax  on  the  district  to  defray  the 
exi)ense  of  moving  the  schoolhousc  to  the  new  site,  or  to  let  the  job  of  moving 
the  same  to  the  lowest  bidder. 

The  appellants,  in  support  of  the  appeal,  allege  that  seven  persons,  who 
attended  the  meeting  and  voted,  were  not  inhabitants  of  and  legal  voters  in  said 
district,  having  been  annexed  in  1839  to  joint  district  no.  i,  Blenheim  and  Fulton, 
and  there  being  no  record  in  the  town  clerk's  office  of  either  of  said  towns  of 
their  subsequent  transfer,  either  to  district  no.  5  or  any  other  district. 

In  reply  to  this  allegation,  the  affidavits  of  the  town  superintendents  of 
I'ulton  and  r.lenheim  for  the  year  1849  ^^e  produced,  showing  that  the  individuals 
referred  to -and  their  property  were,  in  the  spring  of  that  year,  transferred  by 
them  from  joint  district  no.  i  to  district  no.  5.  and  that  the  order  made  by  them 
to  that  effect  was  transmitted  or  delivered  to  the  town  clerks  of  their  respective 
towns  for  record.  It  also  appears,  from  the  affidavit  of  the  appellants,  that,  from 
that  period  to  the  present,  the  persons  so  transferred  have  acted  in  and  been 
regarded  as  inhal)itants  of  district  no  5,  and  their  children  enumerated  therein. 
Under  these  circumstances,  and  after  an  acciuiescence  of  five  years,  the  proof  of 
such  transfer  must  be  regarded  as  suflicient,  notwithstanding  the  omission  of  the 
town  clerks  to  record  the  same. 


4241 

In  the  matter  of  the  appeal  of  board  of  education  of  union  free  school  district 
no.  I,  Xunda,  Livingston  county,  v.  A.  B.  Dunn,  school  commissioner,  second 
commissioner  district,  Livingston  county. 

Where  an  appeal  is  taken  from  an  order  of  a  school  commissioner  defining  the  location  of 
a  farm,  as  regards  the  boundaries  of  certain  school  districts,  on  the  ground  that  the 
order  makes  an  alteration  in  school  districts,  the  burden  is  upon  the  appellants  to  estab- 
lish their  contention  by  preponderance  of  proof.  Such  appeal  must  be  brought  within 
thirty  days  from  date  of  the  order  or  a  sufficient  excuse  must  appear  in  the  appeal  for 
the  delay. 

Decided  April  25,  1894 

Crooker,  Superintendent 

This  appeal  is  taken  from  the  order  of  A.  B.  Dunn,  school  commissioner  of 
the  second  commissioner  district  of  Livingston  county,  made  Jidy  3,  1893,  decid- 

I674I 


JUDICIAL   decisions:    school  districts BOUNDARIES  675 

ing  that  a  farm  of  one  William  Craig,  consisting  of  112  acres  of  land,  situate  in 
the  town  of  Portage,  Livingston  county,  was  situated  and  formed  a  part  of  school 
district  no.  3  of  said  town  of  Portage. 

The  appellant  alleges  as  ground  of  the  appeal  that  the  said  order  sets  ofl" 
;Said  farm  from  union  free  school  district  no.  I  of  Nunda  to  district  no.  8  of 
Portage  and  that  such  order  was  made  without  the  consent  of  the  appellant. 

The  appeal  is  supported  by  a  number  of  affidavits  of  persons  relative  to  the 
location  of  said  farm  in  school  districts  as  the  affiants  understood  and  recollect. 
An  answer  has  been  interposed  by  the  respondent  and  is  supported  by  affidavits 
of  persons  relative  to  the  location  of  said  farm. 

The  respondent  denies  that  he  has  set  off  said  farm  as  alleged  in  the  appeal 
herein,  and  alleges  that  said  order  simply  decides  a  dispute  in  regard  to  the 
location  of  said  farm,  as  regards  the  boundaries  of  certain  school  districts. 

It  is  admitted  that  the  farm  lies  in  the  town  of  Portage,  and  that  the  records 
of  said  town  were  entirely  destroyed  by  fire  many  years  ago,  and  that  the  records 
of  school  district  no.  16,  of  Nunda,  the  district  in  which  the  appellant  claims  said 
farm  was  situate  at  the  time  of  the  consolidation  of  certain  school  districts  into 
union  free  school  district  no.  i,  of  Nunda,  by  the  establishment  of  a  union  free 
school  therefor  and  therein,  of  which  no.  16  was  one,  are  lost  and  can  not  be 
found. 

The  respondent,  before  answering  the  appeal  herein,  made  a  preliminary 
objection  to  the  appeal,  namely :  that  the  said  appeal  was  not  taken  within  thirty 
days  from  the  time  the  appellant  had  notice  of  the  order  appealed  from,  and  no 
reason  is  stated  in  the  appeal  for  the  delay,  as  required  by  rule  4  of  the  rules  of 
this  Department  relative  to  appeals.  It  appears  that  the  order  appealed  from 
was  dated  July  3,  1893,  and  on  August  22,  1893,  a  copy  of  said  order,  with  the 
certificate  of  the  town  clerk  of  the  town  of  Portage  attached,  to  the  effect  that 
the  same  was  a  true  and  correct  copy  of  the  original  then  on  file  in  his  said  office, 
was  served  upon  Clarence  L.  Cuddeback,  a  member  and  the  secretary'  of  the 
board  of  education,  appellant;  that  the  appeal  herein  was  served  upon  the 
respondent  on  October  25,  1893 ;  that  said  appeal  was  not  received  at  the  Depart- 
ment until  November  i,  1893. 

I  am  of  the  opinion  that  such  preliminary  objection  is  well  taken  and  the 
appeal  herein  should  be  dismissed. 

Upon  the  question,  in  which  school  district  the  said  Craig  farm  properly 
belongs,  after  a  careful  examination  of  all  the  proofs  and  papers  presented,  I 
have  come  to  the  conclusion,  and  do  find  and  decide : 

That  school  district  no.  2,  town  of  Portage,  known  as  the  "  Oakland  dis- 
trict," many  years  ago  included  within  its  boundaries  the  territory  bounded  on 
the  north  by  the  Orton  road,  on  the  east  by  the  town  line  between  the  towns  of 
Portage  and  Nunda,  and  within  which  was  that  parcel  of  land  now  known  as 
the  Craig  farm;  that  about  the  year  1840  school  district  no.  18  of  the  town  of 
Fortage  was  formed  and  the  territory  in  said  district  no.  2  of  Portage,  lying 
south  of  Orton  road  and  west  of  the  town  line,  between  the  towns  of  Portage 
and  Nunda,  including  the  parcel  of  land  known  now  as  the  "  Craig  farm  "  was 


6/6  THE    I'NIVFRSITV    OF    THE    STATE    OF    XEW    YORK 

eml)raccd  within  the  boundaries  of  and  formed  a  part  of  said  district  no.  i8;  that 
in  the  rcninnbcring  of  the  school  districts  in  the  town  of  Portage  said  district 
became,  and  now  is.  district  no.  8  of  said  town ;  that  there  is  no  proof  that  said 
Craig  farm  so  as  aforesaid  within  the  district  known  as  no.  i8  and  now  no.  8  of 
J  'ortage,  was  ever  set  off  from  said  district ;  that  for  many  years  prior  to  the  year 
1876  there  was  a  school  district  in  the  town  of  Nunda  known  as  district  no.  16, 
but  there  is  no  proof  that  any  portion  of  the  town  of  Portage  was  embraced 
within,  or  formed  a  part  of  said  district,  nor  that  said  district  was  ever  known 
as  district  no.  16  of  Nunda  and  Portage;  that  said  district  no.  16  of  Nunda 
became  a  jjart  of  union  free  school  district  no.  i  of  Nunda,  but  there  is  no  proof 
that  at  the  time  said  district  so  became  part  of  said  union  free  school  district  the 
said  Craig  farm  was  situate  within  or  formed  a  part  of  said  district;  that  said 
C  raig  farm  is  not  now,  nor  ever  has  been,  situate  within  the  boundaries  of  nor 
formed  a  i)art  of  said  union  free  school  district  no.  i  of  Nunda ;  that  the  order 
or  decision  of  Commissioner  Dunn,  appealed  from,  is  not  an  alteration  of  the 
boundaries  of  any  school  district  either  in  the  town  of  Portage  or  Nunda,  but 
simply  decides  in  what  school  district  said  Craig  farm  is  situate. 

The  burden  of  proof  is  upon  the  appellant  to  establish  the  appeal  herein 
and  in  this  the  appellant  has  failed  and  the  appeal  should  be  dismissed  upon 
that  ground. 

The  appeal  herein  is  dismissed. 


4246 

In  the  matter  of  the  appeal  of  Rector  Seymour,  sole  trustee  of  school  district 
no.  II,  towns  of  Walton  and  Tompkins,  Delaware  county,  v.  E.  E.  Conlon, 
school  commissioner,  first  commissioner  district,  Delaware  county. 
Where  a  school  commisMoner  makes  an  order  defining  the  boundaries  of  a  school  district, 
wlien  in  fact  the  order  is  an  alteration  of  the  school  district  and  other  school  districts 
adjoining,  and  that  fact  being  established  upon  an  appeal  from  said  order,  said  order 
should  be  vacated  and  set  aside. 
Decided  May  8,  1894 

Marvins  &  Hanford,  attorneys  for  appellant 

Crooker,  Superintendent 

This  is  an  appeal  from  the  order  of  E.  E.  Conlon,  school  commissioner  of 
the  first  commissioner  district  of  Delaware  county,  made  September  14,  1893, 
defining  the  boundaries  of  school  district  no.  11,  towns  of  Walton  and  Tompkins, 
Delaware  county. 

The  contention  of  the  appellant  is  that  the  boundaries  of  said  school  district 
are  well  defined  and  known,  as  shown  by  the  records  in  the  office  of  the  town 
clerks  of  the  towns  of  Walton  and  Tompkins,  and  if  any  persons  are  ignorant  of 
such  boundaries  they  are  at  fault  in  not  carefully  consulting  such  records,  and 


JUDICIAL  DECISIONS  :    SCHOOL  DISTRICTS BOUNDARIES  677 

that  the  order  appealed  from  is  in  fact  an  alteration  of  said  school  district  and 
other  school  districts  adjoining. 

The  respondent  contends  that  by  his  order  he  has  simply  defined  the  bound- 
aries of  said  district. 

An  appeal  is  pending  before  me  of  Abijah  S.  Wakeman  and  others,  claiming 
to  be  residents  of  such  school  district,  from  the  action  and  decision  of  the  appel- 
lant in  this  appeal,  in  refusing  to  continue  or  establish  a  branch  school  at  Wake- 
man  Brook,  claimed  by  the  appellants  therein,  to  be  within  the  bounds  of  such 
district. 

My  decision  in  the  appeal  herein  will  be  decisive  of  the  question  raised  by 
the  respondent  Seymour  in  the  appeal  brought  by  Wakeman  and  others,  namely, 
whether  the  appellants,  Wakeman  and  others,  are  residents  of  such  district  or 
not. 

The  parties  in  each  of  the  above-mentioned  appeals  have  stipulated  that  I 
may  consider  both  appeals  upon  the  proofs  and  papers  presented  in  each. 

The  papers  presented  in  the  two  appeals  are  very  voluminous,  and  have 
been  carefully  examined  and  considered.  From  such  examination  and  consid- 
eration it  appears  that  the  only  lands  about  which  the  contention  herein  has 
arisen  are  those  lying  north  of  the  Delaware  river  and  situate  in  what  is  known 
as  the  Wakeman  Brook  locality. 

By  the  certified  copy  of  the  records  in  the  office  of  the  town  clerk  of  the 
town  of  Walton,  presented  in  this  appeal,  it  appears  that  by  an  order  made  by  the 
school  commissioners  of  the  town  of  Walton  on  April  27,  1829,  the  several  school 
districts  in  said  town  were  located.  In  said  order  district  no.  6  of  said  town,  is 
defined,  "From  the  lower  line  of  no.  5,  down  on  both  sides  of  the  river  (Dela- 
ware), to  the  lower  line  of  John  Barlow's  farm,  including  the  wild  land  on 
both  sides  of  the  river  to  the  town  line."  The  words,  "  including  the  wild  land 
on  both  sides  of  the  river  to  the  town  line,"  were  inserted  in  said  order  on 
December  20,  1831,  and  such  alteration  became  legal  and  valid  from  said  date. 
From  and  after  said  December  20,  183 1,  the  lower  line  of  district  no.  6  of  Walton 
has  been  and  still  is  the  lower  line  of  John  Barlow's  farm,  including  land  on 
both  sides  of  the  river  to  the  town  line  between  the  towns  of  Walton  and  Tomp- 
kins, and  the  lower  line  of  the  John  Barlow  farm  is  the  town  line  between  Walton 
and  Tompkins,  and  the  line  on  the  west  side  of  the  river  between  lots  207  and 
208,  Rapelyea  Patent,  starts  from  the  river  opposite  the  lower  line  of  the 
Barlow  farm  and  runs  directly  to  the  town  line  of  Tompkins  near  the  middle  of 
lot  177  of  the  Rapelyea  Patent.  That  on  April  27,  1829,  and  December  20,  183 1, 
there  was  a  school  district,  comprising  within  its  boundaries,  land  situate  in  each 
of  said  towns  of  Walton  and  Tompkins,  known  as  joint  district  no.  7,  and  by 
said  order  of  April  27,  1829,  that  part  of  said  district  situate  in  the  town  of 
Walton  was  described  and  defined  as  follows :  "  From  the  lower  line  of  district 
no.  6  on  both  sides  of  the  river  (Delaware)  to  the  town  line."  That  said  "  joint 
district"  no.  7  was  afterward  renumbered  and  known  as  "joint"  district  no.  11. 
By  an  order  made  by  D.  W.  Nichols,  town  superintendent  of  schools  of  the  town 


6/8  THE    UNIVKKSITV    OF   THE    STATE   OF    NEW    YORK 

of  Tompkins,  in  iS4<;.  on  file  in  the  office  of  the  town  clerk  of  said  town,  that 
portion  of  said  "joint"  district  no.  1 1,  Tompkins  and  Wahon,  situate  in  the 
town  of  Tompkins,  is  described  and  defined  as  beginning  on  the  Delaware  river 
at  the  north  corner  of  lot  subdivision  i,  northeast  division  of  grand  division  i, 
Hardcnburgh  Patent  (this  point  was  at  the  Barlow  lower  line,  town  line,  on  the 
east  side  of  the  river)  ;  thence  southeast  to  the  town  line  of  Hancock,  etc., 
including  in  said  boundaries  all  of  grand  division  i,  southeast  half  of  subdivision 
2  and  southeast  half  of  northwest  division  of  grand  division  3,  ITardcnburgh 
Patent,  and  lots  194,  195,  iq6,  197,  198,  199  and  200,  Rapelyea  Patent.  That 
said  order,  although  not  dated,  was  entered  in  said  town  clerk's  office 
with  other  orders  between  February  and  May  9,  1849.  That  there  is  no  order 
on  file  or  on  record  in  said  town  clerk's  offtce  of  the  town  of  Tompkins  altering 
or  changing  the  boundaries  of  said  district  no.  11  of  Walton  and  Tompkins, 
north  or  west  of  the  Delaware  river,  except  an  order,  dated  July  6,  1885,  wherein 
lots  194,  195,  196,  197,  198,  199  and  200,  in  the  Rapelyea  Patent,  were  set  off 
into  district  no.  25,  town  of  Tompkins,  except  the  order  of  Commissioner  Conlon. 
from  which  this  appeal  is  taken. 

I  am  clearly  of  the  opinion  that,  from  the  copies  of  the  records  of  the  towns 
of  Walton  and  Tompkins  presented  in  this  appeal,  the  boundaries  of  said  school 
district  no.  11,  towns  of  Tompkins  and  Walton,  are  clearly  and  definitely 
described  and  defined,  and  while  said  boundaries  may  be  in  dispute  by  persons 
who  have  not  examined  such  records  carefully,  such  boundaries  are  not  indefi- 
nite, but  on  the  contrary  are  definite  and  certain. 

The  order  of  Commissioner  Conlon,  of  September  14,  1893,  while  expressly 
stating  that  no  alterations  of  boundaries  of  said  district  no.  11  is  intended  to  be 
made,  but  the  present  boundaries  of  such  district  are  to  be  more  clearly  defined, 
is  in  fact  an  alteration  of  said  district  and  of  other  districts  adjoining  no.  11, 
namely,  districts  nos.  6,  10,  12  and  25,  and  such  alterations  have  not  been  made 
in  accordance  with  the  provisions  of  title  6  of  the  Consolidated  School  Law  of 
1864  and  the  amendments  thereof. 

It  seems  from  the  proofs  presented  herein  that  the  following  named  lots  of 
land  included  by  the  said  order  of  Commissioner  Conlon  as  being  within  the 
boundaries  of  said  district  no.  11,  Walton  and  Tompkins,  lying  north  and  west 
of  the  Delaware  river,  namely,  lots  nos.  165,  174,  208,  209,  210,  212  and  214,  in 
the  town  of  Walton,  and  lots  nos.  164,  173,  176,  177  and  180,  in  the  town  of 
Tompkins,  were  never  part  of  said  district  no.  11,  Walton  and  Tompkins,  but  that 
said  lots  nos.  165,  174,  208,  209,  210,  212  and  214,  in  the  town  of  Walton,  are 
within  district  no.  6  of  Walton,  and  lot  no.  164,  town  of  Tompkins,  is  within 
district  no.  10  of  Tompkins;  lots  nos.  173,  176,  177  and  180,  town  of  Tompkins, 
are  within  district  no.  12  of  Tompkins. 

Sundry  affidavits  have  been  filed  by  the  respondent,  stating,  in  eflfect,  that 
some  of  the  above-named  lots  of  land  have  been  assessed  in  district  no.  11  of 
Walton  and  Tompkins,  and  the  taxes  so  assessed  have  been  paid,  and  that  so  far 
as  the  afifiants  had  knowledge  they  supposed  said  lots  were  in  district  no.   11. 


JUDICIAL   DECISIONS  :    SCHOOL  DISTRICTS BOUNDARIES  6/9 

Where  the  records  of  the  boundaries  of  school  districts  are  lost  or  destroyed,  or 
the  description  of  the  boundaries  of  districts  are  indefinite  and  uncertain,  resort 
may  be  had  to  such  class  of  testimony  to  determine  such  boundaries;  but  where 
the  records  are  in  existence,  and  are  definite  and  certain,  such  class  of  evidence  is 
of  doubtful  value.  Trustees  of  school  districts  are  not  infallible,  and  in  many 
instances  are  negligent  and  careless  in  taking  proper  means  to  ascertain  the 
boundaries  of  their  respective  districts. 

From  the  proofs  presented  in  this  appeal  I  am  of  the  opinion  that  the  appeal 
herein  should  be  sustained,  and  the  said  order  of  Commissioner  Conlon  be  vacated 
and  set  aside. 

Appeal  sustained. 

It  is  ordered,  That  the  order  of  E.  E.  Conlon,  school  commissioner  of  the 
first  commissioner  district  of  Delaware  county,  purporting  to  deinie  the  bound- 
aries of  school  district  no.  ii,  towns  of  Walton  and  Tompkins.  Delaware  county, 
dated  September  14,  1893,  ^e,  and  the  same  is,  hereby  vacated  and  set  aside. 


4388 

In  the  matter  of  the  appeal  of  Perez  Dimmick,  trustee  of  school  district  no.  10, 
town  of   Middletown,   Delaware  county,   v.   Hugh   Adair,   school   commis- 
sioner, second  commissioner  district,  Delaware  county. 
An  order  made  by  a  school  commissioner  to  amend  the  boundaries  of  a  school  district  or 
to   make  an   amended   record   of   the   boundary,   where   said   order   does   not   alter   the 
boundaries  of  the  district;  such  order  will  be  sustained  upon  appeal. 
Decided  October  8,  1895 

F.  M.  Andrus,  attorney  for  appellant 
C.  Hull,  attorney  for  respondent 

Skinner,  Superintendent 

Hugh  Adair,  as  school  commissioner  of  the  second  commissioner  district  of 
Delaware  county,  on  June  28,  1895,  made  an  order,  under  the  provisions  con- 
tained in  subdivision  2,  section  13,  title  5,  of  the  Consolidated  School  Law  of 
1894,  reciting  that  having  examined  the  record  in  the  town  clerk's  office  of  the 
town  of  Middletown,  Delaware  county,  and  finding  that  the  record  of  the  bound- 
ary between  school  districts  nos.  22  and  10  therein  is  both  defective  and  indefi- 
nite, and  having  learned  that  said  boundaries  are  in  dispute,  and  directing  that 
the  record  of  said  boundary  line  between  said  districts  be  amended  so  as  to  read, 
as  in  said  order  stated.  That  said  order  also  stated  that  it  is  not  intended  to  alter 
any  boundary  line  between  said  districts,  but  only  to  amend  said  defective  and 
indefinite  record  of  said  boundary,  and  settle  the  dispute  as  to  said  boundary. 

Said  commissioner  had  authority,  without  the  previous  consent  of  the 
trustees  of  said  districts,  to  make  said  order,  provided  said  order  did  not  alter 
the  boundaries  of  said  districts. 


680  THE    UNIVERSITY   OF    THE    STATE   OF    NEW    YORK 

Perez  Diininick  as  trustee  of  school  district  no.  lo,  of  Middletown,  has 
appealed  from  said  order  of  Commissioner  Adair,  upon  the  grounds,  as  alleged 
by  him  therein,  that  said  order  alters  the  boundaries  between  said  districts  nos. 
lo  and  22  and  sets  off  portions  of  land  from  district  no.  lo  into  district  no.  22. 

School  Commissioner  Adair  has  tiled  an  answer  to  said  appeal,  and  the 
appellant  herein  has  filed  a  reply  to  said  answer. 

From  a  careful  examination  and  consideration  of  the  papers  filed  herein 
the  following  facts  appear  to  be  established: 

Messrs  Slocum  and  Stone,  as  commissioners  of  common  schools  in  said 
town  of  Middletown,  by  an  order  made  and  signed  by  them  on  October  22,  1842, 
and  which  order  was  recorded  on  October  27,  1842,  in  the  office  of  the  clerk  of 
said  town,  established  the  boundaries  of  school  district  no.  22  of  said  town  as 
follows:  Resolved  that  district  no.  22  shall  be  bounded  on  the  easterly  by  the 
county  line  of  Delaware  and  Ulster;  on  the  west  by  the  easterly  line  of  James 
Tait;  on  the  north  and  south  by  the  height  of  land  to  the  place  of  beginning; 
that  Messrs  O'Connor,  Stone  and  Slocum,  as  such  commissioners  of  common 
schools  in  said  town,  signed  a  paper  on  April  4,  1843,  ^^^  which  paper  was 
recorded  on  the  same  day  in  the  office  of  the  clerk  of  said  town  stating,  "  we, 
the  commissioners  of  the  common  schools,  have  this  day  resolved  that  Hiram  D. 
Wood  be  set  back  in  district  no.  10  as  heretofore  has  been";  that  at  different 
times  since  1842  the  boundary  line  between  districts  no.  10  and  22  (being  the 
westerly  boundary  of  no.  22,  as  stated  in  said  order  of  Messrs  Slocum  and  Stone 
of  October  22,  1842)  has  been  in  dispute,  and  especially  in  the  year  1887,  when 
several  actions  were  brought  in  the  courts  and  appeals  taken  to  this  Department 
arising  out  of  the  controversies  as  to  said  boundary  line;  that  in  said  1887  a 
careful  search  was  made  in  the  office  of  the  clerk  of  said  town  of  Middletown 
for  the  records  relative  to  the  organization  and  alteration  of  the  school  districts 
in  said  town,  but  no  such  records  could  be  found,  but  in  a  search  among  the 
records  in  a  building  in  which  such  clerk's  office  had  theretofore  been  kept  a 
book  was  found  containing  the  records  relative  to  the  school  districts  of  said 
town,  commencing  with  the  reorganization  of  the  districts  made  April  30,  1825, 
and  containing  such  records  down  to  and  including  the  year  1850;  that  said 
record  book  was  examined  by  said  Commissioner  Adair,  in  which  he  found  said 
order  of  Messrs  Slocum  and  Stone  establishing  said  district  no.  22  under  date 
of  October  22,  1842,  but  found  no  other  order  or  orders  relative  to  said  district 
or  its  boundaries  unless  the  resolution  under  date  of  April  4,  1843,  relating  to 
Hiram  D.  Wood  can  be  deemed  an  alteration  of  the  boundaries  of  said  district; 
that  said  record  book  was  then  (in  May  or  June  1895),  in  fair  condition,  con- 
sidering its  age  and  use,  some  of  the  leaves  therein  being  misplaced. 

The  appellant  herein  alleges  that  on  or  about  October  24,  1848,  one  Florus 
Searle  was  a  town  superintendent  of  schools  in  said  town  of  Middletown  and 
as  such  made  an  order  relative  to  the  boundaries  of  school  district  no.  10,  of 
said  town,  and  has  annexed  a  copy  of  said  alleged  order  to  his  appeal;  that 


JUDICIAL  DFXISIONS  :    SCHOOL   DISTRICTS BOUNDARIES  68l 

said  appellant  alleges  that  by  said  alleged  order  of  Searle  a  portion  of  school 
district  no.  22  was  annexed  to  school  district  no.  10. 

It  also  appears  that  on  the  record  book  of  school  district  no.  10  for  the 
years  1847,  1848  and  1849,  at  the  back  part  of  said  book,  and  not  in  any  pro- 
ceedings of  said  district  recorded  as  occurring  in  1848,  is  recorded  in  the  hand- 
writing of  one  Grant,  a  former  clerk  of  said  district,  but  now  deceased,  a  copy 
of  said  alleged  order  of  said  Searle,  with  the  date  of  October  24,  1848,  but  with- 
out the  signature  of  said  Searle  and  without  any  certificate. 

It  is  conceded  that  at  the  examination  by  Commissioner  Adair  of  said  old 
record  book  in  the  office  of  the  clerk  of  the  town  of  Middletown,  relating  to 
school  districts  in  said  town,  from  April  30,  1823,  and  including  the  year  1850. 
there  was  no  record  of  the  alleged  order  made  by  said  Searle  on  October  24. 
1848;  but  it  is  alleged  by  the  appellant  that  such  an  order  was  recorded  in  said 
book  when  found  and  examined  in  1887.  In  support  of  this  contention  the 
■  appellant  has  presented  the  affidavit  of  Alexander  Sliter,  who  stated  that  in 
1887  he  was  collector  of  said  school  district  no.  10  and  with  one  David  Ham- 
mond examined  said  town  record  book  and  found  therein  the  said  order  made 
by  Searle,  signed  and  attested  by  him,  and  that  he  (Sliter)  compared  the  same 
with  record  of  said  order  in  district  records  of  school  district  no.  10,  and  found 
them  alike;  also,  affidavit  of  David  Hammond  to  the  same  efifect.  Annexed 
to  the  answer  of  Adair  is  an  affidavit  of  said  Hammond  in  which  he  states 
that  in  his  affidavit  annexed  to  the  appeal  in  his  statement  that  he  found  in  a 
book  the  boundaries  describing  district  no.  10  the  same  as  are  annexed  to  the 
appeal  (copy  of  alleged  order  of  Searle)  he  "  meant  the  district  book  of  district 
no.  10."  That  to  said  answer  herein  is  annexed  the  affidavit  of  C.  Hull,  the 
attorney  who  examined  said  town  record  book  in  1887,  in  which  he  alleges 
that  he  made  a  careful  search  in  said  record  book  at  that  time  and  knows  that  no 
such  record  (alleged  order  of  Searle  of  October  24,  1848)  was  in  it. 

It  is  clear  to  me  from  the  proofs  herein  that  no  order  of  said  Searle  as 
town  superintendent,  made  on  October  24,  1848,  was  recorded  in  said  town 
records  relating  to  school  districts  either  in  1887.  when  examined  by  Sliter, 
Hammond  and  Hull,  nor  in  1895,  when  examined  by  Commissioner  Adair. 

The  burden  is  upon  the  appellant  herein  to  sustain  his  appeal  by  a  pre- 
ponderance of  proof,  and  he  has  failed  to  establish  by  such  proof  that  any  order 
was  ever  made  by  said  Searle  as  town  superintendent  on  October  24,  1848.  and. 
filed  with  the  town  clerk  of  the  town  of  Middletown.  in  relation  to  the  boundaries 
of  said  school  district  no.  10  of  said  town.  He  has  also  failed  to  establish  that 
one  Florus  Searle  was  a  town  superintendent  of  schools  in  said  town  in  1848. 
No  copy  of  any  order  made  by  any  school  commissioner  or  town  superin- 
tendent organizing  said  district  no.  10  or  making  any  alteration  in  the  bound- 
aries of  sa^id  district  subsequent  to  the  organization  is  produced  herein. 

Under  the  laws  in  operation  when  the  office  of  town  superintendent  of  com- 
mon schools  existed  such  superintendents  had  power  to  form,  alter  and  dissolve 
school  districts  and  were  required  to  describe  and  number  such  districts,  and 


(')8j  the    L'NIVKKSITV    UV    THE    STATE   OF    NEW    YORK 

to  deliver  the  description  and  number  thereof,  in  writing,  to  the  town  clerk, 
immediately  after  the  formation  or  alteration  thereof.  It  seems  that  said 
superintendents  did  not  have  the  power,  in  case  the  records  of  the  boundaries 
of  districts  should  be  found  defective  or  indefinite,  or  should  be  in  dispute,  to 
cause  the  same  to  be  amended  or  an  amended  record  of  such  boundaries  to  be 
made,  as  was  given  to  school  commissioners. 

As  to  said  alleged  order  of  said  Scarle  it  is  possible  that  in  1848  he  was 
town  superintendent  of  schools  in  Middletown ;  that  there  were  doubts  as  to  the 
boundaries  of  school  district  no.  10  in  said  town ;  that  he  prepared  the  order 
alleged  to  have  been  made  by  him  and  informed  the  then  district  clerk  of  said 
district  and  allowed  him  to  copy  the  same;  that  subsequently  he,  for  some 
reason,  decided  not  to  make  such  order. 

In  the  order  made  by  Messrs  Slocum  and  Stone,  October  22,  1842,  organiz- 
ing school  district  no.  22,  the  westerly  line  of  said  district  is  indefinite,  while  the 
easterly,  northerly  and  southerly  lines  are  certain  and  definite.  It  appears  that 
James  Tait  owned  or  occupied  land  on  the  westerly  side  of  district  no.  22,  but 
the  easterly  line  of  his  land  did  not  extend  from  the  ridge  or  height  of  land,  the 
northerly  bouiulary,  to  the  ridge  or  height  of  land,  the  southerly  boundary. 
Commissioner  Adair  in  his  examination  of  said  westerly  line  of  said  district, 
under  said  order  of  October  22,  1842,  decided  that  it  was  the  intention  of  said 
order  to  extend  the  easterly  boundary  of  the  land  of  said  Tait  in  a  straight  line 
to  the  height  of  land  forming  the  southerly  boundary  of  said  district  no.  22,  and 
made  his  order  of  June  22,  1895,  amending  the  records  of  the  westerly  line  of 
said  district  accordingly. 

I  concur  with  Commissioner  Adair  in  his  decision. 

The  aj)peal  herein  is  dismissed  and  the  order  of  said  School  Commissioner 
Adair  of  June  28,  1895,  is  confirmed. 


3673 

In  the  matter  of  the  appeal  of  Peter  Van  Doren  v.  the  school  commissioner  of 

Seneca  county. 

An  order  of  a  school  commissioner  intended  to  determine  indefinite  and  defective  bound- 
aries will  not  be  sustained  when  the  order  so  changed  districts  as  to  take  territory 
from  one  and  add  the  same  to  another  district,  unless  the  several  trustees  have  con- 
sented thereto,  or  the  other  statutory  proceedings  have  been  observed. 

An  admission  that  the  order  being  made  only  for  the  purpose  of  defining  a  boundary,  yet 
effected  an  alteration,  is  fatal  to  it. 

The  fact  that  the  alteration  only  affected  a  small  piece  of  territory  of  but  little  value  is 
not  of  consequence. 

Service  of  copies  of  appellant's  pleadings  upon  the  former  commissioner,  whose  order  is 
appealed  from,  held  unnecessary,  he  having  ceased  to  hold  that  office  and  not  being 
the  real  party  in  interest. 

Decided  March  13,  1888 


JUDICIAL  DECISIONS  :    SCHOOL  DISTRICTS BOUNDARIES  683 

Draper,  Superintendent 

This  is  an  appeal  from  an  order  of  Isaac  H.  Stout,  as  school  commissioner 
of  Seneca  county,  made  on  the  29th  day  of  November  1884,  fixing  and  describing 
the  boundaries  of  school  district  no.  14  of  the  town  of  Covert.  The  ground  of 
appeal  alleged  is  that  the  order  changed  the  boundaries  so  as  to  take  territory 
from  district  no.  12,  and  add  the  same  to  district  no.  14. 

The  order  of  the  commissioner  was  made  for  the  purpose  of  fixing  and 
defining  an  indefinite  and  defective  boundary  under  the  provisions  contained  in 
title  2,  section  13  of  the  Consolidated  School  Act. 

It  recited  the  fact  that  no  change  or  alteration  was  intended ;  yet  it  is 
admitted  that,  by  inadvertence  or  error,  a  small  parcel  of  land,  alleged  to  be  of 
little  value,  was  transferred  from  one  district  to  the  other  by  the  order. 

It  is  admitted,  also,  that  the  boundaries  as  fixed  in  the  order  appealed  from 
are  materially  different  from  the  boundaries,  as  they  have  existed  for  many 
years.  But  it  is  claimed  that  such  alteration  was  effected  not  by  the  order,  but 
by  the  operation  of  chapter  223  of  the  Laws  of  1881. 

It  is  impossible  for  me  to  see  how  the  order  appealed  from  can  be  upheld. 
Indefinite  or  uncertain  boundary  lines  may  be  fixed  and  determined  without  the 
consent  of  the  trustees  of  the  district  aflfected  or  without  the  other  statutory 
proceedings  which  are  prerequisite  to  an  alteration  of  districts. 

The  law  provides  a  simple  and  expeditious  way  for  ascertaining  and  definmg 
an  uncertain  boundary  line  by  a  school  commissioner,  but  it  does  not  permit  him 
to  make  an  alteration  in  a  boundary  line  without  either  the  consent  of  the  trustees 
of  the  districts  affected  or  the  approval  of  the  board  of  officers  authorized  by 
law  to  hear  objections  and  determine  the  matter. 

No  principle  is  better  established  than  that  no  alteration  of  a  school  district 
can  be  effected  except  by  taking  the  several  steps  which  the  statute  explicitly 
lays  down. 

The  admission  that  the  order  being  made  only  for  the  purpose  of  definhig 
a  boundary,  yet  effected  an  alteration,  is  fatal  to  it.  The  fact  that  the  alteration 
affected  only  a  small  piece  of  territory,  and  that  of  small  value,  is  not  of  conse- 
quence. Moreover,  the  alteration  effected  in  the  present  case  may  not  be  inconse- 
quential, for  I  am  not  prepared  to  sustain  the  proposition  that  chapter  223  of  the 
Laws  of  1881  worked  a  permanent  and  lasting  alteration  of  district  boundaries 
when  it  was  repealed  the  following  year. 

I  have  had  some  hesitation  about  considering  this  appeal  because  of  the 
delay  in  bringing  it  before  the  Department,  the  explanation  of  which  is  not  very 
satisfactory.  But  as  I  can  readily  see  why  the  fact  that  an  alteration  which  was 
not  intended  by  the  commissioner  might,  not  for  a  considerable  time,  come  to 
be  understood  or  appreciated  by  the  people,  I  have  thought  it  well  to  overlook  the 
delay  and  consider  the  case.  I  have  not  lost  sight  of  the  objection  of  the  respond- 
ents that  the  school  commissioner  had  not  been  served  with  the  papers,  and, 
therefore,  had  not  been  made  a  party  to  the  proceeding.     I   do  not  think  it 


684  THE    UNIVERSITY   OF   THE    STATE   OF    NEW    YORK 

important  that  he  should  have  been.  He  is  not  the  real  party  in  interest.  The 
case  has  been  cared  for  on  the  part  of  the  respondents  with  sufficient  ingenuity 
and  thoroughness  to  negative  the  idea  that  any  more  help  was  necessary  upon 
that  side. 

The  appeal  is  sustained  and  the  order  appealed  from  is  set  aside  and  held  to 
be  inoperative  and  of  no  effect. 


4004 

In  the  matter  of  the  api)cal  of  Jacob  J.  Dillenback  v.  Charles  E.  ^^'hit^ey,  as 
school  commissioner  of  the  third  school  commissioner  district  of  the  county 
of  Jefferson. 

A  school  commissioner,  proceeding  according  to  section  13,  subdivision  i,  title  2,  of  the 
Consolidated  Sclux)!  Act,  made  an  order  intended  to  define  obscure  boundary  lines  of 
school  districts,  but  which  in  effect  set  off  large  farms  from  one  district  to  another. 
Held,  irregular  and  order  set  aside. 

Decided  September  15,  1S91 

H.  E.  &  G.  E.  Morse,  attorneys  for  appellant 

Draper,  Superintendent 

This  is  an  appeal  from  an  order  of  the  school  commissioner  of  the  third  com- 
missioner district  of  the  county  of  Jeft'erson,  defining  the  boundary  lines  between 
districts  nos.  i  and  4  of  the  town  of  Lyme  in  said  county.  The  order  was  made 
on  the  31st  day  of  December  1890,  being  the  last  day  of  the  term  of  said  Whitney 
as  school  commissioner.  This  order  could  not  have  been  intended  to  work  any 
alteration  in  the  boundary  line  referred  to.  If  that  was  intended,  it  would  have 
been  necessary  for  the  school  commissioner  to  have  received  the  consent  of  the 
trustees  of  the  districts  affected,  and  in  the  event  of  their  refusal  to  give  consent, 
he  could  only  have  made  a  provisional  order;  but  he  proceeded  under  section  13, 
subdivision  i,  title  2  of  the  Consolidated  School  Act,  which  only  provides  for 
defining  an  obscure  boundary  line.  Proceeding  in  this  way  he  could  only  seek 
out  the  line  as  originally  run  and  describe  and  define  it  accordingly.  The  papers 
in  the  case  satisfy  me  that  more  than  this  was  done.  Whole  farms  are  transferred 
by  the  operation  of  this  order  from  one  district  to  the  other,  and  what  seems 
even  more  strange,  their  owners  had  no  notice  of  the  order  or  its  effect  for  six 
months  after  its  date.  The  order  of  any  public  officer,  made  without  notice  to 
interested  parties,  and  upon  his  own  motion  or  at  the  instigation  of  persons  whose 
identity  is  not  revealed,  upon  the  last  day  of  his  official  life,  is  to  be  closely 
scnitinized.  It  should  not  be  made  at  such  a  time,  except  for  the  strongest 
reasons.  No  reasons  are  manifest  for  this  action.  If  the  boundary  line  is  in 
question,  is  obscure  or  erroneously  defined  upon  the  public  records,  the  incoming 
school  commissioner  could  reinove  the  difficulty  as  well  as  the  outgoing  one,  and 
certainly  no  action  of  such  character  should  be  taken  without  the  knowledge  of 
persons  who  would  be  interested  therein. 


JUDICIAL   DECISIONS:    SCHOOL   DISTRICTS — ^BOUNDARIES  685 

The  present  school  commissioner  has  made  answer  in  the  case,  although  he 
seems  to  have  some  question  as  to  whether  the  order  can  be  sustained.  Among 
other  things  he  sets  up  the  fact  that  the  residences  of  men  whose  farms  are 
transferred  from  one  district  to  the  other,  are  nearer  the  schoolhouse  in  the 
district  to  which  they  are  transferred  than  the  schoolhouse  in  the  district  with 
which  they  have  heretofore  been  affiliated.  This  possibly  might  be  a  reason  for 
the  alteration  of  a  district  boundary,  but  it  is  not  a  reason  in  support  of  the 
order  now  appealed  from,  which  only  assumes  to  define  an  obscure  boundary. 

In  view  of  these  considerations,  I  feel  constrained  to  sustain  the  appeal  and 
hold  the  order  appealed  from  to  be  void  and  of  no  effect. 


3676 

In  the  matter  of  the  appeal  of  Walter  A.  Ling  v.  school  district  no.  8,  town  of 

Martinsburgh,  Lewis  county. 

A  school  commissioner's  order  will  not  be  sustained,  when  by  the  order  the  boundary  lines 
of  districts  are  changed  without  the  consent  of  the  trustees  of  the  districts  affected 
thereby. 

Decided  April  6,  i8S8 

Draper,  Superintendent 

This  is  an  appeal  from  a  tax  list  made  by  J.  H.  Van  Aernam,  sole  trustee  of 
school  district  no.  8  in  the  town  of  Martinsburgh,  Lewis  county.  The  appellant 
is  included  in  such  tax  list. 

He  insists  that  he  should  be  taxed  in  district  no.  8  of  the  town  of  Turin, 
Lewis  county,  and  that  he  is  wrongfully  upon  the  list  in  the  town  of  Martins- 
burgh. It  appears  that  the  real  estate  in  question  has  been  taxed  for  many  years 
in  district  no.  8,  town  of  Martinsburgh.  The  only  ground  for  the  objection  of 
the  appellant  to  the  validity  of  the  tax  list  is  an  order  made  by  Leonard  T.  Cole, 
school  commissioner,  on  the  27th  day  of  December  1887,  in  which  he  states  that 
after  a  careful  examination  of  school  district  boundaries,  he  finds  that  the  lands 
of  Walter  A.  Ling  are  not  within  the  limits  of  school  district  no.  8  of  the  town 
of  Martinsburgh,  but  they  do  belong  to  school  district  no.  8  in  the  town  of  Turin. 
The  school  commissioner  had  no  power  to  change  the  boundary  lines  between 
district  no.  8  in  the  town  of  Martinsburgh,  and  district  no.  8  in  the  town  of  Turin, 
by  a  simple  order  under  his  hand,  without  the  consent  of  the  trustees  of  the 
districts  affected  thereby.  No  such  consent  was  given.  The  commissioner  does 
not  assume  to  have  changed  or  altered  such  boundary  lines,  but  only  to  have 
defined  a  fixed  but  indefinite  one. 

The  proofs  submitted  upon  this  appeal  by  persons  who  have  been  conversant 
with  the  circumstances  for  a  great  many  years,  taken  in  connection  with  the  fact 
that  the  lands  of  the  appellant  have  been  taxed  for  many  years  in  district  no.  8 


686  THE    UNIVKRSITY    OF    THE    STATE   OF    NEW    YORK 

ill  the  town  of  Martitisburgh,  seem  to  be  at  variance  with  the  conclusion  of  the 
commissioner. 

I  can  not  see  my  way  clear  to  uphold  such  an  order  made  just  at  the  expira- 
tion of  the  term  of  office  of  the  commissioner,  the  advisability  of  which  seems 
to  be  so  strongly  opposed  by  the  proofs  in  the  case.  The  appeal  is  therefore 
dismissed. 


3929 

In  the  matter  of  the  appeal  of  Robert  Douglass  v.  P.  H.  Martin,  as  trustee  of 

school  district  no.  13.  town  of  Massena,  county  of  St  Lawrence. 

General  acquiescence  for  a  long  period  of  years,  supported  by  parol  evidence,  that  certain 
lands  formed  a  part  of  a  school  district.  Held,  sufficient  to  sustain  the  theory  that 
the  lands  in  question  were  regularly  set  into  the  district  and  constitute  a  part  thereof. 

It  must  clearly  appear  that  two  adjoining  farms  owned  by  the  same  person,  lying  in 
two  districts  and  occupied  as  one  farm,  to  authorize  them  to  be  assessed  in  one  body 
in  the  district  in  which  the  occupant  resides. 

Decided  December  i,  i8<jo 

Draper,  Superintendent 

Appellant  is  a  resident  of  the  town  of  Norfolk.  St  Lawrence  county.  He 
is  the  owner  of  two  certain  lots,  one  of  65  acres,  situate  in  school  district  no.  5, 
town  of  Louisville,  and  one  of  120  acres,  claimed  to  be  situate  in  district  no. 
5  of  Louisville.  These  lots  adjoin,  and  there  are  buildings  upon  the  65  acres 
which  the  appellant  claims  are  at  times  occupied  by  him  and  his  agents  and 
servants. 

Appellant  claims  that  the  entire  farm  lying  in  one  body  should  be  taxed  for 
school  purposes  in  district  no.  5  of  Louisville. 

The  respondent,  the  trustees  of  school  district  no.  13,  town  of  Massena, 
answers  the  appeal  and  avers : 

That  the  farm  of  120  acres  was  formerly  the  property  of  Aaron  C.  Allen; 
that  while  in  his  possession,  and  about  35  years  ago,  this  land  was  set  off  from 
district  no.  5,  Louisville,  to  district  no.  13,  Massena,  and  has  since  been  considered 
a  part  of  district  no.  13,  where  it  has  been  taxed  regularly  for  school  purposes; 
that  the  former  owner,  Aaron  C.  Allen,  and  his  son,  have  successively  held  the 
office  of  trustee  of  district  no.  13.  Massena,  while  residing  upon  said  premises; 
that  after  the  transfer  of  said  lands,  the  site  of  the  schoolhouse  was  moved  to  a 
point  that  would  better  accommodate  the  inhabitants  of  such  newly  acquired  ter- 
ritory. Respondent  denies  that  the  lots  in  question  are  occupied  by  the  appellant, 
his  agent  or  tenant  residing  on  the  lot  of  65  acres ;  that  the  owner  and  men 
hired  to  do  particular  work,  go  to  the  farm  and  occasionally  remain  over  night, 
but  when  their  work  is  done  return  to  their  homes  and  families  in  other  localities. 
The  respondent  presents  a  statement  of  the  valuation  of  taxable  property  in  the 
respective  districts,  showing  district  no.  5  to  be  the  stronger,  and  district  no.  13 
to  be  in  debt  for  the  building  of  a  new  schoolhouse.  and  asks  that  said  farm  of 
appellant  of  65  acres  be  set  off  to  district  no.  13  aforesaid. 


JUDICIAL   decisions:    school   districts BOUNDARIES  6S7 

Otlicr  allegations  are  made  by  the  appellant  and  denied  by  the  respondent, 
which  I  do  not  deem  material  to  the  disposition  of  the  appeal. 

Two  questions  are  presented:  first,  Is  the  lot  of  120  acres  a  part  of  district 
no.  5,  Louisville,  or  is  it  a  part  of  district  no.  13,  Massena?  second,  If  the  lot  is 
a  part  of  district  no.  13,  is  it  taxal)le  in  district  no.  5  by  reason  of  the  facts  that 
both  lots  adjoin,  and  are  owned  and  occupied  by  the  same  person,  either  as 
owner  or  tenant  residing  on  the  lot  in  district  no.  5  ? 

In  support  of  the  first  proposition,  the  appellant  alleges  that  no  order  setting 
oflf  the  farm  of  120  acres  to  district  no.  13,  can  upon  examination,  be  found  in 
the  town  clerk's  ofiice,  and  that  it  follows  that  no  such  order  was  made.  The 
fact  before  me  is  clear  that,  for  many  years,  35  I  think,  this  property  has  been 
recognized  by  owners  and  all  district  officers,  as  a  part  of  district  no.  13,  has 
been  regularly  taxed  by  district  no.  13,  and  not  elsewhere;  its  occupants  have 
been  recognized  as  residents  and  electors  of  district  no.  13,  and  the  further  fact 
appears  that  the  former  owner  remembers  taking  proceedings  to  have  the  land 
set  off  into  district  no.  13. 

After  such  a  lapse  of  time,  the  long  and  uniform  acquiescence  in  the  fact 
that  the  lands  were  a  part  of  district  no.  13,  the  incumbrance  of  the  district,  its 
share  of  which  this  land  has  thus  far  borne,  the  possible  loss  of  the  commis- 
sioner's order  from  the  town  clerk's  office.  I  shall  not  sustain  the  appellant's 
position  upon  this  point.  I  must  hold  die  lands  to  be  a  part  of  district  no.  13, 
Massena. 

Upon  the  second  proposition,  it  is  not  made  to  appear  clearly  to  me  that 
the  farms  of  65  acres  and  120  acres  are  taxable  together  in  district  no.  5.  I  am 
not  satisfied  that  the  property  is  occupied  as  one  farm  by  the  owner  or  his  agent 
residing  on  the  lot  of  65  acres  in  district  no.  5,  Louisville,  so  as  to  bring  it  within 
the  rule  authorizing  the  taxation  of  the  120  acres  in  district  no.  5. 

The  petition  of  the  respondent  to  have  the  65  acres  set  off  to  district  no.  13, 
should  be  addressed  to  and  decided  by  the  school  commissioner,  in  the  first 
instance. 

The  appeal  is,  therefore,  overruled. 


4022 

In  the  matter  of  the  appeal  of  Ralph  Wolford  v.  school  district  no.  7  of  the  town 

of  Knox,  county  of  Albany. 
In  ascertaining  the  boundary  lines  of  a  school  district  for  the  purpose  of  an  assessment  of 

a  parcel  of  land  in  the  proper  district,  public  records  are  decisive  of  the  question,  and 

that  they  can  not  be  changed  by  outside  proof. 
Decided  November  18,  iSgi 

A.  R.  Hunting,  attorney  for  appellant 

Draper,  Superintendent 

The  appellant  owns  a  farm  in  the  school  district  above  natned.  consistmg 
of  130  acres,  and  also  a  second  farm  in  the  same  district  consisting  of  26  acres. 


688  THE    UNIVERSITY    OF   THE    STATE   OF    NEW    YORK 

He  also  owns  a  farm  of  84  acres  situated  in  the  town  of  Wright  in  the  county 
of  Schoharie.  About  the  ist  of  January,  last,  the  trustee  of  school  district  no.  7 
of  the  town  of  Knox,  issued  a  tax  list  to  raise  money  for  school  purposes,  and 
included  therein  the  three  farms  aforesaid.  The  appellant  insists  that  the  farm 
of  84  acres  should  not  be  taxed  in  the  said  district,  and  brings  this  appeal  to  have 
the  matter  determined. 

The  same  question  has  been  presented  once  before,  but  without  adequate 
papers  or  a  map  by  which  the  Superintendent  could  be  guided.  Leave  w'as 
granted  to  present  the  matter  again. 

The  real  question  in  the  case  is  as  to  where  the  boundary  line  between  dis- 
trict no.  7  of  the  town  of  Knox,  Albany  county,  and  district  no.  i,  of  the  town 
of  Wright.  Schoharie  county,  really  runs.  The  appellant  insists  that  the  county 
boiuidary  line  is  the  boundary  line.  The  respondents  insist  that  it  was  altered 
some  years  ago,  so  as  to  include  in  district  no.  7  of  Knox  certain  lands  in  the 
town  of  Wright,  and  among  others,  the  84  acres  in  question.  The  town  records 
in  the  town  of  Wright  make  the  boundary  line  between  the  two  districts  identical 
with  the  boundary  line  between  the  two  counties.  There  are  no  records  of  school 
district  boundaries  in  the  town  of  Knox.  District  no.  7  of  Knox  has  been 
reported  to  this  Department  as  lying  wholly  within  the  town  of  Knox. 

I  am  of  the  opinion  that  these  public  records  are  decisive  of  the  question, 
and  that  they  can  not  be  changed  by  outside  proof.  It  therefore  follows  that  the 
trustee  of  district  no.  7,  Knox,  fell  into  an  error  when  he  included  this  farm  of 
84  acres  in  the  tax  list  ai)pealed  from.  In  consequence  of  this,  the  appeal  must 
be  sustained,  and  the  trustee  is  directed  to  withdraw  and  amend  the  same  by 
eliminating  therefrom  the  84  acres  in  question. 


3821 

In  the  matter  of  the  appeal  of  Allen  T.  Goldsmith  v.  Seneca  M.  Short,  trustee  of 
school  district  no.  13,  towns  of  Manchester,  Ontario  county,  and  Palmyra, 
county  of  Wayne. 

An  order  made  by  school  commissioners  more  than  25  years  ago,  altering  district  bound- 
aries, acquiesced  in  by  repeated  acts  on  the  part  of  one  who  now  collaterally  raises  the 
question  of  its  regularity  will  be  upheld. 

Trustees  are  justified  by  lapse  of  time,  and  general  recognition  of  the  action  of  the  school 
commissioners,  in  acting  in  accordance  with  the  terms  of  the  order. 

Land  lying  partly  in  two  districts,  and  owned  and  occupied  as  one  farm,  is  not  to  be 
assessed  as  one  farm  in  the  district  in  which  the  owner  resides,  unless  assessed  in  one 
body  on  the  last  revised  town  assessment  roll. 

Decided  November  6,  i88g 

H.  R.  Durfee,  attorney  for  appellant 

Draper,  Superintendent 

It  seems  that  the  appellant  owns  and  occupies  a  farm  which  the  respondent 
claims  lies  partly  in  the  above-named  district  and  partly  in  district  no.  3,  towns 


JUDICIAL  decisions:    school  districts BOUNDARIES  689 

of  Palmyra  and  Arcadia,  with  the  residence  in  district  no.  13.  Against  the  objec- 
tion of  the  appellant,  the  respondent  has  included  the  entire  farm  in  a  tax  list 
issued  on  or  about  the  9th  day  of  September  1889.  This  appeal  is  brought  for 
the  purpose  of  testing  the  validity  of  such  action. 

The  appellant  claims  that  no  part  of  his  farm  is  in  district  no.  13,  in  conse- 
quence of  irregularities  committed  by  the  school  commissioners  having  jurisdic- 
tion, in  altering  certain  district  boundaries.  He  insists  that  such  irregularities 
rendered  their  action  invalid.  If  this  were  so  his  farm  would  be  wholly  embraced 
within  district  no.  3. 

This  claim  can  not  be  upheld.  It  is  not  necessary  or  proper  to  determine 
that  collateral  and  remote  question  upon  this  appeal.  It  is  shown  that  the  action 
referred  to  was  taken  25  years  ago ;  that  it  was  never  appealed  from  or  otherwise 
questioned,  and  has  been  generally  recognized  by  the  public,  and  that  the  appel- 
lant has  repeatedly  recognized  its  validity  by  paying  taxes,  participating  in  school 
meetings,  and  serving  as  trustee  of  district  no.  13.  The  lapse  of  time,  and  the 
general  recognition  of  the  action  of  the  school  commissioners,  was  sufficient  to 
justify  the  respondent  in  acting  in  accordance  with  the  terms  of  the  order  of  the 
commissioners. 

But  there  is  another  question  raised  by  the  pleadings.  It  is  alleged  by  the 
appellant,  and  is  uncontroverted,  that  the  entire  farm  in  question  is  not  assessed 
as  one  lot  upon  the  last  revised  assessment  rolls  of  the  town.  The  part  lying 
in  each  school  district  is  assessed  by  itself.  The  Legislature  of  1889  amended 
section  66,  title  7  of  the  Consolidated  School  Act  so  as  to  affect  such  a  case  as 
this.  The  statute  now  contemplates  that,  in  case  a  farm  lies  partly  in  two  or 
more  school  districts,  the  trustees  shall  only  tax  so  much  of  it  as  lies  in  their 
own  school  district,  if  that  part  appears  as  a  separate  parcel  on  the  town  assess- 
ment rolls.  It  is  not  the  policy  of  the  law  to  permit  trustees  to  make  original 
assessments,  except  where  absolutely  necessary.  The  general  rule  is  that  they 
must,  in  levying  taxes,  follow  the  town  assessment  rolls  which  are  made  by  offi- 
cers specially  chosen  with  reference  to  that  duty.  An  entire  farm  lying  in  two 
districts  is  to  be  taxed  for  school  purposes  in  that  district  containing  the  residence 
only  "  if  assessed  as  one  lot  on  the  last  assessment  roll  of  the  town  after  revision 
by  the  assessors." 

This  precludes  the  respondent  from  assessing  the  entire  farm  of  the  appel- 
lant in  his  district,  and  it  becomes  necessary  to  sustain  the  appeal  so  far  as  to 
direct  the  respondent  to  withdraw  his  tax  list  and  correct  the  same  by  striking 
therefrom  the  item  descriptive  of  or  referring  to  that  portion  of  the  farm  of  the 
appellant  not  lying  in  district  no.  13. 

The  appeal  is  sustained. 


690  TI11£    UNlVtKSnV    OF    Tilt:    STATE   UK    NEW    VOKK 

3804 

In  the  matter  of  the  apj^eal  of  school  district  no.  13,  of  the  town  of  Greene, 
Chenango  county  v.  Marcus  N.  Horlon,  school  commissioner  of  the  second 
district  of  Chenango  county,  and  school  district  no.  22  of  said  town. 

An  order  of  a  school  commissioner  defining  a  disputed  boundary  line  between  school  dis- 
tricts will  be  sustained,  unless  it  is  clearly  made  to  appear  that  the  commissioner  has 
erred  in  his  proceedings.    It  is  to  be  assumed  that  he  has  acted  regularly  and  discreetly. 

Decided  .August  i,  1889 

Eugene  Clifton,  attorney  for  appellants 

Draper,  Siipcriutcndcnt 

This  is  an  appeal  from  an  order  made  by  the  school  commissioner  of  the 
second  commissioner  district  of  Chenango  county,  made  on  the  22d  day  of  Jan- 
uary i<S89,  defining  the  boundary  line  between  school  districts  nos.  13  and  22 
of  the  town  of  Greene. 

The  result  of  the  order  of  the  commissioner  involves  a  strip  of  land  in  no. 
22,  which  had  previously  been  supposed  to  be  in  no.  13.  Accordingly,  no.  13  is 
aggrieved,  as  this  reduces  the  taxable  valuation  of  the  district.  There  is  no  ques- 
tion raised  as  to  school  accommodations,  and  it  is  said  there  are  few,  if  any,  chil- 
dren of  school  age  living  upon  the  land  in  dispute. 

The  determination  of  the  commissioner  is  stoutly  resisted  by  district  no.  13, 
even  to  an  extent  beyond  that  for  which  any  apparent  cause  exists. 

Whether  the  commissioner  has  correctly  defined  the  boundary  line  between 
the  two  districts,  that  is,  has  laid  it  out  where  it  was  originally  placed,  is  an 
obscure  question,  and  one  exceedingly  difficult  of  determination  upon  written 
papers.  The  papers  submitted  are  voluminous,  and  relate  almost  exclusively  to 
old  records  and  statements  or  understandings  of  people  either  dead  or  very  aged. 
They  have  been  read  with  care,  and  more  than  once.  It  is  next  to  impossible  to 
gain  any  intelligent  understanding  of  the  matter  in  dispute,  after  the  most 
studied  examination  of  the  papers. 

Inasmuch  as  the  appellant  does  not  satisfy  me  that  the  order  of  the  commis- 
sioner is  wrong,  I  must  affirm  it.  This  is  done  without  prejudice  to  the  right  of 
the  appellant  to  raise  the  question  again  if  there  is  any  sufficient  reason  why  it 
should  be  raised.  If  district  no.  13  is  very  seriously  aggrieved,  it  ought  to  be 
able  to  show  the  fact.  The  commissioner  appears  to  have  attended  to  the  mat- 
ter with  painstaking  care,  stoutly  insists  that  his  order  defines  the  boundary 
rightly,  and  adduces  much  proof  to  sustain  his  conclusions.  This  action  should 
be  upheld  until  it  is  made  clearly  to  appear  that  he  is  in  error. 

The  appeal  is  dismissed. 


JUDICIAL   decisions:    school   districts BOUNDARIES  69I 

5156 

In  the  matter  of  the  appeal  of  school  district  no.  i,  town  of  Mount  Hope,  Orange 
county,  from  the  action  of  School  Commissioner  Kaufmann  in  issuing  an 
order  to  correct  or  amend  the  boundary  line  between  school  district  no.  i. 
Mount  Hope,  and  no.  3,  Greenville. 

A  school  commissioner  does  not  possess  power  under  subdivision  i  of  section  13  of  title  i 
of  the  Consolidated  School  Law  to  modify  or  alter  the  disputed  boundaries  of  school 
districts.  He  possesses  the  power  to  examine  the  records  and  to  determine  what  the 
boundaries  of  such  districts  really  are  and  to   issue  orders   accordingly. 

Decided  December  2,   1904 

William  T.  Shaw,  attorney  for  appellant 

Draper,  Commissioner 

On  September  i,  1904,  William  P.  Kaufmann,  school  commissioner  of  the 
second  commissioner  district  of  Orange  county,  issued  an  order  for  the  purpose 
of  correcting  or  amending  the  boundary  line  between  school  district  no.  i.  Mount 
Hope,  and  school  district  no.  3,  Greenville.  The  real  question  to  be  determined 
by  such  order  of  the  commissioner  is,  in  which  of  these  two  districts  should  the 
property  of  Ephraim  Manning  be  located. 

It  appears  that  this  question  was  first  raised  in  the  year  1901.  In  that  year 
the  Manning  property  was  assessed  in  each  school  district.  In  March  1903  Mr 
Manning  commenced  an  action  against  school  district  no.  3,  Greenville,  to  recover 
the  taxes  which  he  claimed  to  have  erroneously  paid  that  district.  The  case  was 
tried  in  the  county  court  of  Orange  county.  That  court  held  that  the  Manning 
property  was  located  in  school  district  no.  i.  Mount  Hope,  and  was  not,  there- 
fore, assessable  in  school  district  no.  3,  Greenville.  To  reach  a  decision  on  the 
question  it  was  necessary  to  determine  the  boundary  line  between  such  districts. 
The  court  held  that  the  town  line  between  the  towns  of  ]\Iount  Hope  and  Green- 
ville was  the  boundary  line  between  these  two  school  districts. 

The  Greenville  district  was  evidently  dissatisfied  with  such  decision  and  the 
trustee  thereof  petitioned  School  Commissioner  Kaufmann,  on  May  5,  1904,  to 
fix  definitely  the  boundary  line  between  such  districts. 

Subdivision  i  of  section  13,  title  5  of  the  Consolidated  School  Law  confers 
on  a  school  commissioner  the  power  to  amend  the  records  of  the  boundaries  of 
a  school  district  when  the  same  shall  be  indefinite  or  in  dispute.  It  was  under 
this  provision  of  law  that  the  school  commissioner  proceeded  in  this  case.  The 
commissioner  did  not  possess  the  power,  under  this  provision  of  law.  to  modify 
or  alter  the  boundaries  of  either  of  these  districts.  He  possessed  the  power  to 
examine  the  records  and  to  determine  what  the  boundaries  of  such  districts  really 
were  and  to  issue  orders  accordingly. 

On  June  23,  1849,  the  supervisor,  town  clerk  and  town  superintendent  of 

the  town  of  Mount  Hope,  held  a  meeting  for  the  reorganization  of  that  town 

Into   suitable   school   districts.      These   officers   passed   resolutions    defining   the 

boundaries  of  such  districts  and  among  these  is  one  describing  the  boundaries  of 


692  THE    UNIVERSITY   OF   THE    STATE   OF    NEW   YORK 

district  no.  i.  Mount  Hope.  This  description  is  on  file  in  the  town  clerk's  office. 
The  county  court  of  Orange  county  held  in  the  case  hereinbefore  named  that 
this  order  fixed  the  town  line  between  the  towns  of  Mount  Hope  and  Minisink 
(now  Greenville)  to  be  the  boundary  line  between  district  no.  i,  Mount  Hope, 
and  district  no.  3.  Greenville.  School  Commissioner  Kaufmann  reached  the  same 
conclusion  and  stated  so  before  me  on  a  hearing  in  this  appeal.  He  also  wrote 
Mr  Shaw,  the  appellant's  attorney,  to  the  same  effect  under  date  of  August 
26,  1904. 

It  appears  clear  that  the  town  line  in  question  is  the  boundary  line  between 
these  two  school  districts  and  that  the  Manning  property  is,  therefore,  within  the 
boundaries  of  the  said  school  district  no.  i,  town  of  Mount  Hope. 

The  school  commissioner  expressed  the  opinion  that  it  was  the  intention  of 
these  town  officers  to  include  the  Manning  property  in  district  no.  3,  Greenville. 
The  records,  however,  show  that  they  failed  to  do  so.  The  school  commissioner 
also  claims  that  as  a  matter  of  right  or  of  equity  between  these  districts  the  Man- 
ning property  should  be  in  the  Greenville  district.  For  these  reasons  he  issued 
his  order  of  Sei)tember  i,  1904.  Such  order  was  virtually  an  order  altering  the 
boundaries  of  the  school  districts  in  question  and  could  not  legally  be  issued 
under  the  provision  of  law  which  he  cited.  To  accomplish  the  result  desired  by 
the  school  commissioner  it  will  be  necessary  to  issue  an  order  of  alteration  of 
district  boundaries  which  is  an  entirely  different  proceeding  and  must  comply 
in  all  details  with  the  provisions  of  the  several  sections  of  title  6  of  the  Consoli- 
dated School  Law.  Such  order  should  not  be  issued  unless  a  substantial  reason 
exists  for  taking  such  action. 

The  appeal  herein  is  sustained. 

It  is  ordered.  That  the  order  issued  September  i,  1904,  by  William  P.  Kauf- 
mann, school  commissioner,  and  entitled :  "  In  the  matter  of  the  disputed  bound- 
ary line  between  school  district  no.  i,  town  of  Mount  Hope,  and  no.  3,  town  of 
Greenville,"  be,  and  the  same  is,  hereby  vacated. 


5245 
In  the  matter  of  the  appeal  of  Renwick  Dibble  v.  the  trustees  of  school  district 

no.  2,  town  of  Shandaken,  Ulster  county. 
When  a  school  commissioner  extends  the  boundaries  of  a  school  district  to  include  taxable 
property  not  within  such  district  the  expense  thereof  ds  a  charge  upon  such  district  and 
should  be  paid  by  the  trustee  upon  the  certificate  of  the  school  commissioner. 
The  Commissioner  of  Education  will  not  make  an  allowance  for  costs  in  appeal  cases  as 

the  law  does  not  authorize  it. 
Decided  March  8,  1906 

O.  Q.  Flint,  attorney  for  appellant 

Draper,  Commissioner 

On  September  2.  1900,  B.  W.  Cammer,  principal  of  the  school  in  school  dis- 
trict no.  2,  Shandaken,  Ulster  county,  wrote  the  State  Superintendent  of  Public 


JUDICIAL  DECISIONS  :   SCHOOL  DISTRICTS  —  BOUNDARIES  693 

Instruction,  claiming  that  there  was  certain  land  adjacent  to  such  district  which 
was  not  included  in  any  school  district  and  therefore  not  paying  its  proportionate 
share  of  taxes  for  maintaining  a  public  school.  State  Superintendent  Skinner,  on 
September  22,  1900,  the  day  on  which  such  letter  was  received  at  the  State 
Department,  referred  such  letter  to  School  Commissioner  Flint  and  directed  him 
to  investigate  the  allegation  of  Principal  Cammer.  The  commissioner  was  also 
directed  that  in  the  event  of  his  finding  that  the  territory  in  question  was  not 
located  within  the  boundaries  of  a  school  district  to  take  the  necessary  action  to 
place  such  territory  within  the  school  districts  to  which  it  properly  belonged. 
Commissioner  Flint  made  the  investigation  as  directed  by  the  State  Superintend- 
ent and  found  that  there  were  certain  lands  adjoining  district  no.  2,  Shandaken, 
which  were  not  included  in  any  school  district.  The  commissioner  properly 
directed  the  appellant  herein,  a  surveyor,  to  survey  these  lands  so  that  an  order 
could  be  made  in  due  form  annexing  such  lands  to  school  district  no.  2,  Shan- 
daken, of  the  third  commissioner  district  of  Ulster  county.  After  this  territory 
was  annexed  to  district  no.  2,  Shandaken,  that  district  became  a  joint  district. 
The  bill  of  the  surveyor  amounted  to  $17.40.  This  bill  was  properly  audited  by 
Commissioner  Flint  and  by  Commissioner  Schoonmaker  of  the  third  commis- 
sioner district  of  Ulster  county,  and  duly  certified  by  them  to  the  trustee  of 
school  district  no.  2,  Shandaken,  as  provided  by  section  13,  title  5  of  the  Con- 
solidated School  Law.  This  bill  appears  to  have  been  reasonable  for  the  serv- 
ices rendered  and  was  a  legal  and  proper  charge  upon  said  district.  It  should 
have  been  promptly  paid. 

Respondent  claims  that  the  reason  the  bill  was  not  paid  was  because  all 
land  was  not  included  in  the  survey  which  should  have  been  and  the  further 
reason  that  the  district  has  been  unable  to  collect  the  tax  levied  upon  most  of  the 
land  which  was  included.  These  reasons  are  not  valid.  If  other  land  should 
have  been  included  the  district  had  proper  remedy  under  the  law  and  should  have 
taken  the  necessary  action  to  protect  its  right  to  such  additional  territory.  The 
school  law  contains  ample  provisions  for  the  collection  of  school  taxes,  and  if 
this  district  has  failed  to  collect  the  taxes  levied  upon  this  property  it  is  due  to 
the  negligence  of  the  ofticers  of  the  district. 

Appellant  requests  that  an  allowance  of  $25  be  made  for  the  costs  in  this 
proceeding.  The  school  law  docs  not  authorize  the  Commissioner  of  Education 
to  make  an  allowance  for  costs  in  appeal  cases  and  this  Department  has  uniformly 
refused  to  order  such  allowances.    The  recjuest  in  this  respect  must  be  denied. 

The  appeal  herein  is  sustained. 

It  is  ordered.  That  school  district  no.  2,  Shandaken.  shall  within  30  days 
from  the  date  hereof,  pay  the  appellant  herein,  Renwick  Dibble,  the  sum  of 
$17.40  with  6  per  cent  interest  thereon  since  August  i,  1901,  and  that  the  trus- 
tees of  said  district  be  and  they  hereby  are  authorized  and  directed  to  make  any 
and  all  provision  necessary  to  pay  such  amount  and  to  levy  and  collect  the  same 
oathe  taxable  property  of  said  school  district. 


694  THF:    university    of   the    state   of    new    YORK 

5367 

Til  the  matter  of  the  appeal  of  Arthur  II.  Carpenter  from  the  action  of  Daniel 
H.  (J'Brien,  school  commissioner  of  the  first  school  commissioner  district 
of  Lewis  county. 

A  .sclux)l  commissioner  wlio  refuses  to  make  an  order  simply  to  correct  an  irregularity  in 

liounclary  lines  and  not  serving  any  good  educational  purpose  will  be  sustained. 
]>''cidcd  December  18,  1907 

Harry  W.  Cox,  attorney  for  appellant 
r)anicl  II.  O'Brien,  attorney  in  person 

Draper,  Commissioner 

Ap])ellant  petitioned  School  Commissioner  O'Brien  to  make  an  order  trans- 
ferring his  property  from  union  free  school  district  no.  7,  town  of  West  Turin, 
to  common  school  district  no.  6,  town  of  West  Turin.  On  October  18,  1907, 
Commissioner  O'Brien  rendered  a  decision  on  the  question  and  declined  to  make 
the  order.  The  commissioner  filed  a  written  opinion  in  making  his  decision.  In 
such  opinion  the  commissioner  states  in  substance  that  there  is  no  material  dif- 
ference in  the  distance  from  the  home  of  appellant  to  the  schoolhouse  in  district 
no.  7  and  to  the  schoolhouse  in  district  no.  6;  that  the  taxes  in  district  no.  7  are 
much  larger  than  the  taxes  in  no.  6  and  that  this  is  the  real  motive  for  petitioning 
for  such  transfer;  that  if  the  property  of  appellant  should  be  transferred  to  no. 
6  appellant's  children  would  continue  to  attend  school  in  no.  7  because  of  the 
superior  school  facilities  of  that  district ;  and  that  no  good  educational  reason 
exists  for  making  the  alteration  of  boundaries  prayed  for  in  such  petition. 

Appellant  sets  forth  in  his  moving  papers  the  opinion  of  Commissioner 
O'Brien  in  denying  the  order  of  alteration.  That  opinion  therefore  becomes  a 
part  of  this  proceeding.  Ap|)ellant  does  not  object  in  any  way  whatever  to  the 
grounds  upon  which  the  commissioner  predicated  his  decision.  He  does  not  deny 
that  he  will  continue  to  send  his  children  to  school  in  no.  7  even  if  his  property 
should  be  transferred  to  no.  6  nor  does  he  deny  that  the  question  of  taxation  is 
the  real  motive  which  induced  him  to  petition  for  an  order  changing  the  bound- 
aries of  these  districts.  He  does  not  claim  that  a  good  educational  reason  exists 
to  justify  the  commissioner  in  making  the  order  prayed  for. 

Ai)pellant  alleges  the  necessary  statutory  conditions  to  make  such  order  legal 
and  bases  his  rights  to  such  order  in  substance  upon  the  allegations  that  his 
property  does  not  join  the  boundary  line  of  no.  7  except  at  a  point,  that  his 
property  is  surrounded  upon  two  sides  by  the  territory  embraced  in  no.  6,  that 
no.  7  is  not  in  compact  form  and  that  his  children  are  required  to  travel  through 
no.  6  in  order  to  reach  the  schoolhouse  in  no.  7. 

The  only  question  entitled  to  consideration  is  the  one  charging  that  the 
property  in  question  is  not  contiguous  to  the  boundaries  of  school  district  no.  7. 
Upon  the  record  this  allegation  is  not  sustained.  It  appears  that  in  1879  the 
school  commissioner  having  jurisdiction  made  an  order  transferring  certain  prop- 
erty from  no.  7  to  no.  6.     Such  order,  which  is  made  a  part  of  this  proceeding, 


JUDICIAL   DPX'ISIONS:    SCHOOL   DISTRICTS  —  BOUNDARIES  695 

shows  that  portions  of  lots  no.  80,  no.  72  and  no.  81  were  transferred  to  no.  6. 
The  boundary  of  no.  7  would  therefore  be  as  shown  upon  the  map  submitted  in 
the  answering  papers.  This  shows  that  the  property  in  question  is  not  joined  to 
district  no.  7  by  a  mere  point  but  that  there  is  an  actual  line  of  contact  of  about 
14  chains. 

It  appears  that  the  property  set  oft'  by  tiie  order  of  1879  from  district  no.  7 
was  owned  by  one  Emory  Allen  but  the  order  distinctly  shows  that  all  of  lot  81 
was  not  set  off.  It  also  appears  that  the  Allen  property  and  that  portion  of  lot 
no.  81  not  included  in  the  order  of  1879  have  passed  into  one  ownership  and 
are  known  as  the  Allen  estate.  This  however  does  not  change  the  boundary  of 
the  district.  The  boundary  of  the  district  is  that  fixed  by  the  commissioner's 
order  even  if  tlie  whole  of  lot  81  is  owned  by  one  person  and  assessed  in  school 
district  no.  7  as  land  lying  in  one  body. 

It  is  urged  by  appellant  that  the  boundaries  of  no.  7  and  of  no.  6  are  irregu- 
lar and  that  such  boundaries  would  be  more  regular  were  the  commissioner  to 
make  the  order  prayed  for.  In  the  original  establishment  of  a  district  regard 
should  be  had  to  symmetry  and  compactness  of  territory.  In  an  alteration  of 
district  boundaries  regard  should  also  be  had  for  these  conditions.  A  school 
commissioner  in  refusing  to  make  an  order  simply  to  correct  an  irregularity  in 
boundary  lines  and  not  serving  any  good  educational  purpose  will  not  be 
overruled. 

I  must  therefore  hold  that  the  question  was  one  upon  which  the  school  com- 
missioner could  determine  in  his  discretion  and  that  he  acted  properly,  legally  and 
wisely  in  the  matter. 

The  appeal  herein  is  dismissed. 


SCHOOL  DISTRICTS  — CONSOLIDATION 

5191 
In  the  matter  of  the  dissolution  of  school  districts  nos.    19  and  24,  town  of 
Verona,  Uneida  county,  and  the  annexation  of  such  districts  to  school  dis- 
tricts nos.  1 1  and  6  of  Verona. 

An  equitable  adjustment  of  taxation  should  not  be  the  controlling  influence  in  the  con- 
solidation of  school  districts.  A  school  commissioner,  however,  could  very  properly 
take  that  question  into  consideration  in  arriving  at  his  decision. 

A  school  commissioner's  action  in  consolidating  weak  districts  will  be  regarded  wise  and 
sustained  when  such  action  will  result  in  giving  all  parties  concerned  better  school 
facilities  without  imposing  imjust  burdens  or  hardships  upon  any  one. 

Decided  July  14,   i<j05 

Hon.  J.  T.  Durham,  attorney  for  appellants 
Coville  &  Moore,  attorneys  for  respondent 

Draper,  Commissioner 

On  March  11,  1905,  Daniel  J.  Coville,  school  commissioner  of  the  third  com- 
missioner district  of  Oneida  county,  made  preliminary  orders  dissolving  school 
districts  nos.  19  and  24,  town  of  \'erona.  A  small  portion  of  each  of  these  dis- 
tricts was  annexed  to  school  district  no.  6,  Verona,  but  nearly  all  of  the  territory 
of  each  of  such  districts  was  annexed  to  school  district  no.  11,  Verona.  The  trus- 
tees of  school  district  no.  6  and  of  district  no.  1 1  consented  to  the  alterations  made 
by  such  orders  to  the  boundaries  of  their  respective  districts.  The  trustee  of  dis- 
trict no.  19  and  of  district  no.  24  refused  to  consent  to  the  alterations  made  by 
such  orders  to  the  boundaries  of  their  respective  districts.  The  school  commis- 
sioner therefore,  in  issuing  such  preliminary  orders,  gave  proper  notice  of  a  hear- 
ing thereon.  The  trustees  of  the  two  dissenting  districts  in  the  exercise  of  a  law- 
ful right  requested  the  supervisor  and  town  clerk  of  their  town  to  be  associated 
with  the  school  commissioner  at  such  hearing.  These  officers  complied  with  such 
request.  The  hearing  on  the  preliminary  order  of  the  school  commissioner  was 
held  on  May  25,  1905.  At  the  close  of  the  hearing  this  local  board  voted  unani- 
mously to  affirm  the  orders  of  the  school  commissioner. 

No  record  of  the  boundaries  of  any  of  these  districts  could  be  found  in  the 
records  of  these  respective  districts  or  in  the  records  of  the  office  of  the  town 
clerk  of  the  town  in  which  such  districts  are  located.  It  was  necessary  for  the 
school  commissioner  to  have  a  definite  and  clear  description  of  each  of  these 
districts  before  he  could  legally  make  the  necessary  orders  of  dissolution  and  of 
consolidation.  The  commissioner  therefore  properly  undertook  to  establish  these 
boundaries.  He  caused  a  survey  of  each  of  the  four  districts  affected  to  be  made 
by  a  competent  civil  engineer  and  surveyor.  He  possessed  ample  authority  to 
make  such  surveys  under  subdivision  i,  section  13,  title  5  of  the  Consolidated 

[696] 


JUDICIAL    DECISIONS  :    SCHOOL    DISTRICTS  —  CONSOLIDATION  697 

School  Law.  In  establishing  these  boundary  Hnes  the  school  commissioner 
appears  to  have  made  an  honest  endeavor  to  fix  the  boundaries  on  such  lines  as 
had  been  generally  accepted  by  all  parties  concerned  as  the  dividing  lines  between 
these  respective  districts  for  a  long  period  of  years.  The  commissioner  appears 
to  have  been  governed  by  the  best  information  which  he  was  able  to  obtain. 
The  appellants  do  not  question  the  accuracy  of  any  of  these  boundary  lines  as 
established  by  the  commissioner  except  at  one  point.  The  appellants  allege  that 
a  small  portion  of  school  district  no.  26  of  the  town  of  Verona  was  included  by 
this  survey  in  district  no.  19,  \'erona,  and  that  such  portion  was  included  because 
it  contained  a  piece  of  the  N.  Y.  O.  &  W.  R.  R.  There  appears  to  be  some  ques- 
tion as  to  whether  the  portion  of  territory  in  question  should  be  included  in 
district  no.  19,  Verona  or  in  district  no.  26,  Verona.  In  including  it  in  district 
no.  19  the  commissioner  acted  upon  the  best  information  obtainable.  The  evi- 
dence offered  by  appellants  to  show  that  such  territory  should  be  included  in 
district  no.  26  is  not  conclusive.  Since  appellants  raise  this  objection,  to  be 
sustained,  they  must  show  conclusively  that  the  commissioner  erred  in  fixing  the 
line  as  he  did  at  this  point.     In  this  they  fail. 

The  special  point  which  appellants  make  on  the  alleged  inaccuracy  of  this 
boundary  line  is  that  in  making  the  order  of  dissolution  in  the  case  of  district 
no.  19,  and  in  making  the  order  by  which  no.  19  was  consolidated  with  no.  11, 
the  school  commissioner  did  not  follow  the  actual  boundaries  of  district  no.  19 
and  the  orders  were  thus  defective  and  therefore  void.     This  contention  is  not 
correct.     The  school  commissioner  by  separate  surveys  and  under  due  process 
of  law,  established  the  boundaries  of  these  four  districts  in  question.     When 
he  made  a  description  of  the  boundaries  of  district  no.  19  as  surveyed  and  filed 
the  same  in  the  office  of  the  town  clerk,  the  boundaries  given  in  that  document 
became  the  legal  boundaries  of  that  district  and  remain  such  until  changed  by 
proper  and  legal  authority.     The  commissioner  was  therefore  required  to  give 
such   description   in  his  orders  of  dissolution  and  annexation.     He  could  not 
properly  have  used  any  other  description.     If  the  school  commissioner  erred  in 
the  establishment  of  the  boundaries  of  district  no.  19  and  included  therein  a  por- 
tion of  the  territory  of  district  no.  26,  Verona,  the  remedy  was  an  ai>peal  from 
the  action  of  the  school  commissioner  to  the  Commissioner  of  Education  for  an 
order  directing  the  school  commissioner  to  make  such  changes  in  his  order  estab- 
lishing the  boundaries  of  district  no.  19  as  the  circumstances  in  the  case  required. 
If  it  is  established  that  an  error  has  been  made  and  a  portion  of  district 
no.  26  has  been  included  in  district  no.  19,  such  error  may  be  corrected  by  the 
commissioner  issuing  another  order  transferring  from  the  consolidated  district 
such  portion  of  that  district  as  properly  belongs  to  district  no.  26.     Such  error, 
if  it  has  been  made,  would  not  be  sufficient  ground  for  vacating  the  orders  in 

question. 

No  other  irregularity  in  the  proceedings  in  question  is  alleged.  The  plead- 
ings show  that  the  school  commissioner  complied  with  every  requirement  of  the 
law  in  making  these  orders  and  that  all  necessary  papers  were  properly  filed. 


AVERAGE 

ATTENDANCE 

8  58 
7  45 

ASSESSED 
VALUATrON 

$39  316  96 
80  311  34 

16  03 
80  52 

$119  628  30 
83  079  . . 

96  55 

$202  707  30 

()98  Tin:  univi:k.sitv  of  thk  state  oi-  m:w  york 

Therefore,  the  only  rcinaiiiiiit;  qucslioii  to  be  determined  in  this  appeal  is,  Will 
the  action  of  the  comniissioner  in  dissolvins^'  these  two  districts  and  annexing 
the  territory  thereof  to  district  no.  11  promote  the  educational  interests  of  the 
people  embraced  within  such  consolidated  district?  The  numerical  and  financial 
strength  of  each  of  these  districts  for  the  school  year  ending  July  31,  1904,  is 
shown  by  the  following  table: 

DISTRICT 

No.    19 

No.  24 


No.    1 1 


District  no.  19  is  weak  financially  and  numerically.  None  of  the  children 
residing  in  this  district  will  be  required  to  travel  an  unreasonable  distance  to 
attend  school  in  the  consolidated  district.  District  no.  24  has  a  smaller  average 
attendance  of  pupils  than  district  no.  19.  No.  24  however  is  strong  financially 
having  an  assessed  valuation  of  more  than  twice  the  assessed  valuation  of 
district  no.  19.  The  children  of  no.  24  will  not  be  required  to  travel  an 
unreasonable  distance  to  attend  school  in  no.  11.  It  appears,  however  as 
though  some  of  the  property  in  no.  24  would  be  located  so  as  to  give  more 
convenient  school  facilities  if  it  were  transferred  to  district  no.  12, 
Sconondoa.  This  is  a  question  which  may  be  settled  in  the  future  in 
accordance  with  such  demands  as  those  concerned  may  make  and  as  the  justice 
of  the  circumstances  shall  require.  No.  11,  before  the  annexation  of  the  addi- 
tional territory  in  question  was  strong  numerically  but  weak  financially.  The 
above  table  shows  that  the  average  attendance  of  the  pupils  in  no.  11  was  80.52 
or  five  times  the  combined  average  attendance  of  districts  no.  19  and  no.  24. 
The  assessed  valuation  of  no.  11  however  is  about  one  third  less  than  the  com- 
bined valuation  of  nos.  19  and  24.  In  other  words  no.  11  was  compelled  to 
educate  five  times  as  many  children  as  nos.  19  and  24  with  only  two  thirds  as 
much  taxable  properly.  It  also  appears  that  many  persons  not  taxpayers  reside 
in  district  no.  11  and  send  their  children  to  school  in  that  district,  but  are 
employed  by  a  corporation  located  in  district  no.  19  and  paying  taxes  in  no.  19. 
The  schoolhouse  in  no.  11  is  easily  accessible  from  all  sections  of  the  consolidated 
district.  The  public  highways  are  in  good  condition  and  are  much  traveled. 
The  schoolhouse  in  no.  n  is  located  in  the  village  of  Durhamville  which  is  the 
outlet  or  trade  center  of  the  territory  embraced  in  this  consolidated  district. 
The  schoolhouse  in  no.  11  appears  to  be  in  good  repair  and  to  afford  suitable 
and  sufticient  accommodations  for  the  additional  pupils  required  to  attend  school 
therein  because  of  this  consolidation.  A  better  school  is  maintained  in  no.  11 
than  has  been  or  possibly  could  be  maintained  in  either  no.  19  or  no.  24.     The 


JUDICIAL    decisions:    school    districts CONSOLIDATION  699 

appellants  allege  that  one  of  the  objects  sought  by  this  consolidation  is  to  reduce 
the  taxation  in  no.  ii.  They  show  that  the  taxation  in  no.  19  and  in  no.  24  has 
been  much  less  than  in  no.  1 1  and  for  this  reason  they  claim  they  should  be 
permitted  to  continue  their  districts.  They  insist  that  the  school  commissioner 
had  no  right  to  take  into  consideration  an  equitable  adjustment  of  taxation  for 
school  purposes  in  consolidating  these  districts.  In  this  contention  the  appel- 
lants are  wrong.  An  equitable  adjustment  of  taxation  should  not  be  the  con- 
trolling influence  in  deciding  such  questions.  The  school  commissioner,  how- 
ever, could  very  properly  take  that  matter  into  consideration  in  arriving  at  his 
decision.  Taking  all  the  facts  above  recited  into  consideration  I  think  the 
action  of  the  commissioner  in  creating  this  enlarged  district  was  wise  and  will 
result  in  giving  all  parties  concerned  better  school  facilities  without  imposing 
unjust  burdens  or  hardships  upon  any  one.  The  rate  of  taxation  for  those  who 
reside  in  no.  19  and  no.  24  will  be  somewhat  greater  but  not  sufficient  to  be  at 
all  burdensome.  If  the  taxation  is  somewhat  greater  the  benefits  derived  will 
be  proportionately  greater. 

The  appeal  herein  is  dismissed. 

This  decision  must  be  filed  with  the  clerk  of  the  town  of  Verona,  Oneida 
county,  and  notice  thereof  be  by  him  given  to  the  appellants  and  respondent, 
with  opportunity  to  examine  the  same,  and  copy  thereof  filed  with  the  clerk  of 
school  district  no.  ii,  town  of  Verona,  Oneida  county. 


4481 

In  the  matter  of  the  appeal  of  William  J.  Dwyer  and  others  v.  Lincoln  A. 
Parkhurst,  school  commissioner,  second  commissioner  district,  Madison 
county. 

Under  the  provisions  of  section  9,  title  6,  as  amended  by  section  4,  chapter  264,  Laws  of 
1896,  any  school  commissioner  may  dissolve  one  or  more  districts  in  his  school  com- 
missioner district,  and  may,  from  such  territory  form  a  new  district;  he  may  also  unite 
a  portion  of  such  territory  to  any  existing  adjoining  district  or  districts.  Such  action 
may  be  taken  without  procuring  the  assent  or  dissent  of  the  trustee  or  trustees  of  the 
districts  to  be  affected,  or  making  any  preliminary  order,  or  giving  any  notice  of  any 
meeting  to  hear  objections,  if  in  his  judgment  such  action  was  for  the  best  educational 
interests  of  such  district  or  districts;  and  from  such  territory  form  a  new  district,  and 
may  unite  a  portion  of  such  territory  to  any  existing  adjoining  district  or  districts. 
Any  qualified  voter  of  any  of  the  districts  affected,  conceiving  himself  aggrieved,  or 
injured,  by  reason  of  said  order  can  appeal  therefrom  to  the  State  Superintendent  of 
Public  Instruction. 

Decided  October  6,  1896 

Baldwin,  Kennedy  &  Magee,  attorneys  for  appellants 
S.  M.  Wing,  attorney  for  respondent 

Skinner,  Superintendent 

The  appellants  in  the  above-entitled  matter  appeal  from  an  order  made  by 
Lincoln  A.  Parkhurst,  as  school  commissioner  of  the  second  commissioner  dis- 


700  THE    UNIVERSITY    OF    THE    STATE   OF    NEW    YORK 

trict  of  Madison  county,  on  or  about  June  20,  1896,  and  which  order  was  to 
take  effect  on  June  25,  1896,  dissolving  school  district  no.  12,  town  of  Sullivan; 
nos.  I  and  13.  town  of  Fenncr,  and  no.  4,  town  of  Lincoln,  all  in  the  county  of 
Madison  and  said  second  conuiiissioner  district,  and  erecting  or  forming  a  new 
school  district,  to  be  known  as  no.  i,  town  of  Fenner,  which  new  district  was 
to  include  therein  the  land  and  territory  described  in  said  order,  which  order 
was  tiled  in  the  office  of  the  clerk  of  said  towns  of  Sullivan,  Lincoln  and  Fenner, 
respectively,  on  said  June  25,  1896. 

The  appellants  allege,  in  substance,  as  grounds  of  appeal : 

1  That  said  order  is  irregular  and  void  for  want  of  jurisdiction  on  the  part 
of  the  commissioner  of  the  subject  matter  embraced  in  the  order. 

2  That  no  greater  educational  advantage  is  to  be  derived  from  the  proposed 
change  of  said  districts. 

3  That  the  change  is  unnecessary  and  uncalled  for. 

4  That  the  children  outside  of  the  village  of  Perryville  will  be  compelled 
to  travel  long  distances  to  attend  school. 

5  That  the  parents  of  children  will  be  put  to  much  inconvenience  in  getting 
their  children  to  the  school  of  the  new  district. 

6  That  the  schoolhouses  in  the  districts  dissolved,  which  are  now  in  good 
condition,  would  be  abandoned  and  sold  at  a  great  loss. 

The  respondent,  Parkhurst,  has  answered  the  appeal,  and  to  such  answer 
the  appellants  have  filed  a  re])ly. 

The  following  material  facts  are  established: 

That  in  the  winter  of  1895  a"^  spring  of  1896  the  question  of  dissolving 
said  school  districts  nos.  i  and  13.  Fenner;  no.  12  of  Sullivan,  and  no.  4  of 
Lmcoln,  and  forming  from  the  territory  comprising  said  districts  one  common 
school  district,  was  discussed  by  the  inhabitants  of  said  districts,  and  in  the 
latter  part  of  March  1896,  a  meeting  of  such  inhabitants  was  held  in  the  school- 
house  in  district  no.  13  of  Fenner,  for  the  purpose  of  ascertaining  their  senti- 
ments in  relation  to  such  action,  and  that  said  Commissioner  Parkhurst,  who 
was  present,  might  know  the  sentiment  prevailing;  that  at  said  meeting  twenty- 
three  or  twenty-four  of  the  taxpayers  and  voters  of  said  district  were  present, 
and  a  vote  was  taken  that  the  said  commissioner  make  an  order  dissolving  said 
districts  and  erecting  from  the  territory  of  such  dissolved  districts  a  new  district; 
that  at  said  meeting  a  petition  was  prepared  asking  said  commissioner  to  take 
such  proceedings,  and  which  petition,  signed  by  the  trustees  of  each  of  districts 
nos.  I  and  13  of  Fenner  and  no.  4  of  Lincoln,  and  a  large  number  of  the  voters 
of  all  of  the  districts  to  be  affected,  was  subsequently  presented  to  said  commis- 
sioner for  his  action;  that  on  or  about  May  22,  1896,  said  Commissioner  Park- 
hurst, under  the  provisions  of  sections  i  to  6  of  title  6  of  the  Consolidated 
School  Law  of  1894,  made  his  order  to  consolidate  said  districts  and  form  them 
into  one  common  school  district,  which  order  was  to  take  eft'ect  on  August  29, 
1896;  and  on  or  about  June  i,  1896,  under  section  4  of  said  title  6  of  said  Con- 
solidated School  Law,  gave  notice  that  on  June  13.  1896,  at  the  Cross  hotel,  in 


JUDICIAL   DECISIONS  :    SCHOOL   DISTRICTS  —  CONSOLIDATION  /OI 

the  village  of  Perryville,  he  would  hear  objections  to  said  order ;  that  on  said 
June  13,  1896,  said  commissioner  and  a  large  number  of  i)ersons  residing  in 
said  school  district,  met  at  said  hotel,  and  said  commissioner  stated  to  those 
present  that  at  the  making  by  him  of  the  order  of  May  22,  1896,  he  did  not 
know  of  the  amendment  made  by  chapter  264  of  the  Laws  of  1896  to  section 
9,  title  6,  of  said  Consolidated  School  Law  of  1894,  and  that  he  intended  to 
annul  said  order  of  May  22,  1896,  and  proceed  under  the  provisions  of  said 
section  9  as  so  amended;  that  said  commissioner  vacated  and  annulled  said 
order,  and  subsequently  made  his  order  of  June  20,  1896,  from  which  order 
this  appeal  is  taken ;  that  the  total  resident  population  of  school  age  residing 
in  the  four  school  districts  dissolved  by  said  order,  as  reported  by  the  trustees 
of  said  districts,  respectively,  for  the  school  year  ending  July  31,  1896,  was  as 
follows:  district  no.  i,*Fenner,  8;  district  no.  13,  Fenner,  33;  district  no.  12, 
Sullivan,  19,  and  district  no.  4,  Lincoln,  11 ;  that  the  average  daily  attendance 
at  the  schools  in  said  districts  during  said  school  year  ending  July  31,  1896, 
was  as  follows:  district  no.  i,  Fenner,  2^^^;  district  no.  13,  Fenner,  iS^; 
district  no.  12,  Sullivan,  Hyu,  and  district  no.  4,  Lincoln,  6xV;  that  the 
aggregate  assessed  valuation  of  taxable  property  in  said  districts  is  as  follows: 
district  no.  i,  Fenner,  $33,800;  district  no.  13,  Fenner,  $51,700;  district  no.  12, 
Sullivan,  $83,000,  and  district  no.  4,  Lincoln,  $30,950 ;  that  some  of  the  territory 
forming  said  districts  has  been  annexed  by  said  commissioner  to  district  no.  7, 
Fenner,  and  district  nO.  6,;  Lincoln;  that  the  schoolhouses  in  the  following- 
named  districts  dissolved  by  said  order  are  out  of  repair,  and  are  not  reason- 
ably comfortable  for  use  by  the  pupils  attending  school  therein,  and  can  not  be 
made  so  without  a  considerable  expenditure  of  money  upon  each  of  them, 
namely,  no.  i,  Fenner;  no.  12,  Sullivan,  and  no.  4,  Lincoln. 

It  further  appears  that  of  the  affiants  in  the  affidavits  presented  in  support 
of  the  appeal  herein,  ten,  at  least,  are  nonresidents  of  and  are  not  voters  in  any 
of  the  four  districts  dissolved,  and  twenty  of  them  have  no  children  of  their  own, 
or  any  children  residing  with  them,  who  attend  or  who  are  of  school  age. 

It  does  not  clearly  appear  how  many  children  who  attended  the  school  in 
said  dissolved  districts  would  be  obliged  to  travel  a  greater  distance  to  attend 
the  school  in  the  new  district,  nor  does  it  clearly  appear  that  any  children  will 
be  obliged  to  travel  a  greater  distance  than  that  which  a  portion  of  the  children 
residing  in  all  rural  school  districts  are  required  to  travel.  Messrs  Christman 
and  Bellenger,  who  were  in  the  districts  dissolved,  have  been  set  off  in  school 
district  no.  7,  Fenner. 

Section  9,  title  6,  of  the  Consolidated  School  Law  of  1894,  as  amended  by 
section  4,  chapter  254,  Laws  of  1896,  which  became  a  law  on  April  15,  1896, 
enacts :  "Any  school  commissioner  may  dissolve  one  or  more  districts,  and  may 
from  such  territory  form  a  new  district;  he  may  unite  a  portion  of  such  terri- 
tory to  any  existing  adjoining  district  or  districts.  When  two  or  more  districts 
shall  be  consolidated  into  one.  the  new  district  shall  succeed  to  all  the  rights  of. 
property  possessed  by  the  annulled  districts." 


702  THE    UXIVEKSITY    OF   THE   STATE   OF   NEW    YORK 

Under  the  provisions  of  said  section  9,  above  quoted,  on  and  after  April 
15.  ii-'yO,  School  Commissioner  Parkhurst  had  authority  and  jurisdiction,  either 
upon  or  witiiout  any  petition  asking  it,  and  without  procuring  the  assent  or 
dissent  of  the  trustee  or  trustees  of  the  districts  to  be  affected,  or  making  any 
preliminary  order  or  giving  any  notice  of  any  meeting  to  hear  objections,  if  in 
his  judgment  such  action  was  for  the  best  educational  interests  of  such  districts, 
to  make  an  order,  to  take  effect  on  a  day  to  be  named  therein,  dissolving  one  or 
more  school  districts  situate  within  his  commissioner  district,  and  from  such 
territory  form  a  new  district,  and  may  unite  a  portion  of  such  territory  to  any 
existing  adjoining  district  or  districts. 

Such  order  could  be  appealed  from  to  the  State  Superintendent  by  any 
qualified  voter  of  any  of  the  districts  affected  by  the  order  if  such  person  was 
injured  thereby,  and  upon  such  appeal  said  order  could  be  reviewed. 

From  the  proofs  presented  herein  I  am  of  the  opinion  that  the  order 
appealed  from  was  for  the  best  educational  interests  of  the  districts  affected 
thereby,  and  that  the  authority  vested  in  the  school  commissioner  to  make  said 
order,  has  been  wisely  exercised. 

I  decide: 

1  That  said  order  appealed  from  is  regular  and  valid ;  that  School  Com- 
missioner Parkhurst  had  jurisdiction  over  the  subject  matter,  and  had  legal 
authority,  under  section  9,  title  6,  of  the  Consolidated  School  Law  of  1894,  as 
amended  by  section  4  of  chapter  264  of  the  Laws  of  1896,  to  make  the  order, 
under  the  objections  of  the  qualified  voters  of  the  district  affected  by  said 
order,  or  of  the  trustees  of  said  district  dissenting. 

2  That  better  educational  results  will  be  derived  by  the  dissolution  of  said 
school  districts  and  the  formation  of  a  new  district. 

The  appeal  herein  is  dismissed  and  the  said  order  of  School  Commissioner 
Parkhurst,  dated  June  20,  1896,  is  confirmed. 


4015 

In  the  matter  of  the  appeal  of  Frank  R.  Fillmore  from  an  order  of  Adelia  H. 
Wilson,  school  commissioner  of  the  third  commissioner  district  of  Onondaga 
county. 

A  school  commissioner's  order  consolidating  school  districts  set  aside  where  it  is  clearly 
shown  that  the  order  is  prejudicial  to  a  large  number  of  families  having  children  of 
school  age  residing  therein. 

Decided  October  17,  1891 

Draper,  Superintendent 

This  is  an  ap])cal  from  an  order  made  by  the  school  commissioner  on  or 
about  the  9th  day  of  August  189T,  consolidating  school  district  no.  14  of  the  town 
of  DeWitt,  Onondaga  county,  with  school  district  no.  11  of  the  same  town.     It 


JUDICIAL    DECISIONS  :    SCHOOL    DISTRICTS CONSOLIDATION  JOT, 

is  claimed  by  the  appellant  that  many  of  the  children  of  school  district  no.  14 
who  attend  the  school,  will  be  compelled  to  travel  a  road  which  runs  throui^h  the 
center  of  both  districts,  something  over  three  miles,  and  that  a  great  hardship 
would  be  done  the  inhabitants  of  that  portion  of  the  district  lying  farthest  east 
in  district  no.  14,  where  there  is  a  large  number  of  children  of  school  age.  It  is 
also  alleged  that  a  very  long  and  steep  hill  would  render  the  passage  of  children 
over  this  road  dilhcult.  It  is  suggested  that  a  division  of  district  no.  14,  by 
which  the  inhabitants  of  the  eastern  portion  could  be  attached  to  district  no.  8  of 
the  town  of  Alanlius,  which  adjoins  district  no.  14  on  the  east,  would  better 
accommodate  the  children  of  those  families.  This  suggestion,  however,  is  a 
matter  to  be  addressed  to  the  school  commissioner,  in  the  first  instance,  and  it 
is  not  necessary  for  me  to  pass  upon  it  upon  this  appeal. 

No  answer  has  been  interposed,  but  I  am  advised  by  the  school  commissioner 
that  there  is  some  question  about  the  wisdom  of  the  order,  and  that  she  antici- 
pates that  the  same  will  not  be  sustained. 

It  seems  to  me  from  the  facts  presented,  that  the  commissioner  has  been  mis- 
led by  some  of  the  inhabitants  of  the  districts  affected,  into  making  an  order  which 
is  not  for  the  best  interests  of  a  large  number  of  the  inhabitants  of  the  district. 

I  conclude,  therefore,  to  sustain  the  appeal  and  set  aside  the  order  appealed 
from. 


3847 

In  the  matter  of  the  appeal  of  John  K.  Larmon  v.  Joseph  W.  Barbur,  school  com- 
missioner of  the  first  commissioner  district  of  Washington  county. 
A  commissioner's  order  consolidating  school  districts,  which  has  been  regularly  made,  will 

be  upheld  unless  it  is  shown  by  a  preponderance  of  proof  to  be  unwise,  and  is  opposed 

to  the  best  educational  interests  of  the  territory  affected. 
Decided  December  26,  18S9 

Draper,  Superinicndent 

This  is  an  ap])eal  from  an  order  of  the  school  commissioner  of  the  first  com- 
missioner district  of  Washington  county,  consolidating  school  districts  no.  i,  of 
Cambridge,  and  no.  10,  of  White  Creek,  made  on  the  i8th  day  of  November  1889. 

Objection  to  the  consolidation  is  made  by  the  appellant  and  a  considerable 
number  of  the  residents  of  school  district  no.  i,  of  Cambridge.  They  allege  as 
the  reason  for  their  objection,  that  the  consolidation  will  largely  increase  the 
school  taxes  in  their  district.  They  say  that  the  district  now  maintains  a  satis- 
factorv  school  and  has  valuable  property  which  it  will  lose  the  benefit  of  if  the 
order  of  the  commissioner  is  permitted  to  stand.  They  also  say  that  the  district 
has  a  library  of  2700  volumes,  school  apparatus  valued  at  $500,  and  receives 
annually  for  the  tuition  of  nonresident  pupils  about  $500. 

It  'is  not  alleged  that  the  proceedings  taken  by  the  commissioner  have  not 
been- regularly  taken,  and  in  the  manner  provided  by  statute.    The  board  of  trus- 


704  THE   UNIVERSITY   OF  THE   STATE   OF   NEW   YORK 

tees  in  each  district  in  September  last,  consented  to  the  proposed  order.  This 
beinp  so.  the  appellant  has  the  burden  of  sliowing,  by  clear  and  overwhelming 
proof,  that  the  order  is  opposed  to  the  best  educational  interests  of  the  territory 
affected,  llavinj;  lieen  regularly  made,  it  is  to  be  sustained  unless  manifestly 
unwise.  The  appellant  fails  to  make  such  a  showing  as  will  justify  the  setting 
aside  of  the  order.  It  aj^pears  thrft  the  incorporated  village  of  Cambridge  is 
entirely  within  the  limits  of  the  two  districts.  The  entire  policy  of  the  school  laws 
is  in  the  direction  of  bringing  all  the  pul)lic  school  interests  of  each  city  and 
incorj)orated  village  within  a  single  management,  for  it  is  believed  that  larger 
.schools  are  more  thoroughly  organized,  more  perfectly  graded,  and  productive  of 
better  results.  The  fact  that  one  of  the  districts  afTected  receives  nonresident 
tuition  fees,  aggregating  $500  per  annum,  does  not  materially  affect  the  question ; 
nor  does  the  other  fact,  if  it  be  a  fact,  that  the  school  taxes  will  be  increased  in 
such  district.  It  is  by  no  means  certain  that  that  will  be  the  case.  In  any  event,  it 
is  clear  that  both  of  the  districts  affected  are  strong  in  amount  of  taxable  prop- 
erty, the  district  here  objecting  having  taxable  property  amounting  to  near  $300,- 
000  in  value.  It  is  abundantly  manifest  that  the  consolidated  district  is  able  to  erect 
a  handsome  school  building  and  organize  a  graded  school,  and  if  this  is  done,  as 
is  likely,  it  will  prove  highly  advantageous  to  the  educational  interests  of  the  vil- 
lage of  Cambridge.  There  is  no  claim,  so  far  as  I  have  observed,  that  any  patron 
of  the  school  will  be  seriously  inconvenienced  in  consequence  of  distance  from 
the  school  building.  The  fact  that  a  very  large  number,  possibly  more  than  half 
of  the  residents  of  one  of  the  districts  affected,  are  opposed  to  the  consolidation, 
has  been  well  considered.  It  is  a  weighty  fact  in  the  case,  and  has  not  been 
passed  by  lightly ;  but  I  am  constrained  to  believe  that,  when  the  new  arrangement 
shall  go  into  operation,  it  will  be  approved  by  substantially  the  entire  population 
of  the  village. 

It  appears  that  before  the  trustees  of  the  respective  districts  gave  their  con- 
sent to  the  consolidation,  the  question  was  submitted  to  a  vote  of  the  legal  voters 
of  the  two  districts.  A  meeting  was  held  on  the  27th  day  of  August,  last,  and 
the  polls  were  kept  open  from  10  o'clock  in  the  morning  until  3  in  the  afternoon, 
for  the  purpose  of  taking  an  expression  of  the  opinion  of  the  qualified  voters  of 
the  two  districts.  At  such  meeting,  382  votes  were  cast,  of  which  270  were  in 
favor  of  consolidation,  and  no  were  opposed  thereto.  This  shows  a  very  strong 
sentiment  in  the  village  in  favor  of  the  action  appealed  from. 

It  is  usual  in  all  such  cases  to  find  some  opposition  to  action  of  this  character ; 
but  the  time  ordinarily  comes,  as  I  am  confident  it  will  in  this  case,  when  substan- 
tially the  entire  people  are  convinced  of  the  wisdom  of  it. 

It  is  made  to  appear  by  the  school  commissioner  that  the  buildings  used  for 
school  purposes  in  both  of  the  districts  affected,  are  old  and  without  any  of  the 
modern  improvements  for  heating  and  ventilating,  and  are  ill  adapted  for  school 
purposes.  Indeed  all  of  the  more  weighty  considerations  seem  to  support  the 
action  of  the  commissioner,  and  the  time  for  such  action  seems  opportune.     In 


JUDICIAL  decisions:  school  districts  —  coxsoLiDATioN  yo^ 

any  event,  the  appellant  fails  to  make  a  case  which  would  justify  the  setting 
aside  of  the  order  appealed  from. 

The  appeal  must,  therefore,  be  dismissed,  and  the  stay  of  proceedings  granted 
herein,  on  the  30th  day  of  November  1889,  is  hereby  revoked  and  annulled. 


3660 

In  the  matter  of  the  appeal  of  Charles  Anderson,  of  school  district  no.  6,  town 
of  Bainbridge,  county  of  Chenango  v.  Willis  R.  Hall,  school  commissioner. 

The  action  of  a  school  commissioner  in  consolidating  two  school  districts  which  were  weak 
and  unable  to  sustain  good  schools  will  not  be  disturbed,  where  it  is  shown  that  by  the 
consolidation  a  district  has  been  formed  of  sufficient  strength  to  maintain  a  good  school. 

The  order  of  the  commissioner  consolidating  districts  should  recite  the  fact  that  the  trus- 
tees of  the  districts  affected  had  consented  to  the  order. 

The  consent  of  a  district  meeting  is  not  a  compliance  with  the  statute. 

Decided  January  21,  1888 

Draper,  Su[^crintendent 

This  appeal  is  taken  by  a  resident  of  school  district  no.  6,  town  of  Bain- 
bridge, Chenango  county,  from  an  order  made  by  the  school  commissioner  of  the 
second  district  of  Chenango  county,  consolidating  school  district  no.  6  with  school 
district  no.  8  of  that  town. 

The  order  was  made  on  the  i8th  day  of  May  1887,  and  went  into  effect  on 
the  1st  day  of  June  1887. 

It  is  alleged  by  the  appellants  that  school  district  no.  6  had  no  trustee  at  the 
time  the  order  was  made,  the  person  who  held  the  office  having  removed  from 
the  district,  and  that  the  action  of  the  district  meeting  in  school  district  no.  6  at 
which  a  vote  in  favor  of  the  consolidation  was  secured,  was  poorly  attended,  only 
three  voters  being  in  attendance  and  that  the  vote  was  not  a  fair  and  full 
expression  of  the  voters  of  the  district. 

The  respondent,  the  school  commissioner,  alleges  that  before  the  order  was 
made  he  obtained  the  consent  of  the  sole  trustee  of  each  district,  that  before  mak- 
ing the  order  he  consulted  with  nearly  every  voter  in  school  district  no.  6  and 
found  no  opposition  to  the  proposed  order.  That  the  consolidation  is  for  the  best 
interests  of  both  districts,  as  each  was  weak  and  unable  to  sustain  a  good  school 
and  by  uniting  them  a  district  of  reasonable  strength  was  formed.  He  also  states 
that  the  old  schoolhouse  in  district  no.  6  is  worthless. 

The  appellants  do  not  allege  sufhcient  grounds  upon  which  to  sustain  their 
appeal.  The  statute  provides  that  with  written  consent  of  the  trustees  of  all  dis- 
tricts affected  thereby,  the  school  commissioner  may  alter  any  school  district 
under  his  charge.  It  appears  such  consent  was  obtained.  At  the  time  it  was 
given  the  trustee  of  school  district  no.  6  was  a  resident  of  his  district. 

'The  commissioner  in  his  order  instead  of  reciting  the  consent  of  the  trustees, 
stated  that  both  districts  had  given  an  affirmative  vote  on  the  question  of  annexa- 
^3 


706  Tilt:    UXIVEKSITY    OF   THE   STATE    OF    NEW   YORK 

lion.  Now.  so  far  as  tlie  school  commissioner's  action  is  concerned,  the  vote  of 
a  district  meeting  would  not  comply  with  the  statute,  and  while  it  is  not  expressly 
required,  the  order  should  have  recited  the  consent  of  the  trustees  of  both  dis- 
tricts to  be  affected.  But  the  fact  appearing  that  the  consent  of  the  trustees  was 
in  fact  obtained.  I  have  concluded  to  dismiss  the  appeal.  The  school  commissioner, 
however,  is  herel'y  directed  to  procure  and  attach  the  written  consent  of  the 
trustees  to  the  order  or  make  an  amended  order  reciting  such  consent,  within 
thirty  days  from  this  date. 


3904 

In  the  appeal  of  Piernard  Done!  and  otliers  v.  Ezra  B.  Knapp.  school  commis- 
sioner of  the  second  commissioner  district  of  Onondaga  county. 

Appeal  from  a  commissioner's  order  consolidating  school  districts,  the  effect  of  consoli- 
dation being  to  greatly  inconvenience  children  who  would  become  patrons  of  the  school. 
A  majority  of  the  electors  of  one  of  the  districts  is  clearly  opposed  to  consolidation. 
the  districts  affected  l)y  the  order  each  being  sufficiently  strong  to  rriaintain  proper 
schools.    Appeal  sustained. 

Decided  August  29,  1890 

Draper,  Superiniendcnt 

This  is  an  aj)peal  from  an  order  made  by  the  school  commissioner  on  the 
24th  day  of  July  1890,  consolidating  school  districts  numbered  2  and  3,  of  the 
town  of  Tully.  The  order  was  made  upon  the  consent  of  the  sole  trustee  in  each 
district.  The  prevalent  opinion  in  district  no.  3  is  evidently  averse  to  the  con- 
solidation. It  seems  that  a  meeting  of  the  residents  of  this  district  was  held  on 
the  9th  day  of  June,  for  the  purpose  of  getting  an  expression  of  the  feeling  in 
the  district  touching  the  matter.  Upon  a  vote  being  taken  at  such  meeting  13 
declared  themselves  in  fa\-or  of  the  consolidation  and  31  against  the  same.  The 
l^rincipal  reason  alleged  by  the  appellants  in  support  of  their  appeal  is  that  their 
children  will  have  to  go  much  farther  to  school.  It  is  admitted  on  all  sides  that 
they  would  certainly  have  to  go  a  half  mile  farther  than  at  present,  and  that  in 
some  instances  children  would  have  to  go  two  miles  and  a  half  to  reach  the 
school  in  district  no.  2. 

Both  districts  are  reasonably  strong  both  in  the  number  of  residents  and  in 
the  value  of  property.  No.  2  is  much  the  stronger.  The  number  of  children 
attending  school  in  this  district  last  year  was  122,  and  the  assessable  valuation 
was  S342.500.  The  number  of  pupils  registered  in  no.  3  last  year  was  29.  and 
the  assessal)le  valuation  $78,900.  Thus  at  present,  no.  2  stands  in  no  need  of  the 
annexation  of  no.  3,  and  it  seems  to  me  that  no.  3  is  sitfFiciently  strong  to  main- 
tain proper  school  accommodations.  This  being  so,  I  think  it  follows  that  the 
question  upon  the  desire  of  the  majority  of  the  residents  of  district  no.  3,  so 
far  as  there  has  been  any  expression  of  the  desire  of  such  majority,  has  been 
opposed  to  the  consolidation  or  annexation.  It  seems  to  me  advisable,  therefore, 
that  the  order  of  the  commissioner  should  not  be  upheld. 


JUDICIAL   DECISIONS  :    SCHOOL   DISTRICTS CONSOLIDATION  JOJ 

I  observe  in  the  papers  some  statements  to  the  effect  that  the  schoolhouse 
hi  district  no.  3  is  not  in  a  suitable  state  of  repair.  While  the  result  of  my 
deliberation  upon  the  matter  will  be  to  continue  district  no.  3  as  at  present  con- 
stituted, it  must  be  borne  in  mind  by  the  residents  of  such  district,  that  in  case 
they  fail  to  maintain  a  schoolhouse  in  suitable  condition  for  a  public  school, 
and  to  maintain  a  school  which  will  meet  the  needs  of  all  the  residents  of  the 
district,  an  order  such  as  that  to  which  they  now  so  strenuously  object,  will  of 
necessity  be  made  sooner  or  later. 

The  appeal  is  sustained. 


5351 

In  the  matter  of  the  appeal  of  Melvin  H.  Pendleton  from  an  order  dissolvinsr 
school  district  no.  2.  Scio,  and  annexing  the  territory  thereof  to  school  dis- 
trict no.  I  and  district  no.  3,  Scio. 

When  it  appears  that  the  action  of  a  school  commissioner  in  consolidating  two  districts 
promotes  the  educational  interests  of  all  parties  concerned  without  placing  improper 
burdens  upon  the  residents  of  either  district  and  without  the  operation  of  a  hardship 
upon  any  of  the  residents  of  either  district,  his  action  should  be  sustained. 

Decided  September  30,  1907 

Draper,  Commissioner 

On  April  15,  1907,  John  D.  Jones,  school  commissioner  of  the  second  school 
commissioner  district  of  Allegany  county,  made  an  order  dissolving  school 
district  no.  2,  town  of  Scio,  and  annexed  portions  thereof  to  school  districts  no. 
I,  Scio,  and  no.  2,  Scio.  A  short  time  previous  to  the  date  on  which  these  orders 
were  made  the  school  commissioner  gave  an  informal  hearing  to  a  committee 
representing  school  district  no.  2.  It  appears  that  all  phases  of  this  question 
were  discussed  at  this  hearing  and  the  school  commissioner  planned  to  rearrange 
the  territory  of  district  no.  2  to  meet  the  wishes  of  the  residents  of  that  district 
so  far  as  possible.  It  appears  that  the  general  understanding  at  the  termination 
of  the  hearing  was  that  the  school  commissioner  would  soon  make  the  orders. 
Such  orders  were  made  April  15th  and  the  fact  that  they  were  made  on  that  date 
must  have  been  generally  understood.  This  appeal  however  was  not  instituted 
until  July  3d  or  nearly  three  months  after  the  orders  were  made.  The  appeal 
should  have  been  instituted  within  thirty  days  after  such  orders  were  made.  This 
long  delay  in  bringing  the  appeal  is  sufficient  ground  to  warrant  me  in  dismissing 
this  proceeding. 

The  greater  portion  of  district  no.  2  was  annexed  to  district  no.  i.  District 
no.  I  embraces  the  hamlet  of  Scio.  The  schoolhouse  in  this  district  is  a  new 
modern  building  recently  erected  at  an  expense  of  $12,000.  It  is  located  in  the 
northwest  corner  of  the  district  and  the  schoolhouse  in  district  no.  2  is  located 
in  the  northeast  corner  of  that  district.  The  dividing  line  between  these  districts 
is  the  Genesee  river.     The  school  buildings  of  these  districts  were  located  on 


708  THE    UXIVERSITV    OF   THE   STATE    OF   NEW   YORK 

opposite  sides  of  the  river  and  only  about  200  rods  apart.  District  no.  2  employed 
but  one  teacher.  District  no.  i  employs  four  teachers  and  maintains  a  graded 
school.  The  consolidation  of  these  two  districts  will  materially  strengthen  the 
educational  facilities  of  this  community.  The  social  and  business  interests  of 
the  residents  of  district  no.  2  center  in  no.  i.  Nearly  all  the  children  of  district 
no.  2  are  within  a  very  reasonable  distance  of  the  schoolhouse  in  district  no.  i. 
It  appears  that  only  two  families  are  about  two  miles  from  such  schoolhouse. 
Good  roads  are  maintained  and  are  always  open.  None  of  the  children  will 
be  required  to  travel  more  than  200  rods  farther  than  they  were  required  to 
travel  to  attend  school  in  district  no.  2. 

Appellants  object  to  being  taxed  to  pay  the  bonded  indebtedness  of  district 
no.  I  incurred  for  the  erection  of  the  new  building  because  they  had  no  voice 
in  authorizing  the  erection  of  such  building.  The  residents  of  district  no.  i  liqui- 
dated one  sixth  of  the  expenses  of  erecting  this  schoolhouse  before  district  no.  2 
was  annexed  thereto.  The  residents  of  former  district  no.  2  will  have  equal  rights 
and  privileges  in  and  to  this  building.  It  is  entirely  just  they  should  contribute 
their  proportionate  share  towards  its  erection.  It  appears  from  these  pleadings 
that  the  school  commissioner  has  promoted  the  educational  interests  of  all  con- 
cerned by  the  action  taken  and  he  should  be  sustained. 

The  appeal  is  herein  dismissed. 


SCHOOL  DISTRICTS  — DISSOLUTION 

5181 

In  the  matter  of  the  appeal  of  Ira  R.  Jones,  sole  trustee  of  school  district  no.  il, 
town  of  Erin ;  of  David  C.  Jayne,  sole  trustee  of  school  district  no.  2,  town 
of  Erin;  of  Howard  L.  Burleau,  sole  trustee  of  school  district  no.  5,  town 
of  Erin;  of  Baldwin  E.  Snell,  sole  trustee  of  school  district  no.  7,  town  of 
Erin ;  of  Herbert  Staples,  sole  trustee  of  school  district  no.  12,  town  of  Erin ; 
of  Erwin  Hollenbeck,  sole  trustee  of  school  district  no.  13,  town  of  Erin,  and 
of  Jacob  Arthur  Chase,  sole  trustee  of  school  district  no.  15,  town  of  \'eteran, 
from  the  action  of  George  Turner  Miller,  school  commissioner  of  the  sole 
school  commissioner  district  of  Chemung  county  in  making  certain  orders 
abolishing  said  school  districts,  establishing  new  school  districts  and  thereby 
altering  the  boundaries  of  other  school  districts. 

The  original  part  of  a  section  of  law  restated  in  an  amendatory  act  speaks  from  the  date 
of  its  original  enactment  and  not  from  the  date  of  the  amended  act. 

Under  section  9  of  title  6  of  the  Consolidated  School  Law  a  school  commissioner  may 
dissolve  a  school  district  without  the  consent  of  the  trustees  of  the  districts  affected. 
There  is  some  question  as  to  the  right  of  a  school  commissioner  under  such  section  to 
alter  the  boundaries  of  a  union  free  school  district  without  the  consent  of  the  trustees 
of  such  district. 

The  arrangement  of  school  districts  must  be  such  as  will  serve  educational  ends  and  best 
meet  the  convenience  of  the  patrons  of  the  schools.  In  the  arrangement  of  school  dis- 
tricts the  wishes  of  the  inhabitants  are  entitled  to  careful  consideration  from  the  school 
commissioner. 

Distances  of  two,  three,  and  three  and  one-half  miles  are  too  great  for  small  children  or 
delicate  children  to  travel  each  day  over  rough  roads  either  by  walking  or  riding  to 
attend  school. 

A  school  district  though  weak  in  numbers  and  in  property  value  should  not  be  dissolved 
unless  the  children  residing  in  such  district  and  required  to  attend  school  are  placed 
within  a  reasonable  distance  of  a  schoolhouse. 

A  school  commissioner  is  not  justified  in  disturbing  the  educational  work  of  a  whole  town- 
ship by  wholesale  dissolution  of  school  districts  and  rearrangement  of  school  privileges 
without  even  consulting  the  inhabitants  thereof,  unless  a  substantial,  even  an  over- 
whelming, educational  reason  exists  for  taking  such  action. 

Decided  March  22,  1905 

Richard  H.  Thurston,  attorney  for  appellants 
George  Turner  Miller,  attorney  for  respondent 

Draper,  Commissioner 

During  the  latter  part  of  July  and  the  early  part  of  August  1904.  the  respond- 
ent., school  commissioner  of  Chemung  county,  made  orders  abolishing  six  school 
districts  in  the  town  of  Erin  and  one  school  district  in  the  town  of  \'eteran.  Out 
of  the  territory  comprising  these  seven  school  districts,  two  new  districts  were 

[709] 


710  THE    UNIVI^RSITY    OF   THE   STATE    OF   NEW    YORK 

erected  and  the  remainder  of  such  territory  was  annexed  to  adjoining  districts. 
The  principal  portion  of  such  remaining  territory  was  annexed  to  the  school 
district  including  the  village  of  Horseheads  and  to  the  school  district  including 
the  village  of  Hreesport.  In  abolishing  these  districts,  in  forming  the  two  new 
districts,  and  in  making  the  other  alterations  in  district  boundaries  the  school 
commissioner  issued  twenty-four  orders.  This  appeal  is  brought  to  vacate  all 
of  these  orders  and  to  restore  all  the  districts  affected  by  such  orders  to  their 
status  previous  to  the  issuance  of  said  orders. 

The  school  commissioner  made  all  of  the  orders  in  question  under  the  pro- 
visions of  section  9.  title  6  of  the  Consolidated  School  Law.  The  consent  in 
writing  was  not  obtained  from  the  trustees  of  any  of  the  districts  affected. 
School  district  no.  i  of  the  town  of  Horseheads  is  a  union  free  school  district 
wliose  boundaries  do  not  coincide  with  the  boundaries  of  an  incorporated  village. 
Many  of  these  orders  alter  the  boundaries  of  that  district.  It  is  claimed  by  the 
appellants  that  section  9  of  title  6  does  not  apply  to  union  free  school  districts 
and  that  all  orders  made  under  the  provisions  of  that  section  and  which  afifect 
union  free  school  district  no.  i,  Horseheads,  are  defective.  It  is  argued  by 
counsel  for  appellants  that  in  making  these  orders  the  school  commissioner  was 
executing  a  general  plan  which  had  been  deliberately  formulated  and  that  the 
issuance  of  all  of  these  orders  was  essential  to  the  consummation  of  that  plan. 
It  appears  that  seven  of  the  orders  relate  to  union  free  school  district  no.  i, 
Horseheads,  and  that  these  orders  are  so  interrelated  to  other  orders  as  to  afifect 
six  other  school  districts.  It  is  argued  that  if  the  orders  afifecting  district  no.  i, 
Horseheads,  are  defective  as  to  that  district,  they  are  defective  as  to  the  other 
SIX  districts  which  they  afifect  and  that  all  correlative  orders  are  also  defective. 
In  other  words,  counsel  for  appellants  claims  that  these  twenty-four  orders  are 
so  interdependent  that  if  one  is  defective  they  are  all  defective.  It  does  appear 
that  there  is  such  a  mutual  relation  between  the  several  orders  afifecting  district 
no.  I,  Horseheads,  and  those  affecting  the  other  six  districts  that  if  the  former 
orders  are  defective  the  latter  must  be  defective  also. 

Previous  to  the  passage  of  chapter  264,  Laws  of  1896,  the  statute  conferring 
authority  to  alter  a  common  school  district  was  sections  2,  3  and  4  of  title  6  of 
the  Consolidated  School  Law.  This  law  provided  two  methods  of  altering  a 
common  school  district  —  one  with  the  written  consent  of  the  trustees  of  the  dis- 
tricts afrected  and  one  without  such  consent.  It  should  be  understood,  however, 
that  the  term  alteration  as  used  in  section  2  of  title  6  has  always  been  held  to 
mean  the  transfer  of  real  property  from  one  district  to  an  adjoining  district. 
Previous  to  the  passage  of  chapter  264  of  the  Laws  of  1896  section  30  of  title  8 
of  the  Consolidated  School  Law  provided  for  the  alteration  of  union  free  school 
districts  whose  boundaries  do  not  coincide  with  those  of  an  incorporated  village. 
Section  30  simply  provided  that  a  school  commissioner  might  alter  union  free 
school  districts  in  the  manner  provided  in  title  6.  In  other  words,  previous  to 
the  passage  of  chapter  264  of  the  Laws  of  1896  the  methods  of  altering  a  common 
school  district  and  a  union  free  school  district  were  identical  and  the  consent 


JUDICIAL   DECISIONS  :.  SCHOOL    DISTRICTS  —  DISSOLUTION  7II 

or  refusal  to  consent  of  the  trustees  of  the  districts  aflfected  was  the  first  step 
in  a  proceeding  of  alteration  of  district  boundaries.  There  is  a  distinction 
between  the  alteration  of  a  district  and  the  dissolution  of  a  district.  Thus  far 
we  have  considered  the  law  relating  to  the  alteration  of  districts  up  to  i8')6  and 
up  to  that  time  the  consent  of  the  trustees  of  the  districts  affected .  was  an 
essential  point. 

Section  6  of  title  6  provides  for  the  dissolution  of  common  school  districts 
and  of  union  free  school  districts,  but  in  each  proceeding  the  consent  of  the 
trustee  is  required. 

As  stated  before,  the  orders  in  question  were  issued  without  the  consent  o;' 
the  trustees  of  any  of  the  districts  afifected.  As  a  school  commissioner  had  not 
authority  to  make  such  orders  previous  to  the  enactment  of  chapter  264  of  the 
Laws  of  1896,  the  question  to  determine  is,  What  power  did  the  enactment  of 
such  law  confer  on  school  commissioners  in  the  dissolution  and  alteration  of 
school  districts?  Chapter  264  of  the  Laws  of  1896  amended  section  9  of  title 
6  of  the  Consolidated  School  Law  by  incorporating  these  words  in  that  section: 
"Any  school  commissioner  may  dissolve  one  or  more  districts  and  may  from  such 
territory  form  a  new  district;  he  may  also  unite  a  portion  of  such  territory  to 
any  existing  adjoining  district  or  districts."  If  this  amended  section  applies  to 
union  free  school  districts,  the  school  commissioner  possessed  legal  authority  to 
issue  all  of  the  orders  in  controversy.  If  it  does  not  apply  to  union  free  school 
districts  he  did  not  possess  such  authority. 

Counsel  for  appellants  contends  that  section  9  of  title  6  does  not  apply  to 
union  free  school  districts.  His  argument  is  that  section  30  of  title  8  of  the 
Consolidated  School  Law  provides  that  union  free  school  districts  may  be  altered 
as  title  6  provides  that  common  school  districts  may  be  altered.  This  provision 
of  section  30  was  enacted  in  1894  and  it  is  claimed  that  the  provisions  of  article 
6  enacted  at  that  time  are  the  only  provisions  which  apply  to  union  free  school 
districts.  Amendments  to  title  6  enacted  by  the  Legislature  since  1894  do  not 
apply  to  union  free  school  districts  unless  it  is  expressly  stated  in  such  amend- 
ments that  they  shall  apply  to  such  districts.  Section  30  originally  provided  that 
no  union  free  school  district  having  an  outstanding  bonded  indebtedness  should 
be  divided  or  altered.  This  section  was  amended  in  1899  by  omitting  from  the 
section  the  words  "  or  altered."  In  order  to  make  this  amendment  the  whole  of 
section  30  was  restated.  Restating  such  section  for  the  purpose  of  making  an 
amendment  thereto  does  not  give  to  such  section  the  effect  of  an  original  enact- 
ment. All  of  the  original  part  of  such  section  restated  in  the  amendatory  act 
speaks  from  the  date  of  its  enactment  in  1894  and  not  from  the  date  of  amend- 
ment in  1899.  As  section  9  of  title  6  was  not  in  existence  in  1894  and  was  not 
enacted  until  1896,  its  provisions  do  not  apply  to  union  free  school  districts.  This 
theory  is  supported  by  Cooley  in  his  work  on  Constitutional  Limitations  (see 
p.  76,  6th  ed.)  and  by  the  Court  of  Appeals  of  this  State  in  Ely  v.  Holton,  15 
n!  V.  156;  Moore  v.  Mansert,  49  N.  Y.  332;  Matter  of  Estate  of  Prime,  136 
X.  Y.  347;  and  Allison  v.  Welde.  172  N.  Y.  421. 


712  THE    UN'IVEKSITY    OF   THE   STATE    OF   NEW    YORK 

This  Department  has  repeatedly  held  that  section  9.  title  6  as  amended  by 
chapter  264,  Laws  of  1896,  confers  on  school  commissioners  absolute  power  to 
dissolve  a  school  district  without  the  consent  of  the  trustees.  It  has  also  held 
that  when  a  commissioner  has  dissolved  a  district  under  this  section  he  may 
annex  the  territory  of  such  dissolved  district  to  any  adjoining  district  —  either 
common  school  districts  or  union  free  school  districts — without  the  consent 
of  the  trustees  of  the  districts  affected.  This  decision  has  been  made  on  the 
theory  that  the  annexation  of  territory  from  a  dissolved  district  is  not  an  altera- 
tion of  a  district  under  the  provisions  of  sections  2,  3  and  4  of  title  6  of  the  Con- 
solidated School  Law.  In  view  of  the  fact  that  no  other  provision  is  made  for 
the  alteration  of  union  free  school  districts  and  also  in  view  of  the  decisions  of 
the  Court  of  Appeals  above  cited  there  appears  to  be  some  question  as  to  the 
soundness  of  such  decision  in  relation  to  the  annexation  of  such  territory  to  a 
union  free  school  district  without  the  consent  of  the  trustees  of  such  districts. 

The  action  of  the  school  commissioner  in  abolishing  these  seven  school  dis- 
tricts was  taken  without  any  consultation  with  the  inhabitants  thereof  or  without 
their  knowledge  even  that  such  action  would  be  taken.  There  was  no  demand, 
not  even  a  request,  from  the  residents  of  these  districts  for  such  action.  On 
the  other  hand,  these  people  were  opposed  to  the  dissolution  of  their  districts. 
Xot  a  single  oftker  or  resident  of  any  of  these  seven  districts  has  joined  the 
respondent  in  his  answer  to  these  appeals.  Nor  does  the  school  commissioner 
claini  that  the  people  desired  the  changes  which  he  made.  In  most  districts 
school  meetings  were  held  and  the  trustees  authorized  to  employ  counsel  and 
appeal  from  the  action  of  the  commissioner  to  this  Department.  There  appears 
to  be  no  division  of  sentiment  among  the  people  of  these  districts.  There  does 
appear  to  be  a  unanimous  sentiment  in  resisting  this  action  of  the  school  commis- 
sioner which  seems  arbitrary  in  the  extreme.  The  people  residing  in  these  dis- 
tricts were  entitled  to  a  hearing  at  least  at  the  hands  of  their  commissioner  before 
such  wholesale  rearrangement  of  school  privileges  was  put  into  effect.  Their 
wishes  in  this  matter  were  also  entitled  to  careful  consideration  from  the  school 
commissioner.  The  arrangement  of  school  districts  must  be  such  as  will  serve 
educational  ends  and  best  meet  the  convenience  of  the  patrons  of  the  schools. 

1  he  territory  embraced  in  these  seven  districts  is  located  in  a  farming  region. 
Many  of  the  residents  of  these  districts  do  not  live  on  the  main  public  roads. 
Many  of  the  highways  in  these  districts  are  rough  and  difficult  to  travel  especially 
in  the  winter.  In  this  section  of  the  state  it  is  not  possible  for  children  of  tender 
age  to  travel  long  distances  to  attend  school.  These  are  conditions  which  the 
school  commissioner  should  have  taken  into  consideration  in  determining  on  the 
alteration  or  dissolution  of  such  districts  and  the  formation  of  new  districts. 
These  districts,  however,  appear  to  have  been  absolutely  ignored  by  the  commis- 
sioner in  making  the  orders  in  question. 

Before  the  commissioner  dissolved  these  districts  nearly  all  the  children 
therein  resided  within  one  and  one-half  miles  of  a  schoolhouse.  The  salaries  paid 
the  teachers  in  these  districts  during  the  school  year  were  as  large  as  the  salaries 


JUDICIAL   decisions:    school    districts DISSOLUTION  713 

paid  in  many  districts  having  a  larger  assessed  valuation.  Part  of  these  districts 
have  recently  made  extensive  repairs  on  their  buildings  so  that  such  buildings 
conform  to  modern  ideas  of  health  and  comfort.  The  people  of  these  districts 
appear,  therefore,  to  have  willingly  given  proper  support  to  their  schools,  to  have 
maintained  good  schools,  to  have  been  interested  in  their  schools,  and  to  have 
been  contented  with  their  school  privileges  which  appear  to  have  been  as  good 
as  those  of  the  surrounding  country.  If  the  buildings  of  part  of  these  districts 
were  poor  and  in  need  of  repairs  as  alleged  by  the  commissioner,  he  was  not  justi- 
fied on  that  condition  alone  in  dissolving  these  districts.  He  possessed  ample 
power  under  the  law  to  compel  them  to  repair  their  buildings  or  to  erect  new  ones. 

As  these  districts  stand,  under  the  orders  of  the  commissioner,  there  are 
children  in  all  of  them  who  must  travel  two  miles,  three  miles,  and  three  and 
one-half  miles  in  order  to  attend  school.  The  distance  from  one  section  of  one 
of  the  districts  to  the  schoolhouse  of  such  district  is  five  miles.  These  distances 
are  too  far  for  small  children  or  delicate  children  to  travel  each  day  over  rough 
roads,  either  by  walking  or  riding  to  attend  school. 

The  respondent  alleges  that  these  districts  were  weak  and  that  the  policy  of 
the  State  has  been  to  dissolve  weak  districts.  He  claims  that  the  State  recognized 
these  districts  as  weak  since  the  apportionment  of  district  quotas  is  based  on  the 
assessed  valuation  of  districts.  He  justifies  his  action  in  dissolving  these  districts 
on  the  ground  that  their  assessed  valuation  is  less  than  $40,000.  His  position  on 
this  point  is  neither  right  nor  sound.  If  the  State  regarded  districts  having  an 
assessed  valuation  of  $40,000  or  less  as  too  weak  to  maintain  schools  and  its  policy 
is  to  dissolve  such  districts,  why  did  the  State  raise  the  district  quota  to  S 150  for 
all  districts  having  an  assessed  valuation  of  $40,000  or  less?  What  was  the  object 
of  the  State  in  making  the  quotas  for  such  districts  larger  than  it  made  the  quotas 
for  districts  having  an  assessed  valuation  of  more  than  $40,000?  Was  not  this 
discrimination  for  the  purpose  of  encouraging  and  fostering  the  weak  districts 
instead  of  abolishing  them?  These  districts  were  not  strong  districts  but  they 
maintained  their  schools  without  complaint.  The  most  of  these  districts  were 
sufficiently  strong  financially  and  numerically  to  do  this.  The  majority  of  these 
districts  had  a  registration  of  14  to  19  pupils  with  an  assessed  valuation  of  $22,395 
to  $32,400. 

The  controlling  motive  which  guided  the  respondent  in  this  matter  does  not 
appear  to  have  been  the  benefits  to  be  conferred  upon  the  inhabitants  of  these 
seven  districts  by  such  changes  in  school  district  boundaries,  but  it  does  appear 
to  have  been  his  desire  to  strengthen  the  districts  in  which  the  villages  of  Brees- 
port  and  Horseheads  are  located.  The  commissioner  acknowledges  that  these 
districts  have  a  high  tax  rate,  that  such  tax  rates  are  burdensome,  and  that  his 
desire  to  decrease  such  tax  rates  and  especially  the  tax  in  the  Breesport  school 
district  was  one  of  the  reasons  which  induced  him  to  make  these  orders.  He 
alhges  other  reasons  but  this  appears  to  have  been  the  controlling  one.  He  had 
no  moral  or  legal  right  to  abolish  seven  districts  and  subject  the  inhabitants 


/ 


714  THE   UNIVERSITY    OF   THE   STATE   OF   NEW    YORK 

tliereof   to   the   inconvenience  and   hardships   which  must   follow   therefrom   in 
order  to  reduce  the  tax  rate  of  another  district. 

A  school  commissioner  is  justified  in  dissolving  a  school  district  when  such 
district  is  too  weak  numerically  and  financially  to  maintain  a  school  and  when  the 
inhabitants  of  such  district  may  be  given  better  school  facilities  in  adjoining  dis- 
tricts. A  school  district  though  weak  in  numbers  and  in  property  value,  should 
not  be  dissolved  unless  the  children  residing  in  such  district  and  required  to 
attend  school  are  placed  within  a  reasonable  distance  of  a  schoolhouse.  A  school 
is  not  to  be  absolutely  condemned  because  it  may  be  small  in  numbers.  A  small 
school  is  not  necessarily  or  naturally  a  poor  school. 

It  is  quite  probable  that  some  alterations  of  district  boundaries  could  have 
been  made  in  these  districts  to  good  advantage  and  possibly  some  of  these  dis- 
tricts could  have  been  wisely  abolished.  However,  a  school  commissioner  is  not 
justified  in  disturbing  the  educational  work  of  a  whole  township  by  wholesale 
dissolution  of  school  districts  and  rearrangement  of  school  privileges  without 
even  consulting  the  inhabitants  thereof,  unless  a  substantial,  even  an  overwhelm- 
ing educational  reason  exists  for  taking  such  action.  Such  reason  does  not  exist 
in  this  case.    The  appellants  are  entitled  to  a  restoration  of  their  school  districts. 

The  appeals  herein  are  sustained. 

It  is  ordered,  That  the  orders  of  George  Turner  Miller,  school  commissioner 
of  the  sole  school  commissioner  district  of  Chemung  county,  and  each  of  them, 
made  on  July  28,  1904,  in  dissolving  school  district  no.  i,  town  of  Erin,  on  August 
12,  1904,  in  dissolving  school  district  no.  2,  town  of  Erin,  on  August  9,  1904,  in 
dissolving  school  district  no.  5,  town  of  Erin,  on  August  i,  1904,  in  dissolving 
school  district  no.  ii,  town  of  Erin,  but  describing  no.  5,  town  of  Erin,  on  August 
2,  1904,  in  dissolving  school  district  no.  7,  town  of  Erin,  on  Augiist  i,  1904,  in 
dissolving  school  district  no.  12,  town  of  Erin,  on  August  10,  1904,  in  dissolving 
school  district  no.  13,  town  of  Erin,  and  on  August  i,  1904,  in  dissolving  school 
district  no.  15,  town  of  Veteran,  be,  and  each  of  them  is  hereby  vacated. 

It  is  also  ordered.  That  an  order  made  by  the  said  George  Turner  Miller, 
school  commissioner  of  the  sole  school  commissioner  district  of  Chemung  county, 
on  August  2,  1904,  forming  a  school  district  designated  no.  2,  Erin,  in  the  title  and 
no.  I,  Erin,  in  the  body  of  said  order,  be,  and  it  is,  hereby  vacated ;  and 

That  an  order  made  by  the  said  George  Turner  Miller,  school  commissioner 
of  the  sole  commissioner  district  of  Chemung  county  on  the  2d  day  of  August 
1904,  in  forming  a  new  school  district  designated  school  district  no.  i,  Erin,  be, 
and  it  is  hereby  vacated. 

It  is  further  ordered.  That  each  and  every  order  made  by  George  Turner 
Miller,  school  commissioner  of  the  sole  school  commissioner  district  of  Chemung 
county,  between  July  i,  1904  and  September  i,  1904,  in  altering  the  boundaries 
of  school  districts  no.  i,  Horseheads,  no.  3,  Erin,  no.  i,  Baldwin,  and  no.  16, 
Veteran,  be,  and  each  of  them  is,  hereby  vacated. 


JUDICIAL    decisions:    school   districts  —  DISSOLUTION  715 

5328 

In  the  matter  of  the  appeal  of  Martin  W.  Knight,  sole  trustee  of  school  district 
no.  14,  town  of  Hancock,  from  an  order  made  by  Frank  L.  Ostrander,  school 
commissioner  of  the  first  commissioner  district  of  Delaware  county,  con- 
firming an  order  made  by  him  dissolving  school  district  no.  14,  town  of 
Hancock,  and  annexing  the  territory  of  such  district  to  union  free  school 
district  no.  20,  town  of  Hancock. 

To  justify  the  dissolution  of  a  school  district  possessing  a  sufficient  number  of  children 
and  the  financial  resources  to  maintain  a  satisfactory  school  when  the  residents  of  such 
district  are  unanimously  opposed  to  such  action,  some  overwhelming  educational  neces- 
sity should  be  shown  to  exist. 

Decided  August  27,  1907 

Wagner  &  Fisher,  attorneys  for  appellant 
Freeman  L.  Taylor,  attorney  for  respondent 

Draper,  Commissioner 

On  January  17,  1907,  Frank  L.  Ostrander,  school  commissioner  of  the  first 
school  commissioner  district  of  Delaware  county,  made  an  order  dissolving  school 
district  no.  14,  town  of  Hancock,  Delaware  county,  and  annexing  the  territory 
thereof  to  union  free  school  district  no.  20,  town  of  Hancock.  The  order  was 
made  under  sections  three  and  four  of  title  6  of  the  Consolidated  School  Law. 
The  order  recited  that  the  trustees  of  district  no.  14  had  not  consented.  The 
school  commissioner  fixed  a  date  as  required  by  section  4  when  he  would  hear 
objections  to  such  order.  At  the  hearing  before  the  school  commissioner  and  in 
this  proceeding  the  respondent  raised  the  question  of  the  jurisdiction  of  the 
school  commissioner  to  make  the  order  in  question  under  sections  3  and  4  and 
also  raised  several  questions  of  regularity  of  procedure.  It  is  unnecessary  to 
consider  any  of  these  technical  questions.  This  case  should  be  determined  upon 
the  question  whether  or  not  the  school  commissioner  was  justified  under  all  the 
circumstances  in  dissolving  no.  14  and  annexing  its  territory  to  district  no.  20. 

Union  free  school  district  no.  20  includes  the  greater  portion  of  the  .village  of 
Hancock.  This  district  maintains  a  graded  school  including  an  academic  depart- 
ment and  employs  ten  teachers.  It  has  an  assessed  valuation  of  nearly  $350,000. 
For  ten  years  district  no.  14  has  contracted  for  the  education  of  its  children  with 
district  no.  20  instead  of  maintaining  a  home  school.  During  the  past  school 
year  it  paid  district  no.  20  $600  for  instructing  its  children.  It  has  been  cheaper 
for  district  no.  14  to  operate  under  the  contract  system  at  this  tuition  than  to 
maintain  a  home  school. 

The  cost  per  capita  of  maintaining  the  school  in  no.  20  is  greater  than  the 
tuition  per  pupil  which  no.  14  has  paid  under  the  contract  between  these  districts. 
The  feeling  on  the  part  of  district  no.  20  aj^pears  to  be  that  if  the  children  of 
no.  14  are  to  enjoy  school  privileges  afforded  by  no.  20  the  property  of  no.  14 
sho^ild  pay  its  proportionate  share  of  the  expense  of  maintaining  such  school 


7^(>  THE   UNIVER?TTV    OF   TUE   STATE   OF   NEW   YORK 

privileges.    This  feeling  has  resulted  in  the  agitation  of  tlie  annexation  of  district 
no.  14  to  district  no.  20. 

District  no.  14  has  an  assessed  valuation  of  about  $90,000  and  42  children 
of  school  age.  ]t  has  sufficient  assessable  property  and  sufficient  children  to  main- 
tain a  school.  A  portion  of  this  district  is  also  within  the  limits  of  the  village  of 
Hancock.  A  bninch  of  the  Delaware  river  separates  the  two  districts.  It  appears 
that  the  schoolhouse  in  no.  14  is  unfit  for  use.  The  district  has  preferred  to  con- 
tract with  no.  20  instead  of  maintaining  a  home  school  because  it  has  been 
cheaper  and  because  the  district  has  thereby  avoided  the  expense  of  building  a 
new  schoolhouse.  It  appears  therefore  that  the  principal  question  involved  is  one 
of  taxation  or  expense.  However  the  residents  of  no.  14  appear  to  be  unanimous 
in  opposing  the  dissolution  of  their  district  and  annexing  it  to  no.  20.  A  petition 
signed  by  every  voter  of  the  district,  protesting  against  the  order  of  the  school 
commissioner  is  included  in  the  moving  papers.  I  have  repeatedly  refused  to 
sustain  an  order  of  a  school  commissioner  dissolving  a  district  possessing  a  suffi- 
cient number  of  children  and  the  financial  resources  to  maintain  a  satisfactory 
school  when  the  residents  of  such  district  are  unanimously  opposed  to  such 
action.  To  justify  the  dissolution  of  a  district  under  such  circumstances  some 
overwhelming  educational  necessity  should  be  shown  to  exist.  It  is  not  shown 
to  exist  in  this  case.  The  annexation  of  district  no.  14  to  no.  20  is  not  essential 
to  the  educational  needs  of  no.  20.  No.  20  will  be  able  to  maintain  just  as  good 
a  school  without  the  annexation  of  no.  14  as  it  would  if  such  territory  should  be 
annexed. 

Appellant  sets  forth  in  his  pleadings  that  district  no.  14  is  willing  to  erect 
and  equip  a  new  schoolhouse  at  a  cost  of  $8000  and  to  employ  two  teachers. 
Respondent  claims  that  this  proposition  is  not  made  in  good  faith,  that  the  annual 
meeting  of  this  district  in  1906  voted  down  a  proposition  to  erect  a  new  school- 
house  and  that  the  district  is  not  willing  to  vote  a  proper  tax  for  the  erection  of 
a  new  building.  The  school  commissioner  has  full  authority  over  this  question. 
The  schoolhouse  is  conceded  to  be  unfit  for  use  and  not  worth  repairing.  The 
school  commissioner  may  therefore  make  an  order  condemning  the  schoolhouse 
and  he  may  even  name  in  such  order  the  amount  necessary  to  expend  in  the  erec- 
tion of  a  new  building  suitable  to  the  needs  of  such  district. 
The  appeal  herein  is  sustained. 

It  is  ordered.  That  the  preliminary  order  made  by  Frank  L.  Ostrander,  school 
commissioner  of  the  first  commissioner  district  of  Delaware  county,  on  the  17th 
day  of  January  1907,  in  dissolving  school  district  No.  14,  town  of  Hancock,  and 
in  annexing  the  territory  thereof  to  school  district  no.  20,  town  of  Hancock,  and 
the  order  made  by  the  said  Frank  L.  Ostrander,  school  commissioner  of  the  first 
commissioner  district  of  Delaware  county,  on  the  24th  day  of  April  1907.  in 
confirming  said  preliminary  order  be,  and  each  of  said  orders  is,  hereby  vacated. 


JUDICIAL   decisions:    school   districts  —  DISSOLUTION  717 

5399 

In   the  matter  of  the   dissolution   of   school  district  no.   2,   town   of    Schroon, 

county   of   Essex. 

Dissolution  and  annexation  of  school  districts;  opposition  of  electors  of  dissolved 
district,  A  school  commissioner  dissolved  a  district  adjoining  a  union  free  school 
district  and  annexed  the  territory  thereof  to  such  union  free  school  district.  The 
action  was  taken  by  the  school  commissioner  under  section  9  of  title  6  of  the  Consoli- 
dated School  Law  [Education  Law  §  27]  which  did  not  require  the  consent  of  the 
trustee  of  the  dissolved  district.  Nearly  all  the  qualified  electors  of  such  district  were 
opposed  to  the  dissolution.  The  union  free  school  district  had  just  built  a  new  school- 
house  and  the  district  was  bonded  for  $6000.  The  dissolved  district  was  strong  enough 
numerically  and  financially  to  maintain  a  good  common  school.  It  was  held  that  where 
the  practically  unanimous  opposition  of  the  electors  of  a  dissolved  district  is  presented, 
together  with  the  extension  of  an  existing  bonded  indebtedness  of  one  district  over 
the  territory  of  the  district  dissolved,  the  order  of  dissolution  will  be  set  aside  unless 
it  is  apparent  that  the  educational  advantages  of  the  new  district  are  overwhelmingly 
superior  to  those  afforded  by  the  district  dissolved. 

Decided  December  29,  1908 

Draper,  Couiniissioner 

This  is  an  appeal  by  Darius  B.  Squires,  Leroy  B.  Crane  and  Henry  Bohr- 
man,  taxpayers  in  school  district  no.  2,  in  the  town  of  Schroon,  Essex  county, 
from  an  order  made  by.  Freeman  C.  Pond,  school  commissioner  of  the  second 
commissioner  district  of  Essex  county,  dissolving  school  district  no.  2  of  the 
town  of  Schroon  and  annexing  a  part  thereof  to  school  district  no.  i  in  such 
town  and  another  part  to  school  district  no.  8  of  said  town.  The  order  of  dis- 
solution was  made  by  the  commissioner  by  virtue  of  the  authority  vested  in 
him  under  section  9  of  title  6  of  the  Consolidated  School  Law. 

The  appellants  are  residents  and  taxpayers  of  that  part  of  district  no.  2 
which  is  annexed  to  district  no.  i.  District  no.  i  is  a  union  free  school  district 
having  a  school  of  fou?  departments.  The  order  dissolving  such  district  no.  2 
and  altering  the  boundaries  of  districts  nos.  i  and  8  of  such  town  of  Schroon 
was  duly  signed  by  said  Freeman  C.  Pond  on  June  30,  1908,  and  filed  in  the 
office  of  the  town  clerk  of  the  town  of  Schroon  July  10,  1908.  The  form  of 
this  order  is  not  attacked  by  the  appellants. 

On  the  hearing  before  me  the  attorney  for  the  appellants  did  not  insist  upon 
the  objections  raised  in  the  petition  to  the  sufficiency  and  regularity  of  the 
proceedings  instituted  by  the  school  commissioner,  and  to  the  validity  of  the 
order  entered  in  such  proceedings.  It  only  remains  to  be  determined  whether 
or  not  the  commissioner  was  justified  in  dissolving  district  no.  2,  and  annexing 
the  territory  embraced  therein  to  districts  nos.  i  and  8. 

District  no.  i  comprises  the  unincorporated  village  of  Schroon  Lake  with 
a  permanent  population  of  about  450.  The  business  and  social  interests  of  the 
communitv  are  centralized  in  this  village.  The  principal  roads  leadmg  to  and 
from  it  are  maintained  in  a  passable  condition  at  all  times  ot  the  year.     The 


/ 


~l8  THE   UNIVERSITY    OF   THE   STATE    OF   NEW   YORK 

assessed  valuation  of  the  real  and  personal  property  in  this  district  is  about 
$102,000,  with  a  tax  rate  of  $2.20  on  the  hundred. 

Prior  to  the  making  of  the  order  dissolving  district  no.  2,  and  annexing 
a  part  thereof  to  district  no.  i,  a  new  school  building  had  been  erected  in  the 
latter  district,  at  a  cost  of  about  $6000,  for  the  payment  of  which  bonds  were 
issued  payable  in  12  equal  annual  instalments.  One  of  these  instalments  has 
already  been  paid.  The  new  school  building  was  erected  quite  near  the  boun- 
dary line  between  districts  nos.  i  and  2  apparently  for  the  better  accommodation 
of  the  inhabitants  of  the  latter  district  should  the  consolidation  of  the  two  dis- 
tricts be  effected. 

District  no.  2  has  an  assessed  valuation  according  to  the  trustee's  report 
for  1908,  of  $40,294,  over  half  of  which  is  assessed  to  nonresidents  owning 
summer  homes,  cottages,  hotels  and  boarding  houses  on  or  near  the  shore  of 
Schroon  lake.  It  would  appear  from  the  petition  that  nearly  or  quite  all  the 
qualified  electors  and  taxpayers  of  district  no.  2  are  opposed  to  the  consoli- 
dation. Forty-eight  (48)  of  them,  paying  taxes  on  about  80  per  cent  of  the 
entire  assessed  valuation  of  the  district,  signed  a  protest  against  it.  Sixteen  of 
these  are  nonresidents,  owning  summer  cottages  and  homes  within  the  district. 
These  nonresidents  own  property  in  the  district  having  an  assessed  valuation  of 
$^2,350. 

The  bonded  indebtedness  of  district  no.  i  was  voted  by  the  qualified  electors 
thereof  for  the  erection  of  a  new  school  building  without  any  special  effort  to 
ascertain  whether  the  electors  of  district  no.  2  would  agree  to  join  with  them 
in  sharing  this  burden.  It  seems  to  have  been  assumed  that  the  consent  of 
district  no.  2  was  immaterial.  The  order  of  dissolution  and  consolidation  was 
subsequently  issued.  As  a  result  the  taxpayers  in  district  no.  2  are  made  to 
assume  an  indebtedness  without  their  consent.  The  school  commissioner  states 
that  a  number  of  taxpayers  and  residents  in  district  no.  2  expressed  their  will- 
ingness to  be  taken  into  the  new  district.  But  there  was  no  effectual  effort  made 
to  secure  an  expression  of  the  will  of  all  the  qualified  electors  and  taxpayers  of 
district  no.  2  either  by  the  commissioner  prior  to  the  execution  of  his  order  or 
by  the  trustees  of  district  no.  I  prior  to  the  location  and  erection  of  the  new 
schoolhouse  in  that  district. 

Two  ver}-  weighty  objections  against  the  validity  of  this  order  are  thus 
pre.sented:  (i)  The  practically  unanimous  opposition  of  the  qualified  electors 
and  taxpayers,  and  (2 )  the  extension  of  an  existing  bonded  indebtedness  of  one 
district  over  another  district  without  the  consent  of  the  latter.  To  overcome 
either  of  these  objections  it  must  clearly  appear  that  the  educational  interests 
of  district  no.  2  are  greatly  advanced  by  the  consolidation.  Where  both  objec- 
tions exist  a  merely  comparative  superiority  of  subsequent  school  facilities  over 
those  existing  prior  to  the  consolidation,  would  be  insufficient.  Such  superiority 
must  be  overwhelming  —  so  insuperably  great  as  to  make  it  the  absolute  duty 
of  the  school  commissioner  in  the  promotion  of  the  educational  advantages  of  the 


JUDICIAL   decisions:    school   districts DISSOLUTION  /IQ 

district  affected,  to  make  the  order  of  consolidation.  It  may  be  assumed  that 
the  school  in  district  no.  i  will  afford  better  educational  facilities  than  that  in 
district  no.  2.  District  no.  i  has  a  new  building  with  modern  furniture  and 
apparatus;  the  school  is  graded  and  taui^ht  by  four  competent  teachers.  The 
school  in  district  no.  2  is  ungraded,  with  one  teacher  having  an  elementary 
license:  nothing  but  elementary  subjects  are  taught  therein.  The  residents  and 
taxpayers  say  they  are  willing  to  maintain  a  good  common  school  and  it  is  evi- 
dent that  the  financial  resources  of  the  district  are  sufficient  for  the  purpose. 
I  have  held  that  where  a  district  is  sufficiently  strong  to  maintain  a  good 
common  school  and  the  residents  and  taxpayers  thereof  are  willing  to  contribute 
to  its  support,  such  district  should  not  be  dissolved  and  consolidated  with  another 
district  against  the  wishes  of  a  majority  of  such  residents  and  taxpayers. 
(Appeal  of  Donel,  no.  3904,  August  1890;  Appeal  of  Olenhouse,  no.  4012, 
October  1891.)  In  the  case  at  hand  the  children  of  the  district  will  be  required 
to  travel  increased  distances  to  reach  the  schoolhouse  in  district  no.  i.  These 
distances  are  not  very  considerable,  and,  but  for  the  almost  unanimous  objection 
to  consolidation  on  the  part  of  the  residents  and  taxpayers  of  the  district,  would 
not  be  material.  In  a  case  somewhat  like  this,  decided  by  me  as  Superintendent 
of  Public  Instruction  in  1891,  I  set  aside  a  school  commissioner's  order,  dissolv- 
ing a  district,  upon  evidence  that  a  respectable  portion  of  the  patrons  of  the 
scliool  demands  a  continuance  of  the  school  facilities  which  had  been  afforded 
them  by  the  dissolved  district.  (Appeal  of  Gulick,  no.  4018,  November  1891.) 
The  fact  that  a  district  is  relatively  weak  and  that  the  school  in  the  district  to 
which  it  is  to  be  annexed  is  larger  and  more  liberally  equipped,  is  not  of  itself 
sufficient  to  justify  its  dissolution  when  the  evidence  tends  to  show  that  nearly 
all  of  the  patrons  of  the  school  object  to  such  dissolution.  This  principle  has 
been  laid  down  by  me  in  the  case  of  the  appeal  of  Fogarty  (no.  3930,  December 
1890).  Many  other  decisions  of  this  Department  might  be  cited  supporting  the 
proposition  that  dissolution  is  only  favored  where  the  district  affected  is  weak 
either  numerically  or  financially,  and  where  the  educational  interests  of  the 
district  would  thus  be  greatly  advanced.  Where  there  is  neither  pronounced 
weakness  nor  any  desire  for  dissolution  and  annexation  on  the  part  of  the 
Deople  of  the  district,  the  commissioner  should  not  take  such  action  unless  the 
educational  necessities  of  the  district  demand  it.  It  can  not  be  said  that  district 
no.  2  is  weak  in  any  sense.  It  has  sufficient  taxable  property  to  properly  main- 
tain a  good  common  school.     The  people  of  the  district  are  willing  to  be  taxed 

for  this  purpose. 

The  apparently  almost  unanimous  desire  of  the  residents  and  taxpayers  of 
district  no.  2  to  continue  their  school  in  that  district  and  their  emphatic  protest 
against  the  added  burden  of  the  bonded  indebtedness  of  district  no.  i,  incurred 
without  their  consent  and  without  reference  to  their  wishes,  leads  me  to  doubt 
the  advisability  of  dissolving  district  no.  2  and  annexing  any  portion  of  it  to 
district  no.  i.     The  educational  advantages  derived  from  the  consolidation  are 


/ 


720  THE    U.NIVEKSITV    OF   THE   STATE    OF   NEW    YORK 

not  sufficiently  great  to  justify  the  issuance  of  the  order  and  I  can  not  there- 
fore sustain  it. 

I  come  to  this  conclusion  reluctantly  for  I  am  sure  that  the  school  com- 
missioner issued  the  order  complained  of  in  entire  good  faith,  believing  that  the 
educationaJ  interests  of  the  community  affected  would  be  materially  advanced 
thereby.  He  claims  that  he  was  influenced  in  his  action  by  the  suggestions  of 
members  of  the  Department  staflf.  If  this  is  to  be  mentioned  it  should  also  be 
said  that  the  Law  Division  advised  him  that  consolidation  might  be  justified  if 
provision  were  first  made  for  tlie  payment  of  the  cost  of  the  erection  of  the 
new  building  in  district  no.  i  by  appropriation.  However  this  may  have  been, 
I  can  not  allow  my  decision  of  this  appeal  to  be  so  controlled.  The  Commis- 
sioner of  Education  acts  judicially  in  the  determination  of  appeals  brought  to 
him  under  the  law  and  his  decisions  should  not  be  affected  by  the  acts  and  state- 
ments of  his  subordinates. 

Owing  to  a  misapprehension  of  the  efifect  of  the  order  appealed  from,  the 
residents  of  district  no.  2  have  maintained  a  school  during  the  pendency  of  this 
appeal.  No  stay  was  asked  for  or  granted.  The  commissioner's  order  took 
effect  from  its  entry,  and  from  that  date  district  no.  2  was  dissolved  and  ceased 
to  exist.  The  school  maintained  in  that  district  subsequent  to  the  date  of  the 
entr}'  of  the  order  was  not  legally  a  public  school ;  but  owing  to  the  peculiar 
circumstances  of  this  case  I  have  deemed  it  advisable  to  legalize  the  action  of 
the  district  in  respect  to  such  school. 

The  appeal  herein  is  sustained. 

It  is  hereby  ordered,  That  the  order  of  Freeman  C.  Pond,  school  commis- 
sioner of  the  second  commissioner  district  of  Essex  county,  dissolving  district 
no.  2.  town  of  Schroon,  Essex  county,  and  annexing  portions  thereof  to 
districts  nos.  i  and  8  of  such  town,  filed  in  the  town  clerk's  office  of  such  town 
on  July  10,  1908,  shall  be  and  the  same  is,  hereby  set  aside  and  declared  of  no 
effect. 

It  is  hereby  further  ordered.  That  all  the  actions  and  proceedings  taken  by 
district  no.  2,  and  any  of  its  officers,  pertaining  to  the  maintenance  of  a  school 
in  such  district,  from  the  date  of  the  filing  of  such  order,  are  hereby  legalized, 
ratified  and  confirmed  and  declared  to  be  of  the  same  force  and  eft'ect  as  though 
such  order  had  not  been  made. 


5278 

In  the  matter  of  the  appeal  of  Arthur  E.  Duell  as  trustee  of  school  district  no. 
7,  town  of  Truxton,  from  the  action  of  Ernest  W.  Childs,  school  com- 
missioner of  the  second  commissioner  district  of  Cortland  county,  in  mak- 
ing certain  orders  dissolving  said  school  district  no.  7,  Truxton,  and  annex- 
ing the  territory  thereof  to  adjoining  districts. 

The  dissolution  of  a  school  district  and  its  annexation  to  another  district  is  not  justified 
by  the  fact  that  the  older  children  in  the  advanced  or  academic  grades  would  have  the 


JUDICIAL    decisions:    school   districts  —  DISSOLUTION  Jli 

advantage  of  a  course  of  study  maintained  for  pupils  of  such  grade.     It  is  quite  as 

necessary  to  provide  adequate  facilities  for  the  younger  children  of  the  district  as  the 

older. 
A  district  having  sufficient  property  and  children  to  maintain  an  ideal  country  school  should 

not   be  dissolved  when   such  action  is   opposed  by  a  majority  of   the   residents  of  the 

district. 
Decided  September  29,  1906 

Davis  &  Lusk,  attorneys  for  appellant 
William  D.  Tuttle,  attorney  for  respondent 

Draper,  Connnissioncr 

On  j\Iay  21,  1906,  School  Commissioner  Childs  made  an  order  dissolving 
school  district  no.  7,  Truxton,  and  annexing  all  its  territory  to  union  free  school 
district  no.  6,  Truxton.  An  appeal  from  the  action  of  the  commissioner  in 
making  such  order  was  filed  at  this  Department  on  June  29,  1906.  On  July  27, 
1906,  the  school  commissioner  made  an  amended  order  which  was  in  effect  the 
same  as  the  original  order  except  that  a  small  portion  of  the  territory  formerly 
comprising  school  district  no.  7  was  annexed  to  adjoining  common  school  dis- 
trict no.  10,  Truxton.  An  appeal  from  this  order  was  tiled  with  the  Commis- 
sioner of  Education  on  August  27,  1906.  The  same  questions  are  involved  in 
both  appeals  and  we  will  therefore  combine  the  two  proceedings  and  dispose 
of  them  in  one  decision. 

The  school  commissioner  made  these  orders  under  the  authority  of  section 
9,  title  6  of  the  Consolidated  School  Law.  The  jurisdiction  of  the  commissioner 
to  make  said  orders  under  such  section  of  the  law  is  challenged  by  appellant. 
Other  technical  questions  of  procedure  are  also  raised  by  appellant.  I  do  not 
deem  it  desirable  to  determine  this  appeal  upon  the  questions  of  law  which  are 
raised.  The  questions  raised  in  this  appeal  are  such  that  it  seems  advisable  to 
decide  them  upon  the  reasons  which  actuated  the  school  commissioner  for  taking 
such  action  instead  of  his  technical  method  of  procedure. 

It  appears  that  the  schoolhouse  in  district  no.  7  was  in  a  dilapidated  con- 
dition and  not  worth  repairing.  A  special  meeting  of  the  district  was  held 
Alarch  6,  1906,  to  consider  the  question  of  erecting  a  new  building.  Commis- 
sioner Childs  attended  this  meeting  and  advised  the  voters  what  the  provisions 
of  the  school  law  were  in  relation  to  the  erection  of  new  buildings.  A  ballot 
was  taken  at  that  meeting  on  the  propostion  to  erect  a  new  schoolhouse  and 
such  proposition  was  carried  by  a  vote  of  25  to  16.  It  does  not  appear  that 
the  commissioner  suggested  at  this  meeting  that  it  was  advisable  to  dissolve 
the  district.  Between  the  date  of  this  special  meeting  and  the  making  of  his 
first  order  on  May  21,  1906,  Commissioner  Childs  received  a  petition  signed  by 
14  residents  of  the  district  requesting  the  dissolution  of  such  district  and  the 
annexation  of  its  territory,  or  such  part  as  may  be  deemed  advisable,  to  union 
fr^e  school  district  no.  6,  Truxton.  The  reason  assigned  in  this  petition  for 
praying  for  such  action  is  that  the  conditions  which  require  a  new  schoolhouse 


/ 


•J22  THE    UXIVKRSITV    OF   THE   STATK    OF    NEW    YORK 

and  improved  grounds  lead  petitioners  to  believe  that  the  "  educational  anci 
pecuniary  "  advantages  of  the  inhabitants  of  the  district  require  it.  The  school 
commissioner  in  making  his  order  predicated  it  upon  the  petition. 

The  question  to  be  determined  in  this  proceeding  therefore  is  whether  or 
not  the  action  taken  by  Commissioner  Childs  in  dissolving  district  no.  7.  Truxton, 
was  wise  and  will  afford  better  educational  facilities  to  the  inhabitants  of  that 
district. 

The  parties  to  this  proceeding  practically  agree  upon  the  essential  facts 
involved  in  this  controversy.  District  no.  7  had  an  assessed  valuation  of 
$72,374.  There  were  at  least  forty-three  children  between  the  ages  of  5  and  18 
years  residing  in  said  district  and  of  these  twenty-nine  attended  school  in  such 
district  during  the  past  school  year  and  the  average  attendance  at  such  school 
was  19.24.  It  is  also  alleged  by  appellant  and  not  denied  by  respondent  that 
several  of  the  children  residing  in  school  district  no.  7  attended  school  else- 
where during  the  past  year  because  their  parents  were  opposed  to  the  teacher 
employed  in  district  no.  7.  In  district  no.  7  all  children  resided  within  a  walking 
distance  of  the  schoolhouse  and  it  appears  that  all  of  them  were  within  one  and 
one-half  miles  of  the  schoolhouse  and  a  large  majority  within  one  mile.  The 
distance  which  a  large  number  of  the  children  would  be  required  to  travel  to 
attend  school  in  district  no.  6  is  two  and  one-half  and  even  three  miles.  These 
long  distances  for  young  children  may  render  regular  attendance  upon  school 
almost  prohibitive.  These  children  would  also  be  required  to  travel  over  rough 
roads  which  drift  in  the  winter. 

These  facts  show  that  district  no.  7  was  a  strong  rural  district  containing 
a  sufficient  number  of  children  who  regularly  attended  school  and  a  sufficient 
amount  of  taxable  property  to  maintain  a  good  school  without  imposing  undue 
burdens  upon  the  taxpayers  of  the  district.  In  fact,  with  a  new  schoolhouse 
which  the  voters  have  already  authorized,  this  district  may  well  be  an  ideal 
country  district. 

The  great  majority  of  the  residents  of  this  district  are  opposed  to  its  dis- 
solution and  willing  to  make  any  expenditure  necessary  to  maintain  a  satisfac- 
tory school.  A  petition  protesting  against  its  dissolution  signed  by  thirty-one  of 
the  residents  of  the  district  has  been  filed  at  this  Department.  These  petitioners 
represent  a  minority  of  the  taxable  property  of  the  district  but  they  represent 
thirty-five  children  of  school  age. 

It  appears  that  nineteen  children  residing  in  district  no.  7  attended  school 
during  the  past  year  in  district  no.  6  and  this  is  urged  by  respondent  as  a  strong 
argument  in  supj^ort  of  his  action.  These  nineteen  children  however  were  in 
the  advanced  and  academic  grades.  It  may  be  true  that  district  no.  6  supports  a 
better  school  than  district  no.  7  as  it  maintains  an  academic  department.  If 
all  the  children  of  no.  7  could  attend  no.  6  without  any  hardship  they  might 
receive  better  school  privileges.  But  all  of  the  circumstances  are  to  be  taken 
together.     The  dissolution  of  the  district  is  hardly  justified  by  the  fact  that  the 


JUDICIAL   DECISIONS  I    SCHOOL   DISTRICTS  —  DISSOLUTION  "JIT^ 

older  children  in  the  advanced  or  academic  grades  would  have  the  advantage 
of  the  course  of  study  in  no.  6  maintained  for  pupils  of  such  grades.  It  is  quite 
as  necessary  to  provide  adequate  facilities  for  the  younger  children  of  the  dis- 
trict as  the  older. 

If  there  w^as  evidence  of  a  predominant  wish  in  the  district  that  the  action 
of  the  school  commissioner  should  be  sustained  with  reason  to  believe  that  pro- 
vision would  be  made  for  carrying  the  younger  children  to  the  Truxton  school 
the  appeal  would  be  dismissed  provided  it  should  be  determined  that  the  order 
of  the  commissioner  is  technically  valid.  But  under  all  the  circumstances  I 
have  concluded  that  it  ought  not  to  be  sustained. 

The  appeal  herein  is  sustained. 

It  is  ordered,  That  the  order  made  by  Ernest  W.  Childs,  school  commis- 
sioner of  the  second  commissioner  district  of  Cortland  county,  on  the  21st  day 
of  May  1906,  dissolving  school  district  no.  7,  Truxton,  and  annexing  the  terri- 
tory thereof  to  school  district  no.  6,  Truxton,  and  also  the  amended  order  made 
by  the  said  School  Commissioner  Childs  on  the  27th  day  of  July  1906,  dissolving 
said  district  no.  7,  Truxton,  and  annexing  a  portion  of  the  territory  thereof  to 
district  no.  10,  Truxton,  and  the  remaining  portion  to  district  no.  6,  Truxton. 
be,  and  the  same  are,  hereby  vacated. 


5456 

In  the  matter  of  the  dissolution  of  school  district  no.   17,  town  of  Brownville. 

Jefferson   county. 
Order  dissolving  school   district;  inconvenience   of   residents.     An   order   dissolving   a 

school  district  and  annexing  its  territory  to  other  districts  will  not  be  set  aside  on  the 
sole  ground  that  some  of  the  residents  of  the  district  are  inconvenienced  by  their 
assignment  to  other  districts.  As  nearly,  if  not  quite,  a  majority  of  the  electors  of  the 
district  favored  the  dissolution,  and  it  appears  that  the  school  commissioner  acted  in 
good  faith  in  behalf  of  what  he  considered  the  educational  welfare  of  the  community, 
his  order  will  be  sustained,  unless  it  is  shown  by  a  preponderance  of  evidence  that  he 
committed  an  error. 
Decided  June  9,  1910 

Draper,  Commissioner 

The  appellant,  Julius  E.  Maynard,  was  sole  trustee  of  district  no.  17,  town 
of  Brownville,  county  of  Jefferson,  and  he  complains  of  the  action  of  the 
respondent,  William  J.  Linnell,  school  commissioner  of  the  third  commissioner 
district  of  the  county  of  Jeft'erson,  in  dissolving  such  district,  and  annexing 
portions  thereof  to  districts  nos.  7.  8,  10  and  14  of  such  town.  District  no.  17 
was  a  fairlv  strong  district  financially,  having  an  assessed  valuation  of  $31,390. 
There  are  fourteen  children  of  school  age  in  the  district,  but  the  average  daily 
attendance  has  not  exceeded  four  and  a  fraction  during  the  past  three  years. 


/ 


724  THE   UXIVERSITY   OF   THE  STATE   OF   XEW   YORK 

There  has  apparently  been  considerable  friction  in  this  district  during  recent 
years,  caused  chielly  by  controversies  which  have  arisen  at  school  meetings  over 
contracting  with  other  districts  for  the  instruction  of  its  pupils.  At  the  last 
annual  meeting  it  was  voted  to  maintain  a  home  school.  Soon  thereafter  the 
schoolhouse  burned.  The  papers  in  the  case  do  not  specifically  allege  that  the 
buiUling  was  intentionally  burned,  although  there  is  an  intimation  that  persons 
in  the  district  were  responsible  therefor. 

The  appellant  insists  that  a  considerable  number  of  persons  in  the  district 
are  jjrejudiccd  by  the  school  commissioner's  orders,  since,  by  the  annexation 
of  the  portions  of  the  district  where  they  live  to  other  districts,  they  will  be 
compelled  to  convey  their  children  to  and  from  school,  while  formerly  they 
lived  within  easy  walking  distance  of  the  school.  It  is  conceded  that  the  appel- 
lant will  be  inconvenienced  by  the  school  commissioner's  action.  Three  of  the 
others  who  oppose  the  dissolution  are  adversely  affected  thereby.  All  of  these 
live  in  the  immediate  neighborhood  of  the  site  of  the  schoolhouse  in  the  dis- 
solved district;  since  the  distribution  of  the  territory  of  the  dissolved  district, 
these  persons  live  somev.'hat  over  two  miles  from  the  schoolhouses  in  the  dis- 
tricts to  which  they  have  been  assigned.  As  near  as  can  be  made  out  from  the 
papers  in  the  appeal,  there  are  three  pupils  who  will  be  required  to  travel  two 
miles  or  more  to  attend  the  schools  in  the  districts  to  which  they  have  been 
assigned. 

The  apparent  inconvenience  occasioned  to  some  of  the  residents  of  the 
district  dissolved  by  their  assignment  to  other  districts,  is  not  of  itself  suffi- 
cient to  justify  a  reversal  of  the  order  of  dissolution.  It  is  not  possible  to  dis- 
solve a  district  and  annex  its  territory  to  other  districts  without  adding  more  or 
less  to  the  burden  of  those  who  lived  in  close  proximity  to  the  schoolhouse  in 
the  district  dissolved.  It  is  evident  that  nearly,  if  not  quite,  a  majority  of  the 
electors  of  the  district  favor  the  dissolution.  Many  of  these  are  parents  of 
children  who  will  be  required  to  go  a  greater  distance  to  reach  the  schools 
which  they  are  to  attend.  If  the  school  privileges  of  their  children  were  injuri- 
ously affected  by  the  orders  appealed  from,  it  is  fair  to  assume  that  they  would 
have  entered  their  protest.  The  districts  to  which  the  territory  of  the  dissolved 
district  is  annexed  are  numerically  and  financially  stronger  than  the  dissolved 
district.  One  of  them  maintains  a  graded  school  with  an  academic  department. 
The  roads  leading  through  the  districts  to  the  several  schoolhouses  are  well 
traveled  and  maintained  in  good  condition.  The  hardships  imposed  upon  the 
pupils  in  requiring  them  to  attend  the  schools  in  the  surrounding  districts  are 
not  serious. 

In  the  absence  of  a  more  pronounced  protest  upon  the  part  of  the  inhabit- 
ants of  the  dissolved  district,  the  orders  of  the  respondent  must  be  sustained. 
If  he  had  acted  arbitrarily  against  the  expressed  wishes  of  a  considerable 
majority  of  the  qualified  electors  of  the  district,  a  different  decision  might  have 
been  rendered.  The  school  commissioner  has  apparently  acted  in  good  faith 
in  behalf  of  what  he  considers  the  educational  welfare  of  the  community.     He 


JUDICIAL   decisions:    school    districts DISSOLUTION'  725 

has  presumptively  familiarized  himself  with  local  conditions.  The  burden  is 
upon  those  who  attack  his  orders  to  show  that  he  has  made  an  error.  The  appel- 
lant has  not  established  by  a  preponderance  of  evidence  that  an  error  has  been 
committed. 

The  appeal  is  dismissed. 


5459 

In  the  matter  of  the  appeal  of  John  E.  MehafTy  and  others  from  the  action  of 
school  commissioner  Forrest  H.  Gibbons  in  dissolving  school  district 
no.  14,  town  of  Waddington,  St.  Lawrence  county. 

Dissolution  of  district;  inconvenience  of  appellants.  The  facts  that  appellants  who  appeal 
from  an  order  dissolving  a  school  district  and  annexing  the  territory  thereof  to  other 
districts,  are  inconvenienced  in  respect  to  the  greater  distances  between  their  residences 
and  the  schoolhouse  in  the  district  to  which  thcj-  are  annexed  is  not  sufficient  in  itself 
to  warrant  setting  aside  the  order  appealed  from. 

Disagreements  among  residents  as  cause  for  dissolution.  Where  it  appears  that  the 
residents  of  a  district  have  constantly  disagreed  as  to  school  affairs,  particularly  in 
respect  to  contracts  with  other  districts  for  the  instruction  of  their  children,  and  as  to 
necessary  repairs  to  the  schoolhouse  in  such  district,  and  as  an  apparent  result  of  one 
of  those  controversies  the  schoolhouse  was  destroyed  by  fire,  the  school  commissioner 
will  be  sustained  in  the  exercise  of  his  judgment  that  such  district  should  be  dissolved. 

Decided  June  16,   1910 

Malby  &  Lucey,  attorneys  for  appellants 

Draper,  Commissioner 

The  respondent,  Forrest  H.  Gibbons,  school  commissioner  of  the  second 
school  commissioner  district  of  St  Lawrence  county,  made  and  entered  an  order, 
to  take  efifect  March  20,  1910,  dissolving  school  district  no.  14  of  the  town  of 
Waddington,  and  annexing  the  territory  thereof  to  school  districts  no.  12,  town 
of  Waddington,  and  nos.  24  and  31  of  the  town  of  Lisbon.  The  appellants 
appeal  from  such  order. 

The  record  shows  that  the  district  dissolved  had  an  assessed  valuation  ot 
$29,224.  There  were  ten  children  of  school  age  in  the  district,  but  only  seven  of 
them  attended  school.  These  seven  children  are  the  children  of  the  appellants. 
The  farms  occupied  by  these  appellants  are  annexed  to  district  no.  24,  town  of 
Lisbon.  By  the  change  made,  Mr  Rutherford's  one  child  will  be  required  to 
travel  a  distance  of  about  one  and  three-quarters  miles  to  the  schoolhouse  in 
district  no.  24,  while  the  schoolhouse  in  district  no.  14  was  located  only  a  short 
distance  away.  Mr  Mehaiify's  place  is  located  about  seven-eighths  of  a  mile  from 
the  site  of  the  schoolhouse  in  the  dissolved  district,  and  a  little  more  than  a  mile 
from  the  schoolhouse  in  district  no.  24.  Mr  McCreedy  lives  about  two-thirds 
of  a  mile  from  the  site  of  the  schoolhouse  in  the  district  dissolved  and  about  a 
m\k^  and  a  third  from  the  schoolhouse  in  district  no.  24.  There  is  some  conHict 
of  opinion  as  to  the  character  of  the  roads  required  to  be  traveled  to  reach  the 


/ 


726  THE   UXIVEKSITV    OF   THE   STATE   OF   NEW    YORK 

two  schoolhouses.  Both  roads  are  dititicuk  to  travel  during  the  winter  months ; 
but  it  is  not  clearly  established  that  the  road  to  the  schoolhouse  in  district  no.  24 
is  so  difticult  as  to  seriously  hinder  the  school  attendance  of  the  appellant's 
children.  The  appellants  are  somewhat  inconvenienced  in  respect  to  the  greater 
distance  between  their  residences  and  the  schoolhouse  in  district  no.  24,  but  this 
ground  of  complaint  is  not  sufficient  in  itself  to  warrant  setting  aside  the  order 
appealed  from.  A  school  district  can  not  be  dissolved  and  its  territory  annexed 
to  other  districts  without  adding  to  the  distances  from  school  of  some  of  the 
residents  of  the  district  dissolved. 

It  is  not  difficult  to  comprehend  the  cause  which  led  the  respondent  school 
commissioner  to  dissolve  this  school  district.  The  records  and  correspondence 
on  file  in  this  Department  show  that  the  inhabitants  of  the  district  have  hal)itually 
disagreed  as  to  its  school  affairs.  The  respondent  has  endeavored  to  eliminate 
the  constantly  recurring  disagreements.  The  controversy  arose,  as  in  many  other 
cases,  between  the  parents  of  children  of  school  age  who  desired  their  children 
to  be  taught  in  the  home  school,  and  other  qualified  electors  who  had  no  children 
and  who  sought  to  obtain  a  compliance  with  the  laws  relating  to  the  maintenance 
of  public  schools  at  the  least  possible  expense. 

The  respondent  endeavored  to  compel  the  district  to  suitably  repair  its 
schoolhouse.  One  special  school  meeting  was  held  in  1908,  and  it  was  voted  to 
repair;  the  next  night  the  schoolhouse  burned  to  the  ground.  In  1909,  at  the 
annual  meeting,  the  district  voted  to  contract  for  the  instruction  of  its  pupils. 
The  trustee  attempted  to  carry  out  the  directions  of  the  annual  meeting,  and  pro- 
vided a  conveyance  to  carry  the  pupils  of  his  district.  The  arrangement  was 
unsatisfactory  to  the  appellants,  and  two  of  them,  :\Ir  McCreedy  and  Mr 
Mehaffy,  refused  to  send  their  children  to  the  school  in  the  district  with  which 
the  contract  was  made.  They  were  both  arrested  and  tried  for  a  violation  of  the 
compulsory  attendance  law.  The  jury  rendered  a  verdict  of  not  guilty.  The 
Department  investigated  certain  charges  made  in  respect  to  the  contract  for 
instruction,  and  refused  to  approve  it  because  it  was  made  with  a  district  too 
remote  from  the  residence  of  the  appellants,  there  being  other  districts  much 
more  accessible.  In  March,  1910  a  special  meeting  was  called  to  vote  upon  the 
question  of  building  a  new  schoolhouse.  It  was  decided  by  a  vote  of  10  to  8 
not  to  rebuild. 

The  respondent  asserts  that  the  contract  system  as  applied  to  this  district 
has  proven  unsatisfactory,  and  that  its  continuance  would  increase  the  factional 
strife  among  the  inhabitants  of  the  district.  The  surrounding  districts  are  affected 
by  the  controversy  and  have  been  reluctant  to  receive  the  pupils  of  the  dissolved 
district,  owing  possibly,  to  the  forcible  opposition  of  the  parents  of  such  pupils 
to  the  making  of  contracts.  The  respondent  has  concluded  that  since  the  district 
has  refused  to  rebuild  its  schoolhouse  the  district  must  either  be  continued  as  a 
contracting  district,  or  be  dissolved.  The  opinion  of  the  respondent  as  to  the 
advisability  of  such  dissolution  is  entitled  to  great  weight.  He  knows  the  inter- 
ested parties,  and  is  familiar  with  the  educational  needs  of  the  community.     It 


JUDICIAL   decisions:    school    districts DISSOLUTIOxX  'J2-J 

must  be  assumed  that  he  would  not,  without  some  cause  deemed  sufficient  by  him, 
do  away  with  the  school  organization  of  this  district,  against  the  emphatic  pre- 
tests of  these  appellants.  The  appellants  should  not  prevail  against  the  respondent 
unless  it  is  clearly  established  that  the  school  facilities  of  the  dissolved  district 
and  of  the  district  to  which  its  territory  has  been  annexed,  are  materially  injured 
by  his  order.     It  does  not  appear  that  such  is  the  case. 

The  papers  indicate  that  the  trustees  and'  many  of  the  inhabitants  of  the 
districts  whose  boundaries  are  changed  by  the  annexation  of  the  territory  of  the 
dissolved  district,  are  opposed  to  such  annexation.  The  law  permits  a  dissolution 
of  a  district  and  the  annexation  of  its  territory  to  other  districts  without  the 
consent  of  trustees.  The  inhabitants  of  the  districts  affected  may  be  aggrieved 
parties  and  could  be  heard  on  an  appeal  from  the  order  annexing  the  territory 
of  the  dissolved  district  to  their  districts.  But  they  are  not  parties  to  this  appeal. 
They  merely  state  their  objection  without  giving  a  reason  therefor.  However 
much  they  may  be  prejudiced  by  the  order  appealed  from,  their  objections  will 
not  be  considered  in  the  absence  of  proof  of  their  alleged  grievances. 

The  school  commissioner  has  evidently  used  his  best  efforts  to  maintain 
the  integrity  of  this  district.  He  has  frequently  advised  the  electors  thereof  to 
provide  sufficient  and  appropriate  school  accommodations  for  their  pupils ;  they 
have  persistently  refused  to  take  any  such  action.  Under  all  these  circumstances 
it  must  be  held  that  he  acted  wisely  in  dissolving  such  district 

The  appeal  is  dismissed. 


5439 

In  the  matter  of  the  appeal  of  George  D.  Bender  and  others  from  the  change  of 
survey  made  by  School  Commissioner  Sweet  in  school  district  no.  ii,  town 
of  Bethlehem,  county  of  Albany,  in  creating  district  no.  15. 

Division  of  districts.  Where  it  becomes  necessary  for  a  school  commissioner  to  divide 
a  district  into  two  districts  and  there  is  no  controversy  as  to  such  necessity,  the  order 
of  the  school  commissioner  making  such  division  will  not  be  set  aside  where  it  appears 
that  there  is  no  material  discrimination  in  favor  of  one  district  as  against  the  other 
as  to  accessibility  and  the  amount  of  the  assessed  valuation  set  apart  into  each  district. 
Such  order  will  not  be  disturbed  where  it  appears  that  the  educational  interests  of  the 
inhabitants  of  the  new  district  are  promoted  by  the  privilege  afforded  by  establishing 
and  maintaining  a  school  in  their  midst  while  the  school  facilities  of  those  remaining 
in  the  old  district  are  not  injuriously  affected. 

Decided  February  28,  1910 

Bender  &  Hinman,  attorneys  for  appellants 
William  A.  Glenn,  attorney  for  respondents 

Draper,  Commissioner 

■    this  appeal  is  from  an  order  made  by  School  Commissioner  Newton  Sweet 
of  school  commissioner  district  no.  i  of  the  county  of  Albany,  and  filed  in  the 


728  THE    UKIVERSITY    OF   THE   STATE   OF    NEW    YORK 

oftice  of  the  town  clerk  of  the  town  of  Tletlilehem,  on  October  30,  1909,  which 
order  divided  school  district  no.  1 1  and  formed  two  new  districts  from  the  terri- 
tory thereof,  to  be  known  as  school  districts  nos.  1 1  and  15  of  the  town  of 
Bethlehem. 

I'ormer  district  no.  11  was  a  large  district  and  financially  and  numerically 
strong,  having  an  assessed  valuation  of  $226,150  and  fifty-eight  children  of  school 
age,  as  appears  from  the  reports  for  the  preceding  school  year,  on  file  in  this 
Department.  The  schoolhouse  in  such  district  is  old  and  inadequate  to  meet  the 
needs  of  the  district  as  it  formerly  existed.  There  are  two  hamlets  or  neighbor- 
hoods containing  about  an  equal  number  of  inhabitants,  situated  at  almost  the 
extreme  ends  of  this  district.  One  called  Xormanskill  is  located  along  the  Dela- 
ware turnpike  as  it  crosses  the  stream  of  that  name,  while  the  other,  called  Els- 
mere,  is  about  one  and  one-half  or  one  and  three-quarters  of  a  mile  farther  along 
on  such  turnpike.  The  schoolhouse  is  on  a  high  bluff  a  considerable  distance  back 
from  the  turnpike,  and  is  very  inaccessible.  It  is  situated  about  400  feet  from 
the  Xormanskill  and  about  one  and  one-half  miles  from  Elsemere.  A  question 
was  raised  as  to  the  selection  of  a  new  site  and  the  erection  of  a  new  schoolhouse. 
A  special  meeting  was  called  to  consider  such  question  and  a  controversy  arose 
as  to  the  selection  of  a  site  for  the  new  building.  Those  living  in  the  Elsmere 
end  of  the  district  desired  to  change  the  site  to  one  more  convenient  and  nearer 
that  place.  Such  a  proposition  was  voted  upon  and  defeated.  The  meeting  then 
adjourned  without  further  action  as  to  the  erection  of  a  new  building  or  the 
repair  and  improvement  of  the  old. 

It  was  subsequently  suggested  that  the  district  be  divided.  A  number  of 
conferences  were  held  at  which  such  suggestion  was  considered.  Two  of  such 
conferences  were  held  at  the  Department,  and  were  attended  by  the  school  com- 
missioner of  that  district  and  by  the  Chief  of  the  Law  Division,  representing 
the  Department.  It  was  agreed  by  both  factions  of  the  old  district  that  a  division 
was  desirable.  It  was  then  sought  to  secure  an  agreement  as  to  where  the  divid- 
ing line  should  be  located.  The  parties  interested  were  not  able  to  agree  as  to  the 
location  of  such  line.  It  was  then  concluded  that  the  school  commissioner  should 
exercise  the  jurisdiction  conferred  upon  him  by  law  and  execute  an  order  creating 
two  districts  out  of  former  district  no.  ii  and  establishing  the  boundary  line 
between  such  districts.     It  is  from  this  order  that  this  appeal  is  brought. 

There  is  no  ciuestion  involved  in  this  appeal  as  to  the  propriety  of  a  division 
of  this  district.  It  is  doubtless  impossible  to  harmonize  the  opposing  factions; 
they  can  not  both  be  equally  served  by  existing  conditions ;  if  the  district  is  left 
as  it  was,  equal  justice  to  both  would  demand  a  new  schoolhouse  at  a  place  much 
nearer  Elsmere  than  the  location  of  the  present  building.  It  was  in  apparent 
recognition  of  the  justice  of  such  a  demand  that  the  people  of  Normanskill 
apparently  acquiesced  in  a  division  of  the  district. 

In  view  of  this  situation  the  only  question  remaining  for  determination  per- 
tains to  the  fairness  of  the  division  of  the  territory  of  the  old  district  between  the 


JUDICIAL   DECISIONS  :    SCHOOL   DISTRICTS  —  DISSOLUTION  729 

two  new  districts.  The  division  line  was  run  by  a  competent  surveyor,  and  liis 
affidavit  shows  that  there  are  1228  acres  in  district  no.  11,  and  921  acres  in' dis- 
trict no.  15.  The  appellants  live  in  district  no.  11.  There  are  no  residents  set 
off  in  district  no.  15  who  complain  of  the  unfairness  of  the  division.  There  seems 
to  be  no  complaint  based  upon  the  ground  of  inaccessibility.  The  schoolhouse 
in  new  district  no.  11  remains  as  before,  conveniently  accessible  to  the  inhabitants 
of  Normanskill  and  vicinity,  while  the  inhabitants  of  new  district  no.  15  may 
determine  for  themselves  where  their  new  schoolhouse  shall  be  built.  There  is 
a  sufficient  number  of  children  of  school  age  in  each  district  to  maintain  a  good 
elementary  school.  Those  desiring  secondary  instruction  will  continue  as  before 
in  their  attendance  at  high  school  in  the  city  of  Albany.  The  educational  inter- 
ests of  the  two  communities  are  not  adversely  affected  by  the  division. 

The  chief  contention  on  the  part  of  the  appellants  is  that  the  division  imposes 
an  unequal  burden  of  taxation  upon  them.  There  is  some  difference  between  the 
figures  presented  by  the  appellants  and  respondents  as  to  the  assessed  valuation 
of  the  real  property  in  the  two  districts.  But  even  the  appellants'  statement 
shows  that  the  valuation  has  been  equally  divided,  there  being  according  to  such 
statement  a  valuation  of  $111,150  in  district  no.  11,  and  $1 11,600  in  district  no.  15. 
This  does  not  show  that  the  school  commissioner  has  dealt  unfairly  with  either 
district. 

District  no.  11,  in  which  the  appellants  live,  retains  the  schoolhouse  and  all 
the  property  belonging  to  the  old  district.  District  no.  15  will  be  required  to  pur- 
chase a  site  and  build  a  new  schoolhouse.  District  no.  ii  may  be  required  to 
expend  some  money  in  repairing  the  old  schoolhouse,  but  the  amount  will  be 
small  compared  with  what  w^ould  have  been  required  if  the  old  district  had  not 
been  divided.  If  the  division  had  not  been  made,  a  new  schoolhouse  on  a  new 
site  must  have  been  provided,  or  an  addition  to  the  old  schoolhouse  must  have 
been  built  so  as  to  have  given  adequate  accommodation  to  all  the  pupils  of  the 
district,  with  an  additional  teacher.  The  division  obviates  the  necessity  of  employ- 
ing an  additional  teacher,  for  the  present,  at  least.  It  is  therefore  difficult  to  see 
how  the  burden  of  taxation  upon  the  taxpayers  remaining  in  district  no.  1 1  will 
be  materially  increased  by  the  division  of  which  the  appellants  complain. 

It  does  not  appear  that  undue  discrimination  has  been  made  against  district 
no.  II  by  the  setting  off  of  this  new  district.  The  educational  interests  of  the 
inhabitants  of  new  district  no.  15  are  clearly  promoted  by  the  privilege  thus 
afforded  of  establishing  and  maintaining  a  school  in  their  midst,  which  will  be 
conveniently  accessible  to  all  of  them.  The  school  facilities  of  those  remaining 
in  district  no.  ii  are  not  materially  disturbed.  Under  the  conditions  existing,  it  is 
apparent  that  the  financial  resources  of  the  district  are  not  crippled.  The  resi- 
dents of  the  new  district  are  earnest  in  their  desire  that  they  be  given  the  privi- 
lege of  maintaining  a  school  of  their  own.  Under  all  the  circumstances  it  is 
advisable  to  sustain  the  order  of  the  school  commissioner. 
*"  V    The  appeal  is  dismissed. 


730  THE    UNIVERSITY    OF   THE   STATE   OF   NEW   YORK 

4707 

In  the  matter  of  the  appeal  of  John  Neer  and  others  v.  Robert  E.  Sternberg  as 
school  commissioner,  second  commissioner  district,  Schoharie  county. 

Where  a  school  commissioner,  under  the  provisions  of  section  9,  of  title  6,  of  the  Con- 
solidated School  Law  of  1894,  as  amended  by  section  4,  chapter  264,  of  the  Laws  of  1896, 
by  his  order,  dissolves  a  school  district  and  fails  to  provide  in  such  order  of  dissolu- 
tion for  uniting  a  portion  of  the  territory  of  such  dissolved  district  to  any  existing 
adjoining  district  or  districts  and  fails  to  make  an  order  concurrent  with  the  order 
of  dissolution  for  annexing  such  territory  to  such  existing  adjoining  district  or  dis- 
tricts, the  order  is  void  for  the  reason  that  a  school  district  is  not  legally  dissolved 
until  all  its  parts  are  annexed  to  one  or  more  existing  adjoining  district  or  districts. 

Decided  December  6,  1898 

E.  A.  Dox,  attorney  for  appellants 

Skinner,  Superintendent 

This  is  an  appeal  from  an  order  made  by  Robert  E.  Sternberg  of  the  second 
commissioner  district  of  Schoharie  county,  dated  July  30,  1898,  dissolving  school 
district  10,  Richmondville,  Schoharie  county,  said  order  to  take  effect  August  i, 
1898. 

The  appellants  allege  as  the  principal  grounds  for  bringing  their  appeal,  in 
substance,  that  said  order  was  not  filed  in  the  office  of  the  clerk  of  the  town  of 
Fulton,  in  which  town  a  part  of  the  territory  of  school  district  10  is  situate;  and 
that  said  order  dissolves  school  district  10  without  annexing  its  territory  to  any 
adjoining  district  or  districts  or  making  an  order  providing  for  such  annexation. 
School  Commissioner  Sternberg  has  answered  the  appeal,  and  to  his  answer  the 
appellants  have  made  reply. 

It  is  admitted  that  School  Commissioner  Sternberg,  on  July  30,  1898,  made 
an  order  dissolving  school  district  10,  Richmondville,  Schoharie  county,  such 
order  to  take  effect  August  i,  1898,  and  filed  said  order  July  30,  1898,  in  the 
olilice  of  the  clerk  of  the  town  of  Richmondville,  Schoharie  county ;  that  a  portion 
of  the  territory  of  such  district  10  was  situate  in  the  town  of  Fulton,  Schoharie 
county,  but  that  said  order  of  dissolution  was  not  filed  in  the  office  of  the  clerk 
of  said  town ;  that  said  order  did  not  annex  any  portion  or  portions  of  the  terri- 
tory of  such  dissolved  district  to  any  one  or  more  of  the  existing  adjoining  school 
districts,  nor  did  Commissioner  Sternberg  make  any  order  or  orders  annexing 
the  territory  of  the  dissolved  district  to  any  existing  adjoining  district  or  districts. 

Under  the  provisions  of  section  9  of  title  6  of  the  Consolidated  School  Law 
of  1894,  as  amended  by  section  4  of  chapter  264  of  the  Laws  of  1896,  any  school 
commissioner  has  power  to  dissolve  any  one  or  more  school  districts  within  his 
commissioner  district  and  from  such  territory  form  a  new  district  or  districts; 
and  to  unite  a  portion  or  portions  of  the  territor}-  of  the  dissolved  district  to  any 
existing  adjoining  district  or  districts. 

Under  the  provisions  of  said  title  6  it  is  the  duty  of  school  commissioners, 
in  the  formation,  alteration  and  dissolution  of  school  districts,  to  file  the  orders 
made  by  them,  with  all  notices,  consents  and  proceedings  relating  thereto  with 


JUDICIAL  decisions:  school  districts  —  dissolution  731 

the  clerk  of  the  town  or  towns  in  which  the  territory  or  any  part  thereof  embraced 
in  or  affected  by  such  order  or  orders  is  situate,  immediately  after  such  formation, 
alteration  or  dissolution. 

This  Department  has  uniformly  held  that  a  school  district  is  not  dissolved 
until  all  its  parts  are  annexed  to  any  existing  adjoining  district  or  districts. 

Commissioner  Sternberg  should  have  included  in  his  order,  dissolving  school 
district  10,  Richmondville,  orders  annexing  the  territory  of  such  dissolved  dis- 
trict to  such  adjoining  district  or  districts  existing  to  which  he  had  determined 
to  annex  such  territory,  or  he  should  have,  concurrently  with  his  order  of  dissolu- 
tion and  dated  on  the  same  day  as  the  order  of  dissolution,  made  an  order  annex- 
ing such  territory  to  such  existing  adjoining  district  or  districts  and  immediately 
filed  the  same,  with  his  order  of  dissolution,  in  the  office  of  the  clerk  of  the 
respective  town  or  towns  in  which  the  territory  embraced  in  or  afifected  by  such 
order  or  orders  was  situate. 

The  note  on  page  247  of  the  Code  of  Public  Instruction  of  1887,  quoted  by 
Commissioner  Sternberg  in  his  answer,  has  no  application  to  proceedings  taken 
under  section  9  of  title  6  of  the  Consolidated  School  Law  of  1894,  as  amended  by 
section  4,  chapter  264  of  the  Laws  of  1896,  but  has  reference  to  the  provisions 
contained  in  sections  2,  3  and  4  of  title  6  of  the  Consolidated  School  Act  of  1864, 
where  school  districts  are  altered  by  transferring  one  or  more  parcels  of  land 
from  one  district  to  another  district  or  districts,  and  such  action,  in  fact,  results 
in  a  dissolution  of  the  districts  from  which  such  parcels  are  taken. 

Commissioner  Sternberg  states  in  his  answer  that  orders  annexing  or  uniting 
the  territory  of  the  dissolved  district  to  existing  adjoining  district  or  districts 
could  not  be  made  without  procuring  a  survey  of  such  portions.  When  he  decided 
to  dissolve  district  10  and  to  annex  its  territory  to  other  districts,  he  should  have 
taken,  before  making  any  order,  the  necessary  steps  to  enable  him  to  include  in 
the  order  of  dissolution,  or  in  the  concurrent  order,  a  description  of  the  territory 
to  be  united  to  the  existing  adjoining  district  or  districts,  stating  to  which  district 
or  districts  such  territory  was  united.     This  he  failed  to  do. 

I  decide : 

That  the  order  of  School  Commissioner  Sternberg,  dated  July  30,  1898, 
appealed  from,  was  absolutely  void  for  the  following  reasons :  That  said  order, 
or  a  duplicate  thereof,  was  not  filed  by  him  immediately  with  the  clerk  of  the 
town  of  Fulton,  Schoharie  county,  a  portion  of  the  territory  of  the  district  i>ro- 
posed  to  be  dissolved  being  situate  in  said  town ;  that  said  order  appealed  from 
did  not  include  therein  the  annexation  of  the  territory  of  such  dissolved  district 
to  existing  adjoining  district  or  districts,  and  that  no  order  was  made  by  him 
concurrent  with  said  order  of  dissolution  annexing  such  territory  to  such  existing 
adjoining  district  or  districts,  and  hence  said  school  district  10,  Richmondville, 
was  not  in  law  or  in  fact  dissolved,  but  such  district  exists  today  the  same  as  if 
said  order  appealed  from  had  never  been  made :  that  the  order  was,  at  the  time 
of'Jiling  the  same,  and  is  void. 

The  appeal  herein  should  be  sustained  and  the  order  appealed  from  set  aside 

as  absolutely  void. 


72,2  THE   UNIVERSITY    OF   THE   STATE    OF    NEW    YORK 

It  is  not  necessary  for  me,  in  the  disposition  of  the  appeal  herein,  to  exam- 
ine or  pass  upon  the  other  grounds  stated  therein. 

The  appeal  herein  is  sustained,  and  the  order  made  by  School  Commissioner 
Sternberg,  dated  July  30.  1898,  dissolving  school  district  10,  Richmondville,  Scho- 
harie county,  is  vacated  and  set  aside  as  absolutely  void. 


4849 

In  the  matter  of  the  appeal  of  James  Corscadden,  of  the  town  of  Minerva,  Essex 
county,  v.  Edward  J.  Owen,  as  school  commissioner  of  the  second  commis- 
sioner district  of  Essex  county. 

Any  school  commissioner,  under  section  9,  title  6  of  the  Consolidated  School  Law  of  1894. 
as  amended  by  section  4,  chapter  264  of  the  Laws  of  1896,  has  authority  to  dissolve  one 
or  more  school  districts  and  from  the  territory  of  the  district  so  dissolved,  to  form  a 
new  district  or  districts;  he  may  also  unite  a  portion  of  such  territory  to  any  existing 
adjoining  district  or  districts. 

A  school  district  is  not  legally  dissolved  until  all  its  territory  is  included  within  a  new 
district  or  united  to  an  adjoining  district  or  districts. 

This  Department  has  uniformly  ruled  that  in  orders  forming,  altering  or  dissolving  school 
districts  the  description  of  the  territory  affected  or  embraced  in  said  order  should  be 
so  complete  and  definite  that  a  surveyor  at  any  future  day  may  be  able  to  run  its  bound- 
aries without  reference  to  any  other  document  than  the  order  forming,  altering  or  dis- 
solving the  districts  affected;  that  for  this  purpose  the  exterior  lines  should  be  defined 
by  reference  to  natural  monuments,  marked  trees,  creeks  etc.,  or  to  township  lines 
of  historical  notoriety,  such  as  the  lines  of  the  great  original  subdivisions  of  tracts  into 
lots,  or  the  course  of  highways.  When  these  fail  the  courses  and  distances  as  ascer- 
tained by  the  compass  and  chain  should  be  given. 

Decided  March  31,   1900 


Charles  P.  Coyle,  attorney  for  appellant 
E.  T.  Stokes,  attorney  for  respondent 


Skinner,  Superintendent 

This  is  an  appeal  by  James  Corscadden  as  trustee,  etc.,  from  two  orders 
made  December  28,  1898,  by  Edward  J.  Owen,  as  school  commissioner  of  the 
second  commissioner  district  of  Essex  county,  namely,  one  order  dissolving  school 
district  3,  Minerva,  Essex  county,  and  another  order  forming  a  new  school  district 
to  be  known  as  district  3,  Minerva,  Essex  county ;  each  order  was,  by  its  tenns, 
to  take  effect  immediately. 

The  appellant  is  the  trustee  of  district  3,  which  district  the  first  order  ap- 
pealed from  herein,  assumes  to  dissolve. 

The  appellant  alleges  various  grounds  for  bringing  his  appeal. 

Commissioner  Owen  has  answered  the  appeal,  and  to  such  answer  the  appel- 
lant has  replied,  and  to  such  reply  a  rejoinder  has  been  made  by  the  respondent, 
and  to  such  rejoinder  a  rebutter  has  been  filed  by  the  appellant.  The  papers  are 
voluminous,  but  contain  largely  matter  not  relevant  to  the  question  presented  for 


JUDICIAL   DECISIONS  :    SCHOOL   DISTRICTS DISSOLUTION  733 

my  decision,  namely,  whether  said  two  orders,  made  by  Commissioner  Owen,  are 
in  conformity  with  the  provisions  contained  in  title  6  of  the  Consolidated  School 
Law  of  1894,  and  the  amendments  thereof,  and  the  rulings  of  this  Department 
relating  to  the  formation,  alteration  and  dissolution  of  school  districts. 

Section  9,  title  6  of  the  Consolidated  School  Law  of  1894,  as  amended  by 
section  4,  chapter  264  of  the  Laws  of  1896,  provides  that  any  school  commis- 
sioner may  dissolve  one  or  more  districts,  and  may,  from  such  territory,  form  a 
new  district;  he  may  also  unite  a  portion  of  such  territory  to  any  existing 
adjoining  district  or  districts. 

Under  the  above  provisions  of  section  9,  Commissioner  Owen  had  authority 
to  dissolve  school  districts  3  and  12,  Minerva,  Essex  county,  and  from  such 
territory,  that  is,  the  territory  formerly  comprising  such  districts  3  and  12,  form 
a  new  district;  or  he  could  unite  a  portion  or  portions  of  such  territory  to  any 
adjoining  district  or  districts. 

Commissioner  Owen  did  not  have  authority,  under  said  section  9,  or  under 
any  other  provisions  of  said  title  6,  to  dissolve  district  3,  and  from  the  territory 
formerly  comprising  such  dissolved  district  3,  to  form  a  new  district,  and 
including  within  the  boundaries  of  such  new  district  any  portion  of  district  12. 
no  dissolution  of  such  district  12  having  been  made.  So  long  as  district  12 
exists,  that  is,  is  not  dissolved,  its  boundaries  can  not  be  altered  and  a  portion 
of  its  territory  taken  to  form  a  new  district  erected  from  the  whole  or  part 
of  a  district  dissolved,  under  the  provisions  of  said  section  9. 

While  district  12  exists,  its  boundaries  can  not  be  altered  except  as  pro- 
vided in  sections  i,  2,  3  and  4  of  title  6  of  the  Consolidated  School  Law  of  1894 
as  amended. 

It  would  seem,  from  the  proofs  filed  herein,  that  the  object  which  Com- 
missioner Owen  wished  to  accompHsh  was  to  alter  the  boundaries  of  district  12 
and  the  consequent  alteration  of  district  3,  by  transferring  certain  parcels  of 
land  from  district  12  to  district  3.  Such  objects  could  have  been  accomplished, 
in  proceeding  in  accordance  with  the  provisions  contained  in  sections  2,  3  and  4 

of  title  6. 

The  order  of  Commissioner  Owen,  dated  December  28,  1899,  appealed 
from,  assuming  to  dissolve  district  3,  is  defective  in  not  including  therein  a  full 
description  of  the  territory  comprising  such  district,  as  shown  by  the  records 
in  the  office  of  the  clerk  of  the  town  of  ^linerva,  Essex  county. 

The  order  of  Commissioner  Owen,  dated  December  28,  1899.  appealed 
from,  assuming  to  erect  a  new  school  district,  states  "  that  a  school  district  be, 
and  the  same  is,  hereby  created  out  of  parts  of  territory  heretofore  forming  the 
whole  of  the  original  district  3  this  day  dissolved  by  my  order,  and  the  following 
lots  in  township  26,  Totten  and  Crosstield  purchase  {no%v  a  part  of  school  dis- 
trict 12,  and  to  which  the  trustee  of  said  district  consents  by  writing,  hereto 

annexed),  lots  -/-J  etc."  ,        ,        r^         •    •  r^ 

•    Assuming,   for  the  purposes  of  argument  only,  that  Commissioner  Owen 
had  authority  to  make  such  order,  the  order  is  defective  in  not  stating  xvhat  part 


/ 


734  THE    UNIVERSITY    OF   THE   STATE    OF    NEW    YORK 

ot  the  teriiiury  heretofore  forming  original  district  3  are  included  in  the  new 
district  which  he  assumed,  by  such  order,  to  erect. 

Such  order  is  also  defective  in  not  complying  with  the  uniform  rulings  of 
this  Department  that  the  description  of  a  district  erected  should  be  so  complete 
and  definite  that  a  surveyor,  at  any  future  day,  may  be  able  to  run  its  boun- 
daries without  reference  to  any  other  document  than  the  order  forming,  alter- 
ing or  describing  it.  For  this  purpose  the  exterior  lines  should  be  defined  by 
reference  to  natural  monuments,  marked  trees,  creeks  etc.,  or  to  township  lines 
of  historical  notoriety,  such  as  the  lines  of  the  great  original  subdivision  of  lotb, 
or  the  course  of  highways.  When  these  fail,  the  courses  and  distances  as  ascer- 
tained by  the  compass  and  chain  should  be  given. 

The  order,  assuming  to  erect  such  new  district,  does  not  give  a  description 
thereof,  nor  its  exterior  lines. 

For  the  foregoing  reasons  the  two  orders  appealed  from  herein,  made  by 
Commissioner   Owen,  should  be  vacated  and  set  aside. 

Under  section  i  of  article  i  of  title  7  of  the  Consolidated  School  Law  of 
1894,  when  any  school  district  shall  be  formed,  the  commissioner  within  whose 
district  it  may  be,  shall  prepare  a  notice,  describing  such  district,  and  appomt- 
ing  a  time  and  place  for  the  first  district  meeting,  and  deliver  such  notice  to  a 
taxable  inhabitant  of  the  district. 

Cy  section  2  of  article  i,  title  7  of  such  law,  it  is  the  duty  of  the  taxable 
inhabitant  to  whom  such  notice  is  delivered  by  the  commissioner,  to  notify 
every  other  inhabitant  of  the  district,  qualified  to  vote  at  the  meeting,  by  read- 
ing the  notice  in  his  hearing,  or  in  case  of  his  absence  from  home,  by  leaving  a 
copy  thereof,  or  so  much  thereof  as  relates  to  the  time,  place  and  object  of  the 
meeting,  at  the  place  of  his  abode,  at  least  six  days  before  the  time  of  the  meet- 
ing. 

The  provisions  above  cited  are  substantially  those  contained  in  sections  i 
and  2  of  article  i,  title  7  of  the  Consolidated  School  Act  of  1864. 

This  Department  has  uniformly  ruled  that  the  commissioner  must  prepare 
the  notice ;  that  the  notice  must  contain  a  description  of  the  new  district  as  the 
same  is  contained  in  the  order  erecting  it,  which  should  be  by  metes  and  bounds ; 
that  such  notice  should  be  addressed  by  name  to  a  taxable  inhabitant  of  the 
new  district,  and  delivered  to  such  inhabitant;  and  stating  therein  that  such 
inhabitant  was  required  to  notify  every  person  residing  in  the  territory  therein 
described  who  is  entitled  to  vote  at  school  district  meetings  under  the  pro- 
visions of  the  school  law;  that  the  meeting  was  for  the  purpose  of  electing 
officers,  voting  taxes,  and  transacting  such  other  business  as  is  permitted  by  laic: 
that  the  manner  of  serving  the  notice,  as  provided  in  section  2,  article  i,  title  7, 
should  be  stated  in  the  notice,  and  such  notice  dated. 

Annexed  to  the  appeal  herein  as  exhibit  "  B  "  is  the  notice  of  Commissioner 
Owen,  as  prepared  by  him,  appointing  a  time  and  place  for  the  first  district 
meeting  of  the  new  district,  assumed  to  have  been  erected  by  him.  Such  notice 
is  not  addressed  to  a  taxable  inhabitant  of  the  new  district,  assumed  to  have 


JUDICIAL   decisions:    school    DISTKICTS DISSOLUTION  J^^ 

been  erected;  it  does  not  contain  a  description  of  such  district  as  contained  in 
the  order  erecting  it ;  it  does  not  require  any  one  to  notify  the  persons  quaHfied 
to  vote  at  such  school  meetings  in  such  new  district  that  the  first  district  meeting 
of  said  district  will  be  held  at  a  time  and  place  named,  etc. 

There  is  no  proof  of  the  manner  of  service  of  such  notice.  Such  notice  is 
defective,  not  being  in  conformity  with  the  provisions  of  the  Consolidated  School 
Law,  relative  to  the  first  meeting  in  such  new  district,  and  the  rulings  of  this 
Department  thereunder. 

The  appeal  herein  is  sustained. 

It  is  ordered: 

That  the  two  orders  made  by  said  Commissioner  Owen,  dated  December 
28,  1899,  one  assuming  to  dissolve  school  district  3,  Minerva.  Essex  county,  and 
one  assuming  to  erect  a  new  district  comprising  the  territory  of  district  3  and 
portions  of  the  territory  of  district  12,  Minerva,  Essex  county,  be,  and  the  same 
are,  hereby  vacated  and  set  aside. 

It  is  further  ordered: 

That  the  proceedings  taken  at  a  meeting  held  January  6,  1900,  at  the 
house  of  Charles  Dougherty  or  Doherty,  claiming  to  be  the  first  district  meetino- 
of  a  new  school  district  3,  Minerva,  Essex  county,  be,  and  the  same  are,  hereby 
vacated  and  set  aside. 


4904 

In  the  matter  of  the  appeal  of  Abram  D.  Stryker,  Peter  W.  Miner  and  Benjamin 
F.  Taylor  as  trustees  of  school  district  4,  Locke,  Cayuga  county,  v.  Edwin  S. 
Manchester  as  school  commissioner  of  the  second  commissioner  district  of 
Cayuga  county. 

This  Department  has  uniformly  held  that  under  section  9,  title  6  of  the  Consolidated  School 
Law  of  1894  as  amended  by  section  4,  chapter  264,  Laws  of  1896,  any  school  commis- 
sioner may  dissolve  anj'  one  or  more  school  districts  within  his  commissioner  district 
and  from  the  territory  formerly  comprising  such  district  or  districts  so  dissolved  form 
a  new  district  or  districts  or  he  may  unite  such  territory  to  any  existing  adjoining  dis- 
trict without  obtaining  the  consent  of  the  trustees  of  the  districts  to  be  affected;  the 
remedy  of  any  person  who  feels  injured  or  aggrieved  by  such  action  is  to  appeal  fmni 
the  order  of  the  commissioner  to  the  State  Superintendent  of  Public  Instruction. 

The  'dissolution  of  such  district  or  districts  and  the  formation  of  a  new  district  or  di>tricts 
or  the  uniting  of  the  territory  of  the  dissolved  district  to  an  existing  adjoining  district 
is  not  an  alteration  of  the  school  district,  within  the  provisions  contained  in  sections  2,  3 
and  4  of  title  6  of  said  school  law  and  the  acts  amendatory  tlureof,  but  such  sections 
apply  only  where  real  property  is  taken  from  one  district  and  united  to  some  other 
district  or  districts  and  no  dissolution  of  the  district  is  made. 

Decided  November  15,  1900 

C.  G.  Parker,  attorney  for  appellant 

S^lcinner,  Superintendent 

This  is  an  appeal  by  the  trustees  of  school  district  4.  Locke,  Cayuga  county, 
from  certain  orders  made  on  Tulv  5,   10m,  by  Edwin  S.  Manchester  as  school 


736  THE   UNIVF.K.SITY    UF   THE   STATE    OF    NEW    YORK 

coniniissioner,  second  commissioner  district  of  Cayuga  county,  dissohing  school 
district  I,  Locke,  Cayuga  county,  and  uniting  portions  formerly  comprising  such 
dissolved  district  to  school  district  4,  Locke,  and  the  residue  of  such  territory 
to  school  district  i,  Moravia,  Cayuga  county. 

The  appellants  allege,  in  substance,  as  the  grounds  for  bringing  their  appeal, 
that  Commissioner  Manchester  did  not  have  jurisdiction  to  make  the  orders 
appealed  from ;  that  the  commissioner  should  have  proceeded  under  the  provisions 
contained  in  sections  2,  3  and  4  of  title  6  of  the  Consolidated  School  Law ;  that 
such  action  is  unjust  to  said  district  4,  Locke. 

The  appeal  herein  was  filed  in  this  Department  September  6,  1900.  On 
Seplcinber  14,  1900,  upon  application  of  Commissioner  Manchester  I  gave  him 
permission  to  amend  the  orders  appealed  from,  by  describing  more  definitely  the 
territory  affected  by  such  orders,  and  extending  his  time  to  make  answer  to  the 
appeal  herein.  On  September  21,  1900,  I  received  from  said  commissioner  a 
copy  of  such  amended  orders.  On  September  22,  1900,  I  received  the  answer 
of  the  commissioner  to  the  appeal  herein. 

By  section  9  of  title  6  of  the  Consolidated  School  Law  of  1894,  as  amended 
by  section  4,  chapter  264  of  the  Laws  of  1896,  it  is  provided  that  any  school 
commissioner  may  dissolve  one  or  more  school  districts  and  from  the  territory 
formerly  comprising  the  district  or  districts  so  dissolved,  form  a  new  district  or 
districts,  or  he  may  unite  a  portion  or  portions  of  such  territory  to  any  adjoining 
district  or  districts. 

Since  the  amendment  of  section  9  by  the  Legislature  in  1896,  this  Department 
has  uniformly  held  that  any  school  commissioner  may  dissolve  one  or  more 
school  districts  within  his  commissioner  district,  and  from  the  territory  formerly 
comprising  such  district  or  districts  so  dissolved  he  may  form  a  new  district  or 
flistricts,  or  he  may  unite  such  territory  to  any  existing  adjoining  district  without 
applying  for  or  obtaining  the  consent  of  the  trustee  or  trustees  of  the  district  or 
districts  to  be  affected  by  such  action  on  his  part ;  that  the  remedy  by  any  person 
or  persons  who  were  residents  and  qualified  voters  in  said  district  or  districts 
at  the  time  of  such  dissolution  who  felt  aggrieved,  that  is,  injured,  by  such  order 
of  dissolution  is  to  appeal  from  such  order  to  the  State  Superintendent  of  Public 
Instruction  under  the  provisions  contained  in  title  14  of  the  Consolidated  Schod 
Law  of  1894,  and  the  rules  of  practice  of  this  Department  regulating  appeals; 
that  the  dissolution  of  a  district  or  districts,  and  the  formation  of  a  new  district 
or  districts  from  the  territory  formerly  comprising  such  dissolved  district  or 
districts,  or  the  uniting  of  such  territory  to  any  adjoining  district  or  districts  is 
not  an  alteration  of  districts  within  the  provisions  contained  in  sections  2,  3  and 
4  of  title  6  of  the  Consolidated  School  Law  of  1894,  and  the  acts  amendatory 
thereof;  but  such  sections  apply  only  when  a  portion  or  portions  of  real  prop- 
erty are  taken  from  one  district  and  united  to  some  other  district  or  districts,  and 
no  dissolution  of  a  district  is  made. 

The  object  sought  to  be  obtained  by  the  amendments  of  said  section  9  in  1896 
was  to  enable  school  commissioners  to  dissolve  school  districts  weak  in  school 
population  or  weak  in  average  attendance  upon  instruction,  or  weak  financially. 


JUDICIAL   DECISIONS  :    SCHOOL   DISTRICTS DISSOLUTION  737 

without  obtaining  the  consent  of  trustees  of  districts  so  affected,  and  if  refused, 
the  making  of  a  preHminary  order,  and  the  subsequent  action  of  a  local  Ijoard, 
but  giving  the  right  of  appeal  to  the  State  Superintendent  from  such  action  of 
school  commissioners. 

No  appeal  from  said  orders  of  Commissioner  Manchester  has  been  taken  by 
any  qualified  voter  of  district  i,  Locke,  dissolved,  and  it  appears  that  the  trustee 
of  said  district  consented,  in  writing  to  the  dissolution  of  the  district,  and  the  dis- 
position made  by  the  commissioner  of  the  territory  formerly  comprising  the 
district.  The  appellants  are  trustees  of  school  district  4,  Locke,  to  which  district 
property  formerly  in  district  i,  of  the  assessed  valuation  of  $5080  has  been  added 
by  the  orders  appealed  from.  Such  district  has  not  been  injured,  that  is,  impaired, 
diminished,  harmed  or  damaged  by  such  addition  of  territory.  It  appears  in 
proof  that  the  aggregate  valuation  of  said  district  4  is  $211,350.  Of  the  grounds 
alleged  by  the  appellants  in  their  appeal  for  bringing  their  appeal,  not  one  of 
them  is  established  by  proof. 

It  appears  in  proof  that  district  i,  Locke,  at  the  time  it  was  dissolved  by 
Commissioner  Manchester,  was  weak  in  its  total  resident  school  population,  hav- 
ing less  than  ten  children  of  school  age,  and  weak  in  the  average  attendance  upon 
instruction  in  the  school  therein,  the  report  of  the  trustee  for  the  school  year 
of  1 899-1 900  showing  that  the  daily  average  attendance  was  about  two. 

I  decide  (i)  that  the  appellants  herein  have  failed  in  establishing  any  griev- 
ance or  injury  sustained  by  school  district  4,  Locke,  Cayuga  county,  by  reason  of 
the  orders  made  by  School  Commissioner  Manchester,  appealed  from,  or  any 
amendment  of  such  orders;  (2)  that  School  Commissioner  Manchester  has  wisely 
exercised  the  authority  vested  in  him  by  the  school  law  in  making  the  orders 
appealed  from,  and  the  amendments  thereof,  and  that  the  appeal  herein  should 
be  dismissed,  and  the  orders  appealed  from,  and  the  amendments  thereof  should 
be  affirmed. 

The  appeal  herein  is  dismissed  and  the  orders  of  School  Commissioner  Man- 
chester, appealed  from,  are,  together  with  the  amendments  thereof,  hereby 
affirmed. . 

3915 
In  the  matter  of  the  appeal  of  John  E.  Morris  and  others  v.  William  R.  Ander- 
son,  school   commissioner  of   the   first  commissioner   district   of   Dutchess 

county. 

School  commissioner's  order  against  which  no  irregularity  is  averred,  annulling  school  dis- 
trict and  annexing  its  parts  to  other  districts,  upheld,  when  it  was  not  clearly  shown 
that  residents  of  the  districts  would  be  greatly  inconvenienced  by  its  operation,  and 
especially  so  in  a  district  which  will  not  maintain  a  suitable  building  for  the  school. 

Decided  October  14,  1890 

Draper,  Superintendent 

This  is  an  appeal  from  the  order  of  the  school  commissioner,  made  on  the 
26th  of  July  1890,  annulling  school  district  no.  4  of  the  towns  of  East  FishkiU 

24 


738  THE    UNUEKSITV    dl-"    Tllli   STATE   OF   NEW    YORK 

and  Beekman,  and  annexing  portions  of  said  district  to  district  no.  2  of  Beek- 
man.  and  no.  5  of  East  Fishkill. 

No  irregularities  in  the  proceedings  of  the  school  commissioners  are  alleged. 
The  order  was  made  upon  the  assent  of  the  trustees  of  the  three  districts  affected 
thereby.  Some  of  the  residents  of  district  no.  4  now  come  in  and  object,  alleg- 
ing that  they  have  always  maintained  a  good  schoolhouse  and  a  good  school,  and 
that  the  effect  of  the  order  will  be  to  compel  their  children  to  go  farther  to  school. 
The  school  commissioner  shows,  on  the  other  hand,  that  the  schoolhouse  has 
been  unfit  for  use  for  some  time,  and  that  he  has  repeatedly  urged  the  district 
to  construct  a  new  one,  and  that  they  have  continually  neglected  so  to  do.  The 
district  is  not  very  strong  in  any  event,  and  it  is  not  shown  that  the  operation  of 
the  order  will  greatly  inconvenience  the  residents  thereof.  In  all  events,  the  school 
commissioner  is  upon  the  ground,  is  familiar  with  all  the  circumstances,  and 
appears  to  have  acted  with  deliberation  and  for  good  reasons.  Before  his  order 
should  be  overruled  by  the  Department,  the  appellants  should  present  a  clear  and 
overwhelming  case. 

The  appeal  is  dismissed. 

3685 
In  the  matter  of  the  appeal  of  V.  R.  Chnbbuck  v.  L.  H.  Barnum,  ex-school  com- 
missioner of  the  first  commissioner  district  of  Steuben  county. 
-An  order  of  a  school  commissioner  annulling  a  district  and  dividing  and  annexing  the  terri- 
tory to  other  districts  which  has  been  consented  to  b)'  all  the  trustees  of  the  districts 
affected  will  be  sustained,  unless  it  is  clearly  shown  by  overwhelming  proof   that  ti-.e 
action  appealed  from  was  inadvisable. 
Decided  May  5,  1888 

Draper,  Superintendent 

This  is  an  appeal  from  an  order  made  by  L.  H.  Barnum;  late  school  com- 
missioner in  the  first  school  commissioner  district  of  Steuben  county,  on  the  3d 
day  of  December  1887,  annulling  school  district  no.  6,  of  the  towns  of  Fremont 
and  Howard,  and  dividing  the  territory  of  said  district  among  adjoining  school 
districts.  The  order  was  made  upon  the  consent  of  all  the  trustees  of  the  dis- 
tricts affected  thereby.  Objection  is.  raised  thereto  by  Mr  Chubbuck  and  some 
other  residents  of  the  district  annulled.  On  the  other  hand  the  order  is  supported 
by  many  residents  of  the  district  annulled.  I  have  read  all  the  papers  in  the  case 
with  care,  and  fail  to  find  sufficient  reason  for  setting  aside  the  order  of  the 
commissioner.  The  district  annulled  was  very  weak.  It  seems  more  than  prob- 
able that  the  change  will  afford  better  school  facilities  for  the  residents  thereof 
than  they  had  before,  although  it  is  likely  that  a  portion  of  them  will  have  to  go 
a  longer  distance.  It  is  usual  to  support  school  commissioners  in  a  matter  of 
this  kind,  particularly  when  their  order  is  based  upon  the  consent  of  all  of  the 
trustees  of  the  districts  affected,  unless  it  is  clearly  shown  by  overwhelming  proof 
that  the  action  appealed  from  ought  not  to  have  been  taken.  That  fact  is  not 
made  to  appear  to  my  satisfaction. 

The  appeal  is  therefore  dismissed. 


JUDICIAL    decisions:    school   districts  —  DISSOLUTION  739 

3916 

In  tlie  matter  of  the  appeal  of  William  Kimball  and  others  v.  S.  W.  Maxon  and 
Charles  E.  Whitney,  school  commissioners  of  the  first  and  third  commis- 
sioner districts  of  the  county  of  Jefferson. 

School  commissioner's  order  annulling  and  dissolving  a  school  district,  set  aside,  when  it 
appears  undisputably  that  the  district  is  able  to  maintain  a  school,  and  the  senti- 
ment of  the  district  is  substantially  unanimous  against  the  dissolution,  and  when  the 
proposed  dissolution  would  necessitate  the  children  of  the  district  going  a  long  dis- 
tance to  secure  school  privileges.  When  no  reason  for  the  making  of  the  order  is 
shown,  the  order  should  be  vacated. 

Decided  October  14,  1890 

Porter  &  Walts,  attorneys  for  appellants 

Draper,  Superintendent 

This  is  an  appeal  from  the  order  of  the  school  commissioners,  made  on  the 
26th  day  of  July  1890,  annulling  and  dissolving  school  district  no.  2,  of  the  town 
of  Brownville  in  the  counfy  of  Jefferson.  The  appellants  allege  that  the  district 
referred  to  is  abundantly  able  to  maintain  a  school,  that  the  sentiment  of  the 
district  is  substantially  unanimous  against  the  dissolution  thereof,  and  that,  if  the 
order  of  the  commissioners  should  be  upheld,  it  would  necessitate  the  children 
of  the  district  going  a  long  distance  to  school. 

The  school  commissioners  make  no  answer,  and  I  am,  therefore,  obliged  to 
assume  that  the  allegations  of  the  appellants  are  true.  If  they  are  true,  and  if 
there  was  no  other  reason  for  making  the  order,  it  should  be  set  aside.  No  such 
reason  appears. 

The  appeal  is  sustained,  and  the  order  referred  to  set  aside  and  declared  to 
be  of  no  effect. 


4012 

In  the  matter  of  the  appeal  of  George  Olenhouse  v.  James  R.  Main,  as  school 
commissioner  of  the  third  commissioner  district  of  Albany  county. 

Order  of  a  school  commissioner  annulling  a  district  set  aside  for  the  reason  that,  upon 
appeal,  it  is  conclusively  shown  that  the  district  is  the  owner  of  a  site  and  school- 
house,  is  free  from  debt,  and  maintains  a  school;  that  the  taxpayers,  with  unanimity, 
are  willing  to  support  the  school.  It  also  appears  that  the  district  to  which  the  com- 
missioner's order  annexed  the  territory  of  the  annulled  district,  is  in  debt  for  quite 
an  amount. 

Decided  October  6,  1891 

R.  H.  McCormick,  jr,  attorney  for  appellant 

Draper,  Superintendent 

-.This  appeal  by  a  taxable  inhabitant  and  elector  of  school  district  no.  12, 
towti  of  Guilderland,  Albany  county,  is  from  an  order  of  School  Commissioner 
]\Iain,   annulling   district   no.    12,   Guilderland,   and   consolidating   the   territory 


/ 


740  THE  UNIVERSITY   OF  THE  STATE   OF   NEW   YORK 

thereof  with  district  no.  4  of  the  same  town.  It  is  alleged  by  the  appellant  that 
district  no.  12  has  existed  for  more  than  thirty  years.  The  district  owns  a  site 
and  schoolhouse,  and  has  heretofore  maintained  a  school,  and  is  willing  to  do  so 
hereafter. 

For  the  accommodation  of  the  children  of  the  district  a  school  should  be 
continued  therein.  It  further  appears  that  district  no,  12  is  free  from  debt, 
while  district  no,  4  to  which  it  is  proposed  to  annex  the  territory  of  district  no, 
12  is  in  debt  for  quite  an  amount,  for  the  expense  incurred  in  building  a  school- 
house.  If  the  consolidation  is  upheld,  many  of  the  children  of  the  district  will 
be  compelled  to  travel  from  two  to  three  miles  to  reach  the  schoolhouse  in  district 
no.  4.  It  also  appears  that  there  is  a  sufficient  number  of  children  residing  in 
district  no.  12  to  warrant  the  continuance  of  a  school  therein.  The  taxpayers  of 
the  district  are  willing  and  able  to  maintain  a  school. 

No  answer  has  been  interposed.  I  have  reached  the  conclusion  from  the 
evidence  presented  that  district  no.  12  should  not  be  annulled,  and  I  therefore 
sustain  the  appeal  and  set  aside  the  order  of  James  R.  Main,  school  commis- 
sioner, filed  June  28,  1891,  with  the  town  clerk  of  Guilderland,  annexing  district 
no,  12  of  Guilderland,  to  district  no.  4  of  the  same  town. 


4018 

In  the  matter  of  the  appeal  of  John  A.  Gulick  v,  Everett  O'Neill,  school  commis- 
sioner of  the  first  commissioner  district  of  Wayne  county. 

School  commissioner's  order  dissolving  a  district  set  aside  when  it  appears  that  the  dis- 
trict is  able  to  and  docs  maintain  a  satisfactory  school,  in  a  good,  substantial  building 
owned  by  the  district,  well  equipped  with  modern  school  furniture  and  apparatus,  and 
when  very  general  objection  is  made  by  the  patrons  of  the  school  to  the  order  of  dis- 
solution. 

The  order  did  not  annex  all  parts  of  the  annulled  district  to  another  or  other  districts. 
Held,  fatal  to  its  validity. 

Decided  November  10,  1891 

Draper,  Superintendent 

This  appeal  is  brought  by  an  elector  of  school  district  no.  22  of  the  town 
of  Sodus,  county  of  Wayne,  from  the  following  orders  made  by  School  Commis- 
sioner Everett  O'Neill,  of  commissioner  district  no.  i,  Wayne  county,  namely: 
one  dissolving  school  district  no.  22,  Sodus,  in  said  county,  bearing  date  August 
25,  1891 ;  another  bearing  the  same  date,  annexing  a  part  of  the  dissolved  dis- 
trict to  district  no.  2  in  said  town;  another,  bearing  the  same  date,  annexing 
another  part  of  district  no.  22  to  district  no.  4  of  said  town;  and  another,  bearing 
date  September  17,  1891,  annexing  the  remaining  portion  of  district  no.  22  to 
district  no.  8  of  the  same  town.  To  each  of  the  above  orders  the  consent  of  the 
trustee  of  district  no,  22  was  given.  The  trustee  of  each  of  the  other  districts 
affected,  respectively  consented  to  the  order  affecting  his  district,  except  the 
trustee  of  district  no.  8  who  refused  his  consent.     In  consequence  of  the  refusal 


\ 


JUDICIAL   decisions:    school   districts  —  dissolution  741 

of  the  trustee  of  district  no.  8  to  consent,  the  latter  order  was  not  to  take  effect 
until  the  first  day  of  January  1892. 

There  are  several  objections  raised  by  the  appellant  in  opposition  to  the 
orders,  but  two  of  which  need  be  now  considered. 

1  He  insists  that  the  order  annulling  district  no.  22  was  invalid  for  the 
reason  that  all  the  lands  of  the  dissolved  district  have  not  been  attached  to  some 
other  district  or  districts. 

2  That  the  action  of  the  commissioner  was  not  advisable,  and  contrary  to 
the  best  educational  interests  of  district  no.  22. 

Upon  the  latter  proposition  I  have  given  careful  attention  to  the  proofs  sub- 
mitted. I  find  the  fact  to  be  that  district  no.  22  was  a  strong  district,  both  in 
taxable  property  and  in  the  number  of  children  of  school  age ;  that,  according  to 
the  last  assessment  roll  the  taxable  property  was  valued  at  $59,801.95.  The  num- 
ber of  resident  children  of  school  age  numbered  forty-eight;  that  the  district 
owns  a  good  substantial  schoolhouse,  well  equipped  with  modern  school  furniture 
and  school  apparatus;  that  a  school  taught  by  duly  licensed  teachers  has  been 
regularly  maintained. 

It  further  appears  that  the  dissolution  is  strenuously  opposed  by  the  patrons 
of  the  school,  and  the  appellant  insists  that,  if  the  orders  of  the  commissioner 
are  upheld,  very  many  of  the  children  will  be  required  to  travel  long  distances  to 
reach  the  schoolhouses  in  the  district  to  which  the  parts  of  the  territory  of  dis- 
trict no.  22  are  to  be  annexed.  It  also  appears  that  a  number  who  urged  the 
commissioner  to  make  the  change  are  now  opposed. 

I  think  the  order  dissolving  district  no.  22  is  fatally  defective.  At  the  time 
of  its  issuance,  no  provision  was  made  for  the  annexation  of  a  portion  of  the 
territory  of  district  no.  22  to  another  district. 

The  order  of  dissolution  dated  August  25,  1891.  was  to  take  effect  immedi- 
ately, and  yet  the  order  annexing  a  portion  of  its  territory  to  district  no.  8,  was 
not  issued  until  September  17,  1891,  nearly  a  month  later,  and  the  trustee  of 
district  no.  8  having  refused  to  consent  to  the  annexation,  the  latter  order  was 
not  to  take  effect  until  January  i,  1892. 

In  such  cases  the  rulings  of  the  Department  have  been  that  the  operation 
of  an  order  dissolving  a  district  should  also  be  suspended  until  the  same  date, 
so  that  if  the  order  dissented  from  should  be  confirmed,  all  would  go  into  opera- 
tion at  the  same  time.  Information  has  reached  the  Department  that  the  local 
board  has  met  and  refused  to  confirm  the  order  of  Septeml)er  17th. 

But  I  ground  my  decision  that  the  orders  should  be  set  aside  upon  the  undis- 
puted evidence  that  a  respectable  portion  of  the  inhabitants,  patrons  of  the 
school,  demand  a  continuance  of  the  school  facilities  which  have  been  afforded 
them  by  district  no.  22.  There  has  been  no  failure  to  maintain  a  school.  The 
valuation  of  taxable  property  is  such  that  the  expense  of  sustaining  a  good 
school  can  not  be  burdensome,  and  the  children  should  not  be  put  to  the  incon- 
venience of  traveling  the  increased  distances  to  reach  a  schoolhouse  which  the 
upholding  of  the  order  would  necessitate. 

The  appeal  is  sustained. 


742  THE   UXIVERSITV    OF   THE   STATE   OF   NEW    YORK 

3788 

In  the  matter  of  the  appeal  of  Henry  Done,  of  school  district  no.  14,  of  the 
towns  of  Albion  and  Orwell,  county  of  Oswego  v.  Ida  L.  Griffin,  school 
commissioner  of  the  third  commissioner  district  of  Oswego  county. 

A  school  commissioner  by  an  order  dissolved  a  school  district,  assuming  and  believing 
at  the  time  that  the  district  was  wholly  within  one  town,  when  in  fact  it  was  composed 
of  parts  of  more  than  one  town. 

The  order  was  held  to  be  ineffectual  for  the  reason  that  the  dissolved  district,  or  its  parts, 
were  not  thereby  annexed  to  other  districts,  and  in  view  of  the  fact  that  the  district 
maintains  a  good  school,  and  that  all  but  two  of  the  voters  are  opposed  to  dissolu- 
tion ;  it  was  held  that  the  order  of  the  commissioner  should  be  overruled  rather  than 
perfected. 

Decided  April   19,  1889 

A.  S.  Barker,  attorney  for  appellant 

Draper,  Superintendent 

This  appeal  is  taken  by  a  taxpayer  and  legal  voter  of  school  district  no.  14, 
of  the  towns  of  Albion  and  Orwell,  county  of  Oswego,  from  an  order  of  the 
respondent  dissolving  said  district. 

The  appellant  alleges  that  W.  F.  Bragdon,  who  signed  himself  as  trustee 
of  school  district  no.  14,  of  the  town  of  Albion,  and  who  referred  to  the  district 
as  of  the  town  of  Albion,  consented  to  the  dissolution,  and  that  the  respondent 
made  an  order,  a  certified  copy  of  which  is  attached  to  the  appellant's  papers, 
which  bears  no  date,  but  was  made  to  take  effect  on  the  20th  day  of  October 
1888. 

Nothing  is  contained  in  the  order  which  annexes  the  dissolved  district,  or 
its  parts,  to  any  other  district.  The  appellant  alleges  that  the  voters  of  the  dis- 
trict, with  but  two  dissenting,  are  opposed  to  the  dissolution  of  the  same;  that 
by  the  dissolution  children  of  the  district  will  be  seriously  inconvenienced,  and 
compelled  to  travel  a  long  distance  to  attend  school,  and  in  parts  of  the  year  will 
be  unable  to  attend  school ;  tb.at  a  good  school  has  been  maintained  in  the  dis- 
trict for  many  years  and  has  been  well  attended  by  the  children  of  the  district; 
that  the  trustee  who  consented  to  the  dissolution  is  a  taxpayer  in  the  district, 
but  has  no  children  of  school  age. 

From  the  answer  interposed  by  the  respondent,  it  appears  that  at  the  time 
^he  obtained  the  consent  of  the  trustee  and  at  the  time  of  the  making  of  the 
order,  she  was  not  aware  that  the  district  was  composed  of  parts  of  the  town  of 
Orwell  as  well  as  of  Albion,  and  the  only  grounds  stated  in  support  of  the  order 
are  that  the  district  is  a  small  one,  and  the  value  of  taxable  property  very  light, 
and  consequently  the  tax  for  maintenance  of  the  school,  burdensome  upon  the 
people  of  the  district ;  that  the  order  was  made  after  consultation  with  a  number 
of  prominent  disinterested  business  men  of  the  town  of  Albion. 

I  have  considered  this  case  with  a  great  deal  of  care,  and  would  like  to  see 
my  way  clear  to  sustain  the  commissioner,  but  it  appears  to  me  that  the  com- 


JUDICIAL   decisions:    school   districts  —  DISSOLUTIOxN  743 

missioner  did  not  fully  understand  the  feeling  of  the  people  of  the  district,  and 
was,  as  is  admitted  by  the  answer,  unaware  that  the  district  included  a  portion 
of  the  town  of  Orwell,  and  the  order  so  indicates,  for  it  is  entitled  "  in  the  mat- 
ter of  the  dissolution  of  school  district  no.  14  of  the  town  of  Albion,  county  of 
Oswego  " ;  and  so  recited  in  the  body  of  the  order. 

It  is  not  claimed  by  the  respondent  that  the  district  has  not  maintained  a 
satisfactory  school,  and  it  appears  by  the  pleadings  of  the  respondent  that  the 
taxpayers,  with  the  exception  of  two,  do  not  complain  or  object  to  the  burden 
which  the  maintenance  of  a  school  entails  upon  them.  The  inhabitants  of  the 
district  seem  to  prefer  the  accommodation  which  a  separate  district  and  school 
affords  them  to  a  possible  reduction  of  taxation  which  annexation  to  other  dis- 
tricts might  secure  them. 

The  order  of  the  commissioner,  which  was  filed  in  the  office  of  the  town 
clerk  on  the  13th  day  of  October  1888,  is  overruled.    . 

The  appeal  is  sustained. 


50^3 

In  the  matter  of  the  appeal  of  Robert  A.  Barton  and  others  v.  Everett  A. 
Chick  as  school  commissioner,  third  commissioner  district  of  Jefferson 
county. 

Under  the  provisions  of  the  Consolidated  School  Law  a  joint  school  district  is  one  that 
lies  in  two  or  more  commissioner  districts.  In  the  alteration  or  dissolution  of  a  joint 
school  district  the  commissioners  of  such  district  or  a  majority  of  them  must  act.  In 
the  dissolution  of  a  joint  district  without  the  consent  of  the  trustees,  the  supervisor 
and  town  clerk  of  each  of  the  towns  in  which  the  district  is  situated  must  have  notice 
of  the  time  and  place  appointed  by  the  commissioners  to  hear  objections,  ami  have  the 
right  to  act  with  the  commissioners  in  the  decision  of  the  matter. 

Decided  February  24,   1903 

Breen  &  Breen,  attorneys  for  appellants 
George  H.  Cobb,  attorney  for  respondent 

Skinner,  Superintendent 

This  is  an  appeal  from  the  action  of  a  local  board,  consisting  of  Comtiiis- 
sioner  Chick,  the  supervisor  and  the  town  clerk  of  the  town  of  Brownville. 
Jefferson  county,  held  September  15,  1902,  in  the  village  of  Glen  Park,  in  refus- 
ing to  confirm  an  order  made  by  Commissioner  Chick  July  21,  1902,  to  take 
effect  November  i,  1902,  altering  the  boundaries  of  union  free  school  district  i. 
Brownville  and  Pamelia,  Jefferson  county,  in  taking  from  such  district  all  the 
territory  therein,  situated  in  the  village  of  Glen  Park,  and  also  all  the  territory 
lying  north  and  northeasterly  of  said  village,  and  forming  a  new  school  district 
to  consist  of  such  territory  so  taken  from  such  union  free  school  district  i,  to 
be"  known  as  school  district  20.  Brownville,  Jeflfcrson  county.  Commissioner 
Chick  filed  an  answer  to  the  appeal,  and  the  board  of  education  of  such  school 


744  THE    UNIVERSITY    OF   THE   STATE   OF   NEW    YORK 

district,  excepting  trustee  Theron  B.  Hr.bbard,  filed  a  separate  answer.  Edward 
MofFatt,  supervisor,  and  Edward  Everett,  clerk  of  the  town  of  Brownville,  have 
each  filed  a  separate  answer  to  the  appeal. 

The  following  facts  are  established : 

Union  free  school  district  i,  Brownville  and  Pamelia,  consists  of  lands 
situated  in  each  of  said  towns,  in  the  county  of  Jefferson,  and  the  villages  of 
Brownville  and  Glen  Park,  form  a  part  of  said  district.  The  town  of  Pamelia 
is  within  the  first  commissioner  district  of  Jefferson  county,  and  for  the  year 
1902  E.  N.  McKinley  of  Adams,  was  school  commissioner  of  such  commis- 
sioner district.  The  town  of  Brownville  is  within  the  third  school  commissioner 
district  of  said  county,  and  in  the  year  1902  Everett  A.  Chick  was  the  school 
commissioner  of  such  district. 

On  or  about  May  10,  1902,  a  large  number  of  the  residents  of  the  village  of 
<  ilen  Park  presented  to  School  Commissioner  Chick  a  petition  requesting  him 
to  alter  the  boundaries  of  union  free  school  district  i,  Brownville  and  Pamelia, 
by  setting  oft'  from  such  district  the  territory  lying  within  the  village  of  Glen 
Park,  and  forming  a  new  school  district,  the  boundary  lines  of  vvhich  should 
correspond  to  those  of  said  village  of  Glen  Park.  July  21,  1902,  Commissioner 
Chick  made  an  order  transferring  from  said  district  i  all  that  part  of  such  dis- 
trict then  included  within  the  corporate  limits  of  the  village  of  Glen  Park,  and 
also  all  of  the  territory  of  the  district  lying  north,  northeasterly  and  easterly 
of  such  village,  then  forming  said  district  i,  and  from  such  territory  so  trans- 
ferred forming  a  new  school  district  to  be  known  as  district  20,  Brownville, 
Jefferson  county;  but  in  all  other  respects  the  boundaries  of  said  district  i  of 
Brownville  were  to  remain  the  same  as  prior  to  such  order.  The  trustees  of 
school  district  i,  not  having  consented  to  such  alteration,  said  order  was  not  to 
take  effect  until  November  i,  1902.  July  22,  1902,  such  order  was  filed  in  the 
office  of  the  clerk  of  the  town  of  Brownville,  and  a  copy  was  served  upon  the 
trustees  of  such  district  i,  with  a  notice  signed  by  Commissioner  Chick,  that  on 
September  15.  1902,  at  10  o'clock  a.  m..  he  would  attend  at  the  school  building 
in  the  village  of  Glen  Park  and  hear  objections  to  such  order  and  the  proposed 
alterations,  and  that  such  trustees  would  request  the  supervisor  and  town  clerk 
of  the  towns  within  which  their  district  lay  to  be  associated  with  him,  at  such 
time  and  place  for  the  purpose  of  confirming  or  vacating  such  order.  Septem- 
ber 15,  1902,  at  10  o'clock  at  the  school  building  in  the  village  of  Glen  Park, 
there  were  present.  Commissioner  Chick,  Supervisor  Moffat,  and  Town  Clerk 
Everett,  of  the  town  of  Brownville,  I.  R.  Breen,  counsel  for  the  petitioners,  and 
George  H.  Cobb,  counsel  for  the  board  of  trustees  of  district  i,  and  after  hear- 
ing the  parties  for  and  against  the  order  made  by  Commissioner  Chick  of  July 
21,  1902,  due  deliberation  being  had,  said  local  board,  by  a  vote  of  two  to  one, 
vacated  said  order  of  Commissioner  Chick  of  July  21,  1902,  and  thereupon  an 
order  vacating  such  order  of  July  21,  1902,  was  made  and  signed  by  said  com- 
missioner and  the  supervisor  and  town  clerk  of  the  town  of  Brownville. 


JUDICIAL   decisions:    school   districts  —  DISSOLUTION  745 

Under  the  provisions  of  title  6,  of  the  ConsoUdated  School  Law  of  1894, 
and  the  acts  amendatory  thereof,  it  is  the  duty  of  each  school  commissioner,  in 
respect  to  the  territory  within  his  district,  to  divide  it,  so  far  as  practicable,  into 
a  convenient  number  of  school  districts,  and  alter  the  same  as  therein  provided. 
In  conjunction  with  the  commissioner  or  commissioners  of  an  adjoining  school 
commissioner  district  or  districts,  to  set  off  joint  districts  composed  of  adjoin- 
ing parts  of  their  respective  districts,  and  separately  to  institute  proceedings  to 
alter  the  same  in  respect  to  territory  within  his  own  district. 

Under  title  6  of  the  Consolidated  School  Law,  a  school  district  which  lies 
in  two  or  more  commissioner  districts  is  a  joint  district.  Whenever  it  may  be 
necessary  or  convenient  to  form  a  school  district  out  of  parcels  of  two  or  more 
school  commissioner  districts,  the  commissioners  of  such  districts,  or  a  majority 
of  them,  may  form  such  district;  and  the  commissioners  within  whose  districts, 
any  such  school  district  lies,  or  a  majority  of  them,  may  alter  or  dissolve  it. 

Commissioner  Chick,  under  subdivision  2,  section  i,  title  6  of  the  Con- 
solidated School  Law  of  1894,  as  amended  by  section  i,  chapter  227,  of  the 
Laws  of  1895,  had  authority  separately  to  institute  proceedings  to  alter  the  same 
in  respect  to  the  territory  (that  is,  of  the  joint  district)  ivithin  his  ozvn  district. 
The  preliminary  order  in  this  proceeding  should  have  been  made  by  Commis- 
sioners Chick  and  McKinley,  and  the  board  of  education  of  district  i  notified 
that  it  could  request  the  supervisor  and  town  clerk  of  the  town  of  Pamelia,  a^ 
well  as  the  supervisor  and  town  clerk  of  the  town  of  Brownville,  to  be  associated 
with  such  commissioners  in  affirming  or  vacating  such  preliminary  order. 

Assuming,  for  the  purposes  of  argument  only,  that  Commissioner  Chick  had 
authority  to  make  the  order  of  July  21,  1902,  the  order  is  defective  upon  its 
face  in  not  describing  the  territory  affected  by  metes  and  bounds. 

I  decide  that  the  action  taken  by  the  local  board,  September  15,  1902,  in 
vacating  the  order  of  Commissioner  Chick,  dated  July  21,  1902,  is  approved, 
and  the  appeal  herein  shruld  be  dismissed. 

The  appeal  herein  is  dismissed. 


SCHOOL  DISTRICTS  — ORGANIZATION 

The  inhabitants  of  joint  school  district  no.   13  in  the  towns  of  Rome  and  Lee 
V.  the  commissioners  of  common  schools  of  said  towns. 

If  a  school  district  has  been  recognized  as  legal  for  a  length  of  time,  regularity  in  its 
organization  will  be  presumed  in  the  absence  uf  the  proper  record,  and  the  commis- 
sioners of  common  schools  can  not  form  the  district  anew  and  order  an  election  of 
ollicers  under  such  circumstances, 

The  facts  of  this  case  are  staled  in  the  Superintendent's  order. 

Decided  December  13,  1834 

Dix,  Superintendent 

On  the  1st  day  of  October  last  the  annual  meeting  was  held  in  joint  school 
district  no.  13.  in  the  towns  of  Rome  and  Lee,  and  officers  were  chosen  for  the 
ensuing  year.  To  the  regularity  of  the  proceedings,  exceptions  were  taken,  and 
an  appeal  was  presented  to  the  commissioners  of  common  schools  of  the  two 
towns,  who  met  and  decided  that  they  had  no  power  to  entertain  the  appeal. 
On  examination  of  the  records  of  the  towns,  it  appeared  that  district  no.  13 
was  not  recorded,  with  a  proper  designation  of  boundaries,  in  either;  whereupon 
the  commissioners  proceeded  on  the  1st  day  of  November  (that  day  having  been 
previously  appointed  for  the  purpose)  to  form  a  new  district  by  making  addi- 
tions to  the  district  in  question,  and  by  making  a  specification  of  its  boundaries. 
The  district  wa.«;  then  put  on  record  in  both  towns,  and  a  meeting  was  called  in 
pursuance  of  tlu-  provisions  of  section  55,  page  477,  i  R.  S.  to  choose  district 
officers.  The  meeting  was  held  on  the  12th  of  November,  and  district  officers 
were  chosen.  To  this  proceeding  exception  is  taken  by  the  officers  elected  at 
the  annual  meeting  on  the  ist  of  October. 

By  an  examination  of  the  reports  made  by  the  commissioners  of  common 
schools  of  the  towns  of  Rome  and  Lee,  in  the  office  of  the  Superintendent,  it 
appears  that  joint  district  no.  13  has  been  regularly  returned  by  the  commis- 
sioners of  those  towns  since  the  year  1822  as  an  organized  district,  lying  i)artlv 
in  both  towns,  and  that  the  public  money  has  been  apportioned  to  it  according 
to  law.  A  recognition  of  the  district  for  so  long  a  period  can  not  with  propriety 
be  disregarded  in  consequence  of  a  failure  on  the  part  of  the  proper  officers 
to  have  it  recorded.  It  was  the  duty  of  the  commissioners,  on  being  apprized 
of  the  fact,  to  meet  together  and  declare  the  boundaries  with  a  view  to  have 
them  made  a  matter  of  record:  but  it  can  not  be  admitted  for  a  moment,  that 
the  omission  of  the  proper  officers  to  comply  with  provisions  of  law,  which  are 
merely  directory,  is  to  vacate  proceedings  regularly  conducted  by  the  competent 
authority.  It  is  true  it  does  not  appear,  by  the  records,  that  the  district  was 
ever  regularly  organized  in  the  manner  prescribed  by  law;  but  notwithstanding 

[746] 


JUDICIAL   decisions:    school   districts  —  ORGANIZATION  747 

the  statement  given  by  the  commissioners  with  regard  to  certain  proceedings  in 
both  towns  in  setting  off  a  part  of  each  to  the  other,  the  Superintendent  can  not 
now  permit  the  original  formation  of  the  district  to  be  inquired  into  for  the 
purpose  of  invalidating  any  thing  that  has  been  done  within  it  since  its  organiza- 
tion. After  the  lapse  of  twelve  years,  during  which  the  district  has  been 
returned  by  the  commissioners  of  both  towns  to  the  Superintendent  of  Common 
Schools,  and  has  complied  with  the  directions  of  the  statute  so  as  to  become 
entitled  to  the  public  money,  regularity  in  its  organization  will  be  presumed ; 
and  the  commissioners  will  be  so  far  bound  by  the  reports  of  their  predecessors 
that  they  will  not  be  allowed  to  impeach  the  accuracy  of  those  reports.  It  has 
been  repeatedly  decided  that  a  district,  which  has  been  for  a  series  of  years 
recognized  as  valid,  is  to  be  regarded  as  such,  although  no  record  of  it  can 
be  found ;  and  in  such  cases  the  commissioners  have  been  directed,  whenever 
the  interposition  of  the  Superintendent  of  Common  Schools  has  been  required, 
to  meet  and  declare  the  boundaries  of  the  district,  and  put  them  on  record.  In 
this  case  the  commissioners  have  overstepped  the  limits  of  their  authority,  by 
treating  the  district  as  null,  and  ordering  an  election  after  forming  it  anew. 
They  had  power  to  annul  tlie  district ;  but  without  doing  so  in  a  formal  manner, 
it  could  not  be  reorganized  and  treated  as  a  new  district.  They  could  not  give 
the  notice  provided  for  in  section  55  before  referred  to,  because  it  was  not  a  new 
district;  nor  could  they  issue  a  notice  under  the  provisions  of  section  57  (same 
page)  because  neither  of  the  contingencies,  on  which  the  right  to  issue  such  a 
notice  is  dependent,  had  occurred.  It  is  alleged  that  several  of  the  appellants, 
who  were  the  officers  chosen  on  the  ist  of  October,  were  present  and  acquiesced 
in  the  proceedings  of  the  commissioners.  Admitting  the  fact,  the  difficulty  still 
remains.  There  was  a  want  of  jurisdiction,  so  far  as  the  order  for  a  new  elec- 
tion is  concerned,  and  their  consent  could  not  give  jurisdiction.  They  might 
have  resigned,  but  could  not  by  their  consent  give  validity  to  any  act  on  the 
part  of  the  commissioners,  not  authorized  by  express  provisions  of  law,  which 
would  abridge  the  period  of  their  election  to  office.  Notwithstanding  the  error 
of  the  commissioners,  the  Superintendent  is  well  satisfied  that  they  intended  tu 
act  for  the  best  good  of  the  district,  and  without  any  doubt  as  to  the  extent  of 
their  powers. 

It  is  hereby  ordered,  that  so  much  of  the  proceedings  of  the  commissioner^ 
aforesaid  on  the  ist  of  November  last,  as  relates  to  the  boundaries  of  district 
no.  13  in  Rome  and  Lee,  be  confirmed,  and  that  said  boundaries  be  continued 
as  established  bv  them  on  that  day.  And  it  is  hereby  declared,  that  the  proceed- 
ings of  the  meeting  in  said  district  on  the  12th  of  November,  held  in  pursuance 
of  the  order  of  the  commissioners,  are  null  and  void;  and  that  the  persons 
chosen  on  the  ist  of  October  last  are  and  will  continue  to  be  the  officers  of  said 
district  until  the  next  annual  meeting,  or  until  vacancies  occur. 


"48  THE   UNIVERSITY   OF  THE   STATE   OF   NEW    YORK 

4166 

In  the  matter  of  the  appeal  of  John  France  v.  T.  E.  Finegan,  school  commis- 
sioner, second  commissioner  district,  Schoharie  county. 

In  the  formation  of  school  districts  this  Department  will  not  interfere  with  the  discretion 
which  the  law  reposes  in  the  school  commissioner  where  the  convenience  of  individuals 
alone  is  afifected  and  where  no  material  interest  of  such  individual  or  of  the  district  is 
involved.  A  merely  factious  opposition,  founded  on  selfishness  or  feeling,  or  wilful- 
ness or  fancied  illusion,  can  not  be  successfully  urged  to  defeat  any  public  purpose 
good  and  desirable  in  itself. 

Decided  March  2,  1893 

Hon.  John  S.  Pindar,  attorney  for  appellant 
Hon.  George  M.  Paliner,  attorney  for  respondent 

Crooker,  Superintendent 

On  August  27,  1892,  by  the  joint  action  and  order  of  Commissioner 
Finegan,  school  commissioner  of  the  second  commissioner  district  of  Schoharie 
county,  and  Commissioner  Cary,  school  commissioner  of  the  first  commissioner 
district  of  Otsego  county,  which  order  was  duly  filed  in  the  office  of  the  town 
clerk  of  the  town  of  Seward,  Schoharie  county,  a  new  school  district  was 
formed  and  erected  in  said  town  and  designated  as  no.  10,  town  of  Seward. 
The  territory  comprising  said  new  district  was  described  in  said  order  and 
consisted  of  parts  of  school  district  no.  14,  of  the  town  of  Sharon;  no.  6,  of 
the  town  of  Seward;  no.  2,  of  the  town  of  Seward,  all  in  the  county  of 
Schoharie,  and  joint  district  no.  7,  towns  of  Seward  and  Decatur,  in  the  counties 
of  Schoharie  and  Otsego.  The  trustees  of  the  districts  hereinbefore  stated 
respectively  consented  in  writing  to  the  formation  of  said  new  district.  That 
the  order  and  survey  of  lands  comprising  said  new  district  contained  and 
embraced  within  its  boundaries  the  residence  and  a  large  portion  of  the  lands 
of  John  France,  the  appellant  herein.  That  on  August  29,  1892,  Commissioner 
Finegan  issued  and  delivered  to  one  Eckerson  a  notice  for  the  first  meeting  of 
the  qualified  voters  of  said  new  district,  to  be  held  at  the  house  of  one  Eldridge, 
on  September  8,  it'92,  at  7.30  p.  m.,  for  the  purpose  of  electing  officers  of  said 
new  district,  etc.  That  said  notice  contained  a  true  description  and  boundaries 
of  said  new  district,  and  was  duly  served  by  said  Eckerson  upon  the  appellant 
by  reading  the  said  notice  to  said  appellant.  That  said  appellant  attended  said 
district  meeting  on  September  8,  1892.  That  on  October  20,  1892,  the  trustee 
of  said  new  school  district  no.  10  informed  the  appellant  that  the  lands  of  the 
appellant  were  included  in  said  new  district.  That  on  or  about  November  30, 
1892,  the  appellant  brought  this  appeal  from  the  order  of  the  said  school  com- 
missioners forming  said  new  district. 

The  appellant  claims,  as  the  principal  ground  of  appeal,  that  he  has  one 
child  of  school  age,  and  that  such  child  can  not  attend  the  school  in  said  new 
district  without  traveling  more  than  two  miles,  and  more  than  double  the  dis- 
tance that  would  be  required  to  attend  the  school  in  district  no.  7,  in  which 
district  appellant  formerly  belonged. 


JUDICIAL   decisions:    school    districts  —  ORGANIZATION  749 

It  appears  from  the  papers  filed  in  this  appeal  that  said  district  no.  lo, 
prior  to  the  appeal  herein,  had  purchased  a  site  and  erected  a  new  schoolhouse 
thereon,  at  a  cost  of  $iioo,  of  which  sum  $500  was  assessed  and  collected. 
That  said  schoolhouse  is  situate  within  about  twenty  rods  of  the  railroad  depot 
at  Seward,  and  near  the  Lutheran  church.  That  by  the  public  highway  the 
distance  from  the  house  of  appellant  to  said  schoolhouse  in  district  no.  10  is 
only  about  a  quarter  of  a  mile  further  than  to  the  schoolhouse  in  said  district 
no.  7.  That  the  lands  of  one  Gilbert  France,  at  the  time  when  the  said  order 
forming  said  district  no.  10  was  made  and  said  district  erected,  adjoined  the 
land  of  appellant,  and  extended  from  said  lands  of  appellant  to  the  aforesaid 
railroad  station  and  church  and  the  site  of  the  new  schoolhouse.  That  between 
the  dwelling-house  of  appellant  and  the  said  railroad  station,  church  and  site  of 
the  present  schoolhouse,  there  was  at  the  time  of  the  formation  of  said  new 
school  district,  and  had  been  for  some  time  previous  thereto,  a  beaten  traveled 
track  and  road  on  which  the  appellant  and  the  public  traveled  on  foot  and 
with  teams.  That  on  said  road  bridges  have  been  built,  and  appellant  has 
worked  upon  said  road  and  assisted  in  building  the  said  bridges.  That  said 
road  is  partly  upon  the  land  of  said  appellant  and  partly  on  the  land  of  Gilbert 
G.  France,  and  extends  in  a  direct  line  from  the  residence  of  the  appellant  to 
what  is  now  the  site  of  the  new  schoolhouse ;  the  distance  between  the  said  two 
points  being  about  half  a  mile.  That  prior  to  the  formation  of  said  new  school 
district  said  road  was  the  one  used  by  the  appellant  in  going  to  the  railroad 
station,  church  etc.  That  on  December  21,  1892,  said  Gilbert  G.  France  made 
and  acknowledged  a  deed  to  the  appellant  conveying  to  him  and  his  assigns 
forever,  a  right  of  way  over  said  lands  traveled  as  aforesaid  as  a  road,  and  to 
his  servants  and  tenants,  at  all  times,  freely  to  pass  and  repass  on  foot  and 
with  horses,  etc.,  carts,  wagons,  vehicles  etc.,  subject  to  the  rights  of  the  public 
to  use  said  way,  and  of  the  said  Gilbert  G.  France,  or  his  heirs  or  assigns,  to 
use  the  same  in  common  with  the  appellant,  his  heirs  or  assigns:  and  subject 
to  the  rights  of  said  Gilbert  G.  France,  his  heirs  or  assigns,  to  dispose  of  the 
same  to  the  public  for  a  public  road  or  highway.  That  said  Gilbert  G.  France, 
by  one  Eldredge.  his  agent,  tendered  said  deed  to  the  appellant  who  refused  to 
accept  it,  and  thereafter  the  said  Eldredge,  as  such  agent,  as  aforesaid,  in  the 
presence  and  hearing  of  the  appellant,  placed  said  deed  in  the  hands  of  one 
Arthur  Fox,  for  the  appellant,  stating  to  the  appellant  that  he  could  get  said 
deed  from  said  Fox  at  any  time. 

The  appellant  alleges  that  he  can  not  get  to  the  aforesaid  road  on  the  lands 
of  Gilbert  G.  France  without  crossing  the  lands  of  one  Mereness,  and  that  the 
wagon  track  from  appellant's  house  over  the  lands  of  Mereness  to  the  lands 
of  France  has  been  closed  up  with  bars  or  fences  nailed  up.  It  is  alleged  by 
the  respondent,  and  not  denied  by  the  appellant,  that  said  Mereness  is  a  young 
man  about  22  years  of  age,  and  the  son-in-law  of  the  appellant ;  that  the  record 
in  the  office  of  the  clerk  of  Schoharie  county,  made  as  late  as  February  2, 
1893,  fails  to  show  any  conveyance  of  any  land  to  said  Mereness ;  that  if  said 


750  THE   UXIVEKSITY    OF   THE   STATE   OF   NEW    YORK 

Mereness  owns  any  land,  as  stated  by  appellant,  his  right  to  the  same  is  derived 
from  appellant,  and  that  the  same  has  not  been  made  in  good  faith,  but  only 
temporarily,  and  for  purposes  of  this  appeal,  and  such  transactions,  in  reference 
thereto,  if  any,  have  been  made  since  the  formation  of  said  new  school  district, 
and  the  commencement  of  this  appeal. 

The  appeal  herein  must  be  decided  upon  the  situation  and  condition  of 
matters  in  said  district,  when  the  order  forming  and  erecting  said  district  was 
made. 

It  also  affirmatively  appears  that  the  assessed  valuation  of  school  district 
no.  lo,  is  $48,810,  and  that  of  school  district  no.  7,  is  $79,561. 

In  my  opinion,  the  commissioners,  in  making  the  order  and  forming  said 
school  district  no.  10,  town  of  Seward,  having  received  the  written  assent  of  all 
the  trustees  of  the  school  districts  to  be  affected,  had  jurisdiction,  and  that  they 
exercised  proper  judgment  and  discretion  in  their  action  therein. 

The  appellant  is  bound  to  sustain  his  appeal  by  a  preponderance  of  proof, 
and  in  this  he  has  failed.  The  appellant  has  failed  to  show  that  any  material 
interest  of  his  or  of  the  district  is  involved  by  the  action  of  the  said  com- 
missioners. This  Department  has  held  that  it  will  not  interfere  with  the  discre- 
tion which  the  law  reposes  in  the  commissioners,  where  the  convenience  of  indi- 
viduals alone  is  affected,  and  where  no  material  interest  of  such  individual  or 
of  the  district  is  involved. 

While  individual  opposition  to  measures  of  public  utility  should  be  duly 
considered,  that  opposition  should  be  allowed  to  have  weight  only  as  it  has  a 
substantial  foundation  in  reason  and  justice.  A  merely  factious  opposition, 
founded  on  selfishness  or  feeling  or  wilfulness,  or  fancied  illusion,  can  not  be 
successfully  urged  to  defeat  any  public  purpose,  good  and  desirable  in  itself. 

The  appeal  herein  is  dismissed,  and  the  order  of  said  commissioners  of 
August  23,  1892,  forming  and  erecting  school  district  no.  10,  town  of  Seward, 
Schoharie  county,  is  confirmed. 


3517 

Asa  Bishop  from  an  order  of  Leonard  Davis,  school  commissioner  of  the  third 

commissioner  district  of  Ulster  county,  New  York,  filed  April  14,  1886. 

Formation  of  weak  school  districts  will  not  be  upheld  when  it  is  made  to  appear  that  the 

best  interests  of  education   do  not  warrant  it. 
Decided  November  16,   1886 

Draper,  Superintendent 

This  is  a  proceeding  by  Asa  Bishop,  a  taxable  inhabitant  and  legal  voter 
of  school  district  no.  9,  in  the  town  of  Olive,  in  the  county  of  Ulster,  appealing 
from  an  order  of  Leonard  Davis,  school  commissioner  of  the  third  commissioner 
district  of  Ulster  county,  forming  a  new  school  district  in  the  town  of  Olive, 
in  said  county,  and  altering  school  districts  nos.  6,  8  and  9  in  said  town. 


JUDICIAL  decisions:    school   districts  —  ORGANIZATION  75I 

The  grounds  of  the  appeal  are: 

1  That  the  formation  of  the  new  district  is  not  desired  by  the  majority 
of  the  inhabitants  and  taxpayers  who  are  inckided  in  the  new  district. 

2  That  the  districts  from  which  the  territory  and  taxpayers  have  been  taken 
to  form  the  new  district  are  not  sufficiently  strong  to  sustain  such  loss  without 
consequent  injury  to  the  school  interests  in  those  districts. 

3  That  when  the  commissioner  granted  the  said  order  he  was  misinformed 
as  to  the  wishes  of  the  voters  of  the  districts. 

4  That  the  consent  of  the  trustees  of  school  district  no.  8  was  obtained 
by  misrepresentation. 

5  That  school  district  no.  8  has  been  recently  provided  with  a  new  school- 
house,  and  the  district  taxed  therefor,  and  the  taxpayers  of  district  no.  8  who 
are  included  in  the  new  district  object  to  being  included  and  compelled  to  again 
contribute  toward  the  building  of  a  new  schoolhouse. 

An  answer  has  been  duly  served  which  controverts  certain  allegations  of 
the  petition  on  appeal. 

But  from  all  the  proofs  presented  I  am  led  to  believe  that  at  best  but  a 
weak  school  district  has  been  formed  by  the  order  appealed  from,  and  that 
the  best  interests  of  the  people  would  not  be  subserved  by  weakening  dis- 
tricts nos.  6,  8  and  9  both  in  taxable  property  and  the  number  of  school  chil- 
dren as  the  order  in  question  does. 

I  sustain  the  appeal,  and  overrule  the  order  of  School  Commissioner 
Leonard  Davis  filed  on  or  about  April  14,  1886. 


4248 

In   the  matter  of  the  appeal   of   Eustace  H.  Wheeler,  John  H.   Hautsch   and 
Elnathan   Eldert,  trustees  of   school  district  no.    13,   town   of   Hempstead, 
Queens  county,  v.  John  B.  Merrill,  school  commissioner,  second  commis- 
sioner district,  Queens  county. 
Where  an  order  is  made  by  a  school  commissioner  for  the  formation  of  a  new  school  dis- 
trict from  portions  of  the  territory  of  two  other  school  districts,  and  it  appears    upon 
an  appeal  being  taken  from  the  order,  that  the  formation  of  the  new  district  would  not 
promote  the  best  educational  interests  of  the  districts  affected;  that  undue  discrimina- 
tion has  been  made  against  one  of  the  districts  affected;  that  one  of  the  districts  would 
be  crippled  financially  and  the  pupils  in  another  district  be  required  to  travel  a  longer 
distance  to  attend  school,  or  their  school  privileges  be  diminished,   the  order  ot  the 
commissioner  should  be  vacated  and  set  aside. 
Decided  May  21,  1894 

John  Lyon,  attorney  for  appellants 

Thomas  B.  Seamans,  attorney  for  respondent 

Grooker,  Superintendent  .  ,  ,.    •  j 

•  The  appeal  in  the  above-entitled  matter  is  taken  from  the  prehmmary  order 
of  the  respondent  herein,  bearing  date  July  20,   1893,  which  order  was  made 


752  THE    LTXIVERSITY    OF   THE   STATE   OF   NEW    YORK 

without  the  consent  of  the  appellants,  and  was  filed  in  the  office  of  the  town 
clerk  of  the  town  of  Hempstead,  forming  a  new  school  district,  to  be  known 
as  district  no.  24,  town  of  Hempstead,  from  a  portion  of  the  territory  forming 
district  no.  14,  and  a  portion  of  the  territory  forming  district  no.  13,  both  of 
the  town  of  Henijistead,  of  which  latter  district  the  appellants  are  the  trustees, 
said  order  to  take  effect  on  October  25,  1893;  and  from  the  order  of  the  local 
board,  confirmatory  of  said  order  of  July  20,  1893,  which  confirmatory  order 
was  filed  in  the  office  of  said  town  clerk  on  September  21,  1893. 

An  answer  to  the  appeal  has  been  interposed  by  the  respondent.  The  main 
objection  of  the  appellants  to  the  orders  appealed  from  is  that  it  included 
within  said  new  district  no.  24,  a  strip  of  land  800  feet  in  width,  from  said 
district  no.  13,  lying  northerly  of  and  adjoining  the  Merrick  and  Jamaica 
plank  road. 

The  papers  and  proofs  filed  in  this  appeal  show  that  prior  to  the  date 
of  said  preliminary  order  of  the  respondent  there  were  two  school  districts  in 
the  town  of  Hempstead  with  well-defined  boundaries,  said  districts  adjoining 
each  other,  and  the  territory  of  both  districts  being  divided  very  nearly  equally  by 
the  Southern  Railroad  of  Long  Island;  that  the  greater  portion  of  district  no. 
14  laid  to  the  south,  and  all  of  district  no.  13  laid  to  the  north  of  said  rail- 
road ;  that  the  aggregate  value  of  the  taxable  property  in  said  district  no.  14 
was  $251,300;  that  there  were  two  schoolhouses  in  said  district,  one  of  which 
was  built  about  five  years  ago  and  was  used  for  a  branch  school,  capable  of 
accommodating  about  thirty-six  pupils  and  was  located  near  the  railroad  station 
at  what  is  known  as  Valley  Stream;  that  the  number  of  children  of  school  age 
in  said  district  was  about  300;  that  the  trustees  of  said  district  consented  that 
the  northern  portion  of  said  district  be  taken  to  form  the  new  district;  that  the 
Stog^'egate  value  of  the  taxable  property  in  district  no.  13  was  $112,360;  that 
it  had  one  schoolhouse  centrally  located  in  which  two  teachers  were  employed, 
the  principal  being  a  normal  school  graduate;  that  the  total  number  of  chil- 
dren of  school  age  residing  in  the  district  was  214,  of  which  135  attended  at 
some  portion  of  the  last  year,  and  that  the  average  daily  attendance  the  last 
year  was  56;  that  the  trustees  of  said  district  refused  to  consent  that  the  strip 
of  land  in  said  district,  800  feet  in  width,  lying  north  of  the  Merrick  road,  be 
taken  to  form  the  new  district,  but  did  consent  that  the  portion  of  such  district 
between  said  Merrick  road  and  the  south  line  of  the  district  might  be  taken; 
that  the  inhabitants  of  said  district  no.  13  are  principally  engaged  in  farming; 
that  the  tax  rate  in  said  district  the  last  school  year  was  eight  mills  on  the 
dollar. 

That  upon  the  petition  of  certain  persons  and  the  consent  of  the  sole 
trustee  of  said  district  no.  14,  the  respondent  herein  made,  on  July  20,  1893, 
his  order,  forming  said  new  school  district  to  be  known  as  district  no.  24;  that 
the  trustees  of  said  district  no.  13  having  refused  their  consent  to  the  alteration 
of  said  school  district  in  the  formation  of  said  new  district,  a  hearing  was  had 


\ 


JUDICIAL   DECISIONS:    SCHOOL    DISTRICTS ORGANIZATION  753 

by  the  respondent,  the  supervisor  and  town  clerk  of  the  town  of  Hempstead, 
at  the  request  of  the  trustee  of  district  no.  14,  being  associated  with  the  respond- 
ent; that  after  hearing  the  parties  said  local  board  made  its  order,  confirming 
said  preliminary  order  of  respondent. 

That  it  was  shown  upon  said  hearing  that  the  aggregate  assessed  valuation 
of  the  portion  of  district  no.  14  taken  to  form  the  new  district  is  $71,400,  and 
the  aggregate  assessed  valuation  of  the  property  left  in  said  district  is  $179,900: 
that  the  aggregate  assessed  valuation  of  the  portion  of  district  no.  13  taken 
to  form  said  new  district  is  $36,780,  and  the  aggregate  assessed  valuation  of 
the  property  left  in  said  district  is  $75,600;  that  the  aggregate  valuation  of 
that  portion  of  district  no.  13  taken,  lying  north  of  the  Merrick  road,  is  $16,530, 
and  of  that  lying  south  of  the  Merrick  road  is  $20,250;  that  if  the  Merrick 
road  was  made  the  northerly  line  of  the  new  district  the  aggregate  assessed 
valuation  of  property  in  district  no.  13  would  be  $92,100;  that  the  aggregate 
assessed  valuation  of  the  property  included  in  said  new  district  no.  24  is 
$108,180,  and  $22,530  greater  than  the  aggregate  assessed  valuation  in  said 
district  no.  13;  that  if  the  portion  of  land  north  of  the  Merrick  road  should 
remain  in  district  no  13,  the  aggregate  assessed  valuation  of  said  new  district 
no,  24  would  be  $91,650;  that  every  resident  and  taxpayer  residing  within  and 
upon  said  strip  of  land  800  feet  in  width,  embraced  in  the  boundaries  of  the 
new  district  have  protested  against  being  annexed  to  the  new  district,  and  that 
in  the  entire  territory  proposed  to  be  taken  from  district  no.  13,  there  were, 
only  two  persons  who  signed  the  petition  to  be  annexed  to  the  new  district, 
and  both  of  them  reside  south  of  the  Merrick  road ;  that  of  the  petitioners  for 
the  new  district,  ten  of  them  did  not,  at  the  time  of  signing  the  petition,  reside 
within  the  territory  of  the  proposed  new  district,  nor  do  any  of  them  now 
reside  therein ;  that  the  children  residing  upon  the  strip  north  of  the  Merrick 
road  are  within  a  short  distance  of  the  schoolhouse  in  district  no.  13,  and 
nearer  than  they  are  to  the  branch  school  south  of  the  railroad,  and  nearer  than 
they  will  be  to  any  schoolhouse  centrally  located  in  said  new  district;  that  no 
claim  was  made  before  the  local  board  that  the  school  in  no.  13  is  not  a  good 
school,  nor  that  the  educational  facilities  will  be  better  in  the  new  district  than 
in  district  no.  13,  nor  that  the  children  living  north  of  the  Merrick  road  will  be 
nearer  a  school ;  that  the  north  line  of  new  district  no.  24  is  not  defined  by  the 
course  of  highways,  natural  monuments  and  lot  lines,  but  is  a  line  from  a  point 
in  the  dividing  line  between  districts  nos.  13  and  16,  800  feet  north  of  the 
northerly  line  of.  the  Merrick  road,  and  running  thence  eastward  in  a  line 
parallel  with  and  north  of  the  Merrick  road  to  the  center  of  Grassy  Pond  road. 
It  also  appears  that  prior  to  the  order  of  July  1893,  within  the  territory  of  said 
new  district,  several  hundred  acres  of  farm  land  have  been  purchased  by 
different  land  companies,  and  cut  up  into  lots  and  placed  upon  the  market,  and 
prospective  purchasers  of  such  lots  objected  to  purchasing  because  of  the  want 
of  proper  school  facilities. 


754  THE   UNIVERSITY   OF  THE  STATE   OF   NEW   YORK 

In  the  formation  of  new  school  districts,  where  tiie  territory  in  existing 
school  districts  is  taken  to  form  such  new  districts,  the  object  to  be  obtained 
is  to  promote  the  best  educational  interests  of  all  the  districts  affected.  No 
undue  discrimination  should  be  made  against  any  one  of  the  districts  affected, 
nor  should  any  district  be  crippled  financially,  nor  should  the  pupils  in  any  of 
said  districts  be  required  to  travel  a  longer  distance  to  attend  school,  or  their 
school  privileges  be  diminished. 

In  taking  the  strip  of  land  800  feet  in  width  north  of  the  Merrick  road 
from  district  no.  13  in  the  formation  of  the  new  district,  an  undue  discrimina- 
tion is  made  against  said  district  13,  and  its  condition  crippled  by  reducing  the 
aggregate  assessed  valuation  in  the  sum  of  $16,530.  Adding  the  aggregate 
assessed  valuation  of  the  portion  of  said  district  lying  south  of  the  Merrick 
road  taken  to  form  the  new  district,  of  $20,250,  the  total  assessed  valuation  of 
property  taken  from  such  district  is  $36,780,  leaving  in  such  district  property 
of  aggregate  assessed  valuation  of  $75,580,  while  the  new  district  would  have 
property  of  the  aggregate  valuation  of  $108,180.  That  the  pupils  residing 
upon  said  strip  of  land  north  of  the  Merrick  road  are  now  nearer  to  a  school- 
hiouse  than  they  will  be  to  any  schoolhouse  erected  in  the  center  of  the  new 
district,  and  until  a  new  schoolhouse  shall  be  constructed  in  such  new  district, 
will  be  without  school  facilities  except  such  as  may  be  afforded  in  the  branch 
school  at  X'alley  Stream  Junction,  having  a  seating  capacity  for  about  thirty- 
six  pupils  only.  In  the  formation  of  the  new  district,  if  the  Merrick  road  had 
been  made  the  northern  boundary  thereof,  a  compact  district  of  about  450  by 
650  rods  in  extent  would  have  been  established,  which,  with  a  schoolhouse 
centrally  located,  would  afford  convenient  school  facilities  to  all  residing  within 
its  limits,  would  not  have  made  any  undue  discrimination  against  either  of  the 
districts  affected,  nor  have  seriously  crippled  district  no.  13  financially,  and 
would  have  promoted  the  best  educational  interests  of  all  the  districts  affected. 

For  the  reasons  hereinbefore  stated  I  am  of  the  opinion  that  it  was  an 
r.nwise  exercise  of  the  authority  given  to  the  respondent  herein,  in  the  forma- 
tion of  such  new  school  district,  to  include  within  the  boundaries  thereof  said 
strip  of  land  800  feet  in  width  lying  north  of  the  IMerrick  road,  and  that  the 
appeal  herein  should  be  sustained,  and  the  order  appealed  from  be  vacated  and 
.vet  aside. 

Appeal  sustained. 

It  is  ordered.  That  the  preliminary  order  dated  July  20,  1893,  made  by 
John  B.  Merrill,  school  commissioner  of  the  second  commissioner  district  of 
Queens  county,  forming  a  new  school  district  in  the  town  of  Hempstead, 
Queens  county,  to  be  known  and  numbered  no.  24  of  said  town,  and  the 
alteration  of  the  boundaries  of  school  districts  nos.  13  and  14  in  said  town;  and 
the  order  of  the  local  board  confirming  said  preliminary  order,  both  of  whicll 
orders  were  filed  in  the  office  of  the  clerk  of  the  town  of  Hempstead,  Queens 
county,  be,  and  they  hereby  are,  and  each  of  them  is,  vacated  and  set  aside. 


JUDICIAL  decisions:    school  districts  —  ORGANIZATION  /=,^ 

4014 

In  the  matter  of  the  appeal  of  F.  M.  Henry  v.  Alson  Cook,  school  commissioner 

of  the  second  commissioner  district  of  Lewis  county. 
Upon  an  appeal  from  the  refusal  of  a  school  commissioner  to  set  off  a  portion  of  a  school 

district  and  form  a  separate  district,  it  is  shown  that  the  portion  sought  to  be  detached 

contains  a  sufficient  number  of  children  to  warrant  the  maintenance  of  a  school. 
The   value   of    taxable    property    is    sufficient    to    sustain    a    school    without   the   tax    being 

burdensome.     The  trustee  of  the   district  consents  to  the  proposed  alteration,  and  no 

objection  is  made  thereto  by  any  resident  of  the  district. 
Held,  that  the  new  district  should  be  formed,  and  the  commissioner  is  directed  to  make 

the  necessary  order. 
Decided  October  12,  1891 

Draper,  Superintendent 

This  is  an  appeal  from  the  refusal  of  the  school  commissioner  to  set  off  a 
portion  of  school  district  no.  8  of  the  town  of  Lowville  in  the  county  of  Lcwi^. 
and  form  a  new  district  out  of  the  detached  portion. 

The  papers  show  that  recently  a  new  settlement  has  been  developed  in  the 
northwest  corner  of  the  district,  pursuant  to  the  efforts  of  the  Glen  Wild  Park 
Association.  It  is  shown  that  there  are  fifteen  children  of  school  age  residing 
in  the  portion  of  the  district  which  it  is  proposed  to  set  off.  The  assessable 
valuation  of  the  present  district  is  $43,865,  and  that  part  of  the  district  which  it 
is  proposed  to  set  off  has  a  valuation  of.  $12,410.  The  sole  trustee  of  district 
no.  8  consents  to  the  change ;  indeed,  he  is  the  appellant  herein.  The  school 
commissioner  makes  no  answer  to  the  appeal.  I  find  in  the  papers  only  a  note 
from  him  in  which  he  says  that  the  children  are  no  farther  from  school  than  in 
many  country  districts,  and  that  nearly  the  entire  district  opposes  the  proposed 
change,  and  that  he  thinks  yet  a  little  time  might  better  be  allowed  for  further 
development.  No  opposition  to  the  project  is  made  by  anybody  in  the  district 
so  far  as  the  papers  show.  If  the  people  who  are  directly  interested  have  the 
energy  to  urge  the  matter,  and  others  in  the  district  do  not  take  steps  to  oppose 
it,  and  if  the  trustee  chosen  by  the  district  consent  thereto,  it  would  seem  that 
the  school  commissioner  might  very  properly  accede  to  the  request  and  grant 
the  same. 

In  view  of  all  the  circumstances,  I  have  concluded  to  sustain  the  appeal,  and 
the  school  commissioner  is  directed  to  make  an  order  creating  a  new  school  dis- 
trict as  proposed. 

3S28 

In  the  matter  of  the  appeal  of  Rodolphus  Francisco.  Edwin  R.  Steenrod  and 
Marvin  Cook  v.  Sylvester  Jagger,  as  trustee  of  school  district  no.  12,  in  the 
town  of  Colchester,  Delaware  county,  and  George  D.  Chamberlin,  school 
commissioner  of  the  first  commissioner  district  of  Delaware  county. 
TRere   must  be   a   strong  case   and   overwhelming  proof    to   justify   the   Superintendent   in 
overruling  the  action  of  two  school  commissioners  in  refusing  to  sanction  the  forma- 
tion of  a  new  district  out  of  parts  of  two  school  districts  lying  in  different  counties. 
Decided  November  14,   1889 


756  THE   UNIVERSITY    OF   THE   STATE    OF    NEW    YORK 

Draper,  Sul>ivi)itciidciit 

The  appellants  desire  a  new  school  district  created  out  of  portions  of  school 
district  no.  12,  Colchester,  Delaware  county,  and  school  district  no.  i  of  Rock- 
land, Sullivan  county. 

The  trustee  of  no.  12,  Colchester,  refuses  to  consent  to  the  change.  The 
school  commissioners  in  Delaware  and  Sullivan  counties  have  met  upon  the 
ground,  investigated  and  considered  the  matter,  and  determined  that  it  was  not 
advisable  to  make  the  order,  for  the  present  at  least.  Upon  this  state  of  facts, 
the  appellants  come  to  the  Department. 

There  are  some  informalities  in  the  proceedings  of  the  appellants.  They 
have  failed  to  make  the  school  commissioner  of  Sullivan  county  a  party  to  their 
proceeding,  although  that  officer  occupies  a  position  in  the  matter  inferior  to  no 
one  else.  There  is  a  serious  question  raised  as  to  the  regularity  of  the  service 
of  the  appellants'  papers.  Notwithstanding  this,  I  have  looked  into  the  case. 
The  circumstances  would  have  to  be  extreme  and  the  proofs  overwhelming  to 
justify  the  Superintendent  in  overruling  two  school  commissioners  and  the  trus- 
tee of  one  of  the  school  districts  affected,  in  refusing  to  sanction  the  formation 
of  a  new  school  district  out  of  parts  of  two  school  districts  lying  in  different 
counties.  If  they  were  to  take  the  action,  it  would  be  in  violation  of  all  general 
principles  governing  such  matters,  and  only  because  of  a  necessity  so  urgent  as 
to  know  no  law.    The  appellants  fail  to  make  out  such  a  case. 

The  appeal  must  be  dismissed. 


3851 

S.  C.  Armstrong  and  others  v.  Loyal  L.  Davis,  as  school  commissioner  of  Warren 
county,  Charles  W.  Noble,  as  supervisor,  and  A.  R.  Noble,  as  town  clerk  of 
the  town  of  Johnsburg,  in  said  county,  and  their  successors  in  office. 
A  strong  and  clear  case  must  be  established  to  justify  the  Superintendent  in  overruling 
the  action  of  the  local  board,  in  deciding  not  to  confirm  an  order  of  a  school  com- 
missioner   forming  a  new   school   district.     The  convenience  of   some  at  the  cost  of 
inconvenience  to  others,  is  not  a  sufficient  ground. 
Decided  January  3,  1890 

Draper,  Superintendent 

It  seems  that  on  the  17th  day  of  June  1887,  the  school  commissioner  of 
Warren  county  made  an  order  organizing  a  new  school  district  to  consist  of 
parts  of  school  districts  nos.  2  and  12  in  the  town  of  Johnsburg,  and  no.  11  of 
the  town  of  Chester  in  said  county.  Consent  to  such  order  not  having  been 
obtained  from  all  of  the  trustees  of  the  territory  affected,  the  school  commis- 
sioner and  supervisor  and  town  clerk  of  the  town  of  Johnsburg  sat  to  hear 
objections  thereto,  and  decided  not  to  confirm  the  same.  From  this  action  this 
appeal  is  taken.    The  matter  has  been  under  discussion  for  a  long  time. 


JUDICIAL    decisions:    school   districts ORGANIZATION 


/O/ 


After  the  fullest  consideration  of  the  whole  subject,  I  am  of  the  opinion 
that  the  appellants  do  not  establish  a  case  which  will  justify  me  in  overruling 
the  conclusion  arrived  at  by  the  commissioner,  supervisor  and  town  clerk.  It  is 
manifest  that  there  are  some  residents  of  the  neighborhood  who  are  poorly  sup- 
plied with  school  accommodations,  and  who  would  derive  some  advantage  from 
the  proposed  change.  It  is  by  no  means  certain,  furthermore,  that,  if  the  change 
should  be  made,  some  persons  would  not  be  as  much  inconvenienced  as  others 
would  be  helped.  It  seems  to  be  simply  a  case  of  rival  claims  for  closer  access 
to  a  schoolhouse,  and  that  whatever  may  be  done  to  help  one  must  necessarily 
be  at  the  expense  of  another.  A  case  is  not  established  which  is  strong  enough 
to  justify  the  State  Department  in  overruling  the  action  of  the  local  authorities. 

The  appeal  must  be  dismissed. 


4317 

In  the  matter  of  the  appeal  of  Theodore  Kane,  trustee  of  school  district  no.  6, 
town  of  Ward,  Allegany  county  v.  Stephen  Pollard,  school  commissioner 
second  commissioner  district,  Allegany  county. 

Where  an  orjler  of  a  school  commissioner,  forming  a  new  school  district  from  portions  of 
other  school  districts  by  which  it  will  give  better  school  facilities  and  increased  con- 
venience to  persons  and  pupils  occupying  the  transferred  territory,  and  at  the  same 
time  leaves  the  districts  from  which  the  transferred  territory  was  taken  sufficient  re- 
sources with  which  to  maintain  good  and  sufficient  schools,  this  Department  can  iind 
no  justification  in  setting  aside  his  order. 

Decided  February   ),  :S93 

Reynolds,  Brown  &  Reynolds,  attorneys  for  appellant 
Smith,  Rockwell  &  Dickson,  attorneys  for  respondent 

Crooker,  Superintendent 

The  above-named  appellant  appeals  from  a  preliminary  order  made  on  July 
3,  1894,  by  the  above-named  respondent,  erecting  a  school  district  to  be  known 
as  no.  8,  Scio,  in  the  towns  of  Scio  and  Ward,  Allegany  county,  from  territory 
formerly  parts  of  district  no.  6,  of  Ward,  and  no.  i,  of  Scio,  and  from  the  order 
of  the  local  board  made  August  10,  1894,  confirmatory  of  said  preliminary  order 
of  July  3,  1894. 

The  principal  grounds  for  said  appeal,  as  alleged  therein,  are:  (i)  a  new 
district  is  unnecessary  to  meet  the  demands  or  necessities  of  the  inhabitants  in 
said  district  for  educational  purposes;  (2)  there  is  not  sufficient  property  in  said 
proposed  new  district  subject  to  taxation  whereby  a  proper  school  can  be  main- 
tained without  great  burden  to  the  taxpayers  thereof;  (3)  there  are  not  suffi- 
cient pupils  remaining  in  district  no.  6  by  which  district  school  can  be  main- 
tained; (4)  if  district  no.  8  is  formed  it  will  be  impossible  to  maintain  a  district 
school  in  district  no.  6  on  account  of  insufficiency  of  pupils  residing  therein. 


75^  THE    UNIVERSITY    OF   THE   STATE    OF    NEW    YORK 

It  is  establishetl  by  the  proofs  presented  herein,  that  school  district  no.  6, 
of  Ward,  Allegany  county,  was  erected  about  fifty  years  ago;  that  at  the  forma- 
tion of  the  district  a  large  portion  of  the  territory  embraced  in  said  district  in 
the  southerly  ind  southwesterly  parts  thereof  was  forest;  that  the  schoolhouse 
in  said  district  was  located  and  built  in  the  northern  part  of  said  district  over 
forty  years  ago.  and  since  said  schoolhouse  was  so  located  a  greater  portion  of 
the  southerly  and  southwesterly  portions  of  said  district  have  become  cleared 
up  and  settled  and  that  said  schoolhouse  is  now  a  considerable  distance  northerly 
and  northeasterly  of  the  center  of  the  territory  therein  in  which  the  inhabitants 
of  said  district  reside ;  that  a  large  number  of  children  of  school  age  residing  in 
said  district  no.  6  are  compelled  to  travel  from  two  to  three  miles  to  reacli  the 
schoolhouse  in  said  district;  that  in  the  winter  the  roads  leading  to  the  school- 
house  are  filled  with  snow,  and  said  roads  in  the  spring  and  fall  are  almost 
impassable ;  that  there  is  no  schoolhouse  between  that  in  district  no.  i,  of  Scio,  an;! 
the  schoolhouse  in  said  district  no.  6,  of  Ward,  a  distance  of  five  miles ;  that 
there  are  thirty-four  children  of  school  age  residing  within  the  territory  of  the 
proposed  new  district  no.  8,  of  Scio,  all  of  whom  are  two  miles  and  over  from 
any  schoolhouse;  that  some  years  ago  the  subject  of  the  erection  of  a  new  school 
district  out  of  territory  within  said  district  no.  6,  and  the  southerly  and  south- 
westerly portions  of  said  district  was  agitated,  but  without  any  result  to  that  end 
being  accomplished. 

It  further  appears  that  prior  to  July  3,  1894,  a  petition  signed  by  a  large 
majority  of  the  residents  and  taxpayers  within  the  proposed  new  district,  having 
forty-one  children  of  school  age,  was  presented  to  the  respondent  herein  as  such 
school  commissioner,  asking  for  the  erection  of  such  new  district;  that  after  giv- 
ing the  subject  examination  and  on  July  3,  1894,  the  respondent  herein  made  his 
order  erecting  said  new  district  from  territory  formerly  part  of  district  no.  6, 
Ward,  and  no.  i,  Scio,  to  be  known  as  district  no.  8,  Scio,  said  order  to  take 
effect  on  October  5,  1894;  that  the  trustee  of  district  no.  6,  of  Ward,  not  having 
consented  to  said  order,  said  respondent,  on  July  3,  1894,  gave  notice  in  writing 
to  the  trustees  of  districts  nos.  6,  of  Ward,  and  i,  of  Scio,  respectively  that  on 
July  24,  1894.  at  ID  o'clock  a.  m.,  at  the  office  of  the  town  clerk  of  the  town  of 
Scio  in  the  village  of  Scio  he  would  attend  and  hear  objections  to  sai.l  preliminary 
order  made  on  July  3,  1894;  that  the  date  of  said  hearing  was  upon  the  request 
of  said  trustees  postponed  to  August  10,  1894;  that  on  August  10,  1894,  there 
appeared  said  respondent  and  the  supervisor  and  town  clerk  of  each  of  tlie  towns 
of  Ward,  Andover  and  Scio  respectively,  each  and  all  of  whom  produced  proof 
that  they  had  been  requested  by  said  trustees  of  said  school  districts  situated  in 
their  towns  respectively,  to  be  associated  with  the  respondent  as  such  school 
commissioner  upon  said  hearing;  that  opportunity  was  given  by  said  local  board 
so  organized  to  all  persons  who  desired  to  be  heard  and  to  present  their  objections 
to  said  preliminary  order,  and  after  hearing  all  such  persons  as  desired  to  be 
heard,  and  after  due  deliberation  being  had,  the  members  of  said  local  board 
voted  unanimously  to  confirm  said  preliminary  order  of  the   said   respondent. 


JUDICIAL   decisions:    school    districts ORGANIZATION  759 

dated  July  3,  1894;  that  thereupon  said  confirmatory  order  of  said  preliminary 
order  was  drawn  and  signed  by  each  member  of  said  local  board,  to  take  effect 
on  October  5,  1894,  and  which  contirmatory  order  was  duly  filed. 

It  also  appears  that  the  aggregate  assessed  valuation  of  the  real  and  personal 
property  in  said  school  district  no.  6,  of  Ward,  prior  to  said  order  of  July  3,  1894, 
was  the  sum  of  $48,947,  and  that  there  were  fifty-four  children  of  school  age 
residing  in  said  district  prior  to  July  3,  1894;  that  the  aggregate  assessed  valuation 
of  the  real  and  personal  property  on  July  3,  1894,  of  that  part  of  district  no.  i, 
Scio,  taken  to  form  said  new  district  was  the  sum  of  $7800  with  seven  children 
of  school  age  residing  therein;  that  the  aggregate  valuation  of  the  real  and 
personal  estate  on  July  3,  1894,  in  said  new  district  no.  8,  of  Scio,  was  the  sum 
of  $26,365,  and  having  forty-one  children  of  school  age  residing  therein ;  that 
the  aggregate  valuation  of  the  real  and  personal  property  in  said  district  no.  6, 
after  taking  from  said  district  the  territory  embraced  in  the  new  district  no.  8, 
of  Scio,  is  the  sum  of  $29,707,  with  nineteen  children  of  school  age  residing 
therein,  as  admitted  by  the  appellants ;  but  I  am  satisfied  by  the  proofs  herein 
that  there  are  between  twenty  and  twenty-four  children  of  school  age  in  said 
district,  with  from  six  to  twelve  children  who  in  a  year  or  two  will  be  of  school 
age. 

There  is  no  provision  of  the  school  law,  or  any  rule  of  this  Department, 
defining  the  number  of  children  of  school  age  required  to  authorize  the  forma- 
tion of  a  school  district,  or  the  number  of  such  children  requisite  to  maintain  a 
school  in  a  school  district  already  formed. 

I  am  of  the  opinion  that  the  proofs  herein  clearly  show  that  there  are  a 
sufficient  number  of  children  of  school  age  within  the  territory  of  new  district 
no.  8,  of  Scio,  to  maintain  a  school  therein,  and  that  there  is  a  sufficient  number 
of  children  of  school  age  within  the  territory  of  district  no.  6,  of  Ward,  as  altered 
by  the  orders  herein  appealed  from,  to  maintain  a  school  in  said  district. 

I  am  of  the  opinion  that  the  proofs  herein  clearly  show  the  necessity  of 
establishing  a  new  school  district  to  enable  the  inhabitants  of  the  southerly  and 
southwesterly  portions  of  said  district  no.  6,  of  Ward,  to  send  their  children  to 
school,  by  reason  of  the  long  distance  such  children  were  required  to  travel,  and 
the  hardship  for  such  children  to  reach  the  schoolhouse  in  said  district  in  the 
fall,  winter  and  spring  months  on  account  of  such  long  distances  and  the  state 
of  the  roads. 

The  proofs  herein  clearly  show  that  both  school  district  no.  6,  of  Ward,  and 
no.  8,  of  Scio,  are,  and  each  of  them  is,  financially  able  to  maintain  good  schools 
in  said  districts  respectively  without  such  being  burdensome  to  the  taxable  inhab- 
itants thereof.  The  qualified  voters  and  taxpayers  within  said  new  district  make 
no  complaint  of  the  burdens  imposed  upon  them  by  the  erection  of  the  new  dis- 
trict and  it  is  the  appellant  herein  who  is  troubled  relative  to  the  burdens  imposed 
upon  such  residents  and  taxpayers  of  said  new  district.  The  appellant  herein 
does  not  claim  that  district  no.  6,  of  Ward,  as  altered  by  said  order,  of  July  3, 
1894.  is  not  financially  able  to  maintain  a  good  school  in  said  district  without 
being  burdensome  to  the  taxpayers  therein. 


760  THE   UNIVERSITY   OF   THE   STATE   OF   XEW    YORK 

This  Department  has  held  that  where  an  order  of  a  school  commissioner 
forming  a  new  school  district  from  portions  of  other  school  districts  by  which 
it  will  give  better  school  facilities  and  increased  convenience  to  persons  and  pupils 
occupying  the  transferred  territory,  and  at  the  same  time  leave  the  districts  from 
which  the  transferred  territory  was  taken  sufficient  resources  with  which  to  main- 
tain good  and  sufficient  schools,  it  can  find  no  justification  in  setting  aside  his 
order. 

On  October  i,  1894,  upon  application  of  the  appellant  herein,  I  made  an 
order  staying  all  proceedings  under  and  pursuant  to  said  order  of  Commissioner 
Pollard,  of  July  3,  1894,  and  the  confirmatory  order  of  the  local  board  of  August 
10,  1894,  until  the  hearing  and  decision  of  the  appeal  herein,  or  until  a  furtlier 
order  shall  be  made  by  me  in  the  appeal  herein. 

The  appellant  herein  has  failed  in  sustaining  his  appeal  and  the  said  appeal 
should  be  dismissed. 

It  is  ordered,  That  the  appeal  herein  be,  and  the  same  hereby  is,  dismissed. 

It  is  further  ordered.  That  the  said  order  made  by  me  herein  on  October  i, 
1894,  staying  proceedings  under  the  preliminary  order  of  Commissioner  Pollard 
of  July  3,  1S94,  and  the  order  of  the  local  board  of  August  16,  1894,  confirming 
said  order  be,  and  the  same  hereby  is,  vacated  and  set  aside;  and  said  preliminary 
order  of  Commissioner  Pollard  of  July  10,  1894.  and  order  of  the  local  board 
of  August  10,  1894,  confirming  said  preliminary  order  be,  and  each  of  them  is. 
hereby  confirmed. 


5298 

In  the  matter  of  the  appeal  of  the  board  of  education  of  union  free  school  dis- 
trict no.  7,  town  of  Clarkstown,  county  of  Rockland,  from  the  orders  and 
decisions  of  School  Commissioner  Hopper,  in  altering  the  boundaries  of 
said   district. 

The  action  of  a  school  commissioner  in  establishing  a  new  school  district  which  promotes 
the  educational  interests  of  the  great  majority  of  the  residents  of  the  territory  affected 
will  be  sustained. 

It  is  not  absolutely  necessary  that  the  contirmatory  order  shall  be  identical  in  terms 
with  the  preliminary  order. 

Decided  December  28,  1906 

John  E.  Sickles,  attorney  for  appellants 
Herman  T.  Hopper,  attorney  in  person 

Draper,  Commissioner 

On  or  about  July  16,  1906,  School  Commissioner  Hopper  of  Rockland  county, 
made  an  order  forming  a  new  school  district  known  as  district  no.  10,  town  of 
Clarkstown.  This  district  was  formed  from  portions  of  districts  nos.  6,  7  and  8 
of  said  town  and  the  boundaries  of  such  districts  were  therefore  altered  accord- 
ingly.   The  trustees  of  districts  nos.  6  and  7  did  not  consent  to  the  alteration  of 


JUDICIAL   decisions:    school   districts ORGANIZATION  /6l 

i 

the  boundaries  of  their  respective  districts  and  the  school  commissioner  properly 
made  his  prelim.inary  order  under  the  provisions  of  section  3,  title  6  of  the  Con- 
solidated School  Law.  The  order  appears  to  have  been  regularly  made.  Notice 
of  a  hearing  on  such  order  was  given  as  required  by  section  4  of  the  same  title. 
At  this  hearing  the  super\-isor  and  town  clerk  of  the  town  were  associated  by 
request  with  the  school  commissioner.  The  hearing  was  adjourned  from  time  to 
time  and  the  opposing  districts  were  given  full  opportunity  to  be  heard.  After 
the  hearings  were  closed  the  board  voted  to  affirm  the  order  of  the  school  com- 
missioner. The  confirmatory  order  was  then  duly  made  by  the  school  commis- 
sioner and  the  supervisor  and  town  clerk  properly  joined  in  such  order.  It 
appears  that  the  orders  were  properly  executed  and  filed  and  that  the  proceed- 
ings were  regular.  Appellants  raise  one  question  of  procedure  that  is  entitled 
to  consideration.  It  appears  that  the  boundaries  of  district  no.  10  as  given  in 
the  preliminary  order  are  not  the  same  as  the  boundaries  given  in  the  confirmatory 
order.  The"  school  commissioner  amended  his  preliminary  order  by  changing 
the  boundaries  of  the  proposed  district.  The  actual  change  made  in  such  bound- 
aries by  the  confirmatory  order  does  not  operate  as  any  material  hardship  to  dis- 
trict no.  7.  It  appears  from  appellants'  map  that  the  real  effect  of  such  change 
v.as  to  transfer  the  Powell  or  Armes  property  from  no.  7  to  the  new  district. 
It  is  not  shown  in  which  district  the  owner  of  this  property  prefers  to  be  placed. 
It  is  not  shown  which  of  the  schoolhouses  of  these  two  districts  is  the  more 
accessible  to  children  residing  on  such  property  and  who  might  be  compelled  to 
attend  school.  It  appears,  however,  from  "  Exhibit  I  "  of  appellants'  pleadings 
that  there  are  no  children  at  present  residing  on  such  property  who  are  re(|uired 
to  attend  school.  Ordinarily  the  confirmatory  order  should  be  identical  in  terms 
with  the  preliminary  order,  but  a  slight  change  in  the  boundary  of  a  new  district, 
made  for  the  purpose  of  equalizing  the  conditions  between  the  districts  affected 
is  not  good  ground  in  itself  for  setting  aside  such  order.  If  it  were  shown  that 
such  modification  operated  in  some  way  as  a  hardship  upon  an  individual  or 
district  a  different  question  would  be  presented.  The  original  or  preliminary 
order  is  inchoate  and  of  no  effect  whatever  until  the  confirmatory  order  has  been 
made.  It  must  therefore  be  held  that  the  order  was  properly  made  and  the  action 
of  the  commissioner  sustained  unless  it  is  shown  that  upon  the  merits  of  the 
case  the  new  district  should  not  have  been  organized. 

The  new  district  includes  the  hamlet  of  Bardonia.  Bardonia  is  located  on 
the  New  Tersey  and  New  York  Railroad  and  between  New  City  and  Nanuet. 
District  no.  7  includes  the  hamlet  of  West  Nyack.  This  hamlet  is  a  station  on 
the  West  Shore  Railroad.  It  appears  that  the  distance  from  Bardonia  to  the 
schoolhouses  in  the  adjoining  districts  is  about  two  miles.  The  children  residing 
at  Bardonia  were  required,  in  going  to  and  from  school,  to  walk  over  country 
roads  a  distance  of  four  miles.  The  distance  which  nearly  all  of  these  children 
w£re  required  to  walk  could  be  reduced  at  least  one  half  by  the  formation  of  a 
new  district.  It  also  appears  that  the  line  of  travel  is  not  from  Bardonia  to 
West  Nyack  and  that  generally  the  residents  of  Bardonia  have  no  interests  at 


762  THE   UNIVERSITY   OF   THE   STATE   OF   NEW   YORK 

West  Nyack.  The  pleadings  do  not  show  the  number  of  children  in  the  new 
district  who  will  attend  school.  There  are  twenty-three  who  were  formerly  in 
district  no.  7  and  a|)pellants'  map  would  indicate  that  there  are  as  many  more  at 
least  from  the  other  portions  of  the  district.  It  also  appears  that  the  hamlet  of 
Bardonia  is  growing  from  year  to  year.  The  people  residing  within  the  territory 
com{josing  the  new  district  desired  to  have  a  school  established  at  this  hamlet. 
They  appear  to  have  been  unanimous  in  this  desire.  Many  of  them  personally 
requested  the  school  commissioner  to  form  a  new  district  and  later  petitioned 
him  to  take  such  action. 

District  no.  7  opposes  the  formation  of  such  district  on  the  ground  that  it 
will  weaken  this  district  numerically  and  linancially.  This  district  has  an  assessed 
valuation  of  more  than  $270,000.  The  assessed  valuation  of  the  property  trans- 
ferred is  a  little  over  $30,000.  The  district  will  still  have  an  assessed  valuation 
of  $240,000.  The  regii,tration  in  district  no.  7  last  year  was  one  hundred  and 
fourteen  and  the  number  of  children  of  school  age  was  one  hundred  and  thirty. 
Deduct  the  twenty-three  children  transferred  to  the  new  district  and  the  nuniDtT 
of  children  in  no.  7  is  one  hundred  and  seven.  The  decrease  in  the  number  of 
children  and  in  the  property  value  of  the  district  no.  7  will  not  be  sufficient  to 
interfere  with  the  efficiency  of  the  school  which  it  will  be  able  to  maintain. 

District  no.  7  offered  to  maintain  a  branch  school  for  the  primary  grade  at 
Bardonia  or  to  convey  the  children  from  that  section  to  and  from  the  school- 
house  in  its  district.  This  action  on  the  part  of  no.  7  was  an  admission  that 
the  children  at  Bardonia  did  not  have  adequate  school  facilities.  District  no. 
claims  that  its  loss  in  taxes  through  the  action  complained  of  will  be  about  $234 
annually.  This  amount  however  would  not  pay  the  additional  expenses  of  main- 
tainmg  a  primary  school  or  of  properly  conveying  the  children  from  Bardonia 
to  and  from  school.  From  the  financial  standpoint  therefore  the  establishment 
of  the  new  school  district  will  reduce  the  expenses  to  district  no.  7  from  what 
such  expenses  would  be  were  the  district  to  maintain  a  branch  school  or  convey 
the  Bardonia  children. 

It  is  claimed  by  appellants  that  the  school  commissioner  made  his  prelimi- 
nary order  before  receiving  a  petition  from  the  persons  interested  in  the  forma- 
tion of  a  new  district.  It  is  immaterial  when  the  commissioner  received  such 
petition.  It  was  not  necessary  that  a  petition  should  be  presented.  The  commis- 
sioner had  ample  authority  to  make  such  orders  on  his  own  initiation  and  without 
any  petition.  The  fact,  however,  is  that  the  people  desiring  a  new  district  had 
personally  importuned  the  commissioner  to  establish  one.  This  was  generally 
understood.  The  matter  was  presented  to  him  in  writing  by  a  representative  of 
the  people  interested.  The  commissioner  told  them  to  have  a  petition  presented 
showing  the  sentiment  of  the  people  on  such  question.  Before  the  petition  was 
received  he  made  the  preliminary  order.  The  petition  was  duly  presented  and 
considered  by  the  board  before  the  confirmatory  order  was  made.  The  peti- 
tioners under  all  the  circumstances  were  entitled  to  a  new  district.    In  the  estab- 


JUDICIAL   decisions:    school   districts ORGANIZATION  763 

lishment  of  such  district  the  school  commissioner  was  promoting  the  best  educa- 
tional interests  of  the  great  majority  of  the  people  affected.     His  action  appears 
to  have  been  judicious,  regular  and  in  good  faith.     He  must  be  sustained. 
The  appeal  herein  is  dismissed. 


3527 

Jolm  H.  Keeler  v.  Charles  H.  Ide,  school  commissioner  of  the  second  commis- 
sioner district  of  Erie  county. 

In  forming  a  new  district,  the  confirmatory  order  should  be  identical  with  the  terms  of  the 

original  order. 
But  a  person  who  secures  a  slight  modification  of  an  order  and  gives  his  acquiescence  to 

such  modification,  is  not  in  a  position  to  question  the  validity  of  the  confirmatory  order 

because  of  such  modification. 
Decided  November  17,  1886 

Draper,  Superintendent 

This  is  an  appeal  from  the  order  of  Charles  H.  Ide,  as  school  commis- 
sioner of  the  second  commissioner  district  of  Erie  county,  N.  Y.,  in  making  an 
order,  dated  the  i6th  day  of  July  1886,  forming  a  new  school  district  out  of 
parts  of  district  no.  4,  in  the  town  of  Hamburg,  and  district  no.  3,  in  the  towns 
of  Evans,  Eden  and  Hamburg,  and  also  from  an  order  made  by  the  said 
school  commissioner,  together  with  the  supervisor  and  town  clerk  of  the  town 
of  Hamburg,  made  upon  the  27th  day  of  July,  1886,  confirming  the  first 
mentioned  order. 

Substantially  the  only  ground  upon  which  the  appeal  is  taken  is,  that  the 
order  of  the  27th  of  July  was  not  identical  in  its  terms  with  the  order  which  it 
sought  to  confirm.  It  modified  the  boundaries  of  the  new  district  in  a  slight 
particular.  The  appellant  insists  that  this  is  fatal  to  the  proceedings.  Ordi- 
narily, it  would  be,  but  the  fact  is  made  clear  to  me  that  the  modification  was 
made  in  the  interest  of  and  for  the  sake  of  satisfying  the  appellant,  and  in 
the  belief  that  it  would  prevent  further  controversy.  The  appellant  was  present 
at  the  hearing  held  by  the  commissioner,  supervisor  and  town  clerk,  for  the 
purpose  of  affording  an  opportunity  to  persons  aggrieved  to  state  their  objec- 
tions, and  acquiesced  in  the  modification  so  far  as  it  went,  but  desired  more 
of  a  modification.  He  is  not  now  in  a  position  to  raise  the  question.  The 
members  of  the  board  say  that  they  would  have  confirmed  the  original  order 
precisely  as  it  stood,  but  for  the  sake  of  suiting  the  appellant  so  far  as  they 
reasonably  could.  He  can  not  be  upheld  in  an  effort  to  set  aside  the  action 
of  the  board  only  because  of  a  slight  modification  which  he  himself  desired. 


764  THE   UNIVERSITY    OF   THE   STATE   OF   NEW    YORK 

5107 

In  the  matter  of  the  appeal  of  WilHani  Barss,  Seymour  Kniv.kerbocker,  George 
Owens,  \\'ill!am  Higgins,  Mrs  Fannie  Persons,  Mrs  William  Higgins, 
Nelson  West  et  al.  as  inhabitants  and  electors  of  alleged  school  district, 
no.  8,  in  the  town  of  Chester,  Warren  county. 

Order  establishing  school  district  out  of  portion  of  dissolved  district.  An  order  of 
a  school  commissioner  which  establishes  a  new  school  district  out  of  a  portion  of  a 
district  which  has  been  dissolved,  which  does  not  dispose  of  the  remaining  territory 
of  the  dissolved  district  nor  show  the  alteration  of  the  boundaries  of  the  other  districts 
to  which  it  is  assumed  such  remaining  territory  has  been  annexed,  is  defective  and 
must  be  set  aside. 

Disorderly  meeting;  resolution  legalizing  act  of  trustee.  A  meeting  is  not  necessarily 
illegal  because  disorderly.  If  a  fair  vote  was  taken  upon  a  resolution,  and  the  con- 
tending parties  were  equally  blamable  for  the  disorder,  the  action  of  the  meeting  will 
be  sustained.  A  resolution  accepting  the  act  of  a  trustee  in  building  a  schoolhouse  and 
authorizing  the  raising  by  tax  of  a  sufficient  sum  to  pay  the  cost  thereof,  legalizes 
the  act  of  the  trustee. 

Decided  May  17,  igcg 

John  H.  Cunningham,  attorney  for  appellants 
L.  L.  Davis,  attorney  for  respondent 

Draper,  Cotiunissioner 

This  is  an  appeal  from  an  alleged  order  of  James  L.  Fuller,  school  com- 
missioner of  the  second  school  commissioner  district  of  the  county  of  Warren, 
in  establishing  the  boundaries  of  school  district  no.  6,  town  of  Chester,  county 
of  Warren,  and  from  the  acts  of  a  certain  special  meeting  held  in  such  district 
for  the  purpose  of  ratifying  the  acts  of  the  trustee  of  such  district  in  selecting 
a  site  and  erecting  a  new  school  building  thereon.  The  appellants  also  com- 
plain of  the  acts  of  the  trustee  in  arbitrarily  selecting  a  site  and  proceeding 
with  the  erection  of  a  school  building  thereon.  A  number  of  other  acts  are 
complained  of,  but  the  disposition  of  the  case  will  depend  upon  the  legality 
of  the  school  commissioner's  act  in  establishing  the  boundaries  of  the  district 
and  of  the  act  of  the  district  meeting  in  ratifying  the  selection  of  the  site  and 
erection  of  a  schoolhouse  thereon  by  the  former  trustee. 

The  papers  on  appeal  do  not  clearly  show  material  facts.  There  is  much 
repetition,  and  constant  jumbling  of  irrelevant  assertions  with  material  and 
essential  allegations,  so  that  it  is  exceedingly  difficult  to  determine  the  rights 
of  the  respective  parties.  No  maps  are  filed,  or  facts  alleged  showing  how  the 
appellants  are  injuriously  afifected  by  the  order  of  the  school  commissioner  in 
setting  off  into  the  several  districts  the  parts  of  the  original  district.  The 
appellants  rely  on  the  general  allegation  that  the  order  was  "'  against  the  best 
interests  of  the  district  and  the  promotion  of  education  therein."  They  do 
show  that  the  district  was  already  weak  and  was  further  weakened  by*  the 
order,  while  the  other  district  was  stronger  and  was  further  strengthened 
thereby.      But   this   does   not  necessarily   establish   the   illegality   of   the   order. 


JUDICIAL   decisions:    school   districts  —  ORGAXIZATION  765 

The  appellants  do  not  state  how  the  respondent  came  to  organize  school  dis- 
trict no.  6.  The  school  commissioner  in  his  answer  alleges  that  his  district  was 
formerly  part  of  joint  district  no.  6,  towns  of  Chester  and  Minerva,  counties 
of  Warren  and  Essex,  and  that  he  and  School  Commissioner  Pond  dissolved 
this  joint  district  by  an  order  dated  December  3,  1907.  It  would  appear  that 
soon  after  January  i,  1908,  the  respondent  Fuller  made  an  order  wherein  he 
attempted  to  create  out  of  a  portion  of  such  dissolved  joint  district  a  new 
district  no.  6  in  the  town  of  Chester.  This  order  was  not  tiled  in  the  town 
clerk's  office  until  September  22,  1908,  and  of  course  did  not  take  effect  until 
that  time.  Prior  to  that  time,  on  January  18,  1908,  under  the  direction  of  the 
respondent  Fuller  a  meeting  of  the  district  was  held  and  the  district  was 
organized  by  the  election  of  district  officers.  It  would  seem  to  follow  from 
the  crude  and  confusing  allegations  contained  in  the  petition  and  the  respond- 
ent's failure  to  controvert  them,  that  this  meeting  was  open  to  all  qualified 
voters  residing  within  that  portion  of  the  dissolved  joint  district  situated  in 
the  town  of  Chester.  It  also  appears  that  persons  were  elected  officers  of  the 
district  at  the  annual  meeting  who  were  residents  of  that  portion  of  the  district 
set  off  by  the  commissioner's  order  filed  September  22d.  It  would  seem  that 
those  people  residing  in  that  part  of  the  dissolved  joint  district  situated  in 
the  town  of  Chester  assumed  that  the  school  commissioner  had  established 
such  part  of  such  district  as  a  new  school  district.  There  is  nothing  in  the 
papers  on  this  appeal  indicating  just  what  disposition  was  made  of  this  part 
of  the  former  district.  The  order  filed  September  22,  1908,  does  not  show 
on  its  face  the  disposition  of  this  territory.  It  is  entirely  inadequate  as  an 
order  establishing  the  boundaries  of  school  district  no.  6,  town  of  Chester,  and 
does  not  conform  to  the  requirements  of  the  law  relating  to  the  alteration  of 
the  boundaries  of  the  North  Creek  union  free  school  district,  or  of  school 
district  no.  10,  town  of  Chester.  This  order  must  be  set  aside  and  a  new 
order  entered  which  shall  distinctly  set  forth  the  boundaries  of  these  three 
districts,  and  if  necessary  a  survey  must  be  made  defining  such  boundaries. 

The  only  other  question  worthy  of  decision  is  the  legality  of  the  resolutions 
adopted  by  the  special  meeting  of  the  district  held  October  9,  1908.  One  of 
these  resolutions  accepted  the  act  of  a  former  trustee  in  erecting  a  school 
building  on  a  site  selected  by  him.  and  authorized  the  raising  by  tax  of  a  suffi- 
cient sum  to  pay  the  cost  of  such  building.  Another  resolution  designated 
the  site  selected  by  the  said  trustee  as  the  schoolhouse  site  for  the  district,  duly 
describing  such  site  by  metes .  and  bounds  as  provided  by  law.  The  papers 
show  that  this  meeting  was  disorderly;  that  the  voters  present  were  many  of 
them  the  givers  and  takers  of  severe  blows.  It  does  not  sufficiently  appear 
whether  the  appellants  herein  were  the  aggressors  or  the  aggrieved.  Both  sides 
were  probably  equally  guilty.  In  any  event  a  fair  vote  seems  to  have  been 
ultimately  taken  and  the  resolutions  were  adopted.  All  of  these  appellants, 
except  Owens  and  Mrs  Persons,  were  permitted  to  vote.  Some  of  them  resided 
outside   of   the   district   as   established   by   the   respondent's   order   of    Septem- 


766  THE   UNIVERSITY    OF   THE   STATE   OV    NEW   YORK 

ber  22(1,  and  it  may  be  questioned  whether  they  were  legal  voters  at  that  meet- 
ing. Such  order  was  in  force  at  the  time  this  meeting  was  held,  and  until  set 
aside  on  an  appeal  duly  brought,  controlled  the  residence  of  persons  at  such 
meeting  and  their  qualifications  as  voters  based  thereon.  I  therefore  decide 
that  these  resolutions  were  legally  passed  at  such  meeting  and  that  they  are 
sufficient  to  establish  the  site  described  as  the  schoolhouse  site  of  the  district, 
and  to  legalize  the  acts  of  the  former  trustee  in  selecting  such  site  and  in  pro- 
ceeding with  the  erection  of  a  school  building  thereon. 

The  appellants  have  not  successfully  attacked  the  order  of  School  Com- 
missioners Fuller  and  Pond  in  dissolving  joint  school  district  no.  6,  towns  of 
Chester  and  Minerva.  School  Commissioner  Fuller  should  have  concurrently 
entered  an  order  disposing  of  that  portion  of  the  dissolved  joint  district  in  the 
town  of  Chester  by  creating  a  new  district  or  annexing  it  to  other  districts  in 
such  town  or  by  doing  both.  He  attempted  to  do  this  but  his  order  was  invalid 
and  ineffective.  It  would  be  unjust  to  the  district  to  hold  that  the  invalidity 
of  this  order  rendered  void  all  acts  of  the  district ;  the  qualified  electors  in  the 
district  had  no  means  of  knowing  that  the  school  commissioner  had  not  per- 
formed his  full  duty. 

The  appeal  herein  is  dismissed  except  so  far  as  it  relates  to  the  sufficiency 
of  the  order  creating  new  district  no.  6,  town  of  Chester  and  annexing  a  por- 
tion of  dissolved  joint  district  no.  6,  towns  of  Chester  and  Minerva,  to  North 
Creek  union  free  school  district  and  to  district  no.  lo,  town  of  Chester.  As 
to  such  order  the  appeal  is  sustained. 

It  is  hereby  ordered.  That  the  order  of  School  Commissioner  Fuller  form- 
ing new  school  district  no.  6,  town  of  Chester,  and  annexing  portions  of  the 
dissolved  joint  district  no.  6,  towns  of  Chester  and  Minerva,  to  other  districts, 
dated  January  2,  1908  and  filed  in  the  office  of  the  town  clerk  of  the  town  of 
Chester  be  set  aside ;  and 

It  is  hereby  further  ordered,  That  the  present  school  commissioner  of  the 
second  school  commissioner  district,  county  of  Warren,  shall  forthwith  enter 
in  the  town  clerk's  office  of  the  town  of  Chester,  a  new  order  clearly  defining 
as  required  by  law  the  boundaries  of  the  new  district  attempted  to  be  estab- 
lished by  the  order  hereby  set  aside,  and  also  the  boundaries  of  those  districts 
to  which"  portions  of  that  part  of  dissolved  joint  district  no.  6,  towns  of 
Chester  and  Minerva,  were  attempted  to  be  annexed  by  the  said  order  hereby 
set  aside,  and  that  the  said  new  order  so  entered  shall  take  effect  as  of  the  date 
of  the  original  order. 


SCHOOL  EQUIPMENT 

3935 
In  the   matter  of   the  appeal   of   Robert   S.   Hilton  v.   Daniel  Lockwood,   sole 

trustee  of  school  district  no.  20,  town  of  Westerlo,  county  of  Albany. 
A  trustee  of  a  school  district  purchased  for  the  district  upon  his  own  motion,  and  paid 
therefor,  $15   for  a  set  of  school  charts,   for  which   he  demanded  reimbursement,   and 
was  refused.    Held  under  the  statute,  to  be  entitled  to  his  claim,  and  payment  ordered. 
Decided  December  3,  1890 

Draper.  Superintendent 

The  appellant  was  trustee  of  school  district  no.  20,  town  of  Westerlo, 
Albany  county,  from  the  annual  school  meeting  of  1S89,  at  which  he  was 
elected,  until  August  5,  1890,  when  the  above-named  Daniel  Lockwood  became 
his  successor  as  trustee. 

During  appellant's  term  as  trustee,  he  purchased  one  set  of  school  charts 
which  he  furnished  to  the  school  of  his  district,  the  expense  of  which,  $15,  he 
paid  and  advanced  for  the  district.  He  presented  his  claim  therefor,  to  the 
annual  meeting,  where  it  was  not  allowed,  and  the  trustee  will  not  pay  the 
claim. 

The  law  clearly  authorizes  a  trustee  to  incur  an  expense  of  not  to  exceed 
$15  in  any  year  for  charts,  without  a  vote  therefor  by  a  district  meeting.  The 
trustee  did  this,  and  paid  the  expense,  $15,  for  which  he  is  entitled  to  prompt 
reimbursement  by  the  district.  The  trustee,  if  there  are  moneys  in  the  collector's 
hands,  is  hereby  authorized  and  directed  to  give  an  order  to  the  appellant  for 
$15.  the  sum  claimed. 

If  there  be  no  money  in  the  collector's  hands,  he  will  levy  a  tax  upon  the 
property  of  the  district  and  liquidate  the  claim. 

The  appeal  is  sustained. 


[767I 


SCHOOL  FUNDS 

3659 

In  the  matter  of  the  application  of  Thomas  C.  Arnow  and  others  for  the  removal 
of  Henry  A.  Smith,  James  Cox  and  others,  from  the  ofhce  of  trustee  of 
union  free  school  district  no.  i,  town  of  Westchester,  Westchester  county. 

At  a  meeting  of  a  board  of  trustees  in  a  union  free  school  district  held  on  the  day  pre- 
ceding the  annual  school  meeting,  at  which  school  meeting  a  majority  of  a  full  board 
was  to  be  chosen,  drafts  were  ordered  for  the  final  payment  of  moneys  not  yet  due  on 
a  building  contract  and  were  issued  to  the  assignees  or  beneficiaries  of  the  contractor 
before  payments  were  due  under  the  contract.  In  consequence  of  this  action  the  dis- 
trict sustained  loss  at  least  to  the  extent  of  $650,  the  contractor  liaving  since  failed  to 
complete  his  contract. 

Held,  That  the  fact  that  the  payment  was  made  on  the  day  before  an  election  at  which  a 
majority  of  the  board  was  to  be  chosen,  raised  the  inevitable  inference  that  the  act  was 
not  taken  through  inadvertence,  but  with  gross  negligence  or  deliberate  purpose  to 
effect  some  object  other  than  to  protect  the  public  interests. 

Held,  A  member  of  the  board  who  was  not  present  at  the  meeting  when  an  illegal  pay- 
ment was  made,  can  not  in  law  be  held  legally  and  personally  responsible  for  a  loss 
occasioned  the  district,  although  evidence  appears  that  he  would  have  so  voted  had 
he  also  been  present. 

Held,  That  the  members  of  the  board  who  voted  for  this  illegal  expenditure  of  money 
are  liable  for  the  loss  to  the  district  occasioned  by  their  action,  and  they  are  required 
to  pay  or  cause  to  be  paid  to  the  district  the  amount  lost,  or  be  removed  from  office. 

Decided  January  5,  1888 

Milton  A.  Fowler,  attorney  for  complainants 

H.  C.  Henderson  and  Charles  G.  Banks,  attorneys  for  respondents 

Draper,  Superintendent 

This  is  an  application  for  the  removal  of  certain  trustees  from  office.  The 
ground  of  complaint  alleged  is  that  they  have  made  payments  to  one  George  A. 
Xewbold,  a  contractor  for  the  performance  of  certain  work  upon  a  new  school 
building,  in  course  of  erection,  in  advance  of  the  requirements  of  the  contract, 
and  that  this  fact,  coupled  with  Newbold's  abandonment  of  his  contract  before 
completion,  has  resulted  in  pecuniary  loss  to  the  district. 

The  contract  with  Newbold  provided  for  payments  during  the  progress  of 
the  work,  as  specified  portions  thereof  should  be  certified  by  the  architect  to  be 
properly  completed.  By  the  contract  the  sum  of  $2225  was  to  be  held  back  and 
paid  to  the  contractor  only  upon  the  full  performance  of  his  contract.  At  the 
annual  school  meeting  held  August  30,  1887,  five  new  members,  a  majority  of  the 
whole  number,  were  elected  upon  the  board.  On  the  day  before  election,  at  a 
meeting  at  which  five  members  were  present,  the  board  ordered  drafts  in  favor 
of  Newbold's  assignees  or  beneficiaries  for  the  sum  of  $1675  o"  account  of  the 
final  payment.     The  money  was  paid  and  he  forthwith  abandoned  the  contract. 

(768] 


JUDICIAL  decisions:  school  funds  769 

The  board  as  newly  constituted,  received  bids  for  the  completion  of  the  contract 
and  let  the  work  to  the  low^est  bidder  for  the  sum  of  $1200.  Beyond  this  it  was 
alleged  on  one  side,  and  admitted  on  the  other,  that  the  board  is  liable  to  one 
Braithwaite  for  the  sum  of  $700  on  account  of  the  Newbold  contract,  because 
of  its  having  accepted  an  order  given  to  Braithwaite  by  Newbold  for  painting 
upon  the  building.  This  order  was  for  $1000  of  v.'hich  sum  $300  was  paid  August 
20,  1887.  It  therefore  required  the  sum  of  $1900  to  procure  the  completion  of 
Newbold's  contract,  while  he  had  been  paid  all  of  the  contract  price  except  $750. 
In  other  words,  the  district  was  out  of  pocket  $1150  by  reason  of  Newbold's 
failure  to  finish  his  contract  and  because  of  payment  made  before  being  due.  The 
architect  swears,  however,  that  Newbold  had  performed  "  extra  work  "  upon 
the  orders  of  the  board  to  the  value  of  more  than  $500  which  had  not  been 
paid.  If  this  is  not  true,  it  at  least  is  not  controverted.  This  would  reduce  the 
net  loss  of  the  district  to  the  sum  of  $650.  On  the  other  hand  it  is  alleged  that 
numerous  defects  have  been  recently  discovered  in  Newbold's  work  by  reason  of 
a  thorough  examination  of  the  building  having  been  made  by  an  engineer  under 
the  direction  of  the  State  Board  of  Health,  and  that  it  would  cost  $1000  to  make 
these  good.  I  think  it  is  shown  clearly  enough  that  some  very  serious  defects 
exist,  but  the  sum  necessary  to  make  them  good  is  not  shown  to  any  degree  of 
certainty  which  will  enable  me  to  make  it  the  basis  of  my  action.  Nor  am  I  pre- 
pared to  say  that  the  respondents  are  personally  liable  on  account  of  such  defects. 
Therefore,  while  I  deem  it  proper  to  say  that  I  do  not  assume  to  pass  upon  any 
of  these  accounts  with  care,  and  that  the  proofs  are  not  before  me  which  would 
enable  me  to  do  so,  and  it  is  not  necessary  for  me  to  do  so  upon  a  proceeding 
of  this  nature,. yet  there  is  sufficient  evidence  here  to  satisfy  me  that  the  district 
lost  at  least  the  sum  of  $650  by  reason  of  the  acts  complained  of. 

Numerous  other  matters  are  set  up  in  the  papers  and  were  discussed  to  a 
considerable  extent  upon  the  argument,  but  I  think  I  have  stated  all  that  is 
material  to  the  question  before  me. 

The  respondents  attempt  to  justify  their  action  by  showing  that  Newbold's 
contract  was  taken  at  a  very  low  price  and  that  they  paid  him  money  upon  the 
certificates  of  the  architect  that  the  work  had  progressed  sufficiently  to  justify 
such  payments. 

I  do  not  think  that  this  is  a  sufficient  answer.  Whether  the  contract  price 
was  low  or  not,  is  immaterial.  The  contractor  had  given  what  is  admitted  to 
have  been  a  good  and  sufficient  bond  for  the  performance  of  his  agreement  and 
the  board  was  bound  to  see  that  it  was  carried  out  to  the  letter.  They  had  no 
right  to  be  generous  with  the  money  of  the  public ;  members  were  not  bound  to 
recognize  the  certificate  of  the  architect  except  as  provided  in  the  contract.  The 
contract  provided  for  the  final  payment  of  the  sum  of  $2225  upon  the  full  comple- 
tion of  the  contract.  The  board  was  in  position  to  insure  its  completion  and  it 
surrendered  that  position.  The  fact  that  this  was  done  the  day  before  an  elec- 
tion at  which  a  majority  of  the  board  was  to  be  chosen,  and  after  the  financial 
statement  for  the  year  had  been  made  up  and  printed  for  presentation  to  the 
25 


7/0  THE   UNIVERSITY    OF  THE  STATE   OF   NEW   YORK 

annual  meeting,  raises  the  inevitable  inference  that  the  act  was  not  taken  through 
inadvertence  but  with  deliberate  willingness  to  effect  some  object  other  than  to 
protect  the  public  interests. 

It  does  not  appear  that  the  respondents  acted  through  corrupt  motives  or 
impulses,  that  they  derived  any  personal  profit  or  advantage  from  their  acts,  or 
that  they  deliberately  intended  to  defraud  the  district.  It  does  clearly  appear  that 
they  have  failed  to  exercise  that  care  in  the  protection  of  the  interests  of  the 
district  which  they  were  bound  to  exercise. 

Of  the  members  of  the  board  which  made  the  payment  to  Newbold  in 
advance  of  the  requirements  of  his  contract,  Henry  A.  Smith,  William  Walsh, 
Henry  Corkey  and  James  Cox  are  still  members.  Cox  and  Corkey  were  present 
and  voted  for  the  payments  to  Newbold  at  the  meeting  on  the  twenty-ninth  of 
August.  Smith  and  Walsh  were  not  present  at  such  meeting,  but  they  make 
affidavits  in  which  they  say  they  approved  of  the  acts  of  their  associates  and 
would  have  voted  for  it  if  they  had  been  present.  I  do  not  know  of  any  principle 
of  law,  however,  which  would  hold  one  legally  and  personally  responsible  for 
acts  of  their  nature  unless  he  was  present  at  the  meeting  of  the  board  and  gave 
to  them  the  sanction  of  his  vote. 

I  have  concluded,  therefore,  to  dispose  of  the  case  in  the  manner  following 
and. 

It  is  hereby  ordered,  that  Henry  Corkey  and  James  Cox  pay  or  cause  to  be 
paid  to  the  treasurer  of  union  free  school  district  no.  i,  of  the  town  of  West- 
chester, the  sum  of  $650  before  the  expiration  of  twenty  days  from  the  date  of 
this  order  or  that  at  that  time  they  be  removed  from  their  office  as  trustees  in 
said  district. 


3714 

In  the  matter  of  the  appeal  of  John  M.  Pendleton  and  others  v,  school  district 

no.  3,  town  of  Castleton,  county  of  Richmond. 

A  district  meeting  is  not  authorized  to  allow  a  librarian  a  salary,  and  a  vote  to  that  effect 

is  void. 
A  vote  granting  the  balance  of  district  moneys  to  the  trustees  to  use  in  their  discretion  is 

void. 
Decided  October  3,  1888 

Draper,  Superintendent 

This  is  an  appeal  from  the  action  taken  at  the  annual  school  meeting  in  dis- 
trict no.  3  of  the  town  of  Castleton,  Richmond  county  as  follows : 

1  From  the  vote  of  the  inhabitants  in  granting  $75  to  the  librarian  as  salary. 

2  From  the  vote  of  the  inhabitants  in  granting  to  the  trustees  a  sum  not  exceed- 
ing $1000  for  the  purchase  of  a  clock. 

3  From  the  vote  of  the  inhabitants  in  granting  a  sum  not  exceeding  $60  for 
the  purchase  of  and  placing  a  telephone  in  the  school  building. 

4  From  the  vote  of  the  inhabitants  granting  the  balance  of  surplus  moneys  to 
the  trustees  to  use  in  their  discretion. 


JUDICIAL  decisions:  school  funds  771 

Xo  answer  is  interposed  by  the  respondent,  and  I  am  obliged,  therefore,  to 
accept  the  statements  of  the  appellants  as  facts.  It  has  been  repeatedly  held  by 
this  Department  that  a  common  school  district  has  no  power  to  levy  a  tax  for 
the  purpose  of  paying  a  salary  to  a  trustee.  I  know  of  no  distinction,  upon  prin- 
ciple, which  can  be  drawn  between  a  tru.otee  and  any  other  district  officer,  and  it 
would  therefore  follow  that  the  action  of  the  district  meeting  in  granting  $75  to 
the  librarian  as  a  salary  was  unauthorized,  and  is  void.  I  know  of  no  law  which 
will  prevent  a  school  district  from  expending  a  reasonable  sum  of  money  for 
the  purpose  of  purchasing  a  bell  or  clock.  Of  the  wisdom  of  expending  $1000 
for  such  a  purpose,  I  am  unable  to  judge.  If  it  should  be  considered  extravagant 
by  any  considerable  number  of  residents  in  the  district.  I  should  be  inclined  to 
advise  the  holding  of  a  special  meeting  for  the  purpose  of  reconsidering  the 
matter,  but  I  am  of  the  opinion  that  the  district  has  the  legal  right  to  raise  a  rea- 
sonable sum  of  money  for  such  a  purpose.  It  seems  to  me  that  the  district  meet- 
ing had  the  power  to  authorize  the  expending  of  $60  for  the  use  of  a  telephone. 
The  district  meeting  could  not  place  any  amount  of  moneys  in  the  hands  of  the 
trustees  to  be  used  in  their  discretion.  The  surplus  funds  coming  over  from  last 
year's  accounts  must  be  held  by  the  supervisor  or  collector  subject  to  the  draft 
of  the  proper  officers,  for  lawful  indebtedness  of  the  district,  and  must  go  to  the 
reduction  of  the  amounts  voted  for  the  expenses  of  the  coming  year.  The  tax 
levy  authorized  by  the  district  meeting,  from  the  action  of  which  this  appeal  is 
taken,  must  be  for  a  sum  no  larger  than  that  authorized  by  the  district  meeting 
after  subtracting  from  the  same  the  sum  of  $75  voted  to  be  paid  to  the  librarian 
as  a  salary,  as  well  as  all  moneys  voted  to  be  used  by  the  trustees  in  their  discre- 
tion, and  also  the  balance  on  hand  at  the  time  of  the  annual  meeting,  unless  said 
balance  was  taken  into  account  by  the  meeting. 


3690 

In  the  matter  of  the  appeal  of  Lemuel  H.  Cunliff  and  others,  trustees  of  school 
district  no.  25,  town  of  Hempstead,  Queens  county.  N.  Y.  v.  Martin  V. 
Wood,  supervisor,  Edmund  J.  Healy,  B.  Valentine  Clowes,  Thomas  D.  Smith 
and  John  \\'.  DeMott,  justices  of  the  peace,  and  Thomas  V.  Smith,  town 
clerk,  comprising  the  board  of  town  auditors  of  the  town  of  Hempstead, 
Queens  county. 
In  a  case  where  a  special  statute,  applicable  to  a  particular  town,  provided  that  a  certain 
trust  fund  should  be  apportioned  among  the  school  districts  of  the  town  in  the  same 
manner  and  upon  the  same  basis  as  the  State  school  moneys  are  apportioned,  held,  that 
such   statute  is  to  such  extent  "an  act  pertaining  to  common   schools,"  and  that  the 
trustees  of  such  funds  are,  so  far  as  their  apportionment  of  such  funds  among  different 
school  districts  is  concerned,  subject  to  the  general  supervisory  powers  of  the  Superin- 
tendent of  Public  Instruction. 
Decided  June  7,  1888 

Asa  Bird  Gardner,  attorney  for  petitioners 
A.  N.  Weller,  attorney  for  respondents 


yjT.  THE   UNIVERSITY    OF  THE  STATE   OF   NEW   YORK 

Draper,  Superintendent 

Prior  to  April  1886,  the  village  of  Garden  City  constituted  a  part  of  school 
district  no.  i  of  the  town  of  Hempstead,  Queens  county.  By  act  of  the  Legisla- 
ture, the  village  then  became  a  separate  school  district,  known  as  district  no.  25  of 
the  town  of  Hempstead.  It  was  duly  organized  and  ofiicers  elected  in  August  fol- 
lowing. Prior  to  the  setting  off  of  the  village  into  a  separate  school  district,  there 
had  been  maintained  there  a  branch  school.  In  the  apportionment  of  public 
school  moneys  in  the  school  year  1885-86,  district  no.  i  of  Hempstead  received 
such  share  as  would  have  been  payable  to  it  if  no  separation  had  been  made,  while 
the  new  district  received  nothing.  The  matter  was  brought  before  me  on  appeal, 
and  it  was  held  that  the  new  district  was  equitably  entitled  to  share  in  the  appor- 
tionment; that  the  statute  gave  the  Superintendent  power  to  adjust  the  matter  if 
the  facts  were  proved  upon  which  he  could  do  it  intelligently  and  correctly,  and 
that  such  a  state  of  facts  was  proved.  It  was  therefore  ordered  that  district  no. 
I  should  pay  over  to  district  no.  25  the  proportional  share  of  public  moneys  found 
to  be  due  said  district,  or  that  said  amount  should  be  withheld  from  the  share  of 
one  district  and  added  to  that  of  the  other  in  the  next  annual  apportionment. 

At  the  time  of  the  presentation  of  the  matter  referred  to  the  petitioners  also 
asked  that  district  no.  i  should  be  required  to  pay  over  to  no.  25  a  like  propor- 
tional share  in  the  income  of  a  certain  trust  fund  arising  from  the  sale  or  rental 
of  common  lands  of  the  town,  of  which  the  board  of  town  auditors  were  trustees, 
and  which  chapter  591  of  the  Laws  of  1870  directed  should  be  distributed  to  the 
several  school  districts  of  the  town  of  Hempstead  "  in  the  same  manner  and  upon 
the  same  basis  as  the  public  school  moneys  of  the  State  are  apportioned."  They 
showed  that  two  apportionments  from  this  trust  fund  had  been  paid  to  district 
no.  I  after  Garden  City  became  a  separate  school  district  and  before  the  com- 
mencement of  these  proceedings,  and  that,  in  said  apportionments,  the  old  district 
received  the  share  which  seems  equitably  to  belong  to  the  new  one,  while  the  new 
district  received  nothing. 

The  relief  which  was  asked  in  connection  with  such  trust  fund  was  not 
afforded  in  the  decision  and  order  in  the  proceedings  referred  to,  for  the  reason 
that  it  seemed  to  me  that  up  to  that  time  the  board  of  town  auditors  had  made  no 
mistake.  They  had  made  their  apportionment  in  the  same  manner  and  upon  the 
same  basis  as  the  public  school  moneys  of  the  State  are  apportioned,  so  far  as 
they  could  be  expected  to  know.  It  was  assumed,  when  a  decision  was  made  by 
authority  competent  to  make  it,  that  an  erroneous  apportionment  of  public  mone.vs 
had  been  made  among  the  school  districts  of  the  town,  and  that  after  such  error 
was  corrected  and  set  right,  that  the  board  would  perceive  that  it  also  was  in 
error  in  the  apportionment  of  the  trust  fund,  and  that  it  would,  after  being 
apprised  of  the  matter,  also  proceed  to  set  the  matter  right.  A  doubt  was  also 
expressed  of  the  power  of  the  Department  over  the  trust  fund  referred  to. 

It  is  now  shown  that  the  order  of  the  Department  in  relation  to  the  public 
moneys  has  been  brought  to  the  knowledge  of  the  board  of  town  auditors,  and  a 
demand  has  been  made  that  the  share  of  district  no.  25  in  the  apportionments 


JUDICIAL  decisions:  school  funds  773 

from  the  trust  fund  on  December  21,  1885,  and  June  5,  1886,  which  was  paid 
to  district  no.  i,  shall  be  paid  over  to  no.  25,  but  that  such  demand  has  been 
refused.     Thereupon  the  matter  has  been  brought  here  and  relief  is  asked. 

After  hearing  the  argument  of  able  counsel,  I  have  given  the  matter  vefy 
full  examination.  I  find  that  section  8,  chapter  591,  Laws  of  1870,  provides  that 
two-thirds  of  the  accruing  interest  of  the  moneys  arising  from  the  sale  of  the 
common  lands  in  the  town  of  Hempstead,  or  so  much  thereof  as  may  be  neces- 
sary, shall  be  devoted  to  the  support  of  the  common  schools  of  the  town.  Exactly 
how  much,  is  to  be  determined  by  the  board  of  town  auditors  after  examining 
the  last  annual  reports  of  the  trustees  and  boards  of  education  of  the  town,  and 
whatever  amount  is  devoted  to  such  purposes  is  apportioned  among  the  several 
districts  in  the  same  manner  and  upon  the  same  basis  as  the  public  school  moneys 
of  the  State  are  apportioned.  My  reading  of  the  section  leads  me  irresistibly  to 
the  conclusion  that  the  only  discretion  vested  in  the  board  of  town  auditors  is  the 
fixing  of  the  amount,  witliin  the  limit  named  by  the  statute,  which  shall  go  for 
school  purposes.  They  are  to  be  guided  in  doing  so  by  the  reports  of  the  trustees. 
When  they  have  determined  the  amount,  the  law  says  just  how  it  shall  be  dis- 
tributed, namely,  in  the  same  manner  and  upon  the  same  basis  as  the  State  school 
moneys. 

It  is  a  fact,  which  is  undeniable,  that  the.  two  sums  devoted  to  school  pur- 
poses by  action  of  the  town  auditors  on  the  21st  of  December  1885,  and  the 
5th  of  June  1886,  respectively,  have  not  been,  so  far  as  districts  nos.  i  and  25 
are  concerned,  apportioned  in  the  same  manner  and  upon  the  same  basis  as  the 
State  school  moneys  have  been  apportioned  in  said  districts.  It  is  true  that  these 
sums  have  been  distributed  in  the  same  manner  and  upon  the  same  basis  as  the 
public  school  moneys  were  at  first  apportioned  by  the  local  officers  charged  with 
the  duty  of  such  apportionment,  but  it  has  been  determined  by  authority,  which 
all  now  concede  was  charged  with  the  responsibility  and  duty  of  determining 
the  matter,  and  that  such  apportionment  was  in  justice  and  equity  erroneous,  and 
ought  to  be  corrected.  Such  correction  has  not  only  been  made  by  a  reappor- 
tionment, but  the  payments  to  the  respective  districts  have,  in  fact,  been  read- 
justed in  accordance  with  such  reapportionment. 

This  being  so,  it  seems  clear  to  me  that  the  directions  of  the  statute,  con- 
cerning that  part  of  the  income  of  moneys  arising  from  the  sale  of  public  lands 
which  has  been  devoted  to  school  purposes,  have  not  been  complied  with,  and  will 
not  be  until  such  moneys  shall  be  reapportioned  and  readjusted  in  the  same 
manner  as  has  been  done  in  relation  to  the  State  school  moneys.  This  being  so, 
it  is  no  less  clear  to  me  that  it  is  the  duty  of  the  board  of  town  auditors  to  make 
such  reapportionment  and  readjustment.  I  observe  their  allegations  that  they 
have  no  power  in  the  premises;  that  they  can  neither  compel  district  no.  i  to 
pay  over  to  no.  25  what  may  belong  to  the  latter,  nor  in  their  next  apportion- 
ment withhold  enough  from  the  share  of  one  and  add  it  to  that  of  the  other  to 
set  the  matter  right.  I  can  not  adopt  this  view.  It  seems  to  me  entirely  too 
technical.    The  right  to  correct  a  manifest  error,  capable  of  correction,  is  inherent 


774  THE   UNIVERSITY    OF   THE   STATE   OF   NEW   YORK 

and  always  present.  Suppose  the  auditors  had  ascertained  that,  through  a  mis- 
take in  conipi  tr.tion,  a  mere  arithmetical  blunder,  they  had  paid  a  larger  sum  to 
one  district  and  a  correspondingly  smaller  sum  to  another  district  than  each 
should  have  received.  Would  they  contend  in  that  case  that  they  had  no  right 
to  correct  the  mistake,  no  power  in  a  subsequent  apportionment  to  withhold  from 
one  and  add  to  the  other  enough  to  set  the  matter  right?  If  they  had  no  power 
to  right  the  wrong,  why  would  they  not  be  personally  liable  for  the  amount  to 
which  the  district  was  entitled,  and  which  it  had  not  received  through  their  mis- 
take? But  there  would  be  no  doubt  of  their  power  to  correct  the  error.  If  they 
could  do  it  in  that  case,  they  can  in  this. 

Can  they  be  required  to  do  it?  I  entertain  no  doubt  of  it.  What  the  law 
directs  to  be  done  and  may  be  done,  may  be  required  to  be  done.  Have  the 
appellants  or  petitioners  taken  the  proper  steps  to  compel  them  to  do  it,  when 
they  come  to  this  Department?  The  respondents  say  that  the  Superintendent  of 
Public  Instruction  has  no  power  to  do  anything  in  the  premises.  With  a  desire 
neither  to  assume  any  autliority  which  the  office  does  not  possess,  nor  to  avoid 
any  responsibility  which  the  law  does  place  upon  it,  I  have  endeavored  to  con- 
sider that  question  with  care. 

No  one  can  examine  the  general  school  laws  of  the  State  without  being  con- 
vinced that  it  is  the  purpose  of  the  Legislature  to  provide  an  inexpensive, 
expeditious  and  conclusive  way  for  determining  all  controversies  in  which  school 
interests  may  become  involved.  This  way  lies  in  the  statutory  right  of  appeal  to 
the  Superintendent.  The  right  is  broad,  extending  to  all  school  controversies. 
Title  12,  section  i  of  the  Consolidated  School  Act,  provides  that  "any  person 
conceiving  himself  aggrieved  in  consequence  of  .  .  .  any  other  official  act 
or  decision  concerning  any  other  matter  under  this  act,  or  any  other  act  pertain- 
ing to  common  schools,  may  appeal  to  the  Superintendent  of  Public  Instruction, 
who  is  hereby  authorized  and  required  to  examine  and  decide  the  same."  Is 
not  chapter  591  of  the  Laws  of  1S70,  an  act  pertaining  to  common  schools,  when 
it  directs  the  distribution  of  certain  moneys  in  a  certain  way,  among  certain 
schools?  The  school  system  may  be  administered  in  different  ways  and  by  dif- 
ferent officers  in  different  localities.  Is  not  the  apportionment  of  moneys, 
devoted  to  schools  of  the  town  of  Hempstead,  by  certain  town  officers,  no 
matter  by  what  title  they  are  called,  an  official  act  under  a  statute  pertaining  to 
schools?  In  my  judgment,  it  is  as  much  so  as  is  the  annual  apportionment  of 
the  State  school  moneys  by  the  school  commissioners  of  the  county  of  Queens. 
If  so,  then  the  act  is  one  which  may  be  brought  up  before  the  Superintendent 
upon  appeal,  and  the  statute  not  only  authorizes,  but  requires  him  to  examine 
and  decide  whether  or  not  it  was  rightfully  and  properly  performed. 

But  there  are  statutory  provisions  specially  treating  of  funds  held  in  trust 
for  the  benefit  of  common  schools.  Title  3,  sections  15,  16  and  17  of  the  Con- 
solidated School  Act,  after  providing  for  the  establishing  of  such  trusts,  and  that 
no  such  trusts  shall  become  invalid  for  want  of  a  trustee,  and  that  the  Legisla- 


JUDICIAL  decisions:  school  funds  775 

ture  may  control  and  regulate  the  execution  of  all  such  trusts,  contains  this  direc- 
tion, viz :  "  And  the  Superintendent  of  Public  Instruction  shall  supervise  and 
advise  the  trustees  and  hold  them  to  a  regular  accounting  for  the  trust  property 
and  its  income  and  interest  at  such  times,  in  such  forms  and  with  such  authenti- 
cations as  he  shall  from  time  to  time  prescribe." 

The  board  of  town  auditors  is  the  custodian  of  certain  funds.  The  law 
directs  that  a  certain  part  thereof  shall  be  devoted  to  school  purposes,  and  leaves 
it  to  them  to  say  how  much,  within  specified  limits.  They  say  how  much.  The 
law  says  they  shall  then  distribute  it  in  a  specific  way.  From  the  moment  they 
have  voted  moneys  to  the  schools  as  provided  by  law,  such  moneys  belong  to  the 
schools,  and  until  actually  paid  over  to  the  school  officers,  they  are  held  in  trust 
for  the  schools  by  the  board  of  town  auditors.  It  seems  clear  to  me  that  during 
such  period  the  members  of  such  board  occupy  the  position  of  trustees  of  such 
funds  for  the  use  of  the  schools,  and  are  subject  to  all  provisions  of  law  govern- 
ing such  officers.  The  statute  says  that  the  Superintendent  shall  supervise  and 
advise  such  trustees  and  hold  them  to  an  accounting,  etc. 

In  view  of  these  considerations,  I  come  to  the  conclusion  that,  in  the  appor- 
tionment and  distribution  of  town  moneys  to  schools  of  the  town  of  Hempstead 
by  the  board  of  town  auditors  on  the  21st  day  of  December  1885,  and  the  5th 
day  of  June  1886,  errors  were  committed  by  said  board  by  reason  of  which  school 
district  no.  i  received  more  and  school  district  no.  25  received  less  than  they 
were  respectively  entitled  to  receive ;  tliat  it  is  the  duty  of  the  board  of  town 
auditors  to  correct  such  error  in  the  apportionment  and  distribution,  in  the  same 
manner  a  similar  error  in  the  apportionment  and  payment  of  the  State  school 
moneys  has  been  directed  to  be  corrected  by  order  of  this  Department,  made 
on  the  30th  day  of  November  1886,  and  filed  in  the  office  of  the  town  clerk  of 
said  town;  that  said  board  has  ample  power  to  make  such  correction;  that  upon 
their  failure  to  discharge  such  duty,  to  the  injury  of  school  district  no.  25,  that 
district  had  the  right  to  bring  the  matter  before  the  Superintendent  on  appeal, 
and  is  entitled  to  the  exercise  of  his  official  powers  in  the  premises. 
The  appeal  is  therefore  sustained,  and  it  is 

Ordered,  That  the  board  of  town  auditors  of  the  town  of  Hempstead  shall, 
within  twenty  days  from  the  date  hereof,  convene  and  correct  an  error  in  their 
apportionments  of  town  moneys  to  schools  made  on  the  21st  day  of  December 
1885,  and  on  the  5th  day  of  June  1886,  respectively,  so  that  said  apportionments 
of  town  moneys  shall  be  in  the  same  manner  and  upon  the  same  basis  as  the 
public  school  moneys  of  the  State  have  been  apportioned  among  the  districts  of 
said  town,  pursuant  to  an  order  made  by  the  Superintendent  of  Public  Instruc- 
tion on  the  30th  day  of  November  1886,  and  filed  in  the  town  clerk's  office  of 
the  town  of  Hempstead  on  the  6th  day  of  December  1886,  and  that,  unless  the 
payments  to  the  school  districts  affected  by  such  reapportionments  shall  sooner 
have  been  adjusted  between  such  districts  in  accordance  with  such  reapportion- 
ments, that  said  board,  at  the  time  of  the  next  apportionment  and  distribution  by 


776  THE   UNIVERSITY   OF   THE   STATE   OF   NEW   YORK 

them  of  town  moneys  to  schools,  shall  withhold  from  any  district  which  has 
been  paid  a  larger  sum  than  properly  belongs  to  it,  as  shown  by  such  reappor- 
tionments, the  excess  so  paid,  and  shall  pay  to  any  district  which  has  received 
less  than  its  share,  as  shown  by  such  reapportionments,  the  sum  to  which  it  may 
thereby  be  sh.own  to  be  entitled. 


4995 

In  the  matter  of  the  appeal  of  Smith  Lent  from  certain  proceedings  of  annual 
meeting  held  August  6,  1901,  in  school  district  no.  i,  Ossining,  Westchester 
coimty. 

The  members  of  a  committee  appointed  at  the  annual  meeting  of  a  school  district  to  ex- 
amine the  annual  report  of  the  trustees  of  the  district,  and  in  performing  such  duty 
and  reporting  therein  at  an  adjourned  school  meeting,  do  not  act  as  the  agents  of  the 
district,  nor  as  district  officers.  Action  of  the  adjourned  school  meeting  in  receiving 
the  report  and  discharging  the  committee,  was  not  an  adoption  of  the  report  by  the 
meeting.  The  action  of  a  subsequent  annual  meeting  of  the  district  in  appropriating 
the  sum  of  $2278.99  for  the  payment  by  members  of  such  committee  for  costs  etc.,  al- 
leged to  have  been  incurred  by  them  in  defending  actions  in  the  Supreme  Court  brought 
by  two  of  the  trustees  against  them  for  libel  alleged  to  have  been  contained  in  such 
report,  and  authorizing  the  trustees  of  the  district  to  levy  a  tax  to  collect  such  sum, 
was  without  authority  of  law. 

Decided  March  11,  1902 

Griffin  &  Young,  attorneys  for  respondents  Underbill,  Ryder  and  Sheehan. 

Skinner,  Superintendent 

This  is  an  appeal  from  certain  proceedings  and  decision  of  the  annual  school 
meeting  held  August  6,  1901,  in  school  district  i,  Ossining,  Westchester  county, 
in  the  adoption  of  a  resolution  appropriating  the  sum  of  $2278.99  to  pay  the 
costs,  charges  and  expenses  of  Abram  C.  Underbill,  Edgar  L.  Ryder  and 
Edward  F.  Sheehan  in  defending  actions  for  damages  for  libel  brought  against 
them  by  the  appellant  herein  in  the  Supreme  Court  of  this  State. 

The  appeal  herein  was  filed  in  this  Department  September  5,  1901 ;  on  Sep- 
tember 13,  1901,  Messrs  Sherwood,  Palmer  and  Crow,  trustees  of  such  district, 
filed  their  answer  to  the  appeal,  and  on  September  24,  1901,  Messrs  Underbill, 
Ryder  and  Sheehan  filed  their  answer  to  the  appeal.  On  November  26,  1901, 
upon  application,  I  named  December  4,  1901,  at  ten  o'clock  a.  m.,  at  the  Depart- 
ment of  Public  Instruction,  in  the  capitol,  in  the  city  of  Albany,  N.  Y.,  as  the 
time  and  place  I  would  hear  oral  arguments  on  behalf  of  the  respective  parties 
in  the  appeal  herein.  On  December  4,  1901,  an  oral  argument  was  made  on 
behalf  of  the  respondents.  Underbill  and  others,  who  also  furnished  a  written 
brief,  but  there  was  no  appearance  on  the  part  of  the  appellant  or  the  trustees 
of  the  district.  On  December  13,  1901,  the  appellant  filed  a  brief,  and  on  Jan- 
uar>'  3,  1902,  he  filed  an  additional  brief. 


JUDICIAL    DECISIOXS:    SCHOOL    FUNDS  'J';'] 

It  is  in  proof  that  at  the  annual  meeting  held  August  i,  1899.  in  said  school 
district,  the  appellant  herein,  then  one  of  the  trustees,  read  the  capitulation  of 
the  annual  report  of  the  board  of  trustees,  and  stated  the  sum  of  $8000  would 
be  necessary  to  be  voted  in  addition  to  the  amount  that  could  be  raised  by  law 
in  order  to  carry  on  the  schools  for  the  ensuing  year,  and  moved  that  said  sum 
be  appropriated,  but  the  motion  was,  by  the  chairman  of  the  meeting,  ruled  as 
out  of  order  at  that  time;  that  a  motion  was  adopted  that  when  said  meeting 
adjourned  it  be  to  August  22,  1899,  at  7.30  p.  m. ;  that  a  motion  was  adopted 
that  the  report  of  the  trustees  be  referred  to  a  committee  of  five  to  report  at 
the  adjourned  meeting  to  be  held  on  August  22,  1899,  and  the  chairman  of  the 
meeting  appointed  as  such  committee  Messrs  Abram.  S.  Underbill,  Edgar  L. 
Ryder,  Edward  F.  Sheehan,  Wilbur  Foshay  and  Randolph  Acker;  that  a  ballot 
was  taken  for  a  trustee  of  the  district  in  the  place  of  the  appellant  herein,  whose 
term  of  office  expired,  and  Edward  B.  Sherwood  was  elected;  that  after  the 
transaction  of  other  business  the  meeting  adjourned  to  August  22,  1899;  that 
on  August  22,  1899,  said  adjourned  meeting  was  held  and  the  respondent,  Edgar. 
L.  Ryder,  read  the  report  of  the  committee  appointed  to  examine  the  annual 
report  of  the  trustees,  which  report  was  signed  by  Messrs  Underbill,  Sheehan, 
Acker  and  Ryder,  Mr  Foshay  of  the  committee  not  having  acted ;  that  after  the 
reading  of  the  report  Mr  W.  W.  Ryder  moved  that  the  report  be  received  and 
placed  on  file,  and  Justice  Valentine  having  moved  as  an-  amendment  that  the 
committee  be  discharged,  the  motion  was  adopted ;  that  a  motion  was  adopted 
that  the  board  of  trustees  be  authorized  to  take  necessary  steps  to  recover  any 
shortage  in  the  school  funds,  and  that  the  sum  of  $29  be  paid  to  the  expert 
employed  by  the  committee  in  the  examination  of  the  accounts  referred  to  such 
committee. 

It  is  also  in  proof  that  in  the  month  of  September  1899,  the  appellant  herein 
and  one  Many  each  brought  actions  in  the  Supreme  Court  of  this  State  against 
Underbill,  Ryder  and  Sheehan,  severally,  for  libel.  Before  the  three  actions 
brought  by  Many  came  on  for  trial  he  died,  and  thereupon  each  of  said  actions 
abated.  The  action  brought  by  appellant  against  Underbill  came  on  for  trial 
in  said  court  before  Judge  Marean  and  a  jury  on  April  4,  igoo,  and  the  com- 
plaint of  the  appellant  was  dismissed,  and  thereupon  said  Lent  appealed  to  the 
appellate  division  of  the  Supreme  Court  of  the  second  department,  and  at  the 
November  term,  1900,  the  judgment  of  the  trial  term  was  alTirmed.  The  two 
actions  brought  by  the  appellant  against  Messrs  Ryder  and  Sheehan,  respectively, 
were  tried  in  the  Supreme  Court  in  June  1901,  before  Justice  Smith,  who  directed 
a  verdict  on  the  merits  for  each  of  the  defendants  therein. 

It  appears  that  the  complaint  in  each  of  said  actions  asserted  tzvo  causes  of 
action,  one  for  the  original  report  made  by  the  committee  and  read  at  the  school 
meeting,  and  subsequently  published,  and  the  other  for  the  statements  contained 
^n  an  article  of  the  defendants  published  in  a  newspaper  replying  to  a  newspaper 
article  by  the  plaintiff  criticizing  the  original  report. 


77^  THE  UNIVERSITY    OF  THE  STATE   OF   NEW   YORK 

On  August  5,  1901,  the  respondents,  Underbill,  Ryder  and  Sheehan,  deliv- 
ered to  Trustee  Sherwood  a  verified  account,  of  which  the  following  is  a  copy: 

Ossining,  N.  Y.,  July  2^,  iqoi 
Sing  Sing   Free   School   District   No.    i   of  the  Town  of  Ossining,   to 
Messrs  Underbill,  Ryder  and  Siieeiian,  Dr. 
To  expenses  incurred  in  the  defense  of  the  actions,  Lent  v.  Underhill,  Lent 
V.  Ryder,  Lent  v.  Sheehan,  Many  v.  Underhill,  Many  v.  Ryder  and  Many  v. 
Sheehan,  as  follows : 

Griffin  &  Young,  cash  disbursements $204  49 

Griffin  &  Young,  for  legal  services 765  00 

Hon.  J,  Rider  Cady,  for  legal  services 650  00 

Henry  C.  Henderson,  for  legal  services 500  00 

Edgar  L.  Ryder,  personal  expenses  to  Poughkeepsie  to  obtain  order. .  3  50 

Romine   Williams,  serving  papers 3  00 

Mahlon  Gobel,  serving  subpoenas 3  00 

Morgan  &  Seabury,  special  counsel  for  Edgar  L.  Ryder 50  00 

Benjamin  Fagen,  special  counsel  for  E.  F.  Sheehan 100  00 

Total    $2278  99 


At  the  annual  meeting  held  on  August  6,  1901,  in  school  district  i  of  Ossin- 
ing (formerly  Sing  Sing)  Trustee  Sherwood  stated  that  he  had  received  a  bill 
or  account  of  Messrs  Underhill,  Ryder  and  Sheehan,  amounting  to  $2278.99,  but 
no  action  would  be  taken  thereon  until  the  meeting  had  acted  upon  the  matter, 
and  the  following  resolution  was  presented  to  the  meeting  and  adopted  by  a  vote 
of  87  for  and  45  against. 

Resolved,  That  an  appropriation  of  $2278.99  be  made  to  pay  the  costs, 
charges  and  expenses  of  the  special  investigating  committee  appointed  at  the 
school  meeting  of  1899,  consisting  of  Abram  S.  Underhill,  Edgar  L.  Ryder  and 
Edward  F.  Sheehan,  in  defending  themselves  in  the  six  suits  for  an  alleged  libel 
brought  against  them  by  Smith  Lent  and  Joshua  G.  Many ;  and  that  the  trustees 
of  Sing  Sing  free  school  district  I,  Ossining,  cause  the  said  sum  of  $2278.99  to 
be  assessed  upon  and  collected  of  the  taxable  property  of  said  district,  in  the 
same  manner  as  other  taxes  are  by  law  assessed  and  collected. 

The  principal  ground  alleged  by  the  appellant  for  bringing  his  appeal  is, 
that  said  school  meeting  had  no  power  or  authority  to  appropriate  said  sum  of 
money  or  any  other  sum  for  the  purposes  stated  in  said  resolution,  or  to  levy  a 
tax  to  collect  said  sum. 

The  respondents.  Underbill,  Ryder  and  Sheehan,  contend  that  as  members 
of  the  committee  appointed  at  the  school  meeting  held  in  August  1899,  to  exam- 
ine the  report  of  the  trustees,  they  were  district  officers,  or  if  not  district  officers, 
were  agents  of  the  district,  and  under  the  provisions  of  the  Consolidated  School 
Law  of  1894,  the  annual  school  meeting  had  authority  to  appropriate  money  to 
pay  the  expenses  incurred  by  district  officers  in  defending  suits  brought  against 
them,  or  in  prosecuting  suits. 


JUDICIAL  decisions:  school  funds  779 

Under  the  provisions  of  chapter  314  of  the  Laws  of  1864,  the  then  village 
of  Sing  Sing  was  formed  into  a  permanent  school  district,  which  district  is  now 
designated  as  school  district  i,  Ossining,  Westchester  county.  Said  chapter  314 
of  the  Laws  of  1854,  was  amended  by  chapter  325  of  the  Laws  of  1857,  chapter 
199  of  the  Laws  of  1S57,  chapter  269  of  the  Laws  of  1863  and  chapter  687  of 
the  Laws  of  1900. 

Under  the  provisions  of  said  acts  the  district  is  a  common  school  district 
and  its  officers  consist  of  three  trustees,  a  district  clerk  and  a  treasurer  of  the 
trustees.  The  trustees  are  authorized  to  raise  by  tax  annually  moneys  for  the 
purchase  of  fuel,  ordinary  repairs  and  improvements  of  school  property,  and 
for  the  enlargement,  rebuilding  of  school  buildings  or  the  erection  of  new 
buildings. 

Said  act  does  not,  nor  does  any  amendment  thereof,  authorize  the  appropria- 
tion of  money  to  pay  the  expenses  of  district  officers,  or  of  any  agents  of  the 
district,  in  bringing  or  defending  suits  brought  by  or  against  such  officers  or 
agents. 

Under  subdivision  15  of  section  14,  article  i,  title  7,  of  the  Consolidated 
School  Law  of  1894,  the  qualified  voters  at  district  meetings  in  common  school 
districts  have  the  power  to  vote  a  tax  to  pay  reasonable  expenses  incurred  by 
district  officers  in  defending  suits  or  appeals  brought  against  them  for  their 
official  acts,  or  in  prosecuting  suits  or  appeals  by  direction  of  the  district  against 
other  parties. 

Sections  4,  5,  6,  7  of  article  i,  title  15,  of  the  Consolidated  School  Law,  cited 
by  the  respondents.  Underbill,  Ryder  and  Shcehan,  do  not  authorize  the  adoption 
of  the  resolution  appealed  from  as  such  sections  are  applicable  only  in  actions 
brought  by  or  against  district  officers. 

I  decide  that  the  respondents,  Underbill,  Ryder  and  Shcehan,  in  the  exam- 
ination of  the  report  of  the  trustees  of  school  district  i,  Ossining,  Westchester 
county,  referred  to  them  and  Messrs  Foshay  and  Acker,  as  a  committee,  at  the 
annual  meeting  held  August  i,  1899,  and  in  reporting  thereon  to  the  adjourned 
school  meeting  were  not  acting  as  district  officers  or  agents  of  such  district. 

The  report  made  by  such  committee  to  the  adjourned  school  meeting  held 
August  22,  1899,  was  received  but  not  adopted  at  such  meeting,  and  such  com- 
mittee was  discharged  by  the  meeting.  The  actions  commenced  in  the  Supreme 
Court  by  the  appellant  against  the  respondents.  Underbill,  Ryder  and  Sheehan. 
were  not  based  wholly  upon  statements  contained  in  said  report  but  also  from 
statements  contained  in  an  article  published  by  them  in  one  or  more  newspapers 
in  the  school  district. 

The  adoption  at  the  annual  meeting  in  school  district  i,  Ossining,  West- 
chester county,  held  August  6,  1901,  of  the  resolution  appealed  from,  appropriat- 
ing the  sum  of  $2278.99  to  pay  the  costs  etc.,  of  the  respondents.  Underbill, 
i^yder  and  Sheehan,  in  defending  six  suits  for  libel  brought  against  them  by 
Smith  Lent  and  Toshua  G.  ^Lmy.  and  that  the  trustees  of  the  district  cause  said 


/So  THE   UNIVERSITY    OF  THE   STATE   OF   NEW   YORK 

sum  to  be  assessed  and  collected  of  the  taxable  property  of  the  district  as  other 
taxes  are  assessed  and  collected,  was  without  authority  of  law. 

The  Legislature  has  the  power  to  legalize  the  action  of  the  annual  meeting 
of  such  district  in  appropriating  said  sum  of  money  and  the  assessment  and  col- 
lection thereof  by  tax  upon  the  taxable  property  of  the  district. 

The  adoption  of  such  resolution  was  a  decision  of  a  school  meeting,  and 
under  the  provisions  contained  in  title  14  of  the  Consolidated  School  Law  of 
1894  any  person  considering  himself  aggrieved  in  consequence  of  any  decision 
by  any  school  meeting  may  appeal  to  the  State  Superintendent  of  Public  Instruc- 
tion, who  is  authorized  and  required  to  examine  and  decide  the  same. 

The  appeal  herein  is  sustained. 

It  is  ordered  that  the  action  of  the  annual  meeting,  held  August  6,  1901, 
in  school  district  i,  Ossining,  Westchester  county,  in  the  adoption  of  the  follow- 
ing resolution :  "  Resolved,  That  an  appropriation  of  $2278.99  be  made  to  pay 
the  costs,  charges  and  expenses  of  the  special  investigating  committee  appointed 
at  the  school  meeting  of  1899,  consisting  of  Abram  S.  Underbill,  Edgar  L, 
Ryder  and  Edward  F.  Sheehan,  in  defending  themselves  in  the  six  suits  for  an 
alleged  libel  brought  against  them  by  Smith  Lent  and  Joshua  G.  Many;  and  that 
the  trustees  of  Sing  Sing  free  school  district  i,  Ossining,  cause  the  said  sum  of 
S2278.99  to  be  assessed  upon  and  collected  of  the  taxable  property  of  said  dis- 
trict, in  the  same  manner  as  other  taxes  are  by  law  assessed  and  collected,"  be 
and  the  same  hereby  is  vacated  and  set  aside. 


3837 

In  the  matter  of  the  appeal  of  J.  F.  Tracy  v.  John  S.  IMoot,  trustee  of  district 
no.  33,  of  the  town  of  Hector  and  county  of  Schuyler. 

Appellant  alleges  that  the  supervisor  of  the  town  of  Hector  did  not  comply  with  the  statute 
in  apportioning  the  income  or  proceeds  of  the  sale  of  gospel  and  school  lands  among 
the  schools  of  Hector.  Held,  that  the  appellant,  not  being  a  resident  of  the  town,  nor 
interested  therein,  can  not  be  aggrieved  thereby,  and  the  complaint  will  not  be  con- 
sidered. 

The  trustee  deducted  from  a  certain  tax  to  be  collected  from  the  inhabitants  of  a  town  in 
a  joint  district  an  amount  which  had  already  been  paid  from  moneys  belonging  to  the 
schools  of  said  town;  held  to  be  at  least  equitable  and  not  a  sufficient  ground  of  appeal. 

Supervisors  have  no  autliority  under  the  statute  to  equalize  an  assessment  upon  personal 
property  in  districts  composed  of  parts  of  two  or  more  towns. 

Decided  December  8,  1889 

Draper,  Superintendent 

This  appeal  is  brought  by  a  resident  taxpayer  of  that  portion  of  the  town 
of  Catharine  which  is  included  with  a  part  of  the  town  of  Hector  in  school 


JUDICIAL  decisions:  school  funds  781 

district  no.  33,  of  the  towns  of  Hector  and  Catharine,  Schuyler  county.     The 
grounds  of  appeal  I  find  to  be  as  follows: 

1  The  supervisor  of  the  town  of  Hector  did  not  apportion  the  income  or 
proceeds  of  the  sale  of  gospel  and  school  lands  as  the  statute  contemplates. 

2  That  the  trustee  of  said  district  had  no  authority  to  deduct  from  the 
amount  of  a  certain  tax,  to  be  collected  from  the  inhabitants  of  Hector  in  said 
district  for  district  expenses,  an  amount  which  had  been  paid  by  the  super- 
visor of  said  town  of  Hector  for  teachers'  wages,  upon  an  order  of  the  trustee  of 
said  district  from  the  income  or  proceeds  of  the  sale  of  gospel  and  school  lands. 

3  That  the  trustee  did  not  comply  with  the  statute  in  assessing  personal 
property  in  said  district,  having  assessed  the  same  as  real  estate,  the  tax  upon 
which  had  been  equalized  by  the  supervisors  as  between  the  towns,  they  having 
found  that  the  town  valuations  were  not  substantially  just  as  compared  with 
each  other. 

The  allegations  of  the  appellant  are  not  squarely  controverted  by  the 
respondent.  The  first  ground  of  appeal  I  do  not  propose  to  consider.  The 
supervisor  is  presumed  to  have  complied  with  the  law,  and  whether  he  has 
properly  apportioned  the  school  lot  funds  among  the  schools  of  Hector,  I  am 
unable  to  determine  from  the  data  before  me.  No  resident  of  the  town  of 
Hector  complains,  and  the  appellant,  being  a  resident  of  another  town,  can  not 
be  aggrieved  thereby. 

To  the  second  ground  of  appeal,  I  am  of  the  opinion  that  the  action  of 
the  trustee  was  at  least  equitable.  The  money  paid  by  the  supervisor,  for  the 
debt  of  the  district,  belonged  to  the  town  of  Hector,  and  the  action  of  the  trus- 
tee was  simply  to  give  the  inhabitants  of  Hector  the  benefit  of  the  same. 

The  tax  list,  referred  to  in  the  third  ground  of  appeal,  was  clearly  defective. 
There  is  no  warrant  for  taxing  personal  property  except  at  its  assessed  valuation. 

It  appears  by  the  answer  of  the  respondent  that  the  supervisors  who  met 
to  equalize  the  values  of  real  estate,  and  determine  what  proportion  of  a  tax 
each  town  of  the  district  should  pay,  reached  the  conclusion  by  including  per- 
sonal as  well  as  real,  at  the  suggestion  of  a  resident  of  Catharine.  This  action 
was  unwarranted  but  no  appeal  therefrom  was  taken. 

From  an  examination  of  the  tax  list  in  question,  I  find  but  two  items  of 
personal  assessed,  one  of  $4000  in  Hector  part,  and  one  of  $1200,  to  appellant, 
in  Catharine. 

H  the  tax  had  not  been  collected  and  the  warrant  returned,  I  should  require 
a  correction  to  be  made  of  the  same.  As  it  is,  I  have  computed  the  tax  of  the 
appellant  as  it  should  have  been,  and  find  it  to  be  $4.65  instead  of  the  amount 
in  the  tax  list  of  $5.68.  The  amount  in  dispute  is  small,  but  I  have  concluded 
to  dismiss  the  appeal,  upon  the  refunding  by  the  district,  to  appellant,  of  the 
sum  of  $1.18,  overpaid  as  stated. 


782  THE   UNIVERSITY    Ol"   THE   STATK   OF   NEW   YORK 

3543 

In  a  school  district  in  which  a  branch  school  has  been  maintained,  and  subsequently  that 
part  of  the  district  wliere  the  patrons  of  the  branch  school  reside  is  formed  into  a 
separate  district;  held,  that  so  much  of  the  public  moneys  apportioned  to  the  old  district 
upon  the  statistics  of  the  branch  school  will  be  ordered  paid  to  the  new  district. 

Taxes  levied  and  collected  before  the  formation  of  the  new  district  will  not  be  so  appor- 
tioned. 

There  is  no  provision  of  law  for  a  division  of  common  property  when  a  new  district  is  set 
off  from  an  old  one. 

Decided  November  30,  1886 

Draper,  Superintendent 

Prior  to  April  1885,  the  village  of  Garden  City  constituted  a  part  of  school 
district  no.  i  of  the  town  of  Hempstead,  Queens  county.  On  the  20th  of  April 
1885,  the  Legislature  passed  an  act  making  the  village  of  Garden  City  a  separate 
school  district,  to  be  known  as  district  no.  25  of  the  town  of  Hempstead.  No 
meeting  was  held  for  the  purpose  of  electing  officers  and  organizing  the  new 
district  until  August  11,  1885.  For  several  years  prior  to  this,  district  no.  i 
had  maintained  a  school  at  Garden  City,  and,  notwithstanding  the  act  of  the 
Legislature  in  April,  this  was  continued  and  supported  at  the  expense  of  district 
no.  I  till  the  end  of  the  school  year.  At  the  close  of  the  school  year  1884-85, 
district  no.  i  reported  the  maintenance  of  the  school  at  Garden  City  during  the 
preceding  year,  and  in  the  annual  apportionment  of  school  moneys  in  the 
school  year  1885-86,  said  district  received  such  sum  as  would  be  payable  in 
consequence  thereof,  while  the  new  district  no.  25,  received  nothing.  District 
no.  25  brings  the  matter  before  this  Department,  and  demands  that  district  no.  i 
shall  be  required  to  pay  to  it  such  sum  of  money  as  was  apportioned  to  it  in 
consequence  of  the  maintenance  of  a  school  at  Garden  City  during  the  preceding 
school  year. 

It  also  appears  that  in  February  1885,  the  board  of  education  of  district 
no.  I  levied  a  tax  of  fifteen  cents  on  the  hundred  dollars,  which  amounted  to 
the  sum  of  $1351.35,  of  which  sum  Garden  City  paid  her  proportionate  share, 
which  was  $229.20.  Having  parted  company.  Garden  City  now  thinks  and 
demands  that  the  part  which  she  has  paid  of  this  tax  should  be  paid  back  to 
her. 

Again,  chapter  591,  Laws  of  1870,  provides  for  the  distribution  to  the  several 
school  districts  of  the  town  of  Hempstead  of  a  certain  portion  of  the  income  of 
a  fund  which  has  arisen  from  the  sale  or  rental  of  common  lands  of  the  town, 
and  directs  that  such  distribution  shall  be  calculated  and  determined  "in  the 
same  manner,  and  upon  the  same  basis  as  the  public  school  moneys  of  the  State 
are  apportioned."  After  Garden  City  became  a  separate  school  district,  and 
before  the  commencement  of  this  proceeding,  there  were  two  of  these  apportion- 
ments; the  first  for  the  six  months  ending  November  i,  1885,  and  the  second 
for  the  period  ending  May  i,  1886,  and  at  each  time  the  sum  of  $6000  was 
distributed.      Of    these   apportionments    from   this   trust    fund,    district    no.    25 


JUDICIAL  decisions:  school  funds  783 

received  only  such  an  allotment  as  was  based  on  school  population,  and  nothing 
on  account  of  "  pupil  attendance  "  or  the  "  district  quota,"  that  share  going  to 
district  no.  i,  pursuant  to  the  school  reports  made  at  the  close  of  the  school 
year  ending  August  20,  1885.  District  no.  25  demands  that  district  no.  i  shall 
be  directed  to  pay  over  to  her  such  sums  as  she  received  from  these  two  distri- 
butions from  this  fund  on  account  of  the  maintenance  of  a  school  at  Garden  City 
during  the  preceding  school  year. 

District  no.  i  resists  these  several  demands  with  energy.  The  trustees  of 
that  district  in  answering  say  that  the  school  which  they  maintained  at  Garden 
City  was  only  a  branch  of  the  school  at  Hempstead,  and  that  they  were  not 
obliged  to  open,  and  that  it  was  done  only  for  the  convenience  of  the  former 
place,  and  that  the  report  which  they  made  at  the  end  of  the  school  year  1884-85 
was  such  as  they  were  required  to  make  by  law,  and  that  the  school  moneys 
based  upon  such  report  which  they  have  received  are  such  and  only  such  as  the 
law  gives  them.  In  relation  to  the  tax  collected  in  February  1885,  of  which 
district  no.  25  demands  that  the  share  which  it  paid  shall  be  paid  back,  they  say 
it  was  levied  to  meet  current  expenses  for  the  ensuing  year,  and  that  Garden 
City  received  back  her  share  in  school  privileges.  They  urge,  also,  that  when  a 
new  district  is  set  off  from  an  old  one,  the  property  of  the  old  district  can  not 
be  divided;  that  here  the  new  district  was  set  off  at  its  own  desire,  and  that  it 
must  support  itself  as  best  it  can  until  the  time  when  its  school  reports,  made 
pursuant  to  law,  entitle  it  to  share  in  public  moneys.  In  illustration,  it  urges 
that  when  it  opened  the  school  at  Garden  City  it  was  obliged  to  maintain  it  the 
first  year  with  no  apportionment  of  public  moneys  based  on  the  report  of  a 
previous  school  year,  and  that  now  this  district  must  do  the  same. 

The  public  moneys,  apportioned  on  or  before  the  20th  day  of  January  in 
each  year,  are  intended  for  teachers'  wages  for  the  school  year  in  the  middle 
of  which  the  apportionment  is  made.  The  apportionment  is  made  upon  the 
school  statistics  for  the  preceding  school  year,  for  the  reason  that  that  is  appar- 
ently the  most  reasonable  basis  for  a  general  apportionment.  Ordinarily,  when 
a  new  district  is  set  off,  it  is  impossible  to  make  any  allotment  to  it  during  the 
first  year  of  its  existence,  because  there  is  no  preceding  year's  statistics  for  a 
basis.  That  is  not  so  in  this  case.  The  school  at  Garden  City  had  been  in 
operation  for  years.  It  had  an  individuality  of  its  own.  For  statistical  pur- 
poses it  was  the  same  school,  was  as  perfectly  and  completely  organized  and 
was  as  separate  and  distinct  from  the  Hempstead  school  before  the  new  district 
was  erected  as  afterward.  Its  register  of  attendance  for  the  year  1884-85.  kept 
as  required  by  law  and  duly  verified,  is  produced  here.  It  shows  that  school 
was  kept  more  than  23  weeks.  Here  is  the  basis  upon  which  to  determine 
what  amount  of  public  money  belonged  to  it,  equitably  at  least,  for  the  year 
1885-86.  There  can  be  no  doubt  but  that  any  new  district  is,  in  equity,  entitled 
To.  share  in  the  State  school  moneys,  even  during  the  first  years  of  its  organized 
existence.  The  difficulty  is  that  the  means  of  determining  how  much  it  should 
have  are  usually  wanting.     That  difficulty  does  not  exist  in  this  case.     District 


7^4  THE    UXIVERSITY    OF   THE   STATE   OF    NEW    YOKK 

no.  I  received  at  the  apportionment  in  1886  more  than  it  was  entitled  to  for  the 
year  1885-86,  and  district  no.  25  received  less  than  its  share,  because  the  Garden 
City  statistics  were  included  in  the  report  of  district  no.  i  at  the  close  of  the 
preceding  year.  This  being  so,  and  there  being  at  hand  the  data  from  which  to 
determine,  with  exactness,  hoiv  much  was  paid  to  no.  i,  which  should,  in  fair- 
ness, have  been  paid  to  no.  25,  the  matter  should  be  set  right  if  there  is  lawful 
authoritv  for  so  doing. 

The  State  school  moneys  are  apportioned  by  the  Superintendent  of  Public 
Instruction  in  the  manner  provided  by  title  3  of  the  Consolidated  School  Act  of 
1864.  It  was  impossible  to  provide  by  statute  for  all  exigencies  which  might 
arise,  and  it  was  necessary  to  vest  some  discretion  in  the  Superintendent  for  the 
purpose  of  meeting  exceptional  cases.  For  instance,  section  10  of  title  3  directs 
the  Superintendent  to  make  a  special  apportionment  to  a  district  which  has  been 
excluded  from  participation  in  the  general  apportionment  by  reason  of  its  failure 
to  comply  with  some  provision  of  law  or  requirement  of  the  department  when 
such  omission  was  accidental  or  excusable.  Section  ii  authorizes  him  to  with- 
hold from  any  district  in  a  subsequent  apportionment  any  sum  which  has  been 
given  to  it  in  excess  of  what  it  should  have  had  at  a  prior  apportionment. 
Section  12  provides  that  "  if  a  less  sum  than  it  is  entitled  to  shall  have  been 
apportioned  by  the  Superintendent  to  any  county,  part  of  county  or  school 
district,  the  Superintendent  may  make  a  supplementary  apportionment  to  it 
of  such  sum  as  shall  make  up  the  deficiency,"  etc.  Reading  the  different  sections 
together  and  having  in  view  the  general  plan  of  apportionment  which  the  Legis- 
lature was  setting  in  operation,  it  is  manifest  that  it  was  intended  to  clothe  the 
Superintendent  with  authority  to  meet  and  adjust  an  inequality  like  the  one 
here  presented.  Although  the  precise  question  here  involved  has  never  before 
been  passed  upon  by  the  Department,  the  general  authority  requisite  to  meet  it 
has  always  been  exercised  by  it. 

I  shall,  therefore,  direct  that  district  no.  i,  Hempstead,  pay  over  to  district 
no.  25  such  sum  as  it  received  in  the  apportionment  of  1886,  on  the  basis  of  the 
Garden  City  statistics;  or,  in  case  of  failure  to  do  so  before  the  apportionment 
of  1887,  that  the  same  be  deducted  from  the  allotment  to  no.  i,  and  added  to 
that  of  no.  25. 

The  demand  of  district  no.  25,  that  it  be  repaid  so  much  of  the  tax  levied 
in  February  1885,  as  was  paid  by  Garden  City,  must  be  denied.  This  tax  was 
raised  before  district  no.  25  was  set  ofif.  It  was  used,  in  part  at  least,  to  meet 
common  expenses  in  which  was  included  the  expense  of  the  school  at  Garden 
City.  What  was  not  so  used,  was  district  property  at  the  time  of  the  separation. 
There  is  no  provision  of  law  for  the  division  of  common  property  when  a  new 
district  is  set  off  from  an  old  one,  and  in  the  nature  of  things  there  can  not  be. 

There  is  some  reasonable  question  of  the  power  of  this  Department  to  cor- 
rect the  apportionment  of  the  local  trust  fund  applicable  to  school  purposes  as 
provided  by  chapter  591  of  the  Laws  of  1870.     The  appellants  cite  section  17, 


JUDICIAL  decisions:  school  funds  yHs 

title  3  of  the  Consolidated  School  Act,  which  treats  of  trusts  for  school 
purposes,  and  provides  that  "  the  Superintendent  of  Public  Instruction  shall 
supervise  and  advise  the  trustees,  and  hold  them  to  a  regular  accounting,"  etc. 
On  the  other  hand,  it  is  urged  that  the  special  act  governing  this  particular  fund 
takes  it  out  of  the  provisions  of  the  general  statute.  It  is  not  necessary  to 
determine  this  question  at  present,  at  least.  The  board  of  town  auditors  of 
Hempstead  have,  as  yet,  committed  no  error.  They  have  complied  with  the  law 
and  followed  the  State  apportionment.  It  is  fair  to  assume  that  they  will  con- 
tinue to  do  so,  and  will  make  the  correction  which  the  State  now  makes,  and  it 
will  be  time  to  consider  what  course  must  be  taken  for  relief  in  that  direction 
when  it  shall  have  become  certain  that  some  steps  are  necessary. 

It  is  accordingly  ordered  that  the  board  of  education  of  district  no.  i, 
Hempstead,  pay  over  to  district  no.  25,  Hempstead,  known  as  the  Garden  City 
district,  the  sum  of  $66.12,  the  same  being  the  amount  of  one  district  quota 
apportioned  to  no.  i,  Hempstead,  in  the  annual  apportionment  made  by  the 
Superintendent  of  Public  Instruction  to  January,  1886,  and  reapportioned  by 
the  school  commissioner  of  the  second  commissioner  district  of  Queens  county, 
in  March  1886,  for  the  year  1885-86,  on  the  basis  of  one  duly  qualified  teacher 
employed  for  the  legal  term  of  school  in  the  Garden  City  school  for  the  school 
year  beginning  with  August  21,  1884,  and  ending  August  21,  1885;  and  such 
further  sum  as  shall  be  certified  by  the  said  school  commissioner  that  district 
no.  I,  Hempstead,  received  for  the  Garden  City  schools  for  the  year  1885-86,  on 
the  basis  of  the  number  of  resident  children,  the  daily  average  attendance  of 
such  children,  and  for  libraries,  for  the  school  year  1884-85.  But  in  the  event 
of  there  being  no  moneys  in  the  hands  of  the  board  of  education  of  district 
no.  I,  Hempstead,  or  under  their  control,  and  available  for  this  purpose,  then 
the  said  school  commissioner  shall  deduct  for  district  no.  25,  Hempstead,  in  the 
annual  apportionment  to  be  made  by  him  in  March  1887,  from  the  school 
moneys  to  be  apportioned  to  said  district  no.  i,  for  the  year  1886-87,  the  total 
amount  of  public  school  money  said  district  no.  i  received  from  Garden  City 
school  in  the  annual  apportionment  of  1886,  and  apportion  the  same  to  district 
no.  25,  together  with  the  amount  that  no.  25  is  to  receive  for  the  year  1886-87. 


SCHOOL  FURNITURE 

4629 

In  the  matter  of  the  petition  of  James  F.  Ryther,  as  school  commissioner  of  the 
second  district  of  Erie  county,  for  the  removal  of  F.  B.  Abbott  from  office 
as  sole  trustee  of  school  district  no.  2,  East  Hamburg,  Erie  county. 

School  commissioners,  in  orders  made  by  them  under  the  provisions  of  subdivision  3,  sec- 
tion 13,  title  5,  of  the  Consolidated  School  Law  of  1894,  requiring  trustees  of  school 
districts  to  provide  new  furniture  for  the  schoolhouse,  may  designate  the  kinds  of 
furniture  to  be  provided,  and  that  it  shall  be  new  and  of  modern  style. 

When  new  desks  are  ordered,  trustees  have  the  authority  to  decide  as  to  the  number  neces- 
sary to  furnish  adequate  accommodations  for  all  the  scholars  attending  the  school,  and 
whether  such  desks  shall  be  single  cr  double. 

1  he  proper  course  to  be  taken  by  a  school  commissioner  when  trustees  neglect  or  refuse 
to  obey  a  proper  order  to  purchase  new  furniture,  is  to  apply,  by  petition,  to  the  State 
Superintendent  of  Public  Instruction,  setting  forth  the  facts,  for  an  order  for  such 
trustees  to  show  cause  before  him  why  such  order  should  not  be  obeyed.  If  no  suf- 
ficient cause  is  shown  the  Superintendent  may,  by  his  order,  direct  that  if  such  order 
of  the  commissioner  is  not  obeyed  within  the  time  fixed  therein,  such  trustees  will  be 
removed   from  office. 

Decided  January  28,  1898 

Skinner,  Superintendent 

This  is  a  petition  by  James  F.  Ryther,  as  school  commissioner  of  the  second 
commissioner  district  of  Erie  county,  for  the  removal  of  F.  B.  Abbott  from 
('ffice  as  sole  tnistee  of  school  district  2,  East  Hamburgh,  Erie  county,  for 
neglect  of  duty  and  wailful  violation  of  an  order  made  by  the  petitioner  as  such 
school  commissioner  on  August  28,  1897,  for  the  purchase  of  new  furniture 
for  the  schoolhouse  in  such  district. 

Such  order  of  commissioner  Ryther  directed  trustee  Abbott  to  purchase 
new  single  desks,  teacher's  desk  and  blackboard  for  the  schoolhouse  in  such 
district  at  an  expense  not  to  exceed  $100. 

Trustee  Abbott  has  answered  the  petition  herein,  and  to  such  answer  the 
petitioner  has  replied,  and  to  such  reply  the  respondent  has  filed  a  rejoinder. 
Many  exhibits  have  been  filed  by  the  respective  parties,  and  the  papers  filed 
are  quite  voluminous. 

The  respondent  admits  that  he  has  not  complied  with  such  order  of  the 
petitioner  in  the  purchase  of  new  single  school  desks,  but  alleges  that  he  has  pur- 
chased about  twenty  double  second-hand  school  desks;  that  desks  should  be 
provided  for  forty  scholars,  and  that  forty  new  single  desks  can  not  be  placed 
in  the  schoolroom  without  the  closing  of  necessary  passageways,  etc.  nor  could 

[786] 


JUDICIAL  decisions:  school  furniture  787 

such  desks,  with  a  teacher's  desk  and  blackboard,  be  purchased  at  an  expense 
not  exceeding  $100. 

The  contention  of  the  petitioner  is  that  from  the  average  attendance  at 
the  school  in  such  district  desk  room  for  forty  pupils  is  not  required,  and  that 
a  sufficient  number  of  single  desks  can  be  placed  in  such  schoolroom  without 
obstructing  any  passageways,  and  such  new  desks,  teacher's  desk  and  blackboard 
of  the  latest  style  could  be  purchased  for  $100. 

I  am  unable,  from  the  proofs  presented,  to  decide  which  of  such  contentions 
is  well  taken. 

It  appears  that  at  the  time  the  petitioner  herein  made  his  order  directing 
the  respondent  to  purchase  such  new  single  desks  the  furniture  or  desks  in  use 
were  carpenter  made,  of  old  style,  and  not  such  as  are  in  general  use  in  the 
schools  in  the  State.  The  petitioner  herein  very  properly  deemed  it  best  that 
new,  modern  furniture  should  be  purchased  by  the  respondent  for  use  in  the 
schoolhouse  in  the  district  of  which  he  was  trustee. 

I  am  of  the  opinion  that,  under  the  provisions  of  subdivision  3  of  section 
13,  title  5  of  the  Consolidated  School  Law,  the  petitioner  did  not  have  authority 
to  designate  in  his  order  that  the  desks  to  be  purchased  should  be  either  single 
or  double  desks,  but  that  they  should  be  new  and  of  modern  style,  provided  that 
the  expense  of  such  new  furniture  should  not  exceed  $100;  that  the  respondent 
had  authority  to  determine  the  number  of  desks  necessary  to  furnish  adequate 
accommodation  for  all  the  scholars  attending  such  school,  and  whether  such 
desks  should  be  single  or  double. 

When,  under  the  provisions  of  the  school  law,  a  school  commissioner  directs 
the  trustee  or  trustees  of  a  school  district  to  purchase  new  furniture  for  a  school- 
house,  such  trustee  or  trustees,  if  aggrieved  by  such  order,  may  apply  to  him 
to  modify  or  revoke  such  order  or  appeal  from  such  order  to  the  State  Superin- 
tendent of  Public  Instruction  under  title  14  of  the  Consolidated  School  Law. 

The  proper  course  to  be  taken  by  a  school  commissioner  when  such  trustee 
or  trustees  refuse  or  neglect  to  obey  a  proper  order  for  the  purchase  of  new 
furniture  for  a  schoolhouse  is  to  apply  by  petition  to  the  State  Superintendent 
of  Public  Instruction,  setting  forth  the  facts,  for  an  order  for  such  trustee  or 
trustees  to  show  cause,  if  any  there  be,  before  the  State  Superintendent,  why 
such  order  should  not  be  obeyed.  If,  upon  the  hearing  before  the  State  Superin- 
tendent, no  sufficient  cause  can  be  shown,  he  may  make  an  order  that  if  such 
order  is  not  obeyed  within  a  time  to  be  therein  stated,  that  such  trustee  or 
trustees  be  removed  from  office. 

The  petitioner  herein  asks  that  I  remove  the  respondent  from  office  as 
trustee  of  such  district  for  not  obeying  such  order  of  the  petitioner  for  the 
purchase  of  new  furniture,  and  for  neglect  of  duty. 

Under  section  13,  title  i  of  the  Consolidated  School  Law,  I  have  power, 
when  proved  to  my  satisfaction  that  a  school  commissioner  or  other  school 
of&er  has  wilfully  disobeyed  any  decision,  order  or  regulation  made  by  me, 
to  remove  such  school  officer  from  office.     I  have  also  power  to  remove  any 


78S  THE   UNIVERSITY    OF   THE   STATE   OF   XEW   YORK 

school  otiiccr  who  it  is  proved  to  my  satisfaction  has  been  guilty  of  any  wilful 
violation  or  neglect  of  duty.  This  Department  and  the  courts  have  held  that 
"  wilful  "  means  "  intentional,"  and  not  a  "  mistake,"  "  misapprehension," 
"  inadvertence,"  "  error  in  fact,"  "  lack  of  judgment,"  etc.  etc. ;  that  the  officer 
must  fully  know  and  understand  what  his  duty  under  the  law  is,  and  knowingly 
and  wilfully  does  directly  the  reverse. 

I  can  not  find,  from  the  proofs  herein,  that  trustee  Abbott  has  been  guilty 
of  wilful  neglect  of  duty. 

The  petition  herein  is  dismissed,  but  such  dismissal  shall  not  operate  to 
preclude  the  petitioner  herein,  as  such  school  commissioner,  if  he  shall  deem 
the  furniture  in  the  schoolhouse  in  school  district  2,  East  Hamburgh,  Erie  county, 
unfit  for  use  and  not  worth  repairing,  from  directing  that  new  furniture  shall 
be  provided  as  he  may  deem  necessar}',  provided  that  the  expense  of  such  new 
turniture  shall  not,  in  any  one  year,  exceed  the  sum  of  $ioo. 


4197 

In  the  matter  of  the  appeal  of  F.  S.  Pond,  trustee  of  school  district  no.  18,  town 
of  Tompkins,  Delaware  county,  v.  E.  E.  Conlon,  school  commissioner,  first 
commissioner  district,  Delaware  county. 

An  order  of  a  school  commissioner,  condemning  desks  and  seats  in  schoolhouse  and  direct- 
ing the  trustee  to  purchase  new  desks  and  new  seats,  will  be  sustained  upon  an  appeal 
unless  it  is  shown  either  that  it  was  not  made  with  authority  and  that  he  proceeded 
irregularly  or  else  that  it  was  clearly  unjust  and  opposed  to  the  best  educational  in- 
terests of  the  district. 

Decided  November  2,  1893 

Crooker,  Superintendent 

This  is  an  appeal  from  an  order  made  by  the  respondent,  as  school  commis- 
sioner of  the  first  commissioner  district  of  Delaware  county,  dated  September 
5,  1893,  condemning  the  desks  in  the  schoolhouse  in  district  no.  18,  town  of 
Tompkins,  Delaware  county,  and  directing  the  appellant,  as  trustee  of  said 
school  district,  to  remove  from  the  said  schoolhouse  all  the  desks  that  are  by 
said  order  condemned,  and  to  purchase  for  and  seat  said  schoolhouse  with  a 
sufficient  number  of  suitable  desks  of  modern  design  to  duly  accommodate  all 
pupils  who  shall  attend  said  school,  at  said  schoolhouse,  the  amount  to  be 
expended  not  to  exceed  the  sum  of  $100,  and  ordering  that  said  order  shall  be 
fully  obeyed  within  thirty  days  from  the  date  thereof. 

The  appellant  alleges  that  the  assessed  valuation  of  the  taxable  property  in 
said  district  is  $27,325.  made  up  of  farms  and  small  holdings;  that  there  are 
about  thirty-five  pupils  of  school  age  who  reside  in  the  district;  that  there  is  a 
fair  school  building  on  the  schoolhouse  site,  and  in  good  repair;  that  the  seats 
complained  of  are  ordinary  wooden  seats  and  desks,  and  need  but  slight  repairs 
to  make  them  suitable  for  use,  and  to  put  them  in  good  condition,  and  that  an 


JUDICIAL   decisions:    SCHOOL    FURNITURE  789 

outlay  of  ten  dollars  in  materia!  and  work  would  put  them  in  as  good  condition 
for  school  work  and  practical  service  as  desks  of  modern  design.    That  the  esti- 
mated cost  of  taking  out  the  present  seats  and  desks  and  putting  in  new  ones 
would  be  in  the  neighborhood  of  $150,  and  that  the  taxation  of  such  a  sum 
upon  the  district  would  be  a  great  burden  and  extravagance  in  the  present  hard 
times.     That  at  the  annual  school  meeting,  in  said  district,  the  question  of  a 
change  of  desks  was  discussed,  and  a  vote  taken  which  resulted  in  5  votes  for  a 
change  and  16  votes  against.     That  at  a  special  meeting  of  the  district,  held  on 
September  21,  1893,  by  a  vote  of  14  to  5,  the  appellant  was  directed  to  appeal 
from  such  order  of  Commissioner  Conlon.     The  appellant  avers  that  he  has 
always  been  ready  to  repair  said  desks  and  would  have  repaired  them  before 
had  he  not  been  stopped  by  the  service  upon  him  of  said  order  of  said  Conlon. 
The  respondent  shows  that  for  the  past  three  years  he  has  watched  the  pro- 
ceedings of  the  voters  of  said  district  in  the  matter  of  reseating  the  schoolhouse, 
hoping  that  the  district  would,  of  their  motion,  reseat  said  schoolhouse  without 
requiring  him  to  act  in  the  matter.    That  on  June  15.  1893,  he  visited  the  school- 
house  in  said  district  and  made  a  careful  and  critical  examination  of  the  seats 
and  desks  therein,  made  measurements,  tested  the  seats  by  sitting  in  various  ones, 
and  while  there,  made  the  following  record :     "  Schoolhouse  must  be  reseated ; 
old  seats  are  loose  from  floor;  made  of  plain  boards  and  posts  nailed  together; 
seats  too  high;  small  children's  feet  do  not  touch  the  floor;  seat  part  seventeen 
and  one-quarter  inches  high ;  desk  part  so  high  that  small  children  can  not  reach 
to  work  thereon,  while  sitting;  too  high  for  an  adult  to  write  with  convenience 
or  comfort :  back  of  desk  about  vertical,  and  all  seats  are  badly  cut,  marred  and 
disfigured,  and  some  of  them  are  falling  to  pieces:  there  are  twenty-one  double 
desks  in  schoolhouse."     The  respondent  avers  that  the  foregoing  statement  so 
made  by  him  is  true.    That  the  respondent  on  August  3.  1893.  addressed  a  letter 
to  the  then  trustee  of  said  district,  requesting  him  to  call  up  the  matter  of  reseat- 
ing said  schoolhouse  and  have  vote  taken  thereon  at  the  annual  meeting  of  the 
district  on  August  22,  1893.    The  respondent  avers  that  the  statement  of  appel- 
lant, that  it  will  cost  $150  to  reseat  said  schoolhouse  is  erroneous:  that  first- 
class  double  desks  can  be  purchased  for  from  three  dollars  and  fifty  cents  to 
three  dollars  and  seventy-five  cents  each,  and  that  twenty  such  desks  will  be 
ample  to  accommodate  all  the  pupils  who  will  attend  said   school,  and  that 
eighty-five  dollars  will  cover  all  necessary  expenses  incurred  in  carrying  out  the 
order  made  by  him. 

To  the  answer  of  respondent  are  annexed  the  afiidavits  of  four  qualified 
voters  of  the  said  district,  sustaining  the  statements  of  the  respondent  as  to  the 
character  and  condition  of  the  desks,  and  averring  their  judgment  to  be  that 
such  conditions  can  not  be  overcome  or  removed  by  repairing  such  desks.  There 
are  also  annexed  to  said  answer  the  affidavits  of  Alice  M.  Skinner  and  Sadie  B. 
List,  each  of  whom  has  taught  the  school  in  said  district,  affirming  the  state- 
ments of  the  respondent  as  to  the  condition  of  said  desks,  and  the  repairing  of 
the  desks  will  not  make  them  suitable  or  comfortable  for  the  pupils  attending 
said  school. 


790  1HE  UNIVERSITY    OF  THE  STATE   OF   NEW    YORK 

The  appellant  has  filed  a  reply  to  the  answer  of  the  respondent  in  which 
he  states  that  he  believes  that  the  respondent  is  an  interested  party  in  compelling 
the  appellant  to  reseat  said  sehoolhouse,  for  the  reason  that  when  the  respondent 
served  the  order  appealed  from,  by  mail,  he  inclosed  with  it  a  copy  of  a  circular 
of  the  United  States  School  Furniture  Company,  having  written  upon  it  the 
following:  "A.  J.  Devereaux,  Agent,  Binghamton,  N.  Y.,"  which  the  appellant 
says  he  believes  was  a  suggestion  to  buy  of  a  party  with  whom  the  respondent 
was  financially  interested,  etc.  The  respondent  in  his  rejoinder  to  such  reply, 
alleges,  under  oath,  that  he  has  never  received,  either  directly  or  indirectly,  any 
money  or  valuable  thing,  emolument,  reward  or  promise  of  reward  of  any  kind 
or  nature,  whether  as  a  consideration  for  his  influence  in  the  sale  or  use  of  any 
furniture  of  any  kind  whatever  for  use  in  any  school,  and  that  his  purpose  in 
sending  the  circular  was  for  the  purpose  of  assisting  the  appellant  in  obeying 
said  order  and  giving  him  information  where  such  furniture  might  be  purchased, 
and  for  no  other  purpose. 

To  the  reply  of  appellant  is  annexed  an  affidavit  of  himself  and  ten  other 
voters  of  said  district,  containing  statements  to  the  effect  that  the  desks  and 
seats  in  the  sehoolhouse  are  not,  in  their  opinion,  in  so  bad  a  condition  as  shown 
by  respondent  and  can  be  repaired  at  a  small  expense  so  as  to  be  just  as  good  as 
new  seats,  etc.  There  are  also  annexed  the  affidavits  of  two  teachers  and  a  car- 
penter to  the  same  effect. 

In  his  reply  the  appellant  alleges  that  the  teachers,  List  and  Skinner,  whose 
affidavits  are  annexed  to  the  answer  herein,  are  disappointed  applicants  for  posi- 
tions as  teachers  in  the  school.  Both  Miss  List  and  Miss  Skinner  deny,  under 
oath,  that  they  are  disappointed  applicants  as  teachers  in  said  school.  It  can  not 
be  assumed  that  even  if  they  were  disappointed  applicants,  that  for  this  reason 
they  would  swear  to  anything  they  did  not  know  or  believe  to  be  true. 

The  order  of  the  commissioner  should  be  sustained  unless  it  is  shown,  either 
that  it  was  not  made  with  authority,  and  that  he  proceeded  irregularly,  or  else 
that  it  was  clearly  unjust  and  opposed  to  the  best  educational  interests  of  the 
district.     The  burden  of  proof  is  upon  the  appellant  to  show  this,  if  he  can. 

After  a  careful  examination  and  consideration  of  the  papers  filed  in  this 
appeal,  I  do  not  find  that  appellant  makes  such  a  case  as  will  justify  me  in  setting 
aside  the  order  appealed  from.  There  is  no  allegation  that  the  proceedings  of 
the  commissioner  have  not  been  regularly  taken,  and  it  is  certain  that  he  had  full 
statutory  authority  to  make  just  such  an  order  as  he  has  made.  It  is  impossible 
for  me  to  say  that  he  has  not  exercised  a  sound  discretion  in  the  premises. 

Acting,  as  I  believe,  for  the  best  interests  of  education  in  said  school  dis- 
trict, and  in  harmony  with  the  spirit  which  demands  better  school  accommoda- 
tions in  the  public  schools  of  this  St^te,  I  dismiss  the  appeal  herein,  and  confirm 
the  order  of  Commissioner  Conlon,  appealed  from,  and  do  hereby  order  and 
direct  the  said  trustee  of  school  district  no.  i8,  town  of  Tompkins,  Delaware 
county,  to  comply  with  the  terms  in  said  order  contained,  extending  the  time, 
however,  for  the  completion  of  said  work  until  December  15,  1893. 


JUDICIAL  decisions:  school  furniture  791 

3848 

In  the  matter  of  the  appeal  of  Charles  A.  Sly,  sole  trustee  of  school  district 
no.  2,  of  the  town  of  Nanticoke,  in  the  county  of  Broome,  v.  James  L, 
Lusk,  school  commissioner  of  the  second  commissioner  district  of  Broome 
county. 

An  order  of  a  school  commissioner  requiring  the  reseating  of  the  schoolhouse  will  be  up- 
held unless  it  is  clearly  unjust  and  opposed  to  the  educational  interests  of  the  district, 
or  was  made  without  authority,  or  that  the  proceeding  was  irregular. 

Decided  December  31,  1889 

Draper,  Superintendent 

This  is  an  appeal  against  an  order  of  the  commissioner,  requiring  the  reseat- 
ing of  the  schoolhouse  in  the  district  above  named,  made  on  the  5th  day  of 
October  1889.  The  trustee  alleges  that  the  seats  now  in  use  are  sufficient,  and 
that  the  order  of  the  commissioner  is  unnecessary  and  oppressive.  He  presents 
a  lengthy  statement  touching  the  affairs  of  the  district,  and  also  the  affidavits  of 
several  persons  whose  credibility  I  do  not  doubt,  to  the  effect  that  the  desks  in 
the  schoolhouse  are  in  fair  condition,  and  sufficient  for  the  needs  of  the  school. 

On  the  other  hand,  the  school  commissioner  shows,  not  only  by  his  own 
statements,  but  by  the  statements  of  teachers  who  have  heretofore  been  employed 
in  the  district  for  a  long  time,  to  the  effect,  that  the  desks  are  made  of  plain 
boards,  are  straight  in  the  back,  and  some  of  them  coming  to  pieces,  and  also 
that  they  are  very  badly  marred  and  disfigured.  The  commissioner  states  that 
he  has  visited  the  district  twice  recently,  and  has  personally  and  critically  exam- 
ined the  building  and  its  furnishings.  He  shows  that  the  district  has  an  assess- 
able valuation  of  $55,000,  and  is,  therefore,  abundantly  able  to  provide  desks  of 
modern  construction. 

The  order  of  the  commissioner  is  to  be  upheld  unless  it  shows,  either  that  it 
was  made  without  authority,  and  that  he  proceeded  irregularly,  or  else  that  it 
was  clearly  unjust,  and  opposed  to  the  best  educational  interests  of  the  district. 
The  burden  of  proof  is  upon  the  district  to  show  this,  if  it  can.  After  reading 
the  papers  with  care,  I  do  not  find  that  the  district  makes  such  a  case  as  will 
justify  me  in  setting  aside  the  order  of  the  commissioner.  There  is  no  allega- 
tion that  his  proceedings  have  not  been  regularly  taken,  and  it  is  certain  that  he 
has  full  statutory  authority  to  make  just  such  an  order  as  he  has  made. 

It  is  impossible  for  me  to  say  that  he  has  not  exercised  a  sound  discretion 
in  the  premises.  It  is  more  than  likely  that,  after  the  order  shall  have  been  car- 
ried out,  the  entire  district  will  congratulate  itself  upon  the  fact  that  it  was 
made. 

The  appeal  is  dismissed. 


792  THE    UNIVERSITY    OF    THE   STATE    OF    NEW    YORK 

3744 

In  the  matter  of  the  appeal  of  Harvey  Foks  and  others  v.  E.  B.  Knapp,  school 
commissioner  of  the  second  district  of  Onondaga  county. 

An  order  of  a  school  commissioner  directing  the  reseating  of  a  schoolliouse  will  be  upheld 
in  a  proper  case,  even  though  the  objectors  constitute  the  larger  portion  of  the  tax- 
payers. 

It  was  alleged  that  the  seats  in  use  had  been  recently  repaired,  and  of  the  same  size  and  con- 
struction as  those  in  otlier  districts.  Held,  that  repairs  to  unsuitable  furniture  might 
not  remove  the  objections  thereto. 

It  is  argued  that  no  scholar  has  ever  complained  of  the  condition  of  the  seats  as  uncom- 
fortable. Held,  untenable.  Pupils  are  not  the  best  judges  of  what  the  school  accom- 
modations should  consist. 

Decided  December  31,  iSi^S 

C.  R.  Milford,  attorney  for  appellants 
E.  B,  Knapp,  attorney  in  person 

Draper,  Superintendent 

This  is  an  appeal  by  several  inhabitants  of  school  district  no.  9,  of  the  town 
of  Skaneateles,  Onondaga  county,  from  an  order  of  School  Commissioner  E,  B. 
Knapp,  bearing  date  November  12,  1888,  directing  that  the  schoolhouse  in  said 
district  be  reseated,  and  condemning  the  seats  and  desks  in  use  as  unfit  for  use 
and  not  worth  repairing. 

The  objections  to  the  order  on  the  part  of  the  appellants  are: 

1  That  within  the  period  of  fifteen  months  the  seats  and  desks  in  use  had 
been  remodeled  and  changed  at  the  suggestion  of  the  respondent,  and  that  at 
the  time  of  the  order  referred  to,  they  were  in  as  good  condition  as  they  were 
inmiediately  after  the  repairs  were  made. 

2  That  no  scholar  has  ever  complained  of  the  condition  of  said  seats  as 
being  uncomfortable. 

3  That  the  seats  are,  in  the  judgment  of  the  appellants,  as  good  for  school 
purposes  as  those  directed  to  be  furnished  by  the  order  of  the  respondent. 

4  That  to  remove  the  present  seats  and  desks  would  greatly  injure  and 
destroy  in  part  a  new  floor  which  has  recently  been  placed  in  the  school  building. 

5  Ihat  the  seats  and  desks  now  in  use  are  of  the  same  general  size  and 
construction  as  those  in  use  in  most  of  the  district  schools,  and  that  they  are  in 
better  condition  than  those  of  other  district  schools  in  the  vicinity. 

6  Ihat  other  repairs  to  the  schoolhouse  which  were  more  necessary  for  the 
comfort  and  health  of  the  pupils  than  the  patent  seats  would  be,  had  been  ordered 
at  the  last  annual  meeting,  and  that  to  add  to  that  expense  the  sum  of  $100  for 
new  seats  would  be  a  hardship  and  burden  to  the  taxpayers  of  the  district ;  that 
there  are  several  other  objections  which  my  decision  of  this  appeal  will  obviate. 

The  respondent  has  filed  an  answer  and  also  the  aftidavits  of  several  residents 
of  the  district,  controverting  some  of  the  allegations  of  the  appeal. 

After  carefully  considering  the  objections  set  forth  herein,  I  have  concluded 
to  sustain  the  commissioner's  order.  The  Legislature  has  wisely  conferted  upon 
school  commissioners  the  authority  to  order  new  school  furniture  at  a  cost  not 


JUDICIAL  decisions:  school  furniture  793 

to  exceed  the  sum  of  $ioo,  whenever  he  considers  the  furniture  in  use  as  unsuit- 
able and  not  worth  repairing.  The  objection  that  repairs  had  been  made  to  the 
furniture  at  the  suggestion  of  the  commissioner,  is  controverted ;  but  assuming 
that  some  repairs  were  made  to  unsuitable  furniture,  I  can  readily  understand 
that  such  repairs  might  not  remove  the  objection  thereto. 

The  ground  alleged  that  no  pupil  has  complained  of  the  furniture  I  do  not 
consider  of  moment.  The  pupils  of  a  school  are  not  the  best  judges  of  what  the 
school  accommodations  should  consist.  It  is  not  a  tenable  ground  of  objection 
that  the  seats  condemned  are  as  good  as  those  in  use  in  many  of  the  district 
schools,  for  it  is  generally  understood  that  a  large  number  of  the  public  schools 
are  not  provided  with  suitable  furniture  and  the  knowledge  of  this  fact  was  the 
inducement  for  the  adoption  of  the  law  which  conferred  the  power  upon  school 
commissioners  to  order  the  purchase  of  suitable  furniture.  I  can  not  under- 
stand why  the  removal  of  those  old  seats  and  desks  and  the  substitution  of 
others  would  necessarily  injure  to  any  great  extent,  the  flooring  of  the  building; 
neither  do  I  consider  the  tax  of  $ioo  in  the  district  having  $115,000  worth  of 
taxable  property  to  be  a  very  severe  burden. 

The  objection  that  the  electors  of  the  district  who  favor  the  substitution  of 
new  seats  pay  a  very  small  portion  of  the  tax,  is  not  a  tenable  objection. 

This  appeal  is  from  the  action  of  the  commissioner  acting  within  the  scope 
of  his  authority,  and  not  the  action  of  the  inhabitants  of  the  district.  Acting,  as 
I  believe,  for  the  best  interests  of  education  in  the  district,  and  in  harmony 
with  the  spirit  which  demands  better  school  accommodations  in  the  public  schools 
of  the  State  of  New  York,  I  overrule  this  appeal  and  the  objections  made  to  the 
commissioner's  order,  and  hereby  direct  the  trustee  to  comply  with  the  terms 
therein,  extending  the  time,  however,  for  the  completion  of  said  work  until  the 
15th  day  of  January  1889.  

3772 

In  the  matter  of  the  appeal  of  David  M.  Vunk  v.  Jacob  Shults.  as  trustee  of 

school  district  no,  18,  of  the  town  of  Virgil,  in  the  county  of  Cortland. 
A  public  officer  can  not  be  in  any  wise  personally  interested  in  the  performance  of  work 

with  w^hich  he  is  officially  charged. 
Held,  that  a  school  trustee  clearly  has  no  right  to  charge  for  his  personal  services  rendered 

upon  district  work. 

The  right  of  a  school  trustee  to  cause  repairs  to  or  purchase  furniture  for  a  school  build- 

ino-  to  the  extent  of  $100,  when  ordered  to  do  so  by  a  school  commissioner,  sustained. 

A  tax°list  ^vhich  does  not  specify  in  the  heading  thereof  the  items  for  which  the  tax  is  to 

be  collected,  held  defective,  and  the  trustee  directed  to  withdraw  and  correct  the  same. 

Decided  March  27,  1889 

William  D.  Tuttle,  attorney  for  appellant 
H.  A.  Dickinson,  attorney  for  respondent 

Draper,  Superintendent  ^  ,     ,     . 

This  is  an  appeal  from  the  action  of  the  respondent  m  makmg  and  placmg 
in  the  hands  of  the  collector,  a  tax  list  for  the  collection  of  the  sum  of  Sy:,7-^7, 


794  THE   UXIVERSITV    OF   THE   STATE   OF   NEW   YORK 

expended  by  the  trustee  in  repairing  the  schoolhouse  and  purchasing  furniture 
for  the  same.  The  appellant  claims  that  the  trustee  proceeded  to  repair  the 
schoolhouse  without  due  authority  from  the  district  meeting;  that  he  performed 
services  upon  the  building  personally  and  charges  for  his  time,  and  that  he  has 
purchased  furniture  without  authority.  He  also  alleges  that  the  tax  list  is  incor- 
rect in  form,  inasmuch  as  it  does  not  specify,  in  the  heading,  the  purposes  for 
which  the  tax  is  to  be  used. 

The  respondent,  in  his  answer,  claims  that  the  repairs  were  authorized  by 
the  district  meeting.  He  admits  that  he  performed  some  personal  service  in  con- 
nection with  the  work,  for  which  he  charged  a  reasonable  sum.  He  alleges  that 
the  furniture  was  purchased  under  the  order  of  the  school  commissioner,  who  had 
legal  authority  to  direct  such  purchase.  He  admits  also  that  the  tax  list  may  be 
incorrect  in  form.  The  action  of  the  district  meeting  concerning  repairs  to  the 
schoolhouse  was  not  clear,  but  I  am  satisfied  that  the  trustee  acted  in  good  faith 
in  making  the  repairs,  and  there  appears  to  have  been  no  objection  raised  to  his 
course  until  after  the  work  was  completed,  and  at  a  time  when  such  objections, 
under  all  the  circumstances,  must  be  held  to  be  too  late  to  be  availing.  The 
action  of  the  district  meeting  clearly  shows  that  the  district  intended  to  repair 
the  schoolhouse,  and  I  think  also  that  it  may  be  said  that  they  intended  to  leave 
the  extent  of  the  repairs  to  be  determined  by  the  trustee.  As  in  all  similar  cases 
it  is  probable  thai  he  found  more  repairs  necessary,  after  commencing  operations. 
than  had  been  anticipated.  I  think  the  action  of  the  district  meeting  was  suffi- 
cient to  justify  him  in  repairing  the  building,  and  can  not  find  that  he  did  so  to 
an  unreasonable  or  unnecessary  extent. 

The  trustee  clearly  has  no  right  to  charge  for  his  personal  services  in  con- 
nection with  that  work.  A  public  officer  can  not  be  in  any  wise  interested  in  the 
performance  of  a  work  with  which  he  is  officially  charged.  The  trustee  should 
not  have  had  anything  to  do  with  the  work  except  to  bargain  for  its  proper  per- 
formance and  see  that  the  agreement  was  carried  out  and  all  the  interests  of  the 
district  protected. 

The  school  commissioner  had  the  authority  to  direct  the  trustee  to  repair 
or  purchase  furniture  to  the  extent  of  $ioo.  That  authority  is  expressly  con- 
ferred upon  him  by  the  statute. 

The  tax  list  is  probably  defective  in  its  form  and  should  be  withdrawn  and 
corrected. 

The  trustee  is  therefore  directed  to  withdraw  the  tax  list  from  the  hands 
of  the  collector,  deduct  from  it  the  amount  charged  for  his  personal  services, 
correct  the  heading  so  that  it  will  conform  to  the  requirements  of  the  statute, 
and  again  take  measures  to  secure  the  raising  of  the  tax  necessary  to  meet  the 
other  expenses  involved. 

Except  as  to  matters  about  which  specific  direction  is  given,  the  appeal  is 
dismissed. 


JUDICIAL  decisions:  school  furniture 


795 


3978 

In  the  matter  of  the  appeal  of  Gustav  A.  Schmidt,  August  Ressiga  and  Edward 
Rooney,  school  trustees  of  the  fifth  ward  of  Long  Island  City  v.  the  board 
of  education  of  Long  Island  City. 

Appeal  from  the  action  of  a  board  of  education  in  entering  into  a  contract  for  heating  and 
ventilating  a  school  building. 

Dismissed  for  the  reason  that  the  appeal  was  not  timely  taken.  The  work  under  the  con- 
tract objected  to  had  been  substantially  completed. 

Decided  May  7,  1891 

Frank  E.  Blackwell,  attorney  for  appellants 

W.  J.  Foster,  Corporation  Counsel,  attorney  for  respondent 

Draper,  Superintendent 

A  new  school  building  has  recently  been  erected  in  the  fifth  ward  of  Long 
Island  City.  The  heating  and  ventilating  apparatus  in  said  building  was  sup- 
plied by  the  Pierce,  Butler  &  Pierce  Manufacturing  Company,  under  a  contract 
entered  into  between  the  board  of  education  of  Long  Island  City,  and  said 
company.  This  appeal  is  brought  to  restrain  the  city  authorities  from  paying 
the  contractors  for  such  apparatus,  on  the  ground  that,  under  the  statutes  apply- 
ing thereto,  such  contract  could  only  have  been  made  by  the  appellants  as  trus- 
tees of  the  fifth  ward  with  the  approval  of  the  board  of  education.  It  is  claimed 
by  the  appellants  that  the  contract  assumed  to  be  made  by  the  board  of  educa- 
tion, is  wholly  void,  as  being  without  authority,  and  that  any  payment  under 
such  contract  is  unlawful. 

The  case  has  been  carefully  presented  and  closely  argued  by  able  counsel. 
I  have  given  it  such  consideration  as  I  have  been  able.  It  is  apparent  that  the 
provisions  of  the  charter  of  Long  Island  City,  of  the  general  school  laws  relat- 
ing to  the  duties  of  trustees  and  of  the  special  acts  providing  for  the  erection 
of  new  school  buildings  in  said  city,  are  somewhat  incongruous;  It  is  somewhat 
doubtful  whether,  by  any  process  of  logical  reasoning,  these  several  statutory 
provisions  may  be  brought  into  harmonious  relations  with  each  other.  In  any 
event,  I  do  not  deem  it  necessary  to  undertake  to  do  so  in  order  to  dispose  of 
the  pending  case. 

The  rules  of  the  Department  require  that  appeals  shall  be  brought  within 
thirty  days  from  the  time  of  the  action  appealed  from.  The  contract  entered 
into  by  the  board  of  education  was  awarded  on  the  12th  day  of  September  1890. 
If  the  board  of  trustees  of  the  fifth  ward  felt  that  their  functions  were  being 
usurped  by  the  city  board  of  education,  and  desired  to  bring  the  matter  before 
the  State  Superintendent  for  review,  it  should  have  been  done  within  thirty 
days  from  the  awarding  of  the  contract.  Even  though  it  be  claimed  that  the 
appellants  had  no  actual  notice  of  the  awarding  of  the  contract,  it  is  in  proof 
that  the  work  was  commenced  in  the  latter  part  of  December,  and  that  the 
members  of  the  board  of  trustees  were  in  the  building  and  saw  the  work  in 


796  THE   UNIVERSITY    OF   THE   STATE   OF   NEW    YORK 

progress,  and  talked  with  the  workmen  durnig  the  month  of  January.  They 
did  not  bring  their  appeal  until  the  middle  of  March.  By  that  time  the  work  cf 
the  contractors  had  been  substantially  completed.  The  appeal  is,  therefore,  too 
late  to  claim  the  consideration  of  very  complicated  law  questions  at  this  time. 

1  have,  however,  deemed  it  well  to  look  into  th.c  matter  far  enough  to  see 
whether  any  fraud  is  claimed  by  the  appellants  as  against  the  contractors.  There 
is  no  such  claim  advanced.  It  appears  in  the  papers  that  tk.e  plans  for  heating 
apparatus  were  approved  by  both  the  board  of  education  and  by  the  appellants, 
in  connection  with  the  general  plans  for  the  erection  of  the  building,  and  that 
no  change  has  been  made.  It  is  also  shown  that  the  board  of  education  duly 
advertised  for  bids  for  the  performance  of  the  work ;  that  the  board  requested 
the  appellants  to  meet  upon  two  different  occasions  and  open  the  bids,  but  that 
appellants  refused  to  so  meet  with  the  respondents.  It  is  also  shown  that  there 
were  several  bidders,  and  that  the  Pierce,  Butler  &  Pierce  Manufacturing  Com- 
pany was  the  lowest  bidder.  It  is  not  pretended  that  the  work  has  not  been 
properly  performed. 

In  view  of  these  facts  and  of  the  lateness  of  the  appeal,  I  do  not  deem  it 
necessary  to  more  fully  consider  the  matter. 

The  appeal  is  dismissed,  and  the  injunction  granted  upon  the  17th  day  of 
March  1891,  is  hereby  revoked. 


3729 

In  the  matter  of  the  appeal  of  Ezra  Whedon,  Isaac  Sherwood  and  others  v. 
Willis  A.  Parsons,  trustee  of  school  district  no.  10,  town  of  Camillus, 
Onondaea  county. 

An  order  of  a  school  commissioner  directing  that  a  furnace  be  purchased  in  order  to  ren- 
der a  schooIhou.se  comfortable  and  fit  for  use,  upheld. 
Decided  November  16,  1888 

Driscoll  Si  Goold,  attorneys  for  the  appellants 
Jones  &  McGowan,  attorneys  for  the  respondents 

Draper,  Superintendent 

It  appears  that  at  the  annual  school  meeting  held  in  the  above  named  dis- 
trict on  the  28th  day  of  August  1888,  it  was  decided  that  $400  be  raised  by  tax 
for  repairs  to  the  schoolhouse  and  outbuildings  and  for  necessary  expenses  for 
maintaining  the  school  during  the  coming  year.  A  question  was  then  raised  as 
to  providing  a  better  method  of  heating  the  schoolhouse.  Some  were  in  favor 
of  providing  a  furnace  and  some  were  opposed  to  such  step.  Without  reaching 
a  determination  an  adjournment  was  taken  until  the  Friday  evening  following, 
when  they  reconvened  and  by  a  vote  of  17  in  the  affirmative  and  18  in  the 
negative  determined  that  the  furnace  should  not  be  procured.  Subsequently  the 
school  commissioner  of  the  district  investigated  the  matter  and  concluded  that 


JUDICIAL  decisions:  school  furniture  797 

the  heating  apparatus  was  entirely  inadequate  to  the  needs  of  the  school  and  that 
something  must  be  done  to  provide  for  the  comfort  of  teachers  and  pupils,  and 
he  made  an  order  dated  October  8,  1888,  in  which  he  recited  that  upon  an  inspec- 
tion of  the  building  he  found  it  in  bad  condition  and  mifit  for  occupation,  and 
tliat  he  deemed  the  amount  provided  for  repairing  the  building  to  be  inadequate 
and  ordered  that  the  sum  of  $200  in  addition  to  the  sum  directed  to  be  raised 
by  the  district  meeting,  should  be  raised  —  $100  for  repairs  upon  the  building 
and  outbuildings  and  $100  for  school  furniture.  Under  the  authority  thus  con- 
ferred upon  him  the  trustee  proceeded  to  procure  a  furnace  for  heating  the 
building,  and  in  his  answer  to  the  appeal  states  that  the  same  is  now  in  place 
and  operating  satisfactorily.     From  this  action  this  appeal  is  taken. 

The  only  question  involved  is  whether  the  school  commissioner  had  authority 
to  make  the  order  upon  which  the  trustee  relies.  Section  3  of  title  2  of  the 
Consolidated  School  Act  confers  upon  the  school  commissioner  power  to  direct 
trustees  to  make  any  alteration  or  repairs  on  the  schoolhouse  or  outbuildings 
which  shall  in  his  opinion  be  necessary  for  the  health  or  comfort  of  the, pupils, 
provided  the  expense  thereof  does  not  exceed  the  sum  of  $200  in  any  one  year, 
unless  an  additional  sum  shall  be  voted  by  the  district.  The  same  section  also 
empowers  the  commissioner  to  direct  the  trustee  to  make  any  alterations  or 
repairs  to  school  furniture,  or  to  direct  that  new  furniture  shall  be  provided 
when  he  deems  necessary,  provided  that  the  expense  of  such  alterations,  repairs 
or  additions  do  not  in  any  one  year  exceed  the  sum  of  $100.  It  seems  to  me  that 
these  provisions  of  the  statute  are  adequate  to  confer  upon  the  commissioner 
the  power  which  he  exercised  in  the  present  case.  It  was  unmistakably  the 
purpose  of  the  Legislature  to  empower  school  commissioners  to  see  to  it  that 
adequate  and  convenient  accommodations  are  provided  for  the  health  and  com- 
fort of  the  teachers  and  pupils  in  the  public  schools. 

After  fully  reading  the  papers  submitted  in  the  present  case  I  am  unable  to 
say  that  the  power  conferred  upon  the  commissioner  was  not  properly  exercised. 

From  the  foregoing  considerations  I  find  it  necessary  to  dismiss  the  appeal. 


SCHOOL  GROUNDS,  ETC. 

5305 

In  the  matter  of  the  appeal  of  Charles  Decker  et  al.  from  the  action  of  the 
annual  meeting  and  of  the  trustee  of  school  district  no.  i,  town  of  Rotter- 
dam, county  of  Schenectady. 

School  authorities  should  aid  in  the  preservation  of  trees  upon  school  grounds  and  should 
plant  trees  upon  such  grounds  whenever  there  is  opportunity  to  do  so  and  when  addi- 
tional trees  will  add  to  the  beauty  and  attractiveness  of  the  grounds.  School  authorities 
will  be  prohibited  from  cutting  trees  upon  school  grounds  unless  good  cause  exists 
therefor. 

Decided  January  31,  1907 

A.  T.  Blessing,  attorney  for  appellant 

A.  T.  G.  W'emple,  attorney  for  respondent 

Draper,  Commissioner 

School  district  no.  i,  Rotterdam,  has  a  large  district  site  containing  about 
two  acres  and  on  this  site  are  about  one  hundred  and  thirty  natural  trees.  The 
annual  meeting  of  this  district  held  in  August  1906,  adopted  a  resolution  author- 
izing the  trustee  to  dispose  of  the  wood  on  the  school  ground  as  he  deemed  for 
the  best  interest  of  the  district.  The  trustee  advertised  to  sell  part  of  the  timber 
standing  upon  the  school  grounds.  Appellants  thereupon  brought  this  proceed- 
ing and  petitioned  for  an  order  restraining  the  trustee  from  cutting  such  timber 
until  this  appeal  could  be  determined.     The  order  was  granted. 

Appellants  allege  that  the  annual  meeting  was  not  well  attended  and  that  a 
majority  of  the  voters  of  the  district  are  opposed  to  cutting  these  trees.  They 
allege,  in  substance,  that  these  trees  protect  the  building  from  severe  winds  in 
the  winter,  afford  shade  in  the  warm  weather,  and  contribute  largely  to  the 
ornamentation  and  attractiveness  of  the  grounds. 

Respondent  asserts  that  it  was  not  his  intention  to  cut  all  the  trees  but 
claims  that  in  one  section  of  these  trees  there  are  several  liable  to  fall  because 
of  old  age;  that  some  have  been  blown  down  and  that  others  are  so  near  the 
schoolhouse  and  are  so  tall  that  it  is  unsafe  to  permit  such  trees  to  remain 
standing  and  that  as  a  protection  to  the  building  and  the  children  these  trees 
should  be  cut. 

For  several  years  this  Department  has  not  only  encouraged  all  school  dis- 
tricts in  the  State  to  plant  trees  but  has  endeavored  to  interest  the  public  gen- 
erally in  relation  to  the  utility  and  beauty  of  trees  along  public  highways  and  in 
other  public  places.  School  authorities  should  aid  in  the  preservation  of  trees 
upon  school  grounds  and  should  plant  trees  upon  such  grounds  whenever  there 

[798] 


JUDICIAL  decisions:  school  grounds,  etc.  799 

is  opportunity  to  do  so  and  when  additional  trees  will  add  to  the  beauty  and 
attractiveness  of  the  grounds. 

I  directed  an  inspector  of  this  Department  to  meet  the  parties  to  this  pro- 
ceeding at  the  school  grounds  and  determine  whether  or  not  it  appeared  advisable 
to  cut  any  of  the  trees  in  question.  The  report  of  such  inspector  shows  Ihat  it 
is  advisable  to  cut  some  of  these  trees.  An  agreement  was  reached  between  all 
parties  as  to  the  trees  which  should  be  cut,  and  the  trees  which  are  not  to  be  cut 
were  properly  marked.  None  of  the  ninety-five  trees  indicated  in  the  map  of 
appellants  are  to  be  cut.  In  the  northeast  corner,  the  section  shown  on  the  map 
of  respondent,  it  appears  as  though  all  trees  might  be  cut  except  the  following : 
the  chestnut  tree  on  the  line  between  the  school  grounds  and  the  Wemple  farm, 
the  oak  tree  between  the  schoolhouse  and  the  said  chestnut  tree  and  which  oak 
tree  is  also  near  one  of  the  new  outbuildings,  the  three  hemlock  trees  near  the 
rear  line  and  the  five  pine  trees  which  were  marked.  These  trees  which  are 
not  to  be  cut  would  be  greatly  improved  if  the  dead  limbs  and  branches  were 
cut  out.  The  whole  appearance  of  the  grounds  would  also  be  greatly  improved 
if  the  underbrush  and  dead  material  among  the  trees  should  be  cut,  carried  out 
and  burned. 

As  to  the  limitations  herein  expressed,  the  appeal  is  sustained.  As  to  all 
other  matters  involved,  it  is  dismissed. 


3895 

In  the  matter  of  the  appeal  of  Fred  C.  Hodges  v.  R.  F.  Brown,  as  trustee  of 
school  district  no.  12,  town  of  Adams,  Jefferson  county. 

School  districts  are  governed  bv  the  same  rule  regarding  the  construction  and  maintenance 
of  division  fences,  that  all  other  owners  of  property  are.  The  owners  of  adjoining 
lands  'if  inclosed,  can  be  required  to  construct  one-half  of  the  dividing  fence,  or  con- 
tribute in  that  proportion  toward  the  same. 

Decided  July  26,  1890 

Draper,  Superintendent 

At  the  annual  school  meeting  held  in  district  no.  12,  town  of  Adams,  county 
of  Jefferson,  August  6,  1889,  a  resolution  was  adopted  to  fence  the  schoolhouse 
lot  on  three' sides,  and  the  sum  of  twenty-five  dollars  was  appropriated  to  meet 
the  expense  thereof.  The  trustee  has  neglected  to  include  the  amount  so  voted 
in  a  tax  list  and  has  neglected  to  cause  the  fence  to  be  constructed. 

No  answer  has  been  interposed.  The  trustee,  however,  makes  certain 
requests  to  find,  in  determining  the  appeal,  namely : 

1  Is  a  tax  to  raise  money  to  build  a  fence  around  a  school  lot  legal,  when 
the  site  has  never  been  inclosed? 

2  If  such  a  tax  is  legal,  is  the  tmstee  required  to  build  the  entire  fence  or 

onlv  one-half  thereof? 


8oo 


THE   U.VIVERSITY    OF   THE   STATE   OF   NEW   YORK 


Appellant  asks  that  the  trustee  be  required  to  carry  out  the  directions  of  the 
district  meetinj;. 

The  allegations  of  the  appellant,  not  being  denied,  are  presumed  to  be 
admitted.     The  item  voted  at  the  annual  meeting  is  perfectly  legitimate. 

Upon  the  second  request  to  find  of  the  trustee,  my  decision  is  that  school 
districts  are  governed  by  the  same  law  in  regard  to  division  fences  between  the 
school  lot  and  adjoining  owners  as  are  all  other  property  owners. 

The  owners  of  adjoining  lands,  if  inclosed,  can  be  required  to  construct 
one-half  of  the  dividing  fence,  or  contribute  toward  the  same,  and  it  is  the 
duty  of  the  trustee  to  see  that  the  rights  of  the  district  in  this  respect  are  pro- 
tected. Because  a  fixed  sum  has  been  voted,  it  would  not  necessarily  follow 
that  the  entire  amount  must  be  expended.  The  trustee  is  to  expend  so  much 
thereof  as  may  be  necessary. 

The  appeal  is  sustained. 


3790 

In  the  matter  of  the  appeal  of  George  A.  Signor  v.  George  T.  Dan,  trustee  of 

school  district  no.  13,  of  the  town  of  Colchester,  county  of  Delaware. 

.\  trustee  has  no  authority  to  purchase  land,  or  to  bind  a  district  to  maintain  a  division 

fence,  nor  to  charge  for  personal  services  in  making  repairs. 
Decided  April  25,  1889 

Draper,  Superintendent 

This  is  an  appeal  by  a  resident  taxpayer  of  school  district  no.  13,  of  the 
town  of  Colchester,  Delaware  county,  N.  Y.,  from  the  action  of  the  trustee  in 
issuing  a  tax  list  and  warrant  for  the  collection  of  certain  items  which  the 
appellant  alleges  are  neither  authorized  by  law  nor  by  the  vote  of  a  district 
meeting. 

It  appears  from  the  papers  that  the  entire  tax  list  has  been  paid  with  the 
exception  of  the  appellant's  tax,  and  that  he  delayed  taking  an  appeal  until 
nearly  one  month  after  the  tax  list  had  been  placed  in  the  collector's  hands.  This 
delay,  on  the  part  of  the  appellant,  has  made  the  decision  of  the  appeal  very 
embarrassing  to  me,  for  the  reason  that  if  any  of  the  items  of  the  tax  list  were 
found  to  be  unauthorized,  it  would  necessitate  the  refunding  of  the  portion  of 
the  tax  paid  by  each  of  the  taxpayers  of  the  district,  who  had  paid. 

The  appellant  alleges  that  the  trustee  has  made  repairs  to  the  water-closet 
and  built  a  new  one  on  land  which  did  not  belong  to  the  district;  that  he  did  a 
portion  of  the  work  himself,  has  charged  an  exorbitant  price  for  the  same,  and 
that  the  work  luis  been  imperfectly  done;  that  the  school  commissioner  of  the 
district  does  not  approve  of  the  expenses  incurred  in  providing  suitable  water- 
closets  for  the  school  district;  that  the  trustee  has  constructed  a  fence  for  the 
district,  which  should  have  been  paid  for  in  part,  by  adjoining  owners;  that 
he  did  so  without  the  vote  of  a  district  meeting;  that  for  some  repairs  made 
to  the  schoolhouse  by  the  trustee,  the  charge  is  exorbitant. 


JUDICIAL  decisions:  school  grounds,  etc.  Soi 

The  trustee  for  answer,  alleges  that  he  has  acted  in  perfect  good  faith,  and, 
as  he  believes,  in  accordance  with  the  law  which  required  the  construction  of 
several  privies;  that  it  had  been  customary  in  the  district  for  the  trustee  to  do 
work  of  the  kind  he  did,  and  it  was  almost  a  necessity  for  him  to  do  so  because 
of  his  inability  to  secure  other  help.  It  is  also  made  to  appear  that  the  work 
upon  the  privies  and  repairing  was  done  by  direction  of  the  school  commis- 
sioner, and  that  he,  as  trustee,  has  acquired  title  to  the  land  along  which  the 
fence  was  built,  and  the  condition  of  the  deed  was  that  the  district  should  build 
and  maintain  the  fence ;  that  additional  land  was  absolutely  necessary  in  order 
that  the  law  in  relation  to  separate  privies  could  be  comi)lied  with.  A  copy  of 
the  deed  is  shown  among  the  respondent's  papers,  and  also  evidence  that  the 
same  has  been  recorded  in  the  county  clerk's  office  of  Delaware  county.  It  does 
appear  that  the  commissioner  has  not  approved  of  the  bill  for  repairs,  and  that 
the  present  commissioner  deems  the  charge  exorbitant. 

I  am  satisfied  that  the  trustee  has  acted  in  good  faith  in  his  attempt  to 
comply  with  the  provisions  of  the  law,  but  that  he  has  exceeded  his  authority, 
namely :  in  contracting  for  and  purchasing  land  for  the  district,  and  agreeing 
to  construct  and  maintain  as  a  consideration  for  the  purchase,  a  division  fence 
255  feet  in  length.  All  this  would  have  been  entirely  proper  if  a  district  meet- 
ing had  authorized  it,  and  repairs  to  any  extent  could  have  been  voted  by  a 
district  meeting.  The  trustee  had  authority  to  make  repairs  upon  his  own 
motion  to  the  schoolhouse,  the  expense  of  which,  in  any  one  year,  should  not 
exceed  $20,  and  he  could  make  repairs  by  direction  of  the  school  commissioner, 
both  to  the  outhouse  and  the  schoolhouse  property,  the  expense  not  to  exceed 
$200  in  any  one  year. 

I  have  concluded  to  make  this  disposition  of  the  case:  The  present  trustee 
of  district  no.  13,  Colchester,  is  hereby  directed  to  at  once  call  a  special  meet- 
ing of  the  inhabitants,  the  meeting  to  be  held  within  fifteen  days  from  the  date 
of  this  decision,  to  act  upon  the  question,  '*  Shall  the  action  of  the  respondent, 
in  entering  into  a  contract  with  A.  L.  Signor,  and  the  acquiring  of  title  there- 
under of  certain  land  for  an  addition  to  the  schoolhouse  site,  be  ratified  and 
approved  and  the  property  accepted  by  the  district  upon  the  condition  contained 
in   the  deed,   which   requires   the   construction   and   maintenance   of   a   division 

fence?" 

If  the  meeting  will  approve  of  the  action  of  the  respondent,  then  I  direct 
that  the  tax  list  and  warrant  be  so  amended  as  to  deduct  from  the  amount  to  be 
raised,  any  amount  which  the  respondent  has  charged  for  his  personal  services 
while  filling  the  office  of  trustee.  The  items  charged  for  members  of  his  family 
who  also  worked  for  the  district,  I  do  not  deem  exorbitant,  and  they  may  be 
included  in  the  tax.  If  the  district  meeting  will  not  approve  of  the  action  of  the 
trustee  in  purchasing  the  real  estate  on  the  condition  mentioned,  that  item  also 
will  have  to  be  omitted  from  the  tax  list.  This  will  necessitate  the  establishment 
of  a  new  rate  of  taxation,  and  any  amount  which  may  have  been  paid  by  the 
26 


8o2  THE   UNIVERSITY   OF   THE   STATE   OF   NEW   YORK 

taxpayers  in  excess  of  the  amount  which  will  be  so  established,  must  be  refunded. 
The  trustee  of  the  district  will  deliver  the  corrected  assessment  list  and  warrant, 
after  renewal,  to  the  collector,  with  directions  to  enforce  the  same  against  the 
appellant. 


DIVISION     FENCES 

Decided  October  26.  1866 

Rice,  Superintendent 

In  regard  to  division  fences,  a  school  district  is  subject  to  the  same  liabilities 
as  any  other  owner  of  real  estate.  If  the  district  chooses  to  let  the  site  lie  open 
to  the  highway,  you  can  not  compel  them  to  build  or  maintain  any  portion  of 
a  division  fence.  If.  however,  you  build  such  fence,  and  the  district  afterward 
incloses  the  school  lot,  you  can  compel  the  inhabitants  to  refund  half  the  expense 
of  building  the  line  fence. 


3101 

FENCING    SITE 


Decided  June  13,  1881 

Gilmour,  Superintendent 

The  discretionary  powers  conferred  upon  the  trustee  do  not  include  the 
right  to  fence  the  schoolhouse  site. 


SCHOOLHOUSES 

The  president  and  directors  of  the  Bank  of  Orleans  v.  the  trustees  of  school 
district  no.  i  in  the  town  of  Barre. 

There  can  be  no  partnership  in  the  erection  of  a  district  schoolhouse. 
The  facts  of  this  case  are  stated  in  the  Superintendent's  order. 
Decided  January  12,  1835 

Dix,  Superintendent 

The  Superintendent  of  Common  Schools  has  examined  the  statement  of  facts 
agreed  on  by  the  trustees  of  school  district  no.  i  in  the  town  of  Barre,  and  the 
president  and  directors  of  the  Bank  of  Orleans,  in  relation  to  the  assessment 
of  a  tax  on  the  property  of  said  district  for  the  purpose  of  erecting  a  schoolhouse. 

The  proposed  schoolhouse  is  intended  to  be  part  of  a  building  to  be  used 
as  an  academy  as  well  as  a  schoolhouse,  and  the  sum  of  $2000  is  intended  to  be 
raised  by  subscription  to  complete  it. 

Much  as  the  Superintendent  is  disposed  to  confirm  the  proceedings  of  the 
inhabitants  of  the  district,  by  whom  they  have  been  adopted  with  great  unanimity, 
he  is  constrained  to  set  them  aside  by  a  rule  which  can  not,  in  his  opinion,  be 
safely  departed  from  in  any  case,  without  authority  from  the  Legislature.  By 
a  decision  of  the  Superintendent  heretofore  published  with  the  school  laws,  it  is 
settled  that  there  can  be  no  partnership  in  the  erection  of  a  schoolhouse  which 
will  prevent  the  district  from  controlling  it  entirely  for  the  objects  of  the  district 
school.  This  principle  he  feels  bound  to  enforce  in  all  cases  which  come  before 
him.  To  sanction  a  departure  from  it  would  establish  a  precedent  which  might 
lead  to  great  embarrassment  and  possibly  to  abuse.  If  in  any  case  the  interest 
of  a  district  should  require  such  an  arrangement  as  is  contemplated  by  the 
inhabitants  of  this  district,  application  must  be  made  to  the  Legislature  for  the 
proper  authority. 

The  Superintendent  deems  it  proper  to  add.  that  he  should  have  confirmed 
the  tax  but  for  the  single  fact  that  the  schoolhouse  is  proposed  to  be  united  with 
an  academy.  The  wealth  of  the  district  justifies  the  amount  of  the  proposed 
expenditure;  and  it  is  no  objection,  in  his  mind,  that  a  large  proportion  of  the 
tax  falls  on  a  moneyed  institution,  which  not  only  has  the  ability  but  the  directors 
of  which  express  a  willingness  to  contribute  to  the  erection  of  a  schoolhouse  for 
the  district. 

It  is  hereby  ordered,  that  so  much  of  the  proceedings  of  the  special  meet- 
ing in  school  district  no.  i,  on  the  23d  of  December  last,  as  authorizes  a  tax  of 
$1500  to  be  levied,  with  a  view,  as  is  admitted,  to  be  applied  to  the  erection  of  a 
building  for  a  schoolhouse  and  academy,  in  pursuance  of  a  resolution  passed  at 
a  meeting  of  said  district  on  the  /th  of  October  last,  be  and  it  is  hereby  set  aside. 


8o4  THE   UNIVERSITY    OF   THE   STATE    OF   NEW    YORK 

This  decision  is  not  intended  to  affect  the  right  of  the  inhabitants  of  said  district, 
by  virtue  of  the  certificate  of  the  commissioners  of  common  schools  heretofore 
given,  to  meet  again  and  vote  the  same  amount  for  the  purpose  of  erecting  a 
building  to  be  used  solely  as  a  district  schoolhouse. 


Trustees  will  not  be  required  to  let  the  building  of  a  schoolhouse  to  the  lowest  bidder, 

unless  so  instructed  by  a  vote  of  the  inhabitants. 
Decided  January  30,  i860 

Win  Dyck,  Superintendent 

By  a  vote  of  the  inhabitants  at  a  meeting  duly  convened,  the  trustees  were 
directed  to  build  a  new  schoolhouse.  They  accordingly  gave  notice  that  they 
would  receive  proposals  for  building  a  house  of  given  dimensions.  The  appel- 
lant put  in  a  bid  at  $340.  Other  bids  were  put  in,  among  them  one  by  Mr 
Davis  at  $350,  which  was  accepted  by  the  trustees.  The  appellant  asks  that  the 
award  be  set  aside,  it  not  being  given  to  the  lowest  bidder. 

Had  the  district  directed  the  trustees  to  let  the  contract  for  building  the 
house  to  the  lowest  bidder,  there  would  appear  on  the  part  of  the  trustees  a 
departure  from  the  authority  with  which  they  were  vested,  which  would  demand 
interference.  But  such  is  not  the  case,  the  trustees  being  left  free  to  make  such 
contract  as  they  might  deem  most  advantageous  to  the  district.  Nor  did  the 
notice  which  they  gave  place  them  under  any  obligation  to  the  appellant  in  con- 
sideration of  his  bid  being  lower  than  that  of  any  other.  They  were  left  free 
to  make  the  award  as  they  should  deem  most  advantageous.  It  devolves  upon  the 
appellant  to  show  either  a  legal  claim  by  virtue  of  the  notice  given,  or  that  the 
district  is  likely  to  suffer  injury  from  the  action  of  the  trustees. 


A  district  can  not  be  compelled  to  rebuild  where  schoolhouse  has  been  destroyed;  but 
where  it  for  a  long  time  refuses  to  do  so,  may  be  annulled  and  attached  to  others  ad- 
joining. 

Decided  February  7,  1866 

Rice,  Superintendent 

There  is  no  law  by  which  a  district  can  be  compelled  to  rebuild,  where  the 
schoolhouse  has  been  destroyed ;  but  a  trustee  is  empowered  to  hire  rooms  tem- 
porarily, for  the  accommodation  of  the  children,  whenever  he  shall  deem  it 
necessary.  This  he  can  do  without  a  vote  of  the  district.  If  the  district  refuses 
to  build  for  an  unreasonable  length  of  time,  the  school  commissioner  of  the 
district  will  examine  into  the  case,  and  report,  as  to  the  expediency  of  annulling 
the  district  and  attaching  it  to  those  adjoining. 


JUDICIAL  decisions:     schoolhouses  805 

4845 

In  the  matter  of  the  appeal  of  Edward  Posson  v.  board  of  education  of  union 
school  district  no.  12,  Ridgeway  and  Shelby,  Orleans  county. 

Under  the  Consolidated  School  Law  of  1894  and  the  amendments  thereof,  it  has  been  the 
settled  policy  of  the  State  that  each  of  the  school  districts  therein  should  become  the 
owner,  either  by  purchase  or  by  building  upon  a  suitable  site  or  sites,  the  schoolhouse- 
or  houses,  or  school  building  or  buildings  thereof;  that  the  leasing  and  renting  of 
rooms  and  buildings  for  school  purposes,  are  not  authorized  except  under  extraordi- 
nary conditions  and  to  provide  for  emergencies. 

Decided  March  15,  1900 

Simonds  &  L'Hommedieu,  attorneys  for  respondent 

Skinner,  Superintendent 

This  is  an  appeal  from  the  action  of  the  board  of  education  of  union  free 
school  district  12,  Ridgeway  and  Shelby,  Orleans  county,  in  hiring  for  the  school 
year  of  1899-1900,  a  certain  building  for  school  purposes,  as  is  claimed  by  the 
appellant,  in  violation  of  the  powers  and  authority  possessed  by  said  board 
under  the  provisions  of  the  Consolidated  School  Law.  Issue  has  been  joined 
herein  and  the  pleadings  and  proofs  are  voluminous. 

It  is  admitted  by  the  parties  to  this  appeal  that  on  August  7,  1899,  the  board 
of  education  adopted,  by  a  majority  vote,  the  following  resolution:  "Whereas, 
the  necessity  of  again  hiring  the  Eagle  street  school  building  still  exists,  because 
of  the  expected  crowded  condition  of  the  Central  school  during  the  coming 
school  year,  be  it,  and  it  is  hereby  resolved,  that  the  board  of  education  hire 
the  Eagle  street  school  building  during  the  school  year  of  1899  and  1900  at  the 
annual  rent  of  $150,  on  the  condition  that  it  be  put  in  repair  satisfactory  to 
the  board."  It  is  also  admitted  that  on  October  20,  1899,  the  following  resolu- 
tion was  adopted  by  said  board :  "  Resolved  that  the  resolution  appealed  from 
by  Edward  Posson,  adopted  by  this  board  August  7,  1899,  be  amended  by  strik- 
ing out  the  figitres  $150  and  substituting  therefor  the  figures  $1."  It  is  also 
admitted  that  subsequent  to  the  adoption  of  such  resolutions,  the  board  of  edu- 
cation had  entered  into  a  lease  of  the  building  described  therein  with  the  owners 
and  representatives  of  the  owners  of  such  building  for  the  school  year  of  1899- 
igoo,  and  that  a  school  under  the  control  of  such  board  is  being  conducted 
therein  as  one  of  the  public  schools  of  district  12. 

The  Eagle  street  school  building  described  in  these  resolutions  is  the  building 
the  leasing  of  which  is  the  subject  of  this  appeal. 

It  appears  from  the  proofs  herein  that  the  "  Eagle  street  school  building  " 
is  a  wooden  building  situated  near  an  alley  with  horse  sheds  on  one  side  and 
barns  on  the  other,  having  been  moved  to  its  present  location  in  1836.  and  that 
a  portion  thereof  has  been  hired  by  various  boards  of  education  of  district  12 
since  about  August  25,  1885,  and  that  for  the  past  fourteen  years,  during  which 
time  it  has  been  leased  by  successive  boards  of  education,  a  public  school,  under 


8o6  THE  UNIVERSITY   OF  THE   STATE   OF   NEW   YORK 

the  charge  of  such  board,  has  been  coiKkicted  therein;  that  such  building  is  not 
properly  ventilated,  heated  or  lighted,  and  the  seats  therein  are  uncomfortable. 

The  board  of  education  of  said  union  school  district  12  are  limited  in  their 
power  to  lease  property  for  school  purposes  by  subdivision  6  of  section  15  of 
article  4,  title  8  of  the  Consolidated  School  Law,  which  provides  as  follows : 

"  The  board  of  education  of  every  union  free  school  district  shall  severally 
have  power,  and  it  shall  be  their  duty,  to  hire  any  room  or  rooms  in  which  to 
maintain  and  conduct  schools  when  the  rooms  in  the  schoolhouse  or  houses  are 
overcrowded,  or  when  such  schoolhouse  or  houses  are  destroyed,  injured  or 
damaged  by  the  elements,  and  to  fit  up  and  furnish  such  room  or  rooms  in  a 
suitable  manner  for  conducting  a  school  or  schools  therein." 

This  statute  became  operative  June  30,  1894,  and  from  that  date  all  boards 
of  education  in  union  school  districts  organized  under  the  general  law  could 
not  legally  hire  any  rooms  or  buildings  in  which  to  maintain  and  conduct  a  school 
unless  at  the  time  of  such  hiring  the  existing  school  buildings  owned  by  the  dis- 
trict were  overcrowded  or  some  of  its  school  buildings  had  been  injured  or 
destroyed  by  the  elements.  Such  is  clearly  the  limitations  upon  their  power 
contained  in  the  statute  herein  referred  to.  Since  the  enactment  of  that  statute 
it  has  been  the  settled  policy  of  the  State  that  all  localities  must  own  the  school 
buildings  in  which  their  schools  are  conducted  and  that  the  leasing  and  renting 
of  property  for  school  purposes  was  not  authorized  except  under  extraordinary 
conditions,  and  those  conditions  must  be  such  as  are  enumerated  in  the  statute. 
Numerous  decisions  to  that  effect  have  been  made  by  this  Department. 

The  proofs  herein  show  that  in  the  year  1897-98  additional  school  buildings 
were  built  and  furnished  to  this  district  at  an  expense  of  about  $28,000,  and 
it  may  fairly  be  assumed  that  in  1898  the  district  owned  ample  school  rooms  to 
accommodate  all  the  children  of  school  age  residing  in  the  district,  and  hence  no 
emergency  existed  that  required  the  hiring  of  the  building  in  question. 

It  is  also  clear  from  a  careful  reading  of  the  resolution  adopted  August  7, 
1899,  that  in  the  opinion  of  the  board  of  education  the  emergency  which  would 
authorize  the  hiring  of  property  for  school  purposes  by  the  board  of  education 
in  this  district  did  not  then  exist;  indeed,  the  respondents  in  their  answer  state 
that  the  "  special  emergency  occurred  soon  after  the  appeal  herein  was  taken." 

The  testimony  relating  to  the  overcrowding  of  the  schoolhouses  owned  by 
this  district  is  so  conflicting,  especially  taken  in  connection  with  the  fact  that  the 
leasing  of  this  property  has  been  continuous  since  1885,  that  I  can  not  bring 
myself  to  believe  that  the  school  buildings  owned  by  such  district  were  so  over- 
crowded as  to  recjuire  or  authorize  the  leasing  of  this  building  for  school 
purposes. 

It  appears  from  the  proof  herein  that  there  is  a  room  in  one  of  the  school- 
houses  in  this  district  at  present  leased  by  the  board  of  education  to  two  young 
ladies  in  which  a  private  kindergarten  school  is  conducted,  and  that  there  is 
also  a  large  assembly  hall  in  the  Central  school  building  owned  by  the  district, 
which  if  fitted  up  and  furnished  would  provide  rooms  to  accommodate  all  the 


JUDICIAL  decisions:     schoolhouses  807 

children  residing  in  this  district  without  any  necessity  of  leasing  property  for 
school  purposes. 

The  assessed  valuation  of  this  district  from  the  last  annual  report  made 
by  its  officers  appears  to  be  $2,218,185.  A  community  of  such  recognized  intelli- 
gence and  abundant  financial  ability  should  provide  adequate  and  commodious 
school  buildings  owned  by  the  district,  and  not  be  a  tenant  of  individual  land- 
lords, and  certainly  not  when  it  possesses  property  which  it  is  itself  leasing  to 
other  tenants.  Ample  provision  exists  in  the  school  law  for  providing  school 
facilities  adequate  to  the  needs  of  this  district. 

I  therefore  decide : 

1  That  union  school  district  12,  Ridgeway  and  Shelby,  Orleans  county,  must, 
in  accordance  with  the  provisions  of  the  Consolidated  School  Law,  own  the 
buildings  in  which  the  schools  therein  are  conducted,  save  only  when  temporary 
hiring  of  rooms  or  buildings  is  made  necessary  by  some  emergency  provided  for 
in  the  school  law. 

2  That  the  board  of  education  should  not  continue  the  leasing  of  buildings 
for  school  purposes  beyond  the  present  school  year,  and  that  it  is  their  duty,  and 
they  are  hereby  ordered  and  directed,  to  prepare  and  submit  to  a  special  meeting 
of  the  district  duly  called,  or  to  the  annual  meeting  to  be  held  on  the  first  Tues- 
day of  August  1900,  resolutions  authorizing  the  construction  of  any  additional 
school  buildings  and  furnishing  the  same,  which  in  their  judgment,  may  be  neces- 
sary to  properly  accommodate  the  children  of  school  age  residing  within  such 
district. 


3731 

In  the  matter  of  the  appeal  of  Charles  McCoy  and  Chauncey  J.  Fox  v.  union 
free  school  district  no.  i,  town  of  Ellicottville,  county  of  Cattaraugus. 

The  action  of  a  district  meeting  granting  an  extra  allowance  to  contractors  who  have  built 
a  new  schoolhouse  can  not  be  sustained,  unless  notice  by  the  board  of  education  stating 
that  such  tax  will  be  proposed,  and  specifying  the  amount  and  object  thereof,  shall 
have  been  published,  etc. 

Decided  November  17,  1888 

Scott,  Laidlaw  &  McNair,  attorneys  for  the  appellants 
Armisah  Ward,  attorney  for  the  respondent 

Draper,  Superintendent 

It  seems  that  the  district  above  named  has  recently  erected  a  new  school- 
house,  the  work  being  done  by  Messrs  Stokes  &  McMahon  as  builders,  under  an 
agreement  to  perform  the  same  for  the  sum  of  $12,749.  The  work  was  com- 
pleted and  the  builders  were  paid  the  contract  price  in  July  last.  At  the  time 
of  this  settlement  the  builders  presented  a  claim  against  the  district  amounting 
to  $613.68  for  extra  labor  and  materials,  over  and  above  such  as  they  were 
required  to  supplv  under  their  contract.    The  board  of  education  paid  them  the 


8o8  THE   UNIVERSITY    OF   THE   STATE    OF    NEW   YORK 

sum  of  $166.82  and  they  delivered  to  the  board  their  receipt  in  full,  covering 
both  the  contract  price  and  their  claim  for  extra  services,  and  material.  They 
insist,  however,  that  it  was  understood  that  they  should  present  their  claim  for 
the  balance,  amounting  to  $446.86  to  the  annual  school  meeting,  to  be  held  in 
the  district  on  the  28th  day  of  August  1888.  That  there  was  such  an  understand- 
ing is  disputed  by  the  appellants,  but  I  do  not  consider  the  point  material.  They, 
in  fact,  did  present  their  claim  to  the  annual  meeting,  and  the  meeting  resolved 
to  pay  the  same  and  directed  a  tax  should  be  levied  in  order  to  raise  the  money. 
From  this  action  of  the  district  meeting  this  appeal  is  taken.  The  appellants 
urge  that  the  appeal  should  be  sustained  for  the  following  reasons:  (i)  that 
the  items  charged  were  not  extras ;  whatever  was  done,  was  done  under  contract ; 
{2)  that  there  had  been  a  full  and  satisfactory  adjustment  and  final  settlement 
between  the  parties;  (3)  that  the  district  owed  them  nothing;  (4)  that  no 
notice  was  given  prior  to  the  district  meeting,  stating  that  such  tax  would  be 
proposed  at  such  meeting,  and  specifying  the  amount  or  object  thereof. 

I  shall  first  consider  the  last  objection  raised  by  the  appellants.  If  it  is  valid 
it  will  be  unnecessary  for  me  to  go  into  the  merits  of  the  controversy.  Section 
10  of  title  9  of  the  Consolidated  School  Act  provides  that  "A  majority  of  the 
voters  of  any  union  free  school  district  other  than  those  whose  limits  correspond 
with  an  incorporated  city  or  village  present  at  any  annual  or  special  district 
meeting,  duly  convened,  may  authorize  such  acts  and  vote  such  taxes  as  they  shall 
deem  expedient  for  making  additions,  alterations  or  improvements  to  or  in  the 
sites  or  structures  belonging  to  the  district,  or  for  the  purpose  of  other  sites  or 
structures,  or  for  a  change  of  sites,  or  for  the  erection  of  new  buildings,  or  for 
buying  apparatus  or  fixtures,  or  for  paying  the  wages  of  teachers  and  the  neces- 
sary expenses  of  the  schools,  or  for  such  other  purpose  relating  to  the  support 
and  welfare  of  the  school  as  they  may  by  resolution  approve;  and  they  may 
direct  the  moneys  so  voted  to  be  levied  in  one  sum  or  by  instalments  but  any 
addition  to,  or  change  of,  site  or  purchase  of  a  new  site,  or  tax  for  the  purchase 
of  any  new  site  or  structure,  or  for  the  purchase  of  an  addition  to  the  site  of 
any  schoolhouse,  or  for  building  any  new  schoolhouse,  or  for  the  erection  of 
an  addition  to  any  schoolhouse  already  built,  shall  be  voted  at  any  such  meeting, 
unless  a  notice  by  the  board  of  education,  stating  that  such  tax  will  be  proposed 
and  specifying  the  amount  and  object  thereof,  shall  have  been  published  once 
in  each  week  for  the  four  weeks  next  preceding  such  district  meeting,  in  two 
newspapers  if  there  shall  be  two,  or  in  one  newspaper  if  there  shall  be  but  one 
published  in  such  district;  but  if  no  newspapers  shall  be  published  therein,  the 
said  notice  shall  be  posted  up  in  at  least  ten  of  the  most  public  places  in  said 
district,  twenty  days  before  the  time  of  such  meeting." 

It  is  not  pretended  that  such  notice  as  that  contemplated  in  this  statute  was 
given  prior  to  the  action  of  the  district  meeting.  It  seems  to  me  that  this 
statute  is  fatal  to  the  action  of  the  district  meeting.  It  may  be  true  that  the 
action  appealed  from  was  not  technically  for  any  one  of  the  purposes  enumerated 
in  this  statute,  but  that  it  comes  within  the  general  scope  and  intent  of  the 


JUDICIAL   DECISIONS :      SCHOOLHOUSES  809 

statute,  it  seems  to  me  there  can  be  no  doubt.  The  money  ordered  to  be  raised 
was  for  the  payment  of  a  claim  growing  out  of  the  erection  of  a  new  school- 
house.  I  think  the  people  of  the  district  were  justified  in  relying  upon  this  pro- 
vision of  the  statute  to  prevent  any  action  of  that  nature  without  such  prelim- 
inary notice  as  the  statute  prescribes.  It  therefore  follows  that  I  must  sustain 
the  appeal  and  perpetually  enjoin  the  board  of  education  from  levying  or  collect- 
ing a  tax  pursuant  to  the  action  appealed  from. 

My  arriving  at  this  conclusion  will  not  bar  the  claimants  against  the  district 
from  procuring  a  determination  of  the  justice  of  their  claim.  They  can  either 
present  the  same  to  a  special  district  meeting  after  proper  notice,  or  they  can 
bring  an  action  against  the  district  in  the  courts.  The  appeal  is  sustained  and 
the  action  of  the  district  meeting  is  declared  null  and  void. 


5194 

In  the  matter  of  the  appeal  of  Jeremiah  P.  Conklin,  J.  Whitman  Baker  and 
Joseph  M.  Edwards,  trustees  of  school  district  no.  3,  town  of  East  Hampton, 
Suffolk  county,  from  the  action  of  a  special  meeting  of  said  district  held 
June  29,  1905,  in  voting  to  rescind  the  action  of  a  previous  meeting  in  voting; 
$5000  for  repairs  etc. 

A  district  meeting  voted  to  repair  a  schoolhouse  but  the  trustees  had  awarded  no  con- 
tracts and  a  district  liability  had  not  been  created.  Such  district  could  legally  change 
its  plans  and  vote  a  tax  for  the  erection  of  a  new  building. 

if  a  district  meeting  votes  a  tax  for  the  purpose  of  repairing  a  schoolhouse  such  action  cat. 
not  be  reconsidered  after  the  expiration  of  30  days  unless  the  district  votes  in  good, 
faith  to  erect  a  new  building  and  authorizes  a  tax  therefor. 

Decided  August  15,  1905 

Draper,  Commissioner 

A  special  meeting  of  the  legal  voters  of  school  district  no.  3,  town  of  East 
Hampton  was  regularly  called  for  May  11,  1905,  to  consider  the  advisability  of 
making  repairs  to  the  schoolhouse  and  authorizing  an  appropriation  therefor. 
The  meeting  appointed  a  committee  to  act  wath  the  trustees  in  preparing  plans 
for  the  proposed  improvements.  The  meeting  appears  to  have  given  the  question; 
of  repairs  careful  attention  and  to  have  regularly  adjourned  from  time  to  time. 
At  a  meeting  held  May  25,  1905,  plans  and  specifications  prepared  by  an  archi- 
tect for  an  addition  to  the  building  were  submitted  and  adopted.  An  appropria- 
tion of  $5000  was  voted  for  making  such  repairs. 

At  a  meeting  held  June  15,  1905,  the  wisdom  of  erecting  a  new  building: 
instead  of  enlarging  the  present  building  appears  to  have  been  discussed.  Arc 
informal  ballot  was  taken  on  the  question  to  ascertain  the  sentiment  of  the  dis- 
trict and  19  votes  w^ere  cast  in  favor  of  erecting  a  new  building  and  13  votes  m 
favor  of  erecting  the  addition  already  authorized.  At  a  meeting  of  the  district 
held  June  29,  1905.  the  following  resolution  was  adopted:  "Resolved,  That  all 


8lO  THE   UNIVERSITY    OF   THE  STATE   OF   NEW   YORK 

acts,  resolutions,  appropriations,  plans  and  specifications  relative  to  the  building 
on  or  addition  to  the  present  schoolhouse  in  the  village  of  Amagansett,  New 
York,  be  now  rescinded." 

No  other  action  in  relation  to  the  matter  was  taken  at  that  meeting  or  so 
far  as  the  pleadings  herein  show  at  any  subsequent  meeting.  It  appears  that  at 
the  time  of  this  meeting  no  contracts  had  been  let  for  the  repairs  authorized  by 
the  di.-trict  May  25th.  No  district  liability  would  have  followed  by  a  change  of 
plans  to  provide  for  the  erection  of  a  new  building.  Had  this  meeting  made  an 
appropriation  for  the  erection  of  a  new  building  and  taken  such  other  action 
necessary  to  prepare  for  the  erection  of  such  building  its  action  would  undoubt- 
edly have  been  lawful.  No  action  of  this  character  was  taken  and  the  meeting 
even  adjourned  sine  die.  The  action  of  the  meeting,  therefore,  in  voting  to  favor 
the  erection  of  a  new  school  building  can  not  be  regarded  as  having  been  taken 
in  good  faith.  Without  providing  for  the  erection  of  a  new  building  this  meeting 
could  not  legally  rescind  its  former  action  in  voting  an  appropriation  of  $5000 
for  repairs  to  the  building.  Section  18  of  title  7  of  the  Consolidated  School  Law 
provides  that  a  vote  to  repair  or  erect  a  schoolhouse  or  to  erect  an  addition  to 
a  schoolhouse  shall  not  be  reconsidered  except  at  a  meeting  held  within  30  days 
from  the  date  on  which  such  vote  was  adopted.  The  vote  by  which  the  appro- 
priation of  $5000  for  the  erection  of  an  addition  to  the  schoolhouse  in  question 
was  reconsidered  took  place  at  a  meeting  held  49  days  after  the  date  of  the 
meeting  at  which  such  appropriation  was  made.  The  action  of  such  meeting 
was  in  violation  of  law  and  therefore  void.  No  answer  has  been  filed  to  this 
appeal  and  the  allegations  contained  in  the  moving  papers  must  be  regarded  as 
admitted. 

The  appeal  herein  is  sustained. 

It  is  ordered,  That  the  board  of  trustees  of  school  district  no.  3,  town  of 
East  Hampton,  be,  and  they  hereby  are,  ordered  to  proceed  to  erect  the  addition 
to  the  present  school  building  as  directed  by  a  special  meeting  of  such  district 
on  May  25,  1905,  and  to  raise  the  said  appropriation  of  $5000  as  directed  by 
that  meeting. 


5179 

In  the  matter  of  the  appeal  of  Edwin  L.  Rymph  for  the  removal  of  Louis  J. 
Cobey,  sole  trustee  of  school  district  no.  3,  towns  of  Hyde  Park  and  Pough- 
keepsie,  Dutchess  county. 

When  a  district  meeting  appoints  a  building  committee  to  assist  the  trustees  in  making 
certain  repairs  and  the  district  subsequently  decides  not  to  make  such  repairs  but 
authorizes  the  erection  of  a  new  building  and  does  not  continue  such  building  committee 
it  is  held  that  the  duties  of  such  committee  ceased. 

A  building  committee  can  a-ct  in  an  advisory  capacity  only.  A  building  committee  may 
advise  trustees  or  make  suggestions  as  to  the  procedure  in  erecting  a  building,  but  the 
responsibility,  under  the  law,  of  erecting  such  building  rests  upon  the  trustee  and  he 
rnay  proceed  as  his  judgment  directs  even  in  opposition  to  the  wishes  or  recommenda- 
tions of  a  building  committee. 


JUDICIAL  decisions:    schoolhouses  8ii 

A  school  district  meeting  can  not  restrict  the  powers  of  a  trustee  in  determining  the  number 

of  teachers  to  be  employed  and  the  compensation  of  such  teachers.     The  law  imposes 

this  duty  on  a  trustee. 
If  authorized  expenditures  made  by  a  trustee  are  excessive  or  improper  objection  should  be 

made  at  the  meeting  of  the  district  when  the  trustee  makes  a  report  thereon.     If  no 

objection  is  made  and  such  report  is  accepted  by  the  district,  such  acceptance  will  be 

regarded  as  a  concurrence  in  the  judgment  and  authority  of  the  trustee  in  making  such 

expenditures. 
A  trustee  should  not  proceed  with  the  erection  of  a  building  to  cost  an  amount  in  excess 

of  the   funds   available  until   he  calls   a   special   meeting  of   the   district   and   receives 

instruction  therefrom  or  until  a  further  appropriation  is  made. 
When  a  trustee  violates  no  instruction   from  the  district   but  exercises  his  best  judgment 

on  the  course  to  pursue,  even  if  that  judgment  is  faulty,  it  does  not  constitute  sufficient 

cause  for  removal  from  office. 
Decided  February  23,  1905 

Homer  E.  Briggs,  attorney  for  appellant 
Hackett  &  Williams,  attorneys  for  respondent 

Draper,  Commissioner 

This  proceeding  is  brought  to  remove  Louis  J.  Cobey  from  the  office  of 
trustee  of  school  district  no.  3,  towns  of  Hyde  Park  and  Poughkeepsie.  It  is 
alleged  that  Mr  Cobey  has  illegally,  wastefully  and  excessively  expended  the 
funds  of  the  district  and  that  he  has  wilfully  refused  to  obey  instructions  given 
him  by  the  district.  Thirty-five  legal  voters  of  the  district  join  Mr  Ryniph  in 
this  petition  and  26  legal  voters  of  the  district  join  Mr  Cobey  in  his  answer  to 
such  petition.  This  district  has  three  schoolhouses.  One  is  known  as  the  Violet 
avenue  schoolhouse,  one  as  Mount  Hope  schoolhouse,  and  one  as  the  Chapel 
Corner  schoolhouse. 

One  cause  of  much  of  the  trouble  in  this  district  is  a  misunderstanding 
between  a  building  committee  and  the  trustee.  At  a  special  meeting  of  the  dis- 
trict held  September  16,  1902,  the  chairman  was  authorized  to  appoint  a  build- 
ing committee  "  to  assist  the  trustee  with  the  super\'ision  of  the  repairs  and 
the  enlargement  to  the  Mount  Hope  schoolhouse."  The  records  of  the  meeting 
show  the  chairman  appointed  as  such  committee:  John  A.  Roosevelt,  Frederick 
R.  Newbold  and  William  R.  Wright.  At  this  special  meeting  the  collector 
reported  that  after  paying  the  running  expenses  of  the  district  there  would  be  a 
balance  of  $250.  The  meeting  directed  the  trustee  to  raise  by  tax  $250  and  to 
use  such  other  amount  remaining  on  hand  after  payment  of  all  other  school 
expenses,  for  the  enlargement  and  repairs  to  the  Mount  Hope  schoolhouse.  The 
district,  therefore,  contemplated  and  authorized  an  addition  and  repairs  to  the 
Mount  Hope  building  to  cost  about  $500.  It  appears  that  Mr  Roosevelt  went 
to  Canada  shortly  after  the  appointment  of  this  committee  and  that  upon  his 
return  he  was  ill  for  some  time.  It  also  appears  that  Mr  Newbold  went  to 
Eutope  and  that  neither  of  these  members  rendered  any  service  on  such  com- 


Sl2 


THE    UNIVERSITY    OF   THE    STATE    OF    NEW    YORK 


inittee  or  were  ever  consulted  in  relation  to  the  work  of  such  committee.     The 
only  member  of  such  committee  who  rendered  any  service  was  Mr  Wright. 

No  repairs  were  made  during  the  year  to  the  Mount  Hope  schoolhouse. 
At  the  annual  meeting  in  August  1903  Mr  Wright  as  the  building  committee 
made  a  report  recommending  that  a  new  schoolhouse  be  built  on  the  property 
adjoining  the  present  site.  This  annual  meeting  directed  that  a  special  meeting 
be  held  August  11,  1903,  to  consider  among  other  things  the  proposition  to  build 
a  new  schoolhouse  at  Mount  Hope.  Such  special  meeting  decided  to  build  a 
new  schoolhouse.  Neither  the  annual  meeting  of  1903  nor  the  special  meeting 
of  August  II,  1903,  authorized  the  continuance  of  the  building  committee 
appointed  at  the  special  meeting  of  September  16,  1902,  or  the  appointment  of 
a  new  committee.  The  records  of  these  meetings  or  the  pleadings  in  this  pro- 
•ceeding  do  not  show  that  any  discussion  took  place  at  either  meeting  in  relation 
to  the  continuation  of  such  building  committee.  That  committee  was  appointed 
for  a  definite  purpose,  namely,  "  to  assist  the  trustee  with  the  supervision  of 
the  repairs  and  tlu-  enlargement  to  the  Mount  Hope  school."  No  work  in  con- 
nection with  such  repairs  or  enlargement  at  the  Mount  Hope  building  was  done 
for  one  year  and  at  the  expiration  of  that  time  the  district  decided  not  to  do 
ihe  work  which  this  committee  was  appointed  to  assist  the  trustee  in  supervising. 
Therefore,  the  duties  of  the  committee  ceased.  Such  committee  was  not  author- 
ized to  assist  the  trustee  in  any  manner  whatever  in  building  the  new  school- 
liouse  authorized  at  the  special  meeting  of  the  district  August  11,  1903.  When  a 
<listrict  meeting  authorizes  the  appointment  of  a  building  committee,  such  com- 
mittee can  act  in  an  advisory  capacity  only.  Subdivision  5,  section  47,  title  7 
of  the  Consolidated  School  Law  imposes  on  the  trustees  of  a  district  the  duty  of 
building  a  schoolhouse  when  a  district  authorizes  the  erection  of  such  building. 
A  building  committee  may  advise  trustees  or  make  suggestions  as  to  the  pro- 
cedure in  erecting  a  building,  but  the  responsibility,  under  the  law,  of  erecting 
such  building,  rests  upon  the  trustee  and  he  may  proceed  as  his  judgment  directs 
<even  in  opposition  to  the  wishes  or  recommendations  of  a  building  committee. 
Trustee  Cobey  was  entirely  within  his  legal  rights  in  obtaining  plans  from  an 
architect  of  his  selection  instead  of  taking  the  plans  prepared  by  an  architect 
consulted  by  Mr  Wright. 

At  the  annual  meeting  of  the  district  August  4,  1903,  the  trustee  was  author- 
ized "  to  make  such  repairs  to  Chapel  Corner  school  as  he  may  find  necessary." 
Trustee  Cobey  in  compliance  with  such  instruction  made  extended  repairs  to 
■such  building  at  a  cost  of  $449.22.  He  made  a  complete  detailed  report  of  such 
repairs  and  the  expenditures  therefor  to  the  annual  meeting  of  the  district 
August  2,  1904.  The  meeting  accepted  such  report.  Under  the  instruction  given 
the  trustee  he  possessed  power  to  make  any  necessary  repairs.  It  is  not  claimed 
that  unnecessary  repairs  were  made.  No  one  suggested  at  the  annual  meeting 
that  the  expenditures  were  excessive  for  the  repairs  made.  It  is  not  even  claimed 
ihat  the  district,  at  the  time  of  the  annual  meeting,  was  not  in  possession  of  all 


JUDICIAL  decisions:     schoolhouses  813 

information  in  relation  to  such  repairs  and  the  cost  of  the  same  which  the  peti- 
tioners herein  now  possess.  The  appellant  herein  and  many  of  those  who  join  him 
in  this  petition  were  present  at  the  annual  meeting  and  in  accepting  the  report 
of  the  trustee  acquiesced  in  his  judgment  on  the  necessity  of  repairs  made  and 
the  cost  of  the  same.  If  these  expenditures  were  improper  or  excessive  it  was 
the  duty  of  the  petitioners  to  have  offered  their  objections  at  the  annual  meeting 
and  not  to  accept  the  report.  The  petitioners  also  fail  to  show  that  such  repairs 
were  not  necessary  or  that  the  expenditures  therefor  were  excessive. 

It  is  alleged  that  Trustee  Cobey  expended  $86.34  in  building  a  chimney  in 
the  Chapel  Corner  schoolhouse  when  a  contractor  offered  to  do  such  work  for 
$45  if  the  trustee  furnished  the  necessary  sand.  Trustee  Cobey  shows  that  the 
actual  cost  of  building  such  chimney,  including  all  labor  and  material,  was  only 
$46.  He  also  shows  that  the  remaining  $40.34  was  expended  in  repairing  the 
ceiling  and  walls  of  the  Chapel  Corner  building  as  the  ceiling  of  such  building 
had  fallen  after  the  annual  meeting  of  1904,  and  in  also  placing  a  concrete  bot- 
tom in  the  Violet  avenue  schoolhouse.  The  annual  meeting  of  1904  voted  an 
appropriation  of  $70  to  build  the  chimney  in  the  Chapel  Corner  schoolhouse. 
Since  the  trustee  built  such  chimney  for  $46  and  made  the  additional  repairs  for 
$40.34  it  appears  that  such  expenditures  were  legally  and  wisely  made. 

The  petitioners  allege  that  the  annual  meeting  of  1904  instructed  the  trustee 
to  employ  three  teachers  —  one  at  a  salary  of  $14  per  week  and  two  at  a  salary 
of  $10  each  per  week,  and  that  only  one  teacher  should  be  employed  in  each  of 
the  schoolhouses  of  the  district.  The  records  show  that  Trustee  Cobey  asked  for 
an  appropriation  of  $1760  for  teachers'  wages  and  that  such  appropriation 
included  $400  for  an  extra  teacher  in  the  Violet  avenue  schoolhouse.  The  meet- 
ing voted  not  to  hire  an  extra  teacher  and  reduced  the  estimate  of  the  trustee 
for  teachers'  salaries  $400,  appropriating  only  $1360  for  that  purpose.  Subdi- 
vision 9,  section  47,  title  7  of  the  Consolidated  School  Law  confers  upon  trustees 
the  power  to  employ  all  teachers,  to  designate  the  number  of  teachers  to  be 
employed,  and  to  determine  the  compensation  of  each  teacher.  A  school  district 
meeting  can  not  restrict  the  powers  of  trustees  in  such  matters.  It  appears 
that  Trustee  Cobey  employed  only  three  teachers  and  that  he  paid  each  of  them 
$12  per  week.  He  possessed  the  legal  right  to  do  this.  If  in  his  judgment  it  had 
been  necessary  to  employ  four  teachers  he  might  have  employed  that  number  not- 
withstanding the  fact  that  the  district  voted  to  hire  only  three  teachers.  Twelve 
dollars  per  week  is  a  reasonable  salary  for  this  district  to  pay  its  teachers.  The 
action  of  the  trustee  in  this  respect  was  proper  and  legal. 

The  special  meeting  of  August  11,  1903,  voted  an  appropriation  of  $4000 
to  buy  the  \'iolet  avenue  schoolhouse  and  site,  paint  the  schoolhouse,  fence  the 
lot,  make  the  necessary  improvements  to  the  same,  and  to  build  a  new  school- 
house  at  Mount  Hope.  The  Violet  avenue  building  was  purchased  at  $2045.19. 
•Pxevious  to  the  annual  meeting  of  1904  the  trustee  expended  %2ZZ-7S  ^or  repairs 
to  the  second  floor  of  this  building  and  $183.41   for  fencing  the  lot.     Trustee 


8l4  THE    UXIVERSITV    OF   THE   STATE    OF    NEW   YORK 

Cobey  included  these  expenditures  in  his  report  to  the  annual  meeting  of  1904. 
That  meeting  accepted  such  report  and  thereby  ratified  the  action  and  judgment 
of  the  trustee.  Many  of  these  petitioners  were  present  at  such  annual  meeting, 
but  offered  no  objection  to  these  expenditures.  If  these  expenditures  were 
excessive,  improper  or  illegal,  objection  should  have  been  made  when  the  report 
of  the  trustee  was  under  consideration  at  the  annual  meeting.  It  appears  that 
since  the  annual  meeting  of  1904  Trustee  Cobey  has  made  additional  repairs  to 
the  Violet  avenue  building  amounting  to  $435.21.  It  is  not  claimed  that  such 
repairs  were  unnecessary  and  the  trustee  was  authorized  to  make  all  necessary 
repairs.  It  is  alleged,  however,  that  the  expenditures  for  such  repairs  were 
excessive.  It  is  incumbent  upon  the  appellants  to  establish  conclusively  by  a 
preponderance  of  evidence  that  such  expenditures  were  excessive.  In  this  they 
have  failed.     It  appears  that  such  expenditures  were  reasonable  and  proper. 

It  therefore  appears  that  of  the  $4000  appropriated  by  the  district  to  purchase 
the  Violet  avenue  building  and  site,  to  paint  the  schoolhouse,  fence  the  lot,  make 
the  necessary  improvements  to  the  same,  and  to  build  a  new  schoolhouse  at 
Mount  Hope,  $2897.56  have  already  been  expended  in  purchasing  the  A'iolet 
avenue  property  and  making  repairs  thereto.  Of  the  $4000  appropriation  only 
$1102.44  remains  for  the  erection  of  the  Mount  Hope  building.  This  amount 
is  insufficient  for  that  purpose.  Trustee  Cobey  is  not  responsible  for  this  con- 
dition. He  followed  the  direction  of  the  district  in  purchasing  the  Violet  Avenue 
property  and  in  repairing  the  same.  It  is  not  shown  that  any  unnecessary  repairs 
or  excessive  expenditures  were  made. 

Of  the  $1102.44  remaining  from  the  $4000  appropriation  the  trustee  has 
already  expended  $153  for  cutting  timber  on  the  site,  removing  stumps  and  rocks 
and  otherwise  clearing  the  site.  He  has  also  expended  $213  in  building  out- 
houses, a  foundation  for  the  new  school  building  and  laying  a  tile  drain  to 
properly  drain  the  grounds.  He  possessed  power  under  instruction  from  the  dis- 
trict to  make  these  expenditures.  The  petitioners  have  failed  to  show  that  these 
expenditures  were  wasteful  or  excessive.  There  remains  in  the  fund  to  be 
used  for  the  erection  of  the  new  schoolhouse  $736.36  to  which  may  be  added 
$450  voted  to  reiiair  the  old  building  which  was  never  used.  This  aiifords 
$1186.36  which  is  not  sufficient  for  the  erection  of  a  suitable  building.  Plans  for 
a  building  have  been  approved  at  this  Department,  but  such  plans  call  for  a 
building  which  will  cost  an  amount  greatly  in  excess  of  the  fund  available  for 
this  purpose.  The  trustee  states  that  such  plans  are  being  modified  to  reduce 
the  cost  of  erection.  The  trustee  should  not  proceed  with  the  erection  of  a 
building  to  cost  an  amount  in  excess  of  the  funds  available  until  he  calls  a  special 
meeting  of  the  district  and  receives  instruction  therefrom  or  until  a  further 
appropriation  is  made. 

It  is  alleged  by  the  petitioners  that  it  was  the  sense  of  the  annual  meeting 
of  1904  that  the  old  schoolhouse  at  Mount  Hope  should  remain  standing  and 


JUDICIAL  decisions:     schoolhouses  815 

be  used  for  school  purposes  until  the  new  schoolhouse  should  be  completed, 
The  records  of  the  meeting  do  not  sustain  this  contention.  The  records  of  the 
meeting  do  not  show  that  any  direction  was  given  by  the  district  on  this  question. 
The  district  had  authorized  the  trustee  to  tear  down  the  old  building  and  to 
erect  a  new  one.  He  could,  therefore,  exercise  his  discretion  in  such  matter. 
The  trustee  claims  that  he  desired  to  use  in  the  new  building  any  of  the  material 
in  the  old  building  which  was  suitable  for  such  purpose.  He  also  claims  that 
to  continue  school  in  the  old  building  while  the  construction  of  the  new  one  was 
in  progress,  would  be  dangerous  to  the  lives  of  the  children.  He  therefore  trans- 
ferred the  teacher  and  pupils  of  the  Mount  Hope  school  to  the  upper  story  of 
the  Violet  avenue  school.  He  violated  no  instruction  from  the  district  and 
exercised  his  best  judgment  on  the  course  to  pursue.  Even  if  that  judgment  was 
faulty  it  does  not  constitute  sufficient  cause  for  removal  from  office. 

In  my  opinion  the  respondent  has  shown  that  he  acted  entirely  within  his 
legal  rights  and  in  entire  good  faith  in  all  these  matters. 

The  appeal  herein  is  dismissed. 


5436 

In  the  matter  of  the  appeal  of  George  H.  Melious  and  others  for  the  removal 
of  J.  O.  Hankinson,  as  trustee  of  district  no.  3,  town  of  Gorham,  Ontario 
county. 

Duty  of  trustee  where  appropriation  has  been  made  for  erection  of  school  building. 
Where  an  appropriation  has  been  voted  at  a  district  meeting  for  the  erection  of  a  new 
schoolhouse  and  plans  and  specifications  have  been  prepared  and  duly  approved  by  a 
district  meeting  and  subsequently  approved  by  the  Department,  it  is  the  duty  of  the 
trustee  to  ask  for  bids  for  the  erection  of  the  building  in  accordance  with  such  plans 
and  specifications.  He  should  make  every  reasonable  effort  by  advertisement  and 
otherwise  to  secure  bids  or  proposals  for  the  construction  of  the  schoolhouse.  If  a 
bid  is  received,  within  the  amount  appropriated,  from  a  reliable  person,  the  contract 
must  be  immediately  awarded.  If  the  lowest  bid  received  is  in  excess  of  the  amount 
appropriated  the  trustee  must  immediately  call  a  special  meeting  to  vote  an  additional 
appropriation. 

Decided  February  14,  1910 

Scott  &  Fitch,  attorneys  for  appellant 

Draper,  Commissioner 

This  is  a  proceeding  for  the  removal  of  J.  O.  Hankinson,  sole  trustee  of 
school  district  no.  3,  town  of  Gorham,  Ontario  county.  The  petition  is  signed 
by  a  number  ot  the  taxpayers  in  such  district.  The  chief  ground  of  complaint 
is  the  failure  of  the  respondent  to  carry  out  the  directions  of  the  district  in 
Vespect  to  the  erection  of  a  new  schoolhouse  in  such  district.  It  appears  that  a 
special  meeting  was  held  September  3,   1907,  and  it  was  voted  to  build  a  new 


8l6  THE  UNIVERSITY   OF   THE   STATE   OF   NEW   YORK 

schoolhouse  and  a  resolution  was  passed  appropriating  $5000  for  such  purpose. 
Plans  and  specifications  were  prepared  and  duly  approved  by  the  district  at  a 
meeting  held  February  8,  1908,  and  a  further  appropriation  of  $1500  was  made, 
so  that  the  sum  of  $6500  is  available  for  the  construction  of  the  building.  The 
plans  and  specifications  were  approved  by  the  Department  at  some  time  prior  to 
April  I,  1908.  The  respondent  Hankinson  was  elected  as  trustee  to  fill  a  vacancy, 
August  12,  1908,  and  reelected  to  such  office  August  3,  1909.  It  is  alleged  that 
he  has  neglected  to  carry  into  effect  the  resolutions  of  the  district  meeting  pro- 
viding for  the  construction  of  the  schoolhouse ;  that  he  has  made  no  effort  to  let 
contracts  for  such  construction;  that  he  has  in  all  respects  wilfully  and  persist- 
ently refused  to  comply  with  the  will  of  the  district  as  expressed  in  the  several 
resolutions  providing  for  such  construction. 

The  respondent  did  not  file  an  answer  in  reply  to  such  petition.  The  allega- 
tions of  the  petition  therefore  stand  admitted.  An  order  was  issued  December  30, 
1909,  directing  the  said  Hankinson  to  appear  before  me  to  answer  the  charges 
contained  in  said  petition  and  to  show  cause  why  he  should  not  be  removed  from 
his  office.  Such  order  was  returnable  January  18,  1910,  and  Mr  Hankinson 
appeared  before  me  in  person ;  the  petitioners  were  represented  by  their  attorney, 
Mr  Royal  R.  Scott.  The  facts  in  the  case  were  carefully  considered.  Mr  Hank- 
inson was  permitted  to  explain  why  he  had  failed  to  proceed  more  rapidly  with 
the  erection  of  the  building. 

It  is  apparent  that  Mr  Hankinson  has  been  contending  against  real  troubles 
and  difficulties.  There  seems  to  have  been  a  lack  of  harmony  in  his  district  as 
to  the  best  methods  to  be  followed  in  building  the  schoolhouse.  It  is  possible 
that  Mr  Hankinson  has  been  more  favorably  inclined  toward  the  side  of  those 
who  do  not  desire  the  erection  of  a  schoolhouse  in  conformity  with  the  plans 
and  specifications  already  adopted  and  approved.  It  does  not  seem  desirable  to 
remove  him  at  this  time.  He  should  be  given  further  opportunity  to  carry  into 
effect  the  expressed  will  of  the  district. 

It  is  Mr  Hankinson's  first  duty  to  ask  for  bids  for  the  construction  of  this 
building,  in  accordance  with  the  plans  which  have  been  adopted.  If  a  bid  is 
received  from  a  reliable  person,  which  is  within  the  amount  available,  a  contract 
should  be  immediately  awarded  for  the  construction  of  the  building.  If  the 
bids  are  in  excess  of  the  amount  available  he  should  immediately  call  a  special 
meeting  to  vote  an  appropriation  of  an  amount  necessar}'  to  complete  the  build- 
ing in  accordance  with  the  bid  which  seems  most  beneficial  to  the  district. 

He  must  submit  these  plans  and  specifications  to  reliable  contractors  in 
Geneva,  Canandaigua  and  other  nearby  places,  and  make  every  reasonable  effort 
to  secure  bids  or  proposals  for  the  construction  of  the  schoolhouse. 

This  district  has  voted  for  a  new  schoolhouse.  There  is  no  doubt  of  the 
necessity  of  such  schoolhouse.  The  district  is  sufficiently  strong  to  build  and 
maintain  a  suitable  building.    The  will  of  the  district  must  be  carried  out.   This 


JUDICIAL  decisions:    schoolhouses  817 

proceeding  will  be  suspended  pending  the  completion  of  the  building,  and  the 
proper  performance  by  the  respondent  of  the  duties  of  his  office,  as  herein 
directed. 


In  the  matter  of  school  district  no.  6,  town  of  Sheridan,  county  of  Chautauqua. 

To  justify  the  Commissioner  of  Education  in  vacating  the  action  of  the  meeting  as  expressed 
by  a  vote  of  34  to  14  on  the  erection  of  a  new  school  building  there  should  be  over- 
whelming evidence  of  the  need  of  such  building  and  evidence  to  the  effect  that  in  no 
probability  would  the  voters  of  the  district  authorize  the  erection  of  such  building. 

Decided  July  9,  1908 

\\'arner  &  Farnham,  attorneys  for  respondent 

Draper,  Commissioner 

On  April  21,  1908,  a  special  meeting  was  held  in  school  district  no.  6,  town 
of  Sheridan,  for  the  purpose  of  voting  upon  a  proposition  to  build  a  new  school- 
house  at  an  expense  of  $5000,  and  to  bond  the  district  for  such  amount.  It 
appears  that  there  are  about  90  voters  in  the  district  and  that  only  48  attended 
this  special  meeting.  The  vote  on  the  proposition  to  erect  a  new  schoolhouse 
resulted  in  14  ballots  being  cast  in  favor  of  such  proposition  and  34  against  it. 
The  proposition  was  therefore  defeated.  Appellants  request  in  their  moving 
papers  that  such  action  be  taken  as  will  enable  the  district  to  maintain  adequate 
school  accommodations,  and  to  authorize  the  district  to  issue  bonds  and  erect 
a  new  schoolhouse. 

To  justify  the  Commissioner  of  Education  in  setting  aside  the  action  of  the 
meeting  and  in  overriding  its  wishes  as  expressed  by  a  vote  of  34  to  14,  there 
should  be  overwhelming  evidence  of  the  need  of  a  new  school  building  and  also 
evidence  to  the  effect  that  in  no  probability  would  the  voters  of  the  district 
authorize  the  erection  of  a  new  building.  The  pleadings  of  appellants  do  not 
contain  such  evidence. 

If  this  district  has  not  adequate  school  facilities,  the  statutes  afford  ample 
means  for  providing  them.  If  the  building  is  unfit  for  use  and  not  worth  repair- 
ing, it  is  the  duty  of  the  school  commissioner  having  jurisdiction  to  condemn 
such  building  and  order  the  erection  of  a  new  building  at  such  amount  as  he 
deems  necessary.  Refusal  on  the  part  of  the  school  cotiimissioner  to  condemn 
a  building  is  ground  for  an  appeal  to  the  Commissioner  of  Education. 

If  the  building  is  worth  repairing,  the  school  commissioner  can  not  condemn 
it,  but  he  may  make  an  order  directing  repairs.     He  can  not  direct  an  expendi- 
ture of  more  than  $200  in  each  order  for  repairs,  but  there  is  no  limit  as  to  tiic 
number  of  orders  which  he  may  make  if  necessity  requires  it. 
•  The  appeal  herein  is  dismissed. 


8l8  THE   UNIVEKSITY   OF  THE   STATE   OF   NEW    YORK 

5382 

In  the  matter  of  the  appeal  of  Charles  I.  Rcdheld,  a  member  of  the  board  of 
educaliun  of  the  city  of  Middletown,  from  the  action  of  the  board  of  edu- 
cation of  the  city  of  Middletown,  in  relation  to  the  alterations  and  changes 
in  the  heating  system  of  the  Benton  avenue  school  building  of  said  city. 
Section  17.  title  7  of  the  Consolidated  School  Law  sets  a  standard  of  sanitary  requirements 
as  to  the  ventilation,  heating  and  lighting  of  school  buildings. 

This  law  also  provides  that  tlic  plans  and  spccilications  of  all  new  buildings  con- 
structed and  of  ail  additions  to  school  buildings  the  cost  of  which  exceeds  $500  shall 
be  approved  by  the  Commissioner  of  Education. 

This  law  does  not  require  that  the  plans  and  specifications  of  a  heating  system  to  be 
installed  into  an  old  building  when  no  addition  to  such  building  is  to  be  erected,  shall 
be  approved  by  the  Commissioner  of  Education. 

It  is  not  the  practice  of  this  Department  to  require  the  adoption  of  any  particular 
system  of  ventilation  and  heating. 

.    law  contemplates  that  each  building  shall  be  properly  heated  and  ventilated  so 
that  they  shall  afford  comfort  and  protection  to  the  health  of  the  children  who  are 
compelled  to  attend  upon  instruction  in  such  building.    The  law  is  ample  to  reach  such 
cases  under  a  proper  proceeding. 
Decided  March  2,  1908 

Dill  &  Thompson,  attorneys  for  appellant 

Hon.  Russell  Wiggins,  corporation  counsel,  attorney  for  respondent 

Draper.  Commissioner 

The  appellant  in  this  proceeding  is  a  practising  physician  in  the  city  of 
Middletown,  a  taxpayer  therein  and  a  member  of  the  board  of  education  of  such 
city.  He  is  also  the  chairman  of  a  committee  of  the  board  of  education  having 
supervision  of  one  of  the  school  buildings  in  the  city  known  as  the  Benton 
Avenue  building.  For  more  than  a  year  there  has  been  a  controversy  between 
appellant  and  the  other  members  of  the  board  of  education  over  the  heating  and 
ventilating  of  this  building.  I  am  asked  to  withhold  the  public  money  of  such 
city  and  to  order  the  building  closed  until  certain  repairs  are  made  to  the  heat- 
ing and  ventilating  system.  It  appears  that  this  building  was  erected  about  the 
year  1882  and  in  accordance  with  plans  which  were  regarded  at  that  time  as  the 
most  modern  and  best  adapted  to  the  construction  of  such  buildings.  It  also 
appears  that  the  building  is  now  in  satisfactory  condition  with  the  exception  of 
its  heating  and  ventilating  systems. 

.\ppellant  alleges  that  soon  after  his  appointment  upon  the  committee  hav- 
ing the  care  of  the  Benton  Avenue  building  reports  came  to  him  of  the  improper 
heating  and  ventilating  of  such  building.  Appellant  gave  much  conscientious 
investigation  to  these  defects  of  the  building  and  the  methods  to  correct  the  same. 
He  promptly  reported  the  results  of  his  investigations  to  the  board  of  education. 
It  also  appears  that  the  heating  plant  was  installed  only  two  years  ao'o.  The 
board  of  education  instructed  appellant  to  continue  his  investigation  and  to  take 


JUDICIAL  decisions:     schoolhouses  819 

the  matter  up  with  the  firm  which  installed  the  boiler  and  ascertain  what  such 
firm  thought  might  be  done  to  remedy  the  defects  in  question. 

Appellant  consulted  such  firm  and  was  informed  that  additional  radiation 
would  remedy  the  defects  in  the  heating  system.  Appellant  was  not  satisfied 
that  additional  radiation  would  remedy  the  difficulty  and  he  consulted  another 
firm  of  steam  fitters  in  the  city  of  Middletown.  This  firm  employed  the  con- 
sulting engineer  of  a  New  York  fimi  who,  it  is  claimed,  was  familiar  with  the 
problems  involved  in  school  heating  and  ventilating,  to  examine  the  Benton 
Avenue  building.  The  engineer  made  a  written  report  on  the  defects  found  and 
the  improvements  necessary  to  correct  the  same  and  he  estimated  that  the  co.st 
of  such  improvements  would  be  $2500.  This  engineer's  report  was  in  substance 
that  the  fault  in  the  heating  system  was  due  to  lack  of  radiation  and  lack  of 
proper  circulation  of  air.  He  also  reported  that  defects  in  the  ventilating  sys- 
tem were  due  to  the  use  of  an  impaired  wooden  duct  in  the  cellar,  an  insufficient 
number  of  aspirating  coils,  that  the  foul  air  ducts  and  the  cold  air  ducts  were 
too  large  for  the  hot  air  intakes  and  that  the  indirect  stack  casings  were  also 
impaired. 

Appellant  made  a  further  report  to  the  board  of  education  on  the  result 
of  his  investigations  and  included  therein  the  report  made  by  the  firm  which 
had  installed  the  heating  plant  and  also  the  one  made  by  the  New  York  engineer. 
He  alleges  that  thereafter  the  board  directed  him  to  make  a  few  unimportant 
changes  in  the  system  but  refused  to  take  such  action  as  would  insure  proper 
repairs  or  improvements  to  the  building.  Appellant  thereupon  addressed  a  com- 
munication to  the  health  officer  of  the  city  of  Middletown  setting  forth  very  fully 
the  discoveries  his  investigation  had  revealed  as  he  understood  the  situation  and 
requesting  the  board  of  health  to  investigate  the  building  and  transmit  a  report 
to  the  board  of  education.  The  board  of  health  complied  with  this  request  and 
reported  to  appellant  in  substance  that  a  committee  of  the  board  had  inspected 
the  school  building  twice  and  found  that  the  woodwork  on  the  cold  air  conduit 
needed  renewing  and  recommended  that  a  galvanized  iron  conduit  be  substituted 
for  the  one  used  at  present.  The  board  further  reported  that  if  necessary 
repairs  are  made  to  the  boiler,  radiator,  and  all  other  connections  the  heating 
system  is  ample  to  properly  heat  and  ventilate  the  building.  This  report  was 
not  satisfactory  to  appellant  and  he  thereafter  appeared  in  person  before  the 
board  of  health  and  discussed  the  matter  with  that  body.  He  asked  the  local 
health  board  to  request  the  State  Health  Department  to  send  an  inspector  to 
make  an  investigation  and  he  also  requested  the  local  board  to  make  an  order 
directing  the  board  of  education  to  make  necessary  repairs  to  the  building.  The 
board  of  health  communicated  again  with  the  board  of  education  but  made  no 
further  recommendation  than  that  contained  in  its  communication  to  appellant 
expressing  the  result  of  the  two  inspections  made  by  a  committee  of  that  board. 

Appellant  then  took  the  matter  up  with  Doctor  Porter,  State  Commissioner 
of  'Health,  and  filed  with  that  officer  a  long  communication  in  which  he  reviewed 
the  details  of  the  whole  controversy.     Doctor  Porter  advised  the  appellant  that 


820  TUK    LM\1'.I^SITY    OF   THE   STATE    OF    NEW    YORK 

the  question  at  issue  was  one  to  be  determined  by  the  Education  Department 
and  referred  appellant's  communication  to  this  Department.  A  long  correspond- 
ence foUuwctl  between  appellant  and  officers  of  the  Education  Department.  Mr 
Hall,  this  Department's  inspector  of  school  buildings,  was  directed  to  examine 
the  building  in  question.  He  made  such  examination  on  June  20,  1907,  and 
reported  that  the  heating  and  ventilating  system  was  inadequate  and  faulty  and 
tliat  as  a  result  thereof  the  building  was  unsanitary. 

It  therefore  appears  that  the  firm  which  installed  the  heating  plant,  the 
export  heating  engineer  from  New  York  City,  the  board  of  health  of  the  city 
of  Middletown  and  Inspector  Hall  practically  agreed  upon  the  principal  repairs 
or  improvements  which  it  was  necessary  to  make  in  order  to  correct  such  defects. 
These  principal  improvements  were  additional  radiation,  the  substitution  of  a 
galvanized  iron  conduit  for  the  old  cold  air  wooden  conduit,  an  increase  in  the 
number  of  aspirating  coils  and  the  substitution  of  pipes  or  ducts  of  proper  sizes 
etc.  The  board  of  health  deemed  additional  radiation  unnecessary  and  Mr  Hall 
recommended  the  fan  system  of  ventilation. 

With  this  knowledge  of  the  condition  of  the  building  in  the  possession  of 
the  board  of  education  it  was  clearly  the  duty  of  such  body  to  take  such  action 
as  was  necessary  to  make  this  building  comfortable  and  sanitary.  The  pleadings 
show  that  on  June  11,  1907,  the  board  of  education  directed  the  chairman  of 
the  local  committee  having  the  charge  of  the  Benton  Avenue  building  of  which 
appellant  was  chainnan,  "  to  put  the  heating  and  ventilating  system  in  condition 
to  properly  heat  and  ventilate  the  building."  This  resolution  of  the  board  gave 
the  committee  ample  power  to  make  any  changes  or  improvements  in  the  heating 
system  which  were  necessary.  Appellant  as  chairman  of  such  committee 
requested  several  firms  to  submit  plans  and  estimates.  Several  of  these  firms 
did  submit  such  plans  and  specifications.  The  committee  however  was  unable 
to  agree  upon  any  of  these  plans.  It  appears  that  appellant  had  been  partial  to 
the  fan  system  because  he  had  investigated  several  large  buildings  in  whith  that 
.system  was  in  operation  and  for  the  further  reason  that  Inspector  Hall  had 
recommended  such  system.  Other  members  favored  the  aspirating  or  gravity 
system.  Appellant  would  not  consent  to  the  adoption  of  any  plans  which  were 
not  approved  by  this  Department.  The  other  members  of  the  board  of  education 
appear  to  have  taken  the  position  that  under  section  17,  title  7  of  the  Consoli- 
dated School  Law  as  amended  by  chapter  281,  Laws  of  1904,  the  board  of 
education  had  full  authority  to  determine  what  repairs  should  be  made  to  the 
heating  system  and  to  make  such  repairs  without  the  approval  of  the  Commis- 
sioner of  Education.  This  was  one  of  the  principal  points  of  disagreement 
between  appellant  and  the  other  members  of  the  committee  and  the  board.  This 
provision  of  the  law  sets  a  standard  of  sanitary  requirements  as  to  the  ventila- 
tion, heating  and  lighting  of  school  buildings  and  provides  that  the  plans  and 
specifications  in  relation  thereto  for  all  new  buildings  constructed  and  all  addi- 
tions to  school  buildings  the  cost  of  which  exceeds  $500  shall  be  approved  by  the 
Commissioner  of  Education.     The  approval  of  the  Commissioner  of  Education 


JUDICIAL  decisions:     SCHOOLHOUSES  821 

is  therefore  restricted  to  nezv  buildings  and  to  additions  to  biiildings  when  the 
cost  thereof  exceeds  $500.  The  law  does  not  provide  that  the  plans  and  speci- 
fications of  a  heating  system  to  be  installed  into  an  old  building  when  no  addition 
to  such  building  is  to  be  erected  shall  be  approved  by  the  Commissioner  of 
Education.  This  board  of  education  was  simply  considering  repairs  to  the  heat- 
ing and  ventilating  system  and  the  approval  of  the  Commissioner  of  Education 
was  unnecessary. 

Appellant  was  fully  advised  upon  the  right  of  the  board  of  education  to 
determine  what  repairs  should  be  made.  He  sought  the  opinion  of  the  corpora- 
tion counsel  of  the  city  upon  such  question  and  on  the  26th  day  of  July  1907, 
was  advised  by  that  officer  that  the  approval  of  the  Commissioner  of  Education 
was  not  required.  He  was  informed  to  like  effect  by  the  Chief  of  the  Law 
Division  of  this  Department  on  August  6,  1907.  The  Chief  of  the  Inspections 
Division  gave  similar  information  to  the  president  of  the  board  of  education 
under  date  of  July  17,  1907,  and  on  the  same  date  wrote  appellant  expressing 
the  hope  that  the  position  assumed  in  such  communication  to  the  president  of 
the  board  of  education  would  commend  itself  to  the  appellant.  While  this 
Department  is  not  required  to  approve  plans  and  specifications  in  such  cases 
it  has  cheerfully  examined  and  passed  upon  them  whenever  requested  by  local 
school  authorities.  Whenever  plans  and  specifications  have  been  submitted  for 
approval  in  cases  where  repairs  only  are  being  made  the  requirements  specified 
by  law  for  new  buildings  have  been  apphed  in  determining  such  approval.  It 
has  not  been  the  practice  of  this  department  to  require  the  adoption  of  any  par- 
ticular system  of  ventilation.  The  fan  system  and  the  aspirating  or  gravity  sys- 
tem have  been  freely  approved. 

On  August  14,  1907,  the  committee  adopted  the  following:  "  That  in  order 
to  facilitate  the  work  of  installing  a  proper  ventilating  and  heating  system  at  the 
school,  that  Ayers  and  Galloway,  lowest  bidders  on  repiping  the  basement,  be 
awarded  the  contract,  to  begin  work  at  once;  contract  price  $300." 

On  August  22,  1907,  the  committee  adopted  the  following:  "  In  the  judg- 
ment of  this  committee,  the  best  plan  for  heating  and  ventilating  Benton  avenue 
school  is  the  gravity  system  like  the  one  approved  by  the  State  Department  in 
the  new  Mulberry  street  school,  and  therefore  be  it 

Resolved,  That  we  proceed  along  these  lines;  that  the  chairman  be  author- 
ized to  have  the  wooden  cold  air  duct  on  the  north  side  of  the  building  replaced 
with  galvanized  iron,  in  addition  to  the  work  authorized  at  the  last  meeting  of 
this  committee,  and  any  other  necessary  repairs,  leaving  the  determination  of 
other  changes  to  await  the  test  of  these." 

On  September  10,  1907,  the  majority  of  the  committee  made  a  report  of 
its  action  to  the  board  of  education  and  the  board  sustained  such  report.  Appel- 
lant submitted  a  minority  report  dissenting  to  any  plan  which  did  not  embody 
the  installation  of  a  complete  system.  Appellant  refused  to  carry  out  the 
""  instructions  of  the  committee  although  he  was  its  chairman  and  also  the  instruc- 
tion of  the  board.     Appellant  appears  to  have  been  actuated  in  the  position  which 


822  Tilt.    LMVEKSITY    OF   THE   STATE   OF   NEW    YORK 

he  has  assumed  in  the  controversy  by  a  desire  to  do  what  he  regarded  for  the 
best  interests  of  the  school  and  the  taxpayers  of  the  city.  On  the  other  hand, 
there  is  nothing  in  the  pleadings  to  show  that  the  other  members  of  the  board 
were  actuated  by  other  motives.  Appellant  undoubtedly  believed  that  the 
improvements  authorized  were  inadequate  and  that  the  building  would  not  be 
properly  heated  or  ventilated  until  the  fan  system  or  some  other  new  and  com- 
plete system  should  be  installed.  Nevertheless  he  is  in  error  in  refusing  to 
proceed  as  the  other  eight  members  of  the  board  directed. 

It  does  not  appear  from  the  pleadings  in  this  case  that  the  board  of  educa- 
tion was  not  willing  to  make  the  necessary  repairs  to  perfect  the  heating  and 
ventilating  system.  The  verj-  repairs  which  the  board  authorized  were  to  remedy 
imi)ortant  defects  pointed  out  uy  the  expert  engineer,  by  the  board  of  health 
and  by  Inspector  Hall.  One  of  the  principal  defects  reported  by  Mr  Hall  in  the 
ventilating  system  was  the  impaired  wooden  cold  air  conduit  which  he  claimed 
received  foul  air  from  the  toilets  and  basement  and  conveyed  such  air  to  the 
schoolroom.  The  installation  of  a  galvanized  iron  conduit  was  necessary  under 
the  adoption  of  any  plan.  The  substitution  of  larger  steam  pipes  in  the  cellar 
was  also  necessary.  The  adoption  of  any  particular  plan  would  necessitate  the 
very  changes  which  were  authorized.  Were  these  changes  to  be  made  now  they 
could  be  utilized  in  any  further  repairs  which  might  be  necessary.  It  would  not 
result  in  a  waste  of  funds  to  proceed  as  the  board  directed  and  it  would  have 
facilitated  the  completion  of  whatever  repairs  were  ultimately  found  to  be 
necessary.  The  language  used  by  the  board  indicated  its  willingness  to  make 
additional  repairs  if  such  repairs  were  necessary.  The  direction  of  the  board 
was  that  the  improvements  above  stated  should  be  made  and  the  "  determina- 
tion of  other  changes  to  await  the  test  of  these."  The  board  of  education 
should  see  that  the  improvements  authorized  are  made  without  further  delay. 
If  the  proper  committee  refuses  to  execute  the  orders  of  the  board  in  this  respect 
a  committee  should  be  appointed  who  will  execute  such  orders. 

It  should  not  be  understood,  because  section  17,  title  7  of  the  Consoli- 
dated School  Law  does  not  require  plans  and  specifications  for  repairs  to  the 
heating  and  ventilating  system  in  school  buildings  to  be  approved  by  the  Com- 
missioner of  Education  that  the  law  does  not  contemplate  that  old  buildings  shall 
be  properly  heated  and  ventilated  so  that  they  shall  afford  comfort  and  protec- 
tion to  the  health  of  the  children  who  are  compelled  to  attend  upon- instruction  in 
such  buildings.  The  law  is  ample  to  reach  such  cases  under  a  proper  proceed- 
ing. Such  question  is  not  presented  in  this  proceeding  and  a  proper  proceeding 
could  not  be  instituted  until  the  repairs  authorized  have  been  made  and  it  Is 
then  shown  that  the  heating  and  ventilating  of  the  building  is  inadequate  and 
thereby  unsanitary  and  that  the  board  of  education  refuses  to  take  such  action 
as  will  remedy  such  defects. 

The  appeal  herein  is  dismissed. 


JUDICIAL  decisions:     schoolhouses  823 

5390 

In  the  matter  of  the  appeal  of  the  taxpayers  of  union  free  school  district  no.  4, 
town  of  Orangetown,  from  the  decision  of  the  trustees  for  a  special  meet- 
ing- of  the  district. 

A  board  of  education  is  not  justified  in  awarding  a  contract  for  a  proposed  addition  to  a 
school  building  at  a  cost  of  $75,000  when  the  voters  of  the  district  have  had  no  oppor- 
tunity to  examine  the  plans  and  specifications  of  such  proposed  addition  or  to  vote 
upon  the  adoption  of  the  same.  When  such  proposition  is  involved  and  a  petition  of  a 
large  number  of  voters  of  the  district  has  requested  a  special  meeting  to  consider  the 
matter,  it  is  the  duty  of  the  board  to  call  such  special  meeting. 

Decided  July  10,  1908 

Howe,  Smith  &  Howe,  attorneys  for  appellants 
White  &  Case,  attorneys  for  respondents 

Draper,  Commissioner 

At  the  annual  meeting  of  union  free  school  district  no.  4,  town  of  Orange- 
town,  county  of  Rockland,  held  in  August  1905,  an  advisory  committee  was 
appointed  to  confer  with  the  board  of  education  upon  the  action  which  should 
be  taken  to  provide  adequate  school  accommodations  for  the  district.  This 
district  embraces  the  village  of  Nyack  and  the  official  reports  of  inspectors  of 
this  Department  are  to  the  effect  that  the  school  building  in  this  district  is  the 
worst  in  the  State.  It  appears  that  the  board  of  education  and  the  advisory 
committee  appointed  in  August  1905,  deliberated  over  the  inadequate  school 
accommodations  of  the  district  and  the  best  method  of  providing  adequate 
school  facilities  until  April  1907,  a  period  of  one  year  and  eight  months.  The 
board  of  education  then  called  a  special  meeting  and  that  meeting  adopted  a 
resolution  authorizing  such  board  to  erect  an  addition  to  the  school  building 
at  an  expense  not  to  exceed  $75,000  and  to  raise  such  amount  by  the  issuance 
of  bonds  pursuant  to  the  provisions  of  the  Consolidated  School  Law.  It  appears 
that  previous  to  the  special  meeting  of  April  1907,  the  board  of  education  had 
considered  two  sets  of  plans  and  specifications  known  as  the  Emery  plans  and 
the  Truax  plans  and  had  decided  to  adopt  the  Emery  plans.  In  the  notice  of 
the  April  special  meeting  the  board  stated  that  the  Emery  plans  were  on  exhibi- 
tion at  a  specified  place  and  might  be  seen  and  examined  by  residents  of  the 

district. 

There  is  no  doubt  but  that  the  understanding  at  the  district  meeting  was 
that  the  Emery  plans  should  be  used  subject  to  slight  modifications.  It  was 
upon  this  understanding  that  the  appropriation  was  voted. 

It  appears  that  after  such  special  meeting  the  board  obtained  other  plans 
prepared  by  Mr  Jaroleman  which  provided  for  an  addition  to  the  present  build- 
ing at  an  expense  of  $4S,ooo  and  for  remodeling  and  repairing  the  present 
building  at  an  expense  of  $30,000.  The  board  adopted  these  plans  and  awarded 
vcontracts  for  constructing  the  addition  and  repairing  the  old  building  accordmgly. 
The  board  claimed  that  the  adoption  of  the  Jaroleman  plans  would  result  in 


824  THE   UNIVERSITY    OF   THE   STATE    OF   NEW   YORK 

great  economy  to  the  district,  which  was  not  within  its  knowledge  at  the  time 
of  the  April  mcetinj^,  and  at  the  same  time  provide  as  good  educational  facilities 
to  the  district  as  the  proposed  addition  under  the  Emery  plans  would  provide. 
The  board  asserts  that  for  these  reasons  it  was  justified  in  changing  plans  and 
thus  adopted  the  Jarolcman  plans. 

A  taxpayer  of  tlie  district  thereupon  obtained  a  preliminary  injunction  in 
the  Supreme  Court,  restraining  the  board  of  education  from  proceeding  with 
the  work  under  such  contracts.  Thereafter  at  the  annual  meeting  of  the  district 
the  question  was  made  an  issue  in  the  election  of  members  of  the  board  of 
education.  Three  members,  a  majority  of  the  board,  were  elected  at  such  meet- 
ing and  the  election  resulted  in  three  members  being  chosen  who  were  opposed 
to  the  action  of  the  board  in  proceeding  under  the  Jaroleman  plans.  The  new 
board  of  education  also  instituted  a  suit  in  the  Supreme  Court  in  the  name  ot 
the  district  to  test  the  validity  of  the  contracts  made  by  the  old  board.  The 
taxpayer's  action  to  restrain  the  board  and  the  action  brought  by  the  board  to 
test  the  validity  of  the  contracts  were  tried  together  in  the  Supreme  Court  at 
Newburgh  and  resulted  in  judgment  in  favor  of  the  plaintiff  in  both  actions. 
The  board  of  education  was  permanently  enjoined  from  proceeding  under  the 
plans  adopted  by  the  former  board.  The  court  held  that  the  resolution  adopted 
at  the  district  meeting  authorized  the  board  of  education  to  expend  $75,000 
in  erecting  an  addition  to  the  present  building  but  that  the  board  was  not  author- 
ized to  divert  $30,000  of  this  sum  from  the  purpose  for  which  it  was  voted  and 
use  it  in  repairing  the  old  building  and  that  the  action  of  the  board  in  making 
the  contracts  in  question  was  ultra  z'ires  and  therefore  void.  The  decision  of 
the  Supreme  Court  has  recently  been  affirmed  by  the  Appellate  Division  of  the 
Second  Department. 

It  appears  that  some  time  after  tlie  decision  of  the  Supreme  Court  nearly 
600  residents  of  the  district  petitioned  the  board  of  education  to  call  a  special 
meeting  of  tlie  district  for  the  purpose  of  authorizing  the  board  of  education 
to  expend  so  much  of  the  $75,000  obtained  by  the  issuance  of  bonds  under  the 
action  taken  at  the  special  meeting  in  April  1907,  as  might  be  necessary  to 
remodel  the  present  building  in  accordance  with  the  Joraleman  plans  and 
specifications  and  to  also  approve  the  contracts  made  by  the  former  board  which 
were  declared  void  by  the  court  and  to  confer  authority  on  the  board  of  educa- 
tion to  make  necessary  arrangements  to  carry  out  the  provisions  of  such  con- 
tracts. After  due  deliberation  the  board  of  education  declined  to  call  such  special 
meeting.  This  proceeding  is  brought  from  the  action  of  the  board  in  refnsing  to 
call  such  meeting.  I  am  therefore  called  upon  to  determine  but  one  question 
in  this  case  and  that  is.  Was  the  action  of  the  board  of  education  in  refusing  to 
call  a  special  meeting:  properly  within  its  discretion? 

It  is  claimed  by  respondents  that  the  district  has  twice  voted  upon  the 
proposition  to  build  an  addition  to  the  present  building  and  that  as  the  district 
has  twice  expressed  its  wishes  upon  such  question  the  board  of  education  is  not 
obligated  to  submit  further  propositions  upon  this  question  to  a  district  meeting. 


JUDICIAL  decisions:     schoolhouses  825 

It  is  true  that  the  district  did,  at  the  April  special  meeting,  authorize  the  erec- 
tion of  an  addition  to  the  present  building.  It  is  not  true  that  the  district  has 
since  such  meeting  voted  directly  upon  that  question.  The  action  of  the  trustees 
in  changing  plans  after  the  April  meeting,  without  authority,  was  an  important 
issue  at  the  annual  election  and  the  members  of  the  old  board  standing  for  reelec- 
tion at  such  meeting  were  defeated. 

It  appears  from  the  oral  arguments  of  the  attorneys  of  the  respective  parties 
to  this  proceeding  at  the  hearing  before  me  that  other  important  issues  were 
involved  in  that  annual  election.  The  defeat  of  the  old  members  of  the  board  did 
not  rest  upon  the  sole  issue  of  the  school  building  question.  It  can  not  be 
properly  held  therefore  that  this  district  has  voted  twice  upon  the  question  of 
the  improvements  to  be  made  to  its  school  accommodations.  Even  if  the  district 
had  voted  twice  upon  such  question  the  conditions  in  the  district  might  be  such 
that  the  board  would  not  be  justified  in  refusing  to  call  another  special  meeting. 

It  is  also  contended  by  respondents  that  the  board  of  education  is  now 
enjoined  by  the  SupremiC  Court  from  using  the  Jaroleman  plans  and  could  not 
make  the  improvements  provided  for  under  such  plans  even  if  a  district  meeting 
should  authorize  the  board  to  proceed. 

The  pleadings  of  the  respondents  show  that  the  only  question  raised  by  such 
respondents  in  their  action  in  the  Supreme  Court  and  by  the  plaintiff  taxpayer 
in  his  action  in  the  Supreme  Court  was  the  right  of  the  board  of  education 
to  use  any  substantial  portion  of  the  amount  authorized  for  an  addition  in 
remodeling  the  old  building.  Respondents  state  in  their  answer  in  this  proceed- 
ing that  in  the  two  court  proceedings  they  did  not  raise  any  question  as  to  the 
merits  or  demerits  of  the  Jaroleman  plans.  The  learned  trial  justice  in  his 
opinion  decided  these  cases  upon  a  question  of  law  only  and  held  that  the  district 
meeting  had  not  authorized  the  board  of  education  to  remodel  and  repair  the 
old  building  and  that  the  board  could  not  therefore  use  any  substantial  portion 
of  the  875,000  for  such  purposes.  The  decision  of  the  court  was  based  of  course 
upon  the  authority  given  the  board  of  education  by  the  action  of  the  district 
meeting.  The  restraining  order  of  the  court  does  not  enjoin  the  district  meeting 
in  any  way  whatever.  A  district  meeting  is  free  to  take  such  action  as  a  majority 
of  the  voters  shall  determine.  The  district  meeting  has  authority  to  adopt  the 
Jaroleman  plans  and  to  authorize  the  board  of  education  to  award  contracts 
accordingly.  If  as  contended  by  respondents  the  order  which  now  enjoins  the 
board  of  education  and  granted  because  the  board  was  not  authorized  as  required 
by  the  statutes  to  do  the  work  for  which  contracts  were  made  would  still  be 
binding  upon  the  board  against  proceedings  instituted  de  novo  and  which  legally 
authorize  the  board  to  make  such  contracts,  such  order  would  undoubtedly  be 
modified  or  vacated  in  a  proper  proceeding  instituted  for  that  purpose.  The 
language  used  by  the  learned  trial  justice  in  his  opinion  in  such  cases  warrants 
this  conclusion.  He  said: 
-\  It  seems  to  me  that  in  equity  as  well  as  in  exact  right  the  voters  of  the 
district  are  entitled  to  vote  upon  the  proposition  to  so  substantially  alter  the 
existing  building  at  such  very  considerable  cost. 


826  niK    UNIVERSITY    OF   THE   STATE   OF   NEW    YORK 

He  further  said : 

If,  as  claimed  by  the  defendants  the  action  taken  by  the  board  in  making 
the  contracts  is  approved  by  a  majority  of  the  voters  in  the  district,  it  will  be 
an  easy  matter  to  call  a  special  district  meeting  upon  due  notice  and  to  pass 
there  a  proper  resolution  authorizing  the  doing  of  the  work  as  proposed  by 
these  contracts  and  the  raising  of  the  necessary  funds  therefor. 

But  it  is  further  contended  by  respondents  that  the  $75,000  in  question 
has  already  been  obtained  by  the  issuance  and  sale  of  bonds  pursuant  to  the  reso- 
lution of  the  April  1907  meeting  and  that  such  sum  is  irrevocably  pledged  to  the 
construction  of  an  addition  to  the  present  building.  This  resolution  authorized 
the  board  of  education  to  expend  in  the  erection  of  an  addition  to  the  school 
building  a  sum  not  to  exceed  $75,000.  The  board  was  not  directed  to  expend 
$75,000  in  erecting  such  addition,  but  it  was  directed  to  expend  a  sum  not  to 
exceed  875,000.  The  board  was  given  discretion  to  determine  the  amount  which 
should  be  expended  for  the  addition  but  could  not  expend  more  than  $75,000. 
Suppose  the  board  should  be  able  to  erect  a  suitable  addition  for  $65,000,  what 
would  become  of  the  remainder  of  this  fund  which  would  amount  to  $10,000? 
Could  not  the  voters  of  the  district  who  had  authorized  the  board  to  raise  such 
fund  direct  in  a  meeting  duly  convened  the  use  which  should  be  made  of  any 
balance  remaining  after  the  addition  is  erected?  Section  10,  title  8,  of  the  Con- 
solidated School  Law  confers  very  broad  power  upon  the  voters  of  a  union  free 
school  district  when  duly  convened  in  a  district  meeting.  This  section  provides, 
among  other  things,  that  the  voters. 

May  authorize  such  acts  and  vote  such  taxes  as  they  shall  deem  expedient 
for  making  additions,  alterations  or  improvements  to  or  in  the  sites  or  structures 
belonging  to  the  district,  or  for  the  purchase  of  other  sites  or  structures  or  for 
a  change  of  sites,  or  for  the  erection  of  new  buildings,  or  for  such  other  pur- 
poses relating  to  the  support  and  welfare  of  the  school  as  they  may,  by  resolution 
approve. 

Ample  authority  is  found  in  this  section  of  the  law  to  authorize  the  voters 
of  a  district  to  direct  that  a  portion  of  the  fund  obtained  by  the  sale  of  bonds 
for  the  erection  of  an  addition  may  be  used  to  repair  the  old  building.  This 
view  is  supported  by  a  further  provision  in  said  section  10  by  which  the  voters 
of  a  district  may  rescind  a  vote  authorizing  an  expenditure  for  improvements 
to  school  property  or  may  reduce  the  amount  authorized  for  such  purposes. 

The  board  of  education  states  that  they  have  had  prepared  new  plans  for  an 
addition  to  the  old  building  without  cost  to  the  district  and  that  it  is  their  inten- 
tion to  proceed  promptly  to  erect  such  addition.  The  plans  of  this  proi)osed 
addition  have  never  been  submitted  to  a  district  meeting  and  so  far  as  shown 
by  the  pleadings  in  this  proceeding,  such  plans  have  not  even  been  informally 
considered  by  any  of  the  representative  citizens  of  the  districts.  The  action 
of  the  board  is  not  unanimous  on  the  proposition  to  erect  an  addition  on  the 
proposed  new  plans.     Of  three  members  of  the  board,  a  majority  of  one  onlv 


jUBiciAL  decisions:     schoolhouses  827 

favor  such  proposition.  The  question  is  an  important  one.  The  voters  and  tax- 
payers have  a  right  to  express  their  wishes  upon  such  question.  A  bare  majority 
of  the  board  of  education  should  not  assume  to  perform  this  function  of  a  dis- 
trict meeting.  Under  all  the  circumstances  in  this  case,  the  board  of  education 
should  have  complied  with  the  request  of  the  petitioners  and  called  a  special 
meeting.  The  board  would  have  been  justified  in  calling  such  special  meeting 
to  have  also  submitted  to  such  meeting  any  other  proposition  for  the  solution 
of  this  question  which  it  believed  to  be  for  the  best  interests  of  the  district. 
The  board  should  therefore  call  a  special  meeting  of  the  voters  of  the  district 
and  submit  to  them  now  the  proposition  requested  by  petitioners  and  the  propo- 
sition to  erect  an  addition  on  the  plans  proposed  by  a  majority  of  the  present 
board. 

The  appeal  herein  is  sustained. 

It  is  ordered,  That  the  board  of  education  of  union  free  school  district  no.  4, 
town  of  Orangetown,  shall  without  unnecessary  delay  call  a  special  meeting  of 
the  voters  of  said  district  for  the  purpose  of  considering  the  propositions  named 
in  a  petition  signed  by  nearly  600  residents  of  said  district  and  presented  to  said 
board  of  education  on  or  about  the  27th  day  of  February,  1908,  and  for  taking 
such  action  thereon  as  the  said  voters  shall  determine. 

It  is  further  ordered.  That  the  said  board  of  education  of  union  free  school 
district  no.  4,  town  of  Orangetown,  shall  also  submit  to  the  voters  of  said  district 
at  the  .special  meeting  hereinbefore  ordered  such  further  propositions  in  rela- 
tion to  the  erection  of  an  addition  to  the  schoolhouse  in  said  district  or  in  rela- 
tion to  repairs  to  said  schoolhouse  as  the  said  board  of  education  shall  deem  to 
be  for  the  best  interests  of  said  district. 


5365 

In  the  matter  of  the  appeal  of  Milton  F.  Kuhn  from  the  action  of  Caleb  Skilton, 
trustee  of  school  district  no.  i,  town  of  Canadice,  county  of  Livingston. 

When  the  trustee  of  a  district  submits  to  the  Commissioner  of  Education  plans  and  specifica- 
tions for  a  new  building  to  replace  one  destroyed  by  fire  and  the  trustee  is  authorized 
to  proceed  with  the  erection  of  the  building  but  to  modify  the  plans  and  specifications 
in  minor  details  and  the  trustee  acts  in  accordance  with  instruction,  he  will  be  sustained 
by  this  Department. 

Decided  December  16,  1907 

Scott  W.  Crane,  attorney  for  appellant 
H.  V.  Pratt,  attorney  for  respondent 

Draper,  Commissioner 

-..      The  object  of  this  appeal  is  to  vacate  a  tax  list  issued  by  respondent  trustee 
and  including  an  item  for  the  erection  of  a  new  schoolhouse.    The  ground  upon 


828  THE   UNIVEUSITY    OF   THE   STATE   OF   NEW    YORK 

which  this  action  is  requested  is  that  the  plans  and  specifications  for  such  school- 
house  have  not  been  approved  by  the  Commissioner  of  Education  as  required 
by  section  17.  title  7,  of  the  Consolidated  School  Law.  The  records  of  this 
Dei)artment  show  that  the  trustee  submitted  his  plans  and  specifications  for 
the  new  building  as  the  law  provides.  Such  plans  were  not  satisfactory  in  some 
of  the  minor  details.  They  were  returned  to  the  trustee  by  the  Chief  of  the 
Inspections  Division  of  this  Department  with  suggestions  and  instruction  as  to 
the  changes  which  should  be  made.  The  district  was  without  a  schoolhouse  as  the 
old  one  had  been  burned.  To  facilitate  matters  the  trustee  was  properly  directed 
by  the  Chief  of  the  Inspections  Division  to  proceed  with  the  erection  of  the  build- 
ing in  accordance  with  the  modifications  suggested  by  him  to  the  plans  and  speci- 
fications, and  to  submit  such  modified  plans  and  specifications  for  formal  approval 
when  completed.  There  may  have  been  some  delay  in  submitting  such  plans  but 
they  have  now  been  filed  at  this  Department  and  approved  by  me.  It  appears 
that  the  building  has  been  erected  in  accordance  with  such  plans  and  specifica- 
tions and  that  the  trustee  has  acted  in  entire  good  faith  in  the  whole  matter. 
The  appeal  herein  is  therefore  dismissed. 


3911 

In  the  matter  of  the  appeal  of  George  C.  Tredwell  and  others  v.  the  board  of 
education  of  union  free  school  district  no.  21,  of  the  town  of  Hempstead, 
in  the  county  of  Queens. 

Proceedings  of  a  special  meeting  held  in  a  union  free  school  district  at  which  a  resolution 
was  adopted  to  erect  a  new  school  building,  and  to  authorize  the  borrowing  of  money 
therefor,  to  be  paid  in  instalments,  when  statute  has  not  been  complied  with,  can  not 
be  sustained. 

Decided  September  23,  1890 

Charles  Bradshaw,  attorney  for  appellant 

Draper,  Suf'crintcndcnt 

A  special  meeting  of  the  electors  of  union  free  school  district  no.  21,  of  the 
town  of  Hempstead,  was  called  for  and  held  July  7,  1890,  at  which  a  resolution 
was  adopted  to  erect  a  new  school  building,  and  the  board  of  education  was 
authorized  to  borrow  the  sum  of  $18,000,  to  be  paid  in  instalments. 

Appellant  alleges  that  the  notice  for  such  meeting  did  not  comply  with  the 
statute  in  the  following  particulars : 

1  It  did  nut  specify  the  amount  which  was  voted  at  the  meeting,  or  the 
object  thereof. 

2  The  notice  was  not  published  in  a  newspaper  published  in  the  district, 
once  in  each  week  for  four  weeks. 


JUDICIAL  decisions:     schoolhouses  829 

The  notice  was  as  follows: 

Rockville  Centre,  June  20,  i8go 
To  whom  it  may  concern: 

Notice  is  hereby  given  to  the  inhabitants  of  union  free  school  district  no.  21, 
town  of  Hempstead,  county  of  Queens,  State  of  New  York,  that  a  special  school 
meeting  will  be  held  in  the  schoolhouse  of  said  district,  on  Monday,  July  7,  1S90, 
at  8  o'clock  p.  m.,  for  the  purpose  of  voting  for  or  against  the  erection  of  a  new 
school  building,  raising  the  funds  for  the  payment  thereof  by  issuing  bonds 
running  from  five  to  thirty  years,  and  providing  for  the  redemption  of  said  bonds 
and  payment  of  interest  by  a  tax  upon  the  taxable  property  of  the  district. 

(Signed)         W.  H.  Connell 

Acting  Clerk  of  the  District 

No  answer  has  been  interposed,  and  the  irregularities  are  therefore  conceded. 
The  appeal  is  sustained,  and  the  proceedings  of  the  meetings  above  referred 
to  are  set  aside  and  declared  of  no  effect. 


3883 

In  the  matter  of  the  appeal  of  George  E.  Fralick  and  others  v.  Jonathan  E. 
Leach,  sole  trustee  of  school  district  no.  4,  town  of  Marathon,  Cortland 
county. 
Action  of  a  trustee  who  has  constructed  a  new  school  building  as  directed  by  a  commis- 
sioner's order,  which  condemned  the  old  school  building,  sustained. 
An  appeal  from  trustee's  proceeding,  to  be  entertained,  should  have  been  promptly  taken. 
It  is  too  late  to  do  so  after  the  building  has  been  completed  and  accepted  by  the  author- 
ities. 
Decided  Jul.v  11,  1890 

Milo  C.  Paige,  attorney  for  appellants 
William  D.  Tuttle,  attorney  for  respondent 

Draper,  Superintendent 

This  appeal  is  brought  by  residents  and  legal  electors  of  school  district  no. 
4,  of  the  town  of  Marathon,  Cortland  county,  from  the  action  of  the  trustee 
relative  to' the  construction  of  a  new  school  building  in  said  district,  and  his 
removal  from  office  is  asked  for  upon  the  ground  that  he  has  been  negligent  in 
the  discharge  of  his  duty,  and  has  allowed  the  interests  of  the  district  to  suffer 
by  making  a  contract  for  the  construction  of  the  schoolhouse  at  a  greater  sum 
than  other  responsible  bidders  were  willing  to  do  the  work  for.  The  evidence 
shows  that  prior  to  the  last  annual  meeting  School  Commissioner  Stillman  con- 
demned the  schoolhouse  in  said  district,  and  ordered  the  erection  of  a  new  one. 
at  a  cost  not  to  exceed  $400.  Subsequent  to  the  service  of  such  order,  and 
before  the  last  annual  meeting,  a  special  meeting  of  the  district  was  held,  and  by 
-a«  small  majority,  a  motion  to  build  a  new  schoolhouse  was  voted  down.  It  is 
charged  that  the  respondent  voted  with  such  majority.     At  the  annual  meeting 


830  THE   UNIVERSITY   OF  THE   STATE    OF   XEW   YORK 

which  was  held  a  few  days  later,  the  respondent  was  chosen  trustee.  Subse- 
<iucntly  he  entered  into  a  written  contract  with  a  resident  carpenter  of  the  dis- 
trict to  build  a  schoolhouse  according  to  certain  plans  and  specifications  set 
forth  in  the  contract,  at  a  cost  of  $400.  The  schoolhouse  was  built,  accepted 
by  the  trustee,  a  tax  list  issued  to  levy  a  sufficient  amount  to  pay  the  contractor, 
whereupon  this  appeal  was  taken  and  an  order  granted  by  this  Department  stay- 
ing the  collection  of  the  tax  pending  the  determination  of  this  appeal.  The 
respondent  admits  that  he  voted  against  the  construction  of  a  new  schoolhouse, 
but  alleges  that  he  did  so  with  a  view  of  having  the  district  annulled ;  that,  when 
he  became  trustee,  recognizing  the  fact  that  a  large  minority  of  the  district  were 
in  favor  of  building  a  new  schoolhouse,  and  that  a  district  meeting  had  neglected 
to  vote  to  build  the  same,  the  duty  devolved  upon  him  to  do  so,  and  that  he 
entered  into  a  contract,  after  consultation  with  the  school  commissioner,  and 
which  was  approved  by  the  school  commissioner,  to  build  a  new  schoolhouse. 

It  is  not  denied  that,  before  plans  and  specifications  had  been  agreed  upon, 
a  certain  other  resident  of  the  district  had  oflFered  to  build  a  schoolhouse  for  some- 
thing less  than  $400,  but  it  appears  that  the  party  so  ofifering  was  not  willing  to 
reduce  his  proposition  to  writing.  The  school  building  has  long  since  been  com- 
pleted, and  the  school  commissioner  certifies  that  it  is  a  suitable  building,  well 
constructed  of  good  material,  and  the  sum  charged  for  the  same  reasonable. 

•After  carefully  considering  the  voluminous  proofs  ofifered  by  the  respective 
parties  to  this  appeal,  I  am  led  to  the  conclusion  that  the  appellants  were  at 
fault,  if  they  were  dissatisfied  with  the  contract  and  the  manner  in  which  the 
work  was  being  done,  in  not  promptly  taking  an  appeal  and  asking  for  a  stay, 
instead  of  waiting  until  the  completion  of  the  work,  its  acceptance  by  the  trus- 
tee, and  the  establishment  of  a  debt  against  the  district  in  favor  of  the  con- 
tractor, which  no  decision  of  mine  could  at  this  time  affect.  The  appellants,  it 
seems,  stood  idly  by  until  they  were  called  upon  to  contribute  toward  the  pay- 
ment for  the  work  by  the  issuance  of  a  tax  levy  and  warrant.  I  do  not  find  that 
there  was  any  collusion  between  the  trustee  and  the  contractor,  nor  am  I  satis- 
fied that  the  charge  for  the  building  was  unreasonable.  I  am,  however,  satisfied 
that  a  good  schoolhouse  has  been  constructed,  and  that  the  contractor  should 
be  paid  for  his  work. 

The  appeal  is.  therefore,  overruled,  and  the  stay  heretofore  granted  herein 
vacated  and  set  aside.  The  district  collector  will  proceed  to  enforce  the  tax  list 
and  warrant. 


3648 
William  Shackleton  v.  school  district  no.  8.  of  the  town  of   New   Hartford, 

Oneida  county. 

A   district   meeting  has  the   right   to   secure   plans   and  provide   specifications    for   a   new 

school  building. 
Appointing  a  committee  to  act  with  trustee,  while  conferring  no  power  upon  such  a  body, 

does  not  vitiate  the  proceedings  of  the  meeting  relative  to  the  construction  of  a  new 

building. 


JUDICIAL  decisions:     schoolhouses  831 

Where  the  amount  appropriated  for  a  new  building  exceeds  $500,  the  school  commissioner's 

approval  must  be  obtained  before  a  tax  can  be  levied  therefor. 
The  proceedings  of  a  district  meeting  will  not  be  disturbed  for  the  reason  that  an  elector 

failed  to  receive  notice  thereof,  and  it  appears  that  the  omission  was  unintentional,  and 

that  one  additional  vote  would  not  have  changed  the  result. 
Seven-thirty  o'clock  in  the  evening  not  an  unusual  hour  for  a  district  meeting. 
Decided  December  5,  1887 

Draper,  Superintendent 

At  a  special  meeting  held  in  district  no.  8,  of  the  town  of  New  Hartford, 
on  the  17th  day  of  October  1887,  it  was  voted  that  the  sum  of  $1200  be  raised 
for  the  purpose  of  the  erection  of  a  new  schoolhouse  in  said  district.  The  appel- 
lant seeks  to  overthrow  this  action,  and  alleges  as  his  reasons  therefor,  first, 
that  a  previous  school  meeting  had  voted  the  sum  of  $1500  for  the  same  pur- 
pose, and  that  such  action  had  not  been  rescinded ;  second,  that  the  meeting 
appointed  a  committee  to  secure  and  select  plans  for  the  new  building,  which  he 
alleges  was  an  encroachment  upon  the  prerogatives  of  the  trustee;  third,  that 
the  tax  was  voted  without  the  certificate,  in  writing,  of  the  school  commissioner 
approving  a  larger  sum  than  $500 ;  fourth,  that  no  provision  was  made  for  apply- 
ing the  avails  of  the  old  building,  and  that,  in  consequence,  the  sum  needed  for 
the  new  one  was  indefinite  and  uncertain;  fifth,  that  the  notice  of  such  special 
meeting  was  not  properly  served  upon  all  entitled  thereto. 

There  is  little  force  in  the  objections  of  the  appellant.  The  trustee  of  the 
district,  in  his  answer,  alleges  and  swears  that  the  meeting  of  October  seventeen 
did  rescind,  by  a  unanimous  vote,  the  action  taken  at  a  former  meeting  raising 
$1500  for  a  new  building.  Whether  it  did  or  not  is  not  very  material,  for 
the  action  of  the  seventeenth  of  October,  by  a  necessary  implication,  supplanted 
the  former  action.  In  relation  to  the  objection  that  the  district  appointed  a  com- 
mittee to  secure  plans  for  the  new  building,  and  to  provide  specifications  as  to 
the  details  thereof,  it  may  be  said  that  the  district  had  the  right  to  do  this.  Tlie 
district  certainly  could  not  take  the  erection  of  the  building  out  of  the  hands  of 
the  trustee,  but  it  would  have  the  right  to  direct  him  as  to  the  kind  and  character 
of  the  building  which  he  should  erect.  The  trustee  swears  that  the  commissioner 
has  verbally  given  his  approval  of  the  action  of  the  meeting,  and  has  stated  that 
he  would  do  so  in  writing  when  the  plans,  so  far  as  heating,  ventilation  and 
lighting  are  concerned,  were  ready  for  his  approval.  In  any  event,  the  statute 
which  requires  the  approval  of  the  school  commissioner  before  a  sum  in  excess 
of  $500  can  be  raised,  only  provides  that  the  trustee  shall  not  levy  the  same 
until  such  approval  has  been  given.  There  is  nothing  to  prevent  the  district 
voting  the  amount  without  such  approval.  Indeed  the  statute  implies  that  it 
shall  do  so.  That  the  district  failed  to  say  what  should  be  done  with  the  avails 
of  the  old  building  is  not  important.  In  the  absence  of  such  action. by  the  dis- 
trict, the  law  provides  as  to  the  disposition  of  the  proceeds  of  the  old  building. 
The  appellant's  objections  to  the  sufficiency  of  the  notice  are  not  important.  He 
offers  the  affidavit  of  one  person  who  swears  that  she  is  a  resident  and  taxpayer 


^  '  :■  THE   UXIVEKSITY    OF   THE   STATE   OF   NEW   YORK 

ill  the  district,  and  that  she  would  have  attended  the  meeting  if  she  had  had 
notice.  This  is  the  only  proof  upon  this  point.  The  trustee,  on  the  other  hand, 
swears  that  the  notice  was  served  upon  every  resident  of  the  district,  and 
specifically  alleges  that  the  person  referred  to  has  not  been  a  resident  of  the 
district,  but  of  the  city  of  Utica.  for  the  last  two  years.  In  any  event,  it  does 
not  appear  that,  even  though  such  person  had  been  present,  and  had  voted  against 
the  proposition,  it  would  have  changed  the  result.  It  is  alleged  that  the  meeting 
was  held  at  an  hour  so  that  old  and  infirm  persons  could  not  well  attend,  but  it 
seems  to  have  been  held  at  7.30  in  the  evening,  which  is  the  hour  at  which  school 
meetings  in  the  district  have  ordinarily  been  held,  and  I  do  not  deem  it  an 
unseasonable  hour. 

For  these  considerations  the  appeal  must  be  dismissed. 


3613 

In  the  matter  of  the  appeal  of  Nelson  Reese  and  others  v.  school  district  no.  15, 
of  the  town  of  Florida,  Montgomery  county. 

The  proceedings  of  district  meetings  directing  the  erection  of  a  new  school  building,  which 
would  furnish  accommodations  for  more  children  than  there  are  at  present  residing 
in  the  district,  sustained  where  it  is  shown  that  the  population  of  the  district  is  rapidly 
increasing. 

Decided  June  23,  1887 

Draper,  Superintendent 

This  is  an  appeal  by  certain  residents  and  taxpayers  in  district  no.  15.  of 
the  town  of  Florida,  Montgomery  county,  against  the  action  of  certain  district 
meetings,  held  upon  the  21st  day  of  March  1887,  the  nth  day  of  April  1887, 
and  the  9th  day  of  May  1887,  whereby  it  was  determined  to  change  the  site  and 
erect  a  new  schoolhouse,  at  an  expense  not  to  exceed  the  sum  of  $3000,  and  to 
raise  the  necessary  funds  by  the  sale  of  bonds,  payable  in  nine  yearly  instal- 
ments. The  appellants  urge,  as  the  grounds  of  their  appeal,  that  the  motions  or 
resolutions  providing  for  the  change  of  site  and  the  erection  of  the  building,  and 
the  raising  of  the  funds  necessary  therefor,  are  indefinite  and  uncertain;  that 
they  fail  to  state  the  kind,  size,  quality,  dimensions  or  site  of  the  proposed  school 
building,  or  when  it  is  to  be  ready  for  use;  that  they  fail  to  fix  any  definite  sum 
of  money  to  be  expended  for  said  proposed  schoolhouse ;  that  they  do  not  state 
the  amount  of  par  value  of  the  bonds,  or  the  rate  of  interest  to  be  paid  on  them, 
and  that  said  bonds  will  not  be  negotiable  and  will  not  bind  the  district,  because 
unauthorized  and  illegal,  and  that,  when  the  meeting  of  the  nth  of  April 
adjourned,  the  motion  for  adjournment  fixed  two  dilYerent  times  or  dates,  in 
consequence  of  which  the  time  of  the  adjourned  meeting  was  indefinite  and  its 
acts  were  unlawful  and  void.  It  is  also  urged  that  the  proposed  new  schoolhouse 
IS  much  larger  than  the  district  requires,  and  that  the  purpose  of  the  trustees  in 


JUDICIAL    DECISIONS  :       SCHOOLHOUSES  S33 

erecting  so  large  a  building  is  that  they  may  rent  the  second  floor  for  other  than 
school  purposes,  and  that  the  amount  of  money  proposed  to  be  expended  in  the 
erection  of  a  new  schoolhouse  is  excessive  and  extravagant.  It  is  claimed  that 
the  district  now  has  a  school  building  sufficiently  large  for  its  needs. 

The  answer  to  this  appeal  is  made  by  James  Finlan  and  others,  and  sets 
forth  that  the  meeting  of  March  21st  was  regularly  called  and  that  the  subse- 
quent meetings  were  held  in  pursuance  of  regular  adjournments.  It  is  admitted 
that  there  was  some  misunderstanding  as  to  the  time  of  one  of  the  adjourned 
meetings,  but  that  this  was  cured  by  the  publication  of  notices  in  the  district.  It 
is  alleged  that  all  of  the  proceedings  of  these  meetings  were  regularly  taken.  It 
is  set  forth  that  the  schoolhouse  in  the  district  has  become  inadequate  to  the 
needs  of  the  district  and  unfit  for  use,  and  that  the  district  is  growing  in  popula- 
tion; that  the  building  which  it  is  proposed  to  erect  would  be  somewhat  larger 
than  the  present  needs  of  the  district  will  require,  but  it  is  said  in  explanation 
of  the  determination  to  erect  a  "  four-room  "  building  that  it  can  be  done  at  very 
little  expense  beyond  what  would  be  required  for  the  erection  of  a  "  three- 
room  "  building,  which  would,  in  any  event,  be  necessary.  It  is  denied  that  there 
is  any  intent  or  purpose  of  providing  a  room  for  other  than  school  purposes.  It 
is  denied  that  there  is  any  indefiniteness  or  uncertainty  as  to  the  terms  of  the 
resolutions  appealed  from. 

It  is  customary  to  sustain  the  action  of  district  school  meetings  unless  it 
be  clearly  shown  that  such  action  is  contrary  to,  or  unauthorized  by,  the  laws 
or  is  clearly  and  manifestly  opposed  to  the  educational  interests  of  the  district. 
It  is  assumed  that  the  majority  of  the  qualified  electors  in  any  school  district 
know  best  what  is  for  the  educational  interests  of  the  district,  and  their  acts  will 
be  upheld  unless  it  is  made  plainly  to  appear  that  the  contrary  is  the  fact,  or  that 
such  acts  have  not  the  sanction  of  the  statutes  covering  such  matters.  I  see  no 
irregularity  in  the  proceedings  of  the  district  meetings  here  under  consideration 
which  is  sufficient  to  set  aside  the  action  appealed  from.  There  seems  to  have 
been  ample  time  for  discussion  and  consideration,  and  the  requirements  of  the 
statutes  in  relation  to  the  manner  of  taking  and  recording  the  vote,  seem  to  have 
been  observed.  The  meetings  were  evidently  well  attended,  as  upon  the  vote 
relative  to  a  change  of  site  there  were  103  votes  cast.  In  determining  what  par- 
ticular site  should  be  chosen,  there  were  74  votes  cast,  the  choice  falling  upon 
the  property  owned  by  J.  H.  Enders,  by  a  vote  of  41  to  33.  I  think  that  the 
adjournments  from  one  time  to  another  were  regularly  taken.  The  contrary  is 
not  shown  with  any  degree  of  definiteness,  and  if  there  was  any  uncertainty  as 
to  the  time  to  which  an  adjournment  was  taken,  the  same  seems  to  have  been 
fully  cured  by  the  publication  of  notices  of  the  time  of  the  adjourned  meeting, 
and  whether  this  was  done  or  not,  it  is  not  shown  that  any  one  was  misled  or 
stayed  away  from  the  adjourned  meeting  in  consequence  of  it. 

It  is  proper  for  the  district  to  anticipate  future  growth.  It  would  be  su- 
icidal for  a  district  which  was  rapidly  increasing  in  population  to  erect  a  new 
schoolhouse  which  would  only  be  sufficient  for  present  needs.     But  a  district 


834  Till-:   I'NIVEKSITY    OF   THE   STATE    OE    NEW    YORK 

ought  to  act  with  prudence  and  reason  in  such  a  matter.  From  the  allegations 
and  proofs  of  the  parties  in  this  case,  I  am  led  to  think  that  the  district  went  as 
far  as  it  ought  to  in  erecting  a  school  building  which  should  contain  four  rooms 
—  perhai)s  farther  than  it  was  well  to  go.  The  answer  of  the  respondents  indi- 
cates that  there  are  but  148  children  of  school  age  residing  in«thc  district.  This 
being  so,  the  attendance  upon  the  school  ordinarily  would  not  be  more  than  two- 
thirds  of  that  luunber,  and  this  being  so,  it  is  evident  that  the  district  does  not  at 
present  re(|uire  a  building  of  the  size  contemplated.  And  there  is  some  proof 
to  show  that  the  population  of  the  district  is  growing  with  some  rapidity.  I 
think  perhaps  it  is  true  that  the  district  requires  a  building  which  shall  have 
three  dcp.ariments,  and  I  am  well  aware  of  the  fact  that  but  small  additional 
expense  will  now  be  incurred  in  making  room  for  a  fourth  department  when  it 
shall  be  needed,  while  from  an  architectural  point  of  view,  it  is  probable  that  a 
building  of  four  rooms  will  be  more  perfect  and  better  suited  to  school  uses. 
While  I  have  had  considerable  doubt  upon  this  point,  I  have  not  been  able  to 
determine  that  upon  that  account  I  ought  to  overrule  the  deliberate  and  regular 
procecflings  of  the  district  meetings. 

In  view  of  the  foregoing  considerations  I  dismiss  the  appeal. 


3584 

In  the  matter  of  the  appeal  of  Atwell  &  Co.  v.  the  board  of  education  of  union 
free  school  district  no.  i,  town  of  Westchester,  Westchester  county. 

A  board  of  education  was  authorized  by  special  law  to  construct  a  new  school  building,  by 
contract,  to  be  entered  into  with  the  lowest  bidder.  The  lowest  bidders  admit  that  their 
proposition  did  not  conform  to  the  specitications  for  the  same,  furnished  by  the  board, 
but  msist  that  in  each  instance  where  the  bid  differed  from  the  specifications,  the  va- 
riance was  more  favorable  to  the  board  than  to  them. 

Held,  that  the  board  was  justified  in  disregarding  their  bid. 

Decided  April  5,  1887 

A.  W.  Paige,  Esq.,  attorney  for  appellant 

Draper,  Superintendent 

The  board  of  education  of  union  free  school  district  no.  i,  of  the  town  of 
Westchester,  is  engaged  in  the  erection  of  a  new  school  building,  under  the 
authority  conferred  by  the  general  school  laws  of  this  State,  and  particularly  of 
chapter  36  of  the  Laws  of  1886,  having  special  reference  to  this  particular 'dis- 
trict. Being  so  engaged  the  board  advertised  for  bids  from  parties  willing  or 
desirous  to  furnish  the  building  with  steam-heating  apparatus,  and  in  response 
to  such  advertisement  received  five  diflferent  propositions,  the  lowest  of  which 
was  submitted  by  the  appellant  herein.  Atwell  &  Co.  oflfered  to  supply  the 
apparatus  for  the  sum  of  $2535,  while  Gillis  &  Geoghegan  proposed  to  do  so  for 
the  sum  of  $2925.  The  board  accepted  the  proposition  of  Gillis  &  Geoghegan. 
1-rom  this  action,  on  the  part  of  the  board,  Atwell  &  Co.  bring  this  appeal. 


JUDICIAL    DECISIONS  :      SCHOOLHOUSES  835 

The  statutes,  under  which  the  board  is  acting,  provide  that  the  building 
should  be  erected  by  contract  with  the  lowest  bidder  or  bidders,  and  further 
provide  that  the  board  might  refuse  to  accept  any  bid  made,  for  reasonable  cause. 
Aside  from  this  statutory  restriction  upon  the  action  of  the  board,  it  would 
have  the  right  to  accept  such  bid  as  it  should  see  fit,  regardless  of  the  amount 
thereof,  provided  its  action  should  be  untainted  with  fraud ;  or,  at  least,  should 
not  be  so  injudicious  or  indiscreet  as  to  overthrow  the  presumption  of  ordinary 
sound  business  management  in  the  transaction  of  the  public  business  in  which 
it  is  engaged.  To  entitle  the  appellants  to  the  relief  which  they  seek,  it  would 
be  necessary  to  show  that  the  different  bidders  proposed  to  do  precisely  the  same 
things  for  different  amounts  and  that,  the  other  things  being  equal,  the  board 
deliberately  refused  the  lowest  bidder. 

In  this  case  it  appears  that  the  board  supplied  to  different  bidders  specifica- 
tions setting  forth,  in  detail,  what  would  be  required  in  connection  with  steam- 
heating  apparatus.  The  appellants  admit  that  they  did  not  bid  upon  these  speci- 
fications. Their  offer  was  set  forth  in  detail,  and  they  say  that  they  offered  to 
furnish  more  than  the  board  required.  They  insist  that  their  specifications  were 
substantially  like  those  furnished  by  the  board  and  that,  in  each  instance  where 
there  was  variation,  the  difference  was  more  favorable  to  the  board  than  to  the 
bidders.  The  respondent  denies  this.  There  is  no  allegation  of  fraud  against 
the  action  of  the  board  set  up  in  the  papers,  nor  is  there  any  proof  which  would 
sustain  such  an  allegation,  and  fraud  is  never  to  be  imputed  in  the  absence  of 
proof.  It  being  stated  that  the  specifications  upon  which  the  different  bids  were 
made  were  not  identical,  the  board  of  education  was  the  only  judge  as  to  which 
proposition  it  was  to  the  advantage  of  the  district  to  accept.  This  would  be 
particularly  and  emphatically  true  of  propositions  to  supply  heating  apparatus, 
for  the  different  kinds  and  systems  are  so  dissimilar  that  it  would  seem  practi- 
cally impossible  to  determine  the  question  by  competitive  bids,  unless  it  should 
be  left  to  the  discretion  of  the  board  to  accept  such  as  it  might  think  most 
desirable. 

For  these  considerations  I  feci  obliged  to  dismiss  the  appeal,  and  it  is  so 
ordered. 


3987 

In  the  matter  of  the  appeal  of  Brinkerhoff  Myers  and  others  v.  school  district 
no.  6  of  the  town  of  North  Hempstead,  county  of  Queens. 

An  appropriation  was  made  at  an  annual  district  meeting  for  the  construction  of  a  school 
building.  No  action  was  taken  by  the  school  authorities  in  pursuance  of  such  vote.  A 
subsequent  meeting  was  held  at  which  a  smaller  appropriation  was  made  for  the  same 
purpose,  and  a  plan  for  building  adopted  in  accordance  with  the  vote.  From  the  action 
of  the  latter  meeting  an  appeal  is  taken. 

Pf-pceedings  of  the  second  meeting  sustained.     Appeal  dismissed. 

Decided  July  25,  1891 


836  TIIK    INIVKUSITY    OF   TIIK   STATK    OF    NKW    YORK 

Draper,  Supcrintctuicnt 

It  appears  tliat,  at  tlic  annual  school  meeting  held  in  1890,  the  district  above 
named  made  an  appropriation  of  $3300,  and  approved  plans  for  the  erection  of  a 
new  schoolhouse.  The  board  of  education  took  no  steps  in  pursuance  of  this 
action,  for  the  reason  that  some  doubt  was  entertained  as  to  its  validity. 
Recently,  a  special  meeting  has  been  held  in  the  district,  at  which  the  sum  of 
$3CKX)  was  voted  for  the  purpose  named,  and  different  designs  and  plans  for  a 
new  schoolhouse  were  adopted.  From  this  latter  action,  Mr  ?ylyers  appeals  to 
the  Department. 

Two  questions  are  presented,  first,  whether  the  action  of  the  annual  meet- 
ing in  1S90,  in  voting  to  raise  the  sum  of  $3300,  is  valid;  and  second,  as  to  which 
of  the  two  sets  of  plans  and  specifications  shall  be  used. 

No  sufficient  reason  is  shown  for  overthrowing  the  action  of  the  recent 
special  meeting.  It  seems  to  have  been  regularly  called  and  well  attended.  The 
action  of  this  meeting  in  voting  to  raise  $3000  for  the  erection  of  a  new  school- 
house,  was  taken  only  upon  the  assumption  that  there  was  doubt  as  to  the  validity 
of  similar  action  a  year  ago.  The  board  of  trustees  assures  me  that  they  believe 
the  action  of  the  annual  meeting  in  1890,  in  this  regard,  was  invalid.  In  any 
event,  the  recent  action  must  be  held  to  be  conclusive  of  the  matter,  and  must 
be  given  force  and  effect.  The  board  of  education  will  proceed  with  the  erection 
of  a  school  building,  to  cost  not  to  exceed  $3000. 

Touching  the  plans  which  shall  be  used,  it  must  be  said  that  the  action  of 
the  last  meeting  should  be  followed,  inasmuch  as  it  is  not  made  to  appear  that 
the  designs  last  adopted  are  not  suited  to  the  educational  interests  and  needs  of 
the  district.  The  district  has  a  right  to  change  plans  before  the  work  is  entered 
upon,  as  was  done  in  the  present  case. 

The  appeal  is  therefore,  dismissed,  and  the  action  of  the  special  meeting  held 
on  the  15th  day  of  July  1891,  is  held  to  be  valid  and  binding. 


3942 

In  the  matter  of  the  appeal  of  Jacob  P.  Lansing  and  others  v.  S.  C.  McKown 
and  l-.nos  P'lke,  as  trustees  of  scHbol  district  no.  11,  town  of  Schodack, 
county  of  Rensselaer. 

Action  of  a  board  of  trustees  in  accepting  a  school  building  which  is  well  and  properly 
constructed,  worth  the  cost  of  the  same  and  where  there  has  been  a  substantial  com- 
pliance with  the  terms  of  the  contract,  sustained. 

Decided  December  18,  1890 

Draper,  Super'uitcndcnt 

This  appeal  is  an  application  to  remove  S.  C.  McKown  and  Enos  Fike  from 
the  office  of  trustee  of  school  district  no.  11,  Schodack,  Rensselaer  county. 

The  grounds  are  that  the  trustees  have  been  derelict  in  duty  in  accepting  a 
school  building  before  the  same  was  completed  according  to  plans  and  specifica- 


JUDICIAL    DECISIONS  :      SCHOOLHOUSES  837 

tions,  and  in  permitting  the  contractor  to  do  work  upon  such  building  not  speci- 
fied. Also  in  insuring  the  school  building  for  one  year,  when  the  district  meet- 
ing directed  them  to  effect  an  insurance  for  three  years,  and  appropriated  nine 
(9)  dollars  for  that  purpose;  in  refusing  to  call  a  special  meeting  when  requested 
by  the  inhabitants  for  the  purpose  of  filling  a  vacancy  in  the  office  of  trustee; 
that  there  is  a  difference  of  opinion  existing  between  the  respondents,  as  trus- 
tees, as  to  the  disposition  which  should  be  made  of  a  litigation  which  is  pending 
against  the  district. 

Respondents  admit  insuring  the  building  for  one  year,  and  allege  that  the 
amount  voted  was  insufficient  to  insure  it  for  a  longer  time.  They  deny  that  the 
building  was  accepted  before  completion,  and  say  that  changes  in  the  plans  and 
specifications  were  made,  and  that  they  were  authorized  to  make  such  changes, 
and  that  in  making  such  changes  they  used  their  best  judgment,  and  consider 
them  to  have  been  beneficial. 

At  the  time  this  appeal  was  taken,  an  investigation  was  proceeding  before 
L.  N.  S.  Miller,  Esq.,  school  commissioner  of  the  second  commissioner  district 
of  Rensselaer  county,  in  the  matter  of  an  appeal  involving  the  question  as  to 
the  construction  of  the  school  building  in  question.  The  result  of  such  examina- 
tion is  before  me.  and  is  considered  in  connection  with  this  appeal.  From  an 
examination  of  the  evidence  submitted,  I  am  satisfied  that  there  has  been  a  sub- 
stantial compliance  with  the  contract.  Some  slight  changes  have  been  made,  but 
as  a  whole,  the  building  is  well  and  properly  constructed,  and  is  worth  the  cost 
of  the  same. 

The  item  of  insurance  is  too  trivial  to  be  considered.  The  charge  for  insur- 
ance is  well  established,  and  it  is  not  charged  that  the  amount  of  premium  paid 
was  unreasonable  for  the  amount  of  insurance  effected. 

I  shall  sustain  the  appeal  so  far  as  it  relates  to  the  neglect  of  the  trustees 
to  call  a  special  meeting  to  fill  the  existing  vacancy  in  the  office  of  trustees. 
That  meeting  should  have  been  called,  and  the  electors  given  an  opportunity  to 
act  upon  the  question  of  selecting  the  district  officers.  Otherwise,  the  appeal 
is  overruled. 

The  trustees  are  hereby  ordered  and  directed  to  forthwith  give  notice  of  a 
special  meeting  to  fill  any  existing  vacancy  in  a  district  office. 


3955 

In  the  matter  of  appeal  of  James  Cunningham  and  others  v.  union  free  school 

district  no,  2,  town  of  Greenburgh,  county  of  Westchester. 
At  an  adjourned  annual  meeting  in  a  union  free  school  district,  which  adjournment  was 

had  to  consider  the  erection  of  a  schoolhouse,  an  appropriation  was  voted  therefor. 
A  large  appropriation  was  made,  but  the  wealth  of  the  district  is  sufficient  to  justify  it 
Notice  of  the  adjourned  meeting,  which  was  for  a  less  period  of  time  than  thirty  days;  held 
■" «     unnecessary. 
Notices  of  certain  meetings  are  required  to  be  published  in  newspapers  actually  published 

in  the  district;  held,  not  to  intend  papers  circulated  but  not  published  therein. 


838  THE    UN'IVERSITV    OF   TIIK   STATE    OF    NEW   YORK 

The  attendance  at  the  adjourned  meeting  was  considerably  less  than  at  the  original  meet- 
ing; held,  not  to  affect  validity  of  the  meeting  or  its  proceedings. 

In  the  construction  of  a  costly  school  building,  the  very  best  architectural  talent  should 
be  employed,  and  opinions  of  electors  of  the  district  respected. 

Decided  January  26,  1891 

William  W.  Bryan,  attorney  for  appellant 
L.  T.  Yale,  attorney  for  respondent 

Draper.  Siipcriutcudcnt 

At  an  adjourned  annual  school  meeting  in  the  above-named  district,  held  on 
the  2d  day  of  November  1890,  it  was  voted  to  raise  the  sum  of  $10,000  by  tax 
for  the  purpose  of  erecting  a  new  schoolhouse  at  the  village  of  East  Irvington 
in  said  district.  The  appellants  object  to  this  action  on  various  grounds.  The 
principal  objections  are  that  no  adequate  notice  of  the  proposed  action  was  given, 
and  that  the  circumstances  do  not  necessitate  so  large  an  expenditure. 

I  do  not  find  any  irregularity  in  the  proceedings  which  is  sufficient  to  over- 
throw the  action  objected  to.  The  meeting  at  which  such  action  was  taken  was 
not,  technically,  a  special  meeting.  At  the  annual  meeting,  at  which  321  persons 
were  present,  it  was  voted  to  adjourn  until  the  evening  of  the  2d  of  September, 
for  the  purpose  of  considering  this  precise  question.  The  trustees  posted  notices 
for  the  period  of  twenty  days.  There  was  no  newspaper  published  in  the  dis- 
trict. It  is  claimed  that  numerous  newspapers  circulated  in  the  district,  but  there 
is  nothing  in  the  statute  which  would  require  the  board  to  publish  notices  in  the 
newspapers  circulated  in  the  district.  Publication  only  is  required  in  the  case  of 
newspapers  actually  published  in  the  district.  Eighty  persons  were  present  at 
the  meeting.  It  is  true  that  there  was  no  such  large  representation  at  the 
adjourned  meeting  as  at  the  regular  annual  meeting,  but  that  fact  is  not  sufficient 
to  invalidate  the  action  of  the  adjourned  meeting.  It  is  said  that  there  are  only 
50  or  y^  children  to  attend  school  at  the  point  where  it  is  proposed  to  erect  a 
new  schoolhouse,  and  that  it  is  not  necessary  to  erect  so  costly  a  house.  It  is 
then  only  a  question  as  to  how  much  should  be  expended  for  one.  There  is 
probably  no  other  union  free  school  district  in  the  State  of  New  York  contain- 
mg  as  much  wealth  as  this  one.  The  valuation  upon  which  school  taxes  are 
levied,  exceeds  $3,000,000.  This  district  can  well  afiford  to  build  a  schoolhouse 
which  shall  be  a  model,  and  which  shall  thus  promote  the  cause  of  school  archi- 
tecture generally. 

Inasnuich  as  a  regularly  adjourned  annual  meeting  seems  to  have  acted 
regularly  in  voting  to  raise  $10,000  for  such  a  purpose,  in  such  a  district,  I  see 
no  good  reason  why  the  Superintendent  should  intervene  to  prevent  it. 

There  is  some  complaint  that  the  board  proceeds  without  consulting  inter- 
ested parties  in  the  district,  as  to  the  character  and  plans  for  the  new  structure. 
There  should  be  no  mistake  upon  this  point.  The  very  best  architectural  talent 
should  be  employed,  and  the  best  opinions  in  the  district  respected. 

Under  all  the  circumstances,  I  have  determined,  as  was  indicated  at  the 
time  of  the  argument,  to  direct  the  board  to  call  a  special  meeting  of  the  district 


JUDICIAL  decisions:     schoolhouses  839 

for  the  purpose  of  permitting  it  to  have  full  information  as  to  the  character  of 
the  building  which  it  is  proposed  to  erect.  The  board  should  so  plan  as  to  com- 
plete the  structure  and  furnish  it  with  the  sum  appropriated.  When  the  plans 
and  specifications  are  completed,  the  board  is  directed  to  lay  the  same  before  a 
special  meeting  of  the  district. 

In  view  of  all  these  considerations,  the  appeal  is  dismissed. 


4337 

In  the  matter  of  the  appeal  of  Frederick  Cramer  and  others  from  proceedings 
of  a  special  school  meeting  held  December  21,  1894,  in  school  district  no.  3, 
town  of  Great  Valley,  Cattaraugus  county. 

The  inhabitants  of  a  school  district,  entitled  to  vote,  when  duly  assembled  in  any  district 
meeting,  have  the  power,  by  a  majority  of  those  present  and  voting,  to  vote  to  hire  or 
purchase  rooms  or  building  for  schoolrooms  or  schoolhouses  or  to  build  schoolhouses. 
Where  a  district  owns  a  schoolhouse  it  is  not  necessary  as  a  condition  precedent  to  the 
power  of  the  voters  of  said  district  to  vote  to  erect  a  new  schoolhouse,  that  such  school- 
house  should  have  been  condemned  by  the  school  commissioner. 

Decided  March  11,  1895 

E.  D.  Northup,  attorney  for  appellants 
G.  M.  Rider,  attorney  for  respondent 

Skinner,  Superintendent 

The  appellants  in  the  above-entitled  matter  appeal  from  the  action  and  pro- 
ceedings of  a  special  school  meeting  held  on  December  20,  1894,  in  school  district 
no.  3,  town  of  Great  Valley,  Cattaraugus  county. 

The  principal  grounds  alleged  in  said  appeal  are  that  said  meeting  was  not 
duly  called  and  held,  and  that  the  proceedings  had  and  taken  at  said  meeting 
were  in  violation  of  the  school  law. 

An  answer  to  the  appeal  has  been  interposed,  and  to  the  answer  a  reply  and 
to  the  reply  a  rejoinder. 

The  following  facts  are  established  by  the  proofs  presented  herein:  That 
the  respondent  herein,  Edward  M.  Shaffer,  was  in  December  1894,  and  stiU  is, 
sole  trustee  of  school  district  no.  3,  town  of  Great  Valley,  Cattaraugus  county; 
that  on  or  about  December  11,  1894,  a  petition,  signed  by  fifteen  of  the  inhab- 
itants of  said  district  that  a  special  meeting  of  said  district  be  called  to  vote  on 
the  question  of  a  new  schoolhouse  in  said  school  district,  was  delivered  to  the 
trustee  of  said  district;  that  said  trustee  wrote  out  a  notice  calling  a  special 
meeting  of  said  school  district,  to  be  held  at  the  schoolhouse  on  December  20, 
1894,  for  the  purpose  of  voting  upon  the  question  of  erecting  a  new  schoolhouse 
in  said  district,  and  if  carried,  to  transact  such  other  business  as  may  be  neces- 
sary, which  shall  pertain  to  the  erection  of  said  schoolhouse,  said  polls  to  open 
at  7.30  p.  m.  and  remain  open  one  hour,  and  on  December  12,  1894,  delivered 


840  THE   UNIVERSITY    OF   THE   STATE    OF    NEW    YORK 

said  notice  to  the  clerk  of  said  district  with  directions  to  serve  the  same;  that 
thereupon  said  clerk  on  the  same  day  posted  written  copies  of  said  notice  in 
several  public  places  in  said  district  including  the  post  office,  and  each  of  the  two 
general  stores  in  said  district,  and  in  addition  thereto,  read  and  stated  the  con- 
tents of  said  notice  to  many  of  the  voters  of  said  district;  that  an  annual  school 
meeting  held  in  said  district  at  some  date  prior  to  said  December  1894,  it  was 
voted  that  special  meetings  of  said  district  be  called  by  posting  notices;  that 
from  said  December  12  to  December  20,  1894,  the  fact  of  such  special  meeting 
being  called  and  the  matters  to  be  acted  upon  thereat  were  generally  known  and 
discussed  by  the  qualified  voters  of  said  district;  that  said  district  has  about  141 
qualified  voters  residing  therein;  that  on  said  December  20,  1894,  the  qualified 
voters  of  said  district  assembled  at  the  schoolhouse  in  pursuance  of  said  notice 
and  duly  organized  by  the  election  of  a  chairman,  the  clerk  of  the  district  acting 
as  clerk,  and  the  appointment  of  two  tellers  or  inspectors  of  election,  and  an 
assistant  clerk ;  that  the  appellants  herein  were  present  at  said  meeting ;  that  a 
motion  was  made  and  adopted  to  proceed  to  ballot  for  the  proposed  schoolhouse 
and  thereupon  a  ballot  was  taken  upon  the  question  of  erecting  a  new  school- 
house,  said  ballots  being  printed  and  having  thereon  respectively  "  for  building 
a  new  schoolhouse  "  and  "  against  building  a  new  schoolhouse  "  ;  that  a  poll  was 
kept  upon  which  was  entered  the  name  of  each  person  whose  vote  was  received ; 
that  at  the  close  of  the  polls  the  vote  was  duly  canvassed  and  the  result 
announced,  namely,  whole  number  of  votes  cast  was  109  of  which  67  votes  were 
"  for  "  and  42  votes  "  against  "  building  a  new  schoolhouse ;  that  tnotions  rela- 
tive to  the  cost  of  the  schoolhouse  were  made  by  one  Kane  and  one  Richards, 
and  one  Chase  presented  a  resolution  that  the  district  appropriate  not  less  than 
$3000  and  not  more  than  $4000  to  build  said  schoolhouse  and  that  the  district 
be  bonded  for  four-fifths  of  the  amount,  the  bonds  of  which  shall  not  be  sold 
for  less  than  par,  payable  in  one,  two,  three  and  four  years,  and  the  balance  of 
one-fifth  be  raised  by  tax  during  the  summer  of  1895 ;  that  an  amendment  to 
the  resolution,  the  schoolhouse  be  completed  inside  of  the  $4000  was  offered 
and  accepted  by  the  mover  of  said  resolution;  that  a  resolution  was  presented 
that  the  whole  sum  be  raised  the  first  year  and  a  vote  taken  thereon,  such  being 
ascertained  by  taking  and  recording  the  ayes  and  noes  of  those  present  and  vot- 
ing, and  said  motion  lost,  the  whole  number  of  votes  being  91  of  which  18  were 
in  favor  and  73  against ;  that  said  resolution  was  further  amended  by  the  addi- 
tion that  said  schoolhouse  should  be  of  brick,  and  that  a  vote  was  then  taken 
thereon  which  vote  was  ascertained  by  taking  and  recording  the  name  of  each 
person  who  voted  and  setting  opposite  to  said  name  whether  such  person  voted 
aye  or  no,  with  the  following  result,  namely,  whole  number  voting  62  of  which 
61  were  for  and  i  against  the  resolution. 

It  also  appears  that  of  the  141  qualified  voters  in  the  district  109  were  pres- 
ent and  voted  at  said  meeting;  that  one  voter  at  least  who  did  not  vote  was 
present  at  said  meeting;  that  of  the  31  not  affirmatively  appearing  to  have  been 
present  all  but  1 1  are  shown  to  have  lived  respectively  in  the  same  family  with 


JUDICIAL  decisions:     sciioolhousks  841 

other  voters  who  were  present  and  voted  at  said  meeting,  and  must  be  presumed 
to  have  had  knowledge  of  the  meeting,  and  10  of  the  11  are  shown  to  have  had 
actual  notice. 

The  provisions  of  the  Consolidated  School  Law  of  1894,  chapter  556  of  the 
Laws  of  1894,  which  went  into  effect  on  June  30,  1894,  were  in  operation  in 
December  1S94. 

Under  the  provisions  of  said  law  trustees  of  school  districts  have  power 
and  it  is  their  duty  to  call  special  meetings  of  the  inhabitants  of  such  districts 
whenever  they  shall  deem  it  necessary,  and  a  special  meeting  shall  be  held  when- 
ever called  by  the  trustees.  It  is  not  required  by  the  school  law  that  to  legally 
call  and  hold  a  special  meeting  in  a  district  the  trustees  should  be  required  to  do 
so  by  a  call  or  petition  on  the  part  of  the  voters.  This  Department  has  held 
that  when  any  considerable  number  of  the  voters  of  a  district  do  make  such 
request  the  trustees  should  call  the  meeting.  When  a  special  meeting  is  called 
the  notice  thereof  shall  state  the  purposes  for  which  it  is  called  and  no  business 
shall  be  transacted  at  such  meeting  except  that  which  is  specified  in  the  notice. 
When  special  meetings  are  called  a  notice  thereof  shall  be  served  upon  each 
inhabitant  of  the  district  qualified  to  vote  at  district  meetings,  at  least  five  days 
before  the  day  of  meeting  by  reading  the  notice  in  the  hearing  of  every  qualified 
voter,  or  in  case  of  his  or  her  absence  from  home  by  leaving  a  copy  thereof,  or 
so  much  thereof  as  relates  to  the  time,  place  and  object  of  the  meeting  at  the 
place  of  his  or  her  abode ;  but  the  inhabitants  of  any  district  may,  at  any  annual 
meeting,  adopt  a  resolution  prescribing  some  other  mode  of  giving  notice  of 
special  meetings  which  resolution  and  the  mode  prescribed  thereby  shall  con- 
tinue in  force  until  rescinded  or  modified  at  some  subsequent  annual  meeting. 
The  proceedings  of  no  district  meeting,  annual  or  special,  shall  be  held  illegal 
for  want  of  a  due  notice  to  all  the  persons  qualified  to  vote  thereat,  unless  it  shall 
appear  that  the  omission  to  give  notice  wilful  and  fraudulent. 

The  respondent  herein,  as  trustee  of  said  district,  had  the  power  under 
the  provisions  of  the  school  law,  to  call  special  meetings  of  said  district  either 
upon  a  call  or  petition  of  any  number  of  the  voters  of  said  district,  or  without 
any  such  call  or  petition.  The  purposes  for  which  the  meeting  was  called  were 
sufficiently  stated.  The  notice  of  said  meeting  was  duly  given  under  a  resolu- 
tion adopted  at  an  annual  meeting  of  the  district  prescribing  the  mode  of  giving 
notice  of  special  meetings  of  said  district,  and  which  resolution  does  not  appear, 
from  the  proofs  herein,  to  have  been  rescinded  or  modified.  Assuming  for  the 
sake  of  argument  only  that  no  such  resolution  was  ever  adopted  by  said  district, 
there  is  no  proof  that  the  omission  to  give  the  notice  in  the  manner  required 
by  the  school  law  was  wilful  and  fraudulent,  and  that  the  proceedings  of  said 
special  meeting  shall  not  be  held  illegal  for  want  of  said  notice. 

It  appearing  that  the  appellants  herein  were  all  present  at  said  special 
meeting  they  have  not  been  injured  by  any  failure  to  receive  due  notice  thereof. 
-,  The  inhabitants  entitled  to  vote,  when  duly  assembled  in  any  district  meet- 
'm<^,  have  the  power  under  the  school  law,  by  a  majority  of  those  present  and 


842  THE   UNIVERSITY    OF  THE   STATE   OF   NEW   YORK 

voting,  to  vote  to  hire  or  purchase  rooms  or  buildings  for  schoolrooms,  or 
schoolhouses,  or  to  build  schoolhouses.  Where  a  district  owns  a  schoolhouse  it  is 
not  necessary  as  condition  precedent  to  the  power  of  the  voters  of  said  district 
to  vote  to  erect  a  new  schoolhouse,  that  such  schoolhouse  should  have  been 
condemned  by  the  school  commissioner  under  the  provisions  of  subdivision  4, 
section  13,  title  5  of  the  Consolidated  School  Law  of  1894.  The  power  of  con- 
demnation of  a  schoolhouse,  given  by  the  school  law,  is  to  require  the  erection 
of  new  schoolhouse  where  the  schoolhouse  of  the  district  is  wholly  unfit  for 
use  and  not  worth  repairing,  and  it  has  become  apparent  that  it  is  not  the 
intention  of  the  qualified  voters  of  the  district  to  take  steps  for  the  erection  of 
a  new  schoolhouse.  Where  in  any  school  district,  as  is  shown  in  this  appeal, 
the  schoolhouse  is  unsuitable  and  inadequate  for  the  needs  of  the  district,  the 
voters  of  said  district  have  the  power  in  their  wisdom  and  discretion  to  vote 
to  build  a  new  schoolhouse. 

Under  the  school  law,  no  tax  voted  by  a  district  for  building,  etc.,  a  school- 
house  exceeding  the  sum  of  $800  shall  be  levied  by  the  trustees  unless  the  com- 
missioner in  whose  district  the  schoolhouse  of  said  district  so  to  be  built  is 
situate  shall  certify  in  writing  his  or  her  approval  of  the  larger  sum.  It  is 
aftirmatively  established  herein  that  the  school  commissioner  has  so  certified  in 
writing  her  approval  of  the  sum  voted  to  be  raised  for  building  a  schoolhouse 
at  the  special  meeting  of  said  district  no.  3,  held  on  December  20,  1894.  By 
section  18,  article  2,  title  7  of  the  Consolidated  School  Law  of  1894,  the  voters 
at  a  school  district  when  they  shall  have  voted  a  tax  for  the  building  of  a 
new  schoolhouse  have  the  power  by  a  majority  vote  of  those  present  and  voting, 
which  vote  shall  be  ascertained  by  taking  and  recording  the  ayes  and  noes  of 
those  attending  and  voting,  that  said  sum  shall  be  raised  in  instalments;  that 
thereupon  the  trustees  are  authorized  to  cause  the  same  to  be  raised  in  the 
same  manner  as  other  school  taxes;  but  the  payment  or  collection  of  the  last 
instalment  shall  not  be  extended  beyond  twenty  years  from  the  time  such  vote 
was  taken ;  and  no  such  vote  to  levy  any  such  tax  shall  be  reconsidered  except 
at  an  adjourned  meeting,  annual  or  special,  to  be  held  within  thirty  days  there- 
after; that  for  the  purpose  of  giving  effect  to  such  provisions  trustees  are 
authorized  to  borrow  so  much  of  the  sum  voted  as  may  be  necessary  at  a  rate 
of  interest  not  exceeding  6  per  cent,  and  to  issue  bonds  or  other  evidence  of 
indebtedness  therefor,  which  bonds,  etc.,  shall  not  be  sold  below  par. 

Said  special  meeting  in  said  district  voted  a  tax  of  not  less  than  $3000  or 
more  than  $4000  to  build  a  new  schoolhouse  of  brick,  said  schoolhouse  to  be 
built  and  completed  within  said  sum  of  $4000,  and  that  said  sum  be  raised  by 
instalments,  to  wit:  in  five  instalments,  one  instalment  to  be  collected  by  tax 
during  the  summer  of  1895  and  the  other  four-fifths  to  be  raised  in  one,  two, 
three  and  four  years ;  that  the  vote  upon  said  resolution  was  ascertaind  by  tak- 
ing and  recording  the  ayes  and  noes  of  those  present  and  voting. 

The  aforesaid  action  of  said  special  meeting  in  voting  a  tax  for  a  new 
schoolhouse  and  that  the  sum  so  voted  be  raised  in  instalments,  was  a  com- 


JUDICIAL  decisions:     schoolhouses  843 

pliance  with  the  provisions  contained  in  said  section  18,  and  this  action  can  not 
now  be  reconsidered.  It  having  been  stated  in  the  resolution  that  one-fifth 
of  the  sum  was  to  be  raised  by  taxation  in  the  summer  of  1895,  and  the  balance 
raised  in  one,  two,  three  and  four  years,  it  was  not  necessary  that  the  resolu- 
tion should  contain  anything  with  reference  to  bonds,  as  under  the  provisions 
of  said  section  it  is  the  duty  of  the  trustee  to  borrow  the  money  necessary  for 
the  other  four-fifths  of  the  sum  voted  and  to  issue  bonds  etc.  in  the  manner 
stated  in  said  section. 

The  appellants  have  failed  to  sustain  the  appeal  herein  and  said  apjDcal 
should  be  dismissed. 

Appeal  dismissed. 


4225 

In  the  matter  of  the  appeal  of  board  of  education  of  union  free  school  district 
no.  10,  town  of  Newtown,  Queens  county  v.  John  B.  Merrill,  school  com- 
missioner, second  district,  Queens  county. 

In  the  application  by  school  district  officers  to  a  school  commissioner  for  the  approval  of 
plans  for  the  ventilating,  lighting  and  heating  of  a  new^  school  building  the  only  ques- 
tion the  commissioner  is  officially  called  upon  to  decide  is  whether  the  system  of  heat- 
ing, ventilating  and  lighting  such  building,  constructed  in  accordance  with  the  plans  and 
specifications  prepared  by  the  architect  and  adopted  by  the  school  officers,  is  a  proper 
and  adequate  one.  Where  it  appears  in  an  appeal  from  the  action  of  the  commissioner, 
in  refusing  to  aprove  such  plans  and  specifications,  that  the  same  are  proper  and  ade- 
quate, the  action  of  the  school  officers  should  be  approved  and  the  decision  of  the  com- 
missioner vacated. 

Decided  March  9,  1894 

Crooker,  Superintendent 

This  appeal  is  taken  from  the  order  of  the  respondent  as  school  commis- 
sioner of  the  second  commissioner  district  of  Queens  county,  made  on  August 
14,  1893,  disapproving  and  rejecting  the  revised  plans  adopted  by  the  appellants 
for  ventilating,  heating  and  lighting  a  new  school  building  to  be  constructed  in 
union  free  school  district  no.  10,  town  of  Newtown,  Queens  county. 

It  appears  from  the  papers  presented  upon  this  appeal,  that  said  district 
designated  a  new  school  site  and  voted  to  purchase  the  same  and  for  the  erec- 
tion of  a  new  school  building  thereon;  that  the  sum  of  $30,000  was  voted,  of 
which  $10,000  was  for  the  site  and  $20,000  for  the  school  building,  which  sum 
was  to  be  raised  in  instalments;  and  the  board  of  education  was  authorized  to 
issue  bonds  for  said  sum  of  $30,000 ;  that  the  bonds  were  duly  issued  and  sold  and 
the  proceeds  thereof  in  the  hands  of  the  treasurer  of  the  board  of  education; 
that  an  architect  was  employed  and  plans  and  specifications  for  the  new  school 
building  were  prepared  and  adopted;  that  the  subject  of  heating,  ventilating 
■"and  lighting  the  new  school  building  received  the  attention  of  the  board,  and 
investigations  were  made  as  to  the  methods  of  heating,  ventilating  and  lighting 


844  T"K    UNIVERSITY    iU-    TIIK   STATK    OF    NEW    YORK 

school  buildings,  and  especially  what  arc  known  as  the  Smcad  and  Fuller  & 
Warren  systems;  and  subsequently  the  board  invited  proposals  from  the  repre- 
sentatives of  each  of  said  two  systems,  and  such  proposals,  with  plans  and 
spec i Illations,  were  received  from  each;  that  a  committee  of  the  board  visited 
school  buildings  in  various  places  where  each  of  said  two  systems  of  heating, 
etc.,  was  in  use,  and  after  said  committee  had  reported  and  on  June  13,  1893, 
said  board  decided  to  adopt  the  Fuller  &  Warren ;  that  the  Fuller  &  Warren 
Company  thereupon,  at  the  request  of  said  board,  prepared  plans  and  specifica- 
tions for  heating  and  ventilating  as  adapted  to  the  proposed  new  school  build- 
ing to  be  erected  in  accordance  with  the  jilans  and  specifications  therefor  pre- 
pared by  the  architect  and  adopted  by  their  board,  for  submission  to  the 
respondent  for  his  approval ;  and  the  same  were  submitted  to  the  respondent, 
who  make  objections  to  the  same ;  that  subsequently  revised  plans  and  specifica- 
tions were  made  by  Fuller  &  Warren  and  the  architect  of  the  new  school  build- 
ing and  approved  by  said  board  and  forwarded  to  the  respondent  for  his 
approval;  that  on  August  14,  1893,  the  respondent  made  his  order  and  decision 
disapproving  of  such  revised  plans  and  specifications. 

Lender  the  Consolidated  School  Law  it  is  provided  that  no  schoolhouse 
shall  be  built  in  any  school  district  in  the  State  until  the  plan  of  such  school- 
house,  so  far  as  ventilation,  heat  and  lighting  is  concerned,  shall  be  approved  in 
writing  by  the  school  commissioner  of  the  commissioner  district  in  which  the 
district  in  which  the  schoolhouse  is  to  be  built  is  situated.  Under  the  said  school 
law  an  appeal  may  be  taken  to  the  Superintendent  of  Public  Instruction  from 
an  official  act  and  decision  concerning  any  matter  under  said  school  law. 

It  seems  from  the  correspondence  between  the  appellants  and  respondent 
relative  to  the  plans,  etc.,  for  heating  and  ventilating  said  new  school  building 
as  the  copies  thereof  were  presented  in  this  appeal,  that  the  respondent  favored 
the  Smcad  system  of  heating  and  ventilating,  and  endeavored  to  have  such  sys- 
tem adopted  by  the  appellants. 

The  only  question  the  respondent  was  officially  called  upon  to  decide  was, 
whether  the  system  of  heating  and  ventilating  a  building,  constructed  in  accord- 
ance with  the  plans  and  specifications  prepared  by  the  architect  and  adopted 
by  the  appellants,  as  contained  in  the  revised  plans  and  specifications  of  the 
ruller  &  Warren  Company  and  adopted  by  the  appellants,  was  proper  and 
adequate.  While  the  order  and  decision  of  the  respondent,  of  August  14,  1893, 
contains  other  matters  than  that  upon  which  his  decision  was  asked,  it  contains 
a  disa{)proval  of  the  plans,  etc.,  so  far  as  ventilating,  heating  etc.,  are  con- 
cerned in  the  new  school  building  to  be  erected,  approved  by  the  appellants. 
From  such  order  and  decision  this  appeal  is  taken. 

I  have  carefully  examined  the  plans  and  specifications  of  the  architect 
of  the  new  school  building,  to  be  constructed,  and  the  revised  plans  and  specifi- 
cations for  heating  and  ventilating  such  building,  prepared  by  the  Fuller  & 
Warren  Company  and  approved  by  the  appellants,  and  submitted  to  the  respond- 


JUDICIAL  decisions:     schoolhouses  845 

ent  for  his  approval.  After  such  examination  I  am  satisfied  that  the  method 
of  heating  and  ventilating  of  such  a  building  as  the  plans  and  specifications  of 
the  architect  call  for,  as  set  out  in  the  revised  plans  and  specifications  of  the 
Fuller  &  Warren  Company,  and  adopted  by  the  appellants,  v^ill  afford  proper, 
suitable  and  adequate  ventilation  and  heat  for  such  new  school  building. 

I  am  of  the  opinion  that  the  appeal  herein  should  be  sustained;  that  the 
order  made  by  the  respondent  on  August  14,  1893,  appealed  from,  should  be 
vacated;  that  the  appellants  be  permitted  to  go  on  with  the  construction  of 
their  new  school  building  in  accordance  with  the  plans  and  specifications  adopted 
by  them,  and  so  far  as  the  heating  and  ventilating  of  the  school  building  are 
concerned,  in  accordance  with  the  said  revised  plans,  etc.,  of  the  Fuller  &  Warren 
Company,  adopted  by  the  appellants. 

The  appeal  herein  is  sustained. 

It  is  ordered,  That  the  order  of  John  B.  Merrill,  school  commissioner  of 
the  second  commissioner  district  of  Queens  county,  bearing  date  August  14, 
1893,  entitled  "  In  the  matter  of  the  new  school  building  to  be  erected  in  union 
free  school  district  no.  10  of  the  town  of  Newtown,"  be,  and  the  same  hereby 
is,  vacated. 

It  is  further  ordered,  that  the  system  of  heating  and  ventilating  of  said 
new  school  building,  in  accordance  with  the  revised  plans  and  specifications  of 
the  Fuller  &  Warren  Company,  approved  by  the  board  of  education  of  said 
district,  presented  to  said  Merrill,  as  school  commissioner,  for  his  approval,  and 
disapproved  by  him,  be,  and  the  same  are,  hereby  approved. 


3657 

In  the  matter  of  the  appeal  of  E.  R.  Greene  and  Henry  E.  Denison  v.  school 
district  no.  8,  of  the  town  of  Berlin,   county  of  Rensselaer. 

An  annual  school  meeting  may  vote  a  tax  to  fit  up  a  part  of  a  school  building,  although 
special  notice  of  such  proposed  action  has  not  been  given. 

Persons  who  do  not  attend  an  annual  meeting  are  not  in  a  position  to  object  to  its  pro- 
ceedings upon  the  ground  that  they  were  not  present. 

The  action  of  an  annual  meeting  in  providing  for  a' janitor  to  live  on  the  premises,  where 
the  schoolhouse  is  located  in  an  isolated  place,  in  order  to  prevent  the  recurrence  of 
depredations  and  consequent  injury  of  property,  sustained. 

Decided  December  15,  1887 

Draper,  Superintendent 

At  the  annual  school  meeting,  held  in  school  district  no.  3,  of  the  town  of 

Berlin,  county  of  Rensselaer,  on  the  30th  day  of  August  last,  a  motion  was 

adopted   to   finish   ofif   a   vacant   part   of   the   schoolhouse    for   the   purpose   of 

"  Enabling  a  janitor  for  the  building  to  live  therein,  at  an  expense  not  to  exceed 

$75.    The  trustees  proceeded  to  carry  out  the  resolution,  and  afterwards  levied 


846  TIIK    1;N!\  IK'SITV    OF     IHl-:    STATIC    OF    NKW    YORK 

a  tax  for  the  sum  of  !$ju,  to  pay  the  expenses  of  the  changes.  From  such 
action  this  appeal  is  taken.  It  is  insisted  by  the  appellants  that  such  action 
could  not  be  taken  at  an  annual  meeting  without  special  notice  thereof  in 
advance,  and  also  that,  while  there  were  192  legal  voters  in  the  district,  but  25 
were  present.  I  think  that  section  15  of  title  7  of  the  Consolidated  School  Act 
contains  sufficient  authority  to  have  enabled  the  annual  meeting  to  take  the 
action  which  it  did  without  any  special  notice  thereof  in  advance.  This  being 
so,  it  is  not  material  whether  the  meeting  was  largely  attended  or  not.  Per- 
sons who  remained  away  are  not  in  position  to  complain. 

The  appellants  seek  to  avoid  the  tax  which  is  the  result  of  the  action  of 
the  district  meeting.  If  the  meeting  had  the  lawful  authority  to  take  the  action 
which  it  did,  then  the  tax  which  is  resultant  from  such  action  must  be  paid. 
This  would  be  so,  even  though  the  action  taken  was  unwise.  I  think  it  would 
also  be  so  as  to  any  actual  indebtedness  incurred  by  trustees  in  carrying  out 
the  directions  of  a  district  meeting,  even  in  case  the  meeting  acted  without  law- 
ful authority.  It  seems  entirely  clear  to  me  in  any  event,  that  the  tax  must 
be  paid. 

The  principal  question  which  has  addressed  itself  to  my  mind  touching 
this  matter  is,  whether  the  presence  of  a  family  in  the  schoolhouse  is  detri- 
mental to  the  quiet  and  comfort  of  the  school  and  injurious  to  the  best  interests 
thereof.  For  the  purpose  of  determining  that  question,  I  directed  the  school 
commissioner  having  jurisdiction,  to  notify  the  respective  parties,  and  take 
their  testimony  with  reference  to  it.  He  has  reported  that  he  gave  the  requisite 
notices  of  a  time  and  place  for  hearing,  and  that  he  attended  at  such  time  and 
place  for  the  purpose  of  taking  their  testimony ;  that  the  respondents  appeared 
with  several  witnesses  and  were  sworn,  but  that  the  appellants  entirely  failed 
to  appear.  From  the  testimony  of  the  witnesses  of  the  respondents,  it  appears 
that  the  schoolhouse  in  question  stands  in  a  somewhat  secluded  place ;  that,  for 
several  years,  it  has  frequently  been  broken  into,  and  that  it  has  been  repeatedly 
entered  by  marauders ;  that,  upon  numerous  occasions,  it  has  been  defiled,  and 
that  frequently  obscene  language  and  pictures  have  been  placed  upon  the  black- 
boards and  walls.  It  is  alleged  that,  in  consequence  of  this,  the  arrangement 
to  have  the  janitor  live  in  the  building  for  the  purpose  of  protecting  it  was 
eflfected.  The  members  of  the  board  of  trustees  and  the  two  teachers  who 
were  employed,  and  other  citizens  whose  standing  is  not  questioned,  swear  that 
the  arrangement  has  resulted  in  preventing  the  depredations  referred  to;  that  it 
has  been  a  help  rather  than  an  inconvenience  to  the  school,  and  that  no  annoy- 
ance has  been  suffered  in  consequence  of  it. 

In  view,  therefore,  of  the  fact  that  the  annual  meeting  had  authority  to  do 
what  it  did,  and  of  the  proof  that  what  it  did  was  not  against  the  interests  of 
the  school,  I  am  compelled  to  dismiss  the  appeal. 


JUDICIAL  decisions:     schoolhouses  847 

3663 

In  the  matter  of  the  appeal  of  Henry  C.  Cole  v.  George  E.  Sunderland,  trustee 
school   district  no.   6,   town   of   Carmel,   Putnam  county. 

A  tax  regularly  voted  for  the  purpose  of  building  a  new  schoolhouse  will  not  be  required 
to  be  refunded  for  the  reason  that  the  old  school  building  had  not  been  sold  and  avails 
applied  to  diminish  the  amount  of  said  tax. 

The  trustee  could  not  sell  the  old  building  until  so  directed  by  the  district  meeting. 

While  the  statute  permits  a  sale  of  the  old  building,  it  does  not  require  it. 

Decided  January  27,   1888 

Draper,  Superintendent 

This  is  an  appeal  by  a  taxable  inhabitant  of  school  district  no.  6,  town  of 
Carmel,  Putnam  county,  against  the  sole  trustee  of  said  district  and  the  relief 
asked  for  is  that  the  trustee  be  required  to  refund  a  tax  of  $1000  regularly 
voted  by  a  district  meeting  for  the  purpose  of  building  a  new  schoolhouse,  etc. 

The  ground  of  the  appeal  is  that  the  old  schoolhouse  owned  by  the  district 
was  not  sold  and  the  avails  applied  to  diminish  the  amount  of  tax  for  building 
a  new  schoolhouse  according  to  law. 

It  is  unnecessary  to  delay  the  consideration  of  this  appeal  to  await  the 
service  of  an  answer  as  the  allegations  of  the  petition  are  insufficient  to  sustain 
the  appeal. 

The  trustees  could  not  sell  the  old  building  until  authorized  by  a  vote  of 
the  district  meeting,  and  this  is  not  alleged  to  have  been  done. 

The  statute  permits  a  sale  but  does  not  require  it  and  wisely  too,  for  in 
some  cases  the  use  of  both  buildings  is  needed  and  in  almost  every  case  the  use 
of  the  old  building  should  be  retained  until  the  new  building  is  ready  for 
occupancy. 

The  appeal  is  overruled. 


3614 

In  the  matter  of  the  appeal  of  Coleman  S.  Townsend  v.  Cornelius  Hill,  as  sole 

trustee  of  school  district  no.  3,  town  of  Carmel,  Putnam  county. 
Since  the  passage  of  chapter  480,  Laws  of  1847,  an  old  school  building  need  not  be  disposed  of 

until  a  new  schoolhouse  is  completed  upon  another  site. 
Decided  July  13,  1887 

Draper,  Superintendent 

'This  proceeding  is  an  appeal  by  a  resident  and  taxpayer  of  school  district 
no.  3,  town  of  Carmel,  Putnam  county,  against  Cornelius  Hill,  as  sole  trustee, 
of  said  school  district. 

The  appellant  asks  that  the  trustee  be  required  to  refund  to  the  taxpayers 
"of   said   district,   certain   moneys   raised  by   tax  upon   the  taxable  property  of 
said  district  for  the  purpose  of  purchasing  a  new  and  different  schoolhouse  site 
and  building  a  new  schoolhouse. 


848  THK    l-MXKKSITY    OF   THE   STATE    OF    NEW    YORK 

The  ground  urgctl  by  appellant  for  such  reHef  is  that  the  old  house  owned 
and  occupied  by  the  district  as  a  schoolhouse,  was  not  sold  before  the  levying 
of  the  tax  aforesaid,  and  the  avails  applied  in  diminution  of  the  amoimt  needed 
to  build  a  new  schooliiouse  as  required  by  law. 

An  answer  has  been  interposed  by  the  trustee,  the  allegations  of  which 
it  is  not  necessary  to  consider  in  deciding  this  appeal.  The  only  question  which 
presents  itself  is  this:  Does  the  law  require  the  sale  of  an  old  school  building 
before  the  levying  of  a  tax  to  build  a  new  one? 

Jhe  appellant  refers  me  to  a  decision  of  this  Department  rendered^  by 
Young,  Superintendent  in  1844,  holding  the  affirmative  of  this  proposition.  I 
find  that  subsequently  to  such  decision,  chapter  480  of  the  Laws  of  1847  was 
passed,  and  section  74  thereof  is  now  substantially  section  21  of  title  7  of  the 
Consolidated  School  Act. 

This  section  in  positive  terms  clearly  authorizes  and  contemplates  first, 
the  building  of  a  new  schoolhouse,  and  then  the  sale  of  the  old  building,  and 
since  the  passage  of  the  statute  aforesaid,  the  Department  has  uniformly  held  to 
that  effect. 

There  are  many  reasons  which  will  suggest  themselves  as  to  the  wisdom 
of  this  statute,  foremost  among  them,  the  advantages  of  continuing  school  in 
the  old  building  until  the  completion  of  a  new  building,  so  that  there  may  be 
no  interruption  of  the  school. 

The  api)eal  is  overruled  and  the  trustee  sustained. 


3720 

In  the  matter  of  the  appeal  of  Katharine  P.  Chamberlain  v.  Everett  O'Neill, 
school  commissioner  of  the  first  commissioner  district  of  Wayne  county. 

The  action  of  a  school  commissioner  in  condemning  a  building  as  unfit  for  use  and  not 
worth  repairing,  will  be  upheld  unless  overwhelming  proof  is  adduced  that  it  should 
not  be. 

Decided  October  25,  1888 

Draper,  Superintendent 

This  is  an  appeal  from  an  order  made  by  the  respondent,  as  school  com- 
missioner of  the  first  district  of  Wayne  county,  condemning  the  schoolhouse  in 
school  district  no.  23  of  the  town  of  Sodus  as  unfit  for  use,  and  not  wortli 
repairing,  and  directing  the  erection  of  a  building  to  cost  at  least  $750  in  said 
district.  The  appellant  urges  that  the  schoolhouse  referred  to  can  be  repaired 
so  as  to  be  suitable  for  use  at  an  expense  of  $200.  She  admits  that  the  build- 
ing, which  is  of  stone,  is  badly  cracked,  and  that  the  floor,  the  door,  a  portion 
of  the  roof,  and  portions  of  the  plastering,  need  replacing:  She  presents  the 
affidavits  of  two  builders  which  go  to  sustain  her  position  that  the  building  is 
worth  repairing,  and  that  it  can  be  put  in  good  condition  for  $200. 


JUDICIAL  decisions:     schoolhouses  849 

The  school  commissioner  answers  that  he  has  inspected  this  building  and 
found  the  walls  badly  cracked  and  out  of  plumb.  He  shows  that  the  foundations 
are  not  of  sufficient  depth,  and  that  the  building  yields  to  the  action  of  the 
frost;  that  the  carpentry  work  and  the  plastering  are  in  very  bad  condition 
indeed ;  that  the  building  has  no  suitable  means  of  ventilation,  and  that  it  is 
not  in  a  sanitary  condition.  He  produces  the  affidavits  of  several  taxpayers  in 
the  district,  and  several  expert  builders,  which  go  to  show  that  the  building  is 
not  worth  repairing. 

The  action  of  a  school  commissioner  in  condemning  a  schoolhouse  should 
be  upheld,  unless  overwhelming  proof  is  adduced  that  it  should  not  be.  Human 
experience  does  not  show  that  public  officers  are  accustomed  to  exercise  a 
power  of  this  nature  too  frequently  or  without  sufficient  cause.  The  proofs 
submitted  in  this  case  do  not  satisfy  me  that  the  order  of  the  commissioner 
was  unwarranted,  and  that  his  power  was  improperly  exercised.     P>eyond  this, 

I  am  led  to  give  considerable  weight  to  the  fact  which  appears  in  the  papers, 
and  is  not  controverted,  that  the  clerk's  record  shows  that  a  special  meeting 
was  held  in  this  district  on  the  31st  day  of  March  1888,  for  the  purpose  of 
considering  the  question  of  building  a  new  schoolhouse,  and  that  at  said  meet- 
ing the  resolution  to  build  was  defeated  by  but  one  majority,  and  that  a  sub- 
sequent special  meeting  was  held  on  the  14th  day  of  April  1888,  to  consider  the 
question  of  repairing  the  schoolhouse,  and  that  at  said  meeting  the  vote  stood 

II  in  favor  of  repairing  and  20  opposed  thereto.  This  action  of  the  district 
meetings  indicates  a  strong  sentiment  in  the  district  in  favor  of  new  schoolhouse. 
I  am  confident  that  such  a  sentiment  would  not  exist  if  there  were  not  strong 
reasons  for  it.  In  any  event,  it  is  not  shown  to  me  that  the  school  commissioner 
has  not  exercised  the  power  which  the  law  confers  upon  him  properly,  and  the 
burden  is  upon  the  appellant  to  show  that. 

The  appeal  is  therefore  dismissed. 


3869 

George  Flack,  trustee  of  school  district  no.  17,  town  of  Hartland,  county  of 
Niao-ara  v.  Robert  C.  Woods,  school  commissioner  of  the  second  commis- 
sioner district  of  Niagara  county. 

The  action  of  a  school  commissioner  condemning  a  school  building  and  ordering  the  erec- 
tion of  a  new  one  sustained,  no  abuse  of  power  or  discretion  being  shown. 

Decided  April  n,  1890 

Draper,  Superintendent 

Appellant  appeals   from  an  order  of  the  respondent  bearing  date  August 

.27,   1889,  condemning  the  schoolhouse  in  district  no.   17,  in  the  town  of  Hart- 

knd,  Niagara  county.     The  grounds  of  the  appeal  are  that  the  inhabitants  of 

the   district  prior  to  the   service   of   the  commissioner's   order,   had  adopted  a 


S50  THE   rNIVKKSITY    OF   THE   STATE   OF    NEW    YORK 

resolution  to  repair  the  schuolhouse  and  place  the  same  in  a  proper  and  suitable 
condition,  and  to  raise  the  sum  of  $150  to  meet  such  repairs;  that  the  school 
building  is  worth  repairing,  and  with  the  repairs  contemplated,  would  meet  the 
requirements  of  the  district;  that  a  majority  of  the  inhabitants  of  the  district 
who  are  taxpayers  are  poor  people,  and  will  be  distressed  if  compelled  to  pay 
at  this  time  the  necessary  tax  to  rebuild  the  schoolhouse. 

A  number  of  affidavits  are  offered  in  support  of  the  above  objections  to 
the  commissioner's  order. 

Upon  the  part  of  the  commissioner,  the  respondent  herein,  it  is  shown  by 
the  affidavits  of  the  largest  taxpayers  in  the  district,  mechanics  and  others  who 
are  familiar  with  the  circumstances,  and  acquainted  with  the  condition  of  the 
.schoolhouse,  that  the  present  schoolhouse  has  been  in  use  many  years,  and  is  in  a 
dilapidated  condition,  and,  if  the  use  of  the  present  building  is  continued,  it 
will  be  a  source  of  constant  expense  to  the  district  for  repairs.  It  appears 
that  the  commissioner,  before  making  the  order  condemning  the  house,  in 
conjunction  with  the  trustee  of  the  district,  and  several  of  the  citizens  thereof, 
made  a  thorough  examination  of  the  building,  its  foundation  and  sn])ports,  and 
agreed  that  the  building  should  be  condemned  upon  the  ground  that  it  was 
not  worth  repairing,  and  in  its  present  condition,  unfitted  for  use  as  a  school- 
house. 

In  a  proceeding  of  this  nature  the  law  confers  upon  the  school  commissioner 
original  jurisdiction,  and  it  is  not  the  policy  of  this  Department  to  interfere 
with  the  exercise  of  his  power,  except  upon  grounds  showing  an  abuse  of  dis- 
cretion. I  am  unable  to  find  any  such  abuse  in  this  proceeding.  The  com- 
missioner is  clothed  with  the  power  of  condemnation  without  reference  to  the 
wealth  or  poverty  of  the  district  afitected.  It  has  been  the  experience  of  this 
Department  that  good  schoolhouses,  with  satisfactory  schools,  are  essential  to 
the  welfare  of  communities.  Well-appointed  school  buildings  and  satisfactory 
schools  are  found  to  be  very  great  inducements  to  families  proposing  to  locate 
in  localities.  In  this  case  I  am  clear  that  the  action  of  the  commissioner  should 
be  upheld.  The  trustee  of  the  district  is,  therefore,  directed  to  forthv/ith  pro- 
ceed to  carry  out  the  directions  of  the  commissioner's  order. 

The  appeal  is  overruled. 


5015 

In  the  matter  of  the  appeal  of  G.  M.  Barney  v.  Oscar  AI.  Burdick  as  school 
commissioner,   second   commissioner   district   of   Allegany   county. 

Orders  made  by  school  commissioners  under  the  provisions  of  subdivision  4,  section  13, 
title  5  of  the  Consolidated  School  Law  of  1894,  as  such  section  was  amended  by  section 
I  of  chapter  512  of  the  Laws  of  1897,  condemning  schoolhouses,  must  state  that  such 
schoolhouse  is  deemed  "zcholly  unfit  for  use  and  not  worth  repairing." 

Decided  September  17,  1902 

Jesse  L.  Grantier,  attorney  for  appellant 


JUDICIAL  decisions:     schoolhouses  '  851 

Skinner,  Superintendent 

This  is  an  appeal  from  an  order  made  by  Oscar  M.  Burdick,  as  school 
commissioner  of  the  second  commissioner  district  of  Allegany  county,  dated 
June  22,  1902,  condemning  the  schoolhouse  in  union  free  school  district  i, 
Andover,  Allegany  county. 

The  appeal  herein  was  verified  by  the  appellant  July  30,  1902,  and  proof 
of  service  of  a  copy  of  the  appeal  on  Commissioner  Burdick  July  30,  1902,  is 
annexed  to  the  appeal.  The  appellant  alleges  that  he  learned  of  said  order  of 
Commissioner  Burdick  on  or  subsequent  to  the  4th  day  of  July  1902. 

The  main  grounds  alleged  by  the  appellant  for  bringing  the  appeal  are, 
in  substance,  that  said  order  of  the  commissioner  is  indefinite  and  uncertain  and 
does  not  state  that  he  deemed  the  schoolhouse  in  the  district  wholly  unfit  for 
use.  and  not  worth  repairing. 

On  August  6,  1902,  Commissioner  Burdick  filed  an  answer  to  the  appeal, 
in  which  he  claims  that  his  order  is  in  accordance  with  the  provisions  contained 
in  subdivision  4  of  section  13,  title  5  of  the  Consolidated  School  Law  of  1894, 
and  the  acts  amendatory  thereof ;  that  the  appeal  herein  was  not  taken  within 
thirty  days  after  knowledge  of  said  order  came  to  the  appellant. 

In  subdivision  4,  section  13,  title  5  of  the  Consolidated  School  Law  of 
1894,  chapter  556  of  the  Laws  of  1894,  as  such  subdivision  was  amended  by 
section  i,  chapter  512  of  the  Laws  of  1897,  it  is  enacted  that  every  school 
commissioner  shall  have  power,  and  it  shall  be  his  duty,  by  an  order  under  his 
hand,  reciting  the  reason  or  reasons  therefor,  to  condemn  a  schoolhouse,  if  he 
deems  it  ivholly  unfit  for  use  and  not  worth  repairing,  and  to  deliver  the  order 
to  the  trustees,  or  one  of  them,  and  transmit  a  copy  to  the  Superintendent  of 
Public  Instruction. 

The  following  is  a  copy  of  the  order  of  said  commissioner,  from  which 
the  appeal  herein  is  taken : 

To  the  board  of  education,  Andover  High  School: 

I  Oscar  M.  Burdick.  school  commissioner  of  the  second  district  ofAlle- 
crany  county,  by  virtue  of  power  in  me  vested,  as  defined  in  title  5,  section  4, 
as  amended  by  section  i,  chapter  512  of  the  Laws  of  1897,  do  hereby  condemn 
the  school  building  of  district  i,  Andover,  this  commissioner  s  district,  as  wholly 
inadequate  to  accommodate  the  pupils  attending  said  school. 

The  building  was  built  without  reference  to  proper  heating  and  ventilating, 
and  is  therefore  not  only  insufficient  in  size  and  arrangement,  but  is  also  unsani- 
tary and  detrimental  in  every  particular  to  the  wants  of  the  pupils 

I  would  therefore  advise  that  said  building  be  done  away  with,  and  a  new 
buildino-  erected  capable  of  meeting  the  requirements  of  the  law,  and  increasing 
the  health  and  safety  of  the  pupils  in  future  years,  said  building  to  cost  not  less 
than  $10,000. 

Given  under  my  hand  this  27th  day  of  June  1902. 

Oscar  M.  Burdick 

School  Commissioner 


85-  THE   UNIVERSITY    OF   THE   STATE    OF    NEW    YORK 

Commissioner  Burdick  fails  to  state  that  he  deems  said  schoolhouse  "  wholly 
unfit  for  use  and  not  zvortli  repairing,"  but  on  the  contrary  alleges  that  he  con- 
demns the  school  building  "  as  wholly  inadequate  to  accommodate  the  pupils 
attending  said  school." 

Said  school  building  may  not  have  proper  heating  facilities,  and  not  be 
properly  ventilated,  and  not  be  large  enough  to  accommodate  the  scholars  of 
school  age  residing  in  the  district,  without  being  repaired  or  added  to,  and 
proper  heating  apparatus  and  ventilation  provided,  and  still  said  building  not 
be  "  wholly  unfit  for  use  and  not  worth  repairing." 

This  Department  has  uniformly  held  that  an  order  of  condemnation  of  a 
schoolhouse  by  a  school  commissioner,  upon  appeal,  will  be  vacated  where  it 
does  not  conform  to  the  requirements  of  the  statute.  (See  decision  of  Super- 
intendent Weaver,  March  9,  1870;  decision  of  Superintendent  Gilmour,  Decem- 
ber 21,  1874;  decision  4989,  December  30,  1901,  by  me  in  Neugen,  trustee, 
school  district  4,  Broadalbin,  Fulton  county  v.  Willis  E.  Leek,  school  commis- 
sioner.) 

I  decide  that  the  appeal  herein  was  duly  taken;  that  the  order  of  Commis- 
sioner Burdick,  appealed  from,  does  not  conform  to  the  requirements  contained 
in  subdivision  4,  section  13,  title  5  of  the  Consolidated  School  Law  of  1894,  as 
amended  by  section  I,  chapter  512,  Laws  of  1897;  that  it  does  not  appear  that 
the  school  building  in  school  district  i,  Andover,  Allegany  county,  was,  on 
June  27,  1902,  "  wholly  unfit  for  use  and  not  worth  repairing." 

The  appeal  herein  is  sustained. 

It  is  ordered  that  the  order  made  by  Oscar  M.  Burdick,  school  commis- 
sioner of  the  second  commissioner  district  of  Allegany  county,  on  June  27,  1902, 
condemning  the  school  building  in  school  district  i,  Andover,  Allegany  county, 
be,  and  the  same  is,  hereby  vacated  and  set  aside. 


4250 


In  the  matter  of  the  appeal  of  William  V.  Mathewson,  trustee  school  district 
no.  13,  town  of  New  Berlin,  Chenango  county,  v.  Dennis  Thompson,  school 
commissioner,  first  commissioner  district,  county  of  Chenango. 

Where  a  school  commissioner,  having  made  an  order  condemning  schoolhouse  and  having 
approved  of  certain  plans  and  specifications  submitted  to  him  for  the  repairs  of  the 
schoolhouse  and  the  sum  voted  by  the  district  to  pay  for  such  repairs,  and  having  sub- 
sequently made  an  order  revoking  and  setting  aside  his  former  order  and  condemning 
the  schoolhouse,  an  appeal  having  been  taken  from  the  latter  order,  and  it  appearing 
upon  said  appeal  that  in  making  said  order  appealed  from,  said  commissioner  unduly 
and  unwisely  exercised  his  power  and  discretion  in  the  maUer,  such  order  appealed  from 
should  be  vacated  and  set  aside. 

Decided  June  i,  1894 

George  W.  Marvin,  attorney  for  appellant 
George  W.  Ray,  attorney  for  respondent 


JUDICIAL  decisions:     schoolhouses  853 

Crooker,  Superintendent 

This  appeal  is  taken  from  the  order  of  the  respondent,  dated  February  12, 
1894,  revoking  and  setting  aside  an  order  and  consent,  made  by  him,  dated  Jan- 
uary 22,  1S94,  in  which  he  approved  of  certain  plans  and  specifications  submitted 
to  him  for  repairing  the  schoolhouse  in  district  no.  13,  town  of  New  Berlin, 
Chenango  county,  and  of  the  sum  voted  by  the  district  for  such  repairs,  and 
directing  a  tax  to  be  levied  therefor;  and  in  which  order,  dated  February  12, 
1894,  he  condemns  the  schoolhouse  in  said  district  as  wholly  unfit  for  use  and 
not  worth  repairing,  and  states  as  his  opinion  that  the  sum  of  $780  will  be  neces- 
sary to  erect  a  schoolhouse  capable  and  sufficient  to  accommodate  the  children 
of  said  district. 

The  appeal  is  founded  upon  various  grounds  stated  therein,  the  principal 
ones  being  that  the  respondent  in  his  order  of  January  22,  1894,  in  approving 
of  the  action  of  the  special  meeting  of  said  district,  held  on  January  16,  1894, 
relative  to  repairing  said  school  and  of  the  plans  and  specifications  for  such 
repairs,  and  the  sum  voted  to  be  raised  for  such  repairs,  acted  under  a  full 
knowledge  of  the  subject  matter;  and  that  said  order  of  February  12,  1894,  was 
improvidently  granted,  wasteful  and  extravagant  in  that  it  contemplated  a  com- 
plete destruction  of  the  present  school  building  and  of  the  materials  therein,  thus 
subjecting  the  district  to  an  unnecessary  and  burdensome  tax. 

It  appears  from  the  proofs  presented  herein  that  the  territory  forming  said 
school  district  no.  13,  New  Berlin,  consists  principally  of  farming  land,  the 
exception  being  a  summer  hotel  known  as  the  "  Chenango  Lake  Hotel,"  a  saw 
mill,  grist  mill  and  planing  mill  combined,  and  a  post  office,  all  of  which  are 
located  within  fifty  rods  of  the  schoolhouse  of  said  district;  that  there  is  no 
village  situate  within  or  near  the  boundaries  of  said  district ;  that  the  number  of 
children  of  school  age  residing  within  said  district  is  about  18,  and  the  whole 
number  attending  the  school  therein,  at  the  term  of  school  ending  on  December 
22,  1894,  was  15,  I  of  whom  was  a  nonresident;  that  the  aggregate  assessed 
valuation  of  the  taxable  property  in  the  district  is  $22,225 ;  that  the  schoolhouse 
in  said  district  was  constructed  in  the  year  1859,  is  a  wooden  building  of  the 
dimensions  of  about  22  by  26  feet  on  the  outside  and  about  21^  by  25 
feet  on  the  inside,  about  gJ4  feet  high  in  the  clear,  and  has  a  seating  capacity 
suflicient  to  afford  ample  accommodation  for  40  pupils  with  seats  and  desks,  with 
ample  passageways,  platform,  stove  and  recitation  seals,  after  taking  out  entry- 
ways  and  clothes  closets;  that  the  said  schoolhouse  is  not  in  proper  repair  or 
condition  for  the  maintenance  of  a  school  therein,  and  that  its  condition  and  the 
necessity  of  making  repairs  thereon  or  constructing  a  new  schoolhouse  in  place 
of  the  present  schoolhouse  has  been  the  subject  of  consideration  and  discussion 
in  said  district  for  some  time;  that  in  September  1893,  in  an  interview  between 
the  appellant  and  respondent,  the  appellant  stated  to  the  respondent  that  it  was 
advisable  to  repair  said  schoolhouse,  and  the  cost  of  such  repairs  would  exceed 
.-the  sum  which  he  (the  appellant)  was  allowed  to  expend  without  a  vote  of  the 
district,  and  requested  the  respondent  to  examine  the  schoolhouse  and  in  case 
a  school  meeting  should  be  called  to  assist  him  (the  appellant)  at  such  meeting; 


854  THE   UNIVERSITY    OF   THK   STATE    OF    NEW    YORK 

thvit  the  appellant  had  drawn  a  call  for  a  special  meeting  of  the  voters  of  said 
district  to  vote   u])on   the   question   as  to   whether   the   schoolhouse   should   be 
repaired  or  a  new  schoolhouse  be  built,  which  draft  was  shown  to  the  respondent 
and  verbally  approved  by  him;  that  on  or  about  December  10,  1893,  the  respond- 
ent went  to  said  school  district  and  to  said  schoolhouse  without  notifying  the 
appellant,  and  in  the  absence  and  without  the  knowledge  of  the  appellant,  made 
an  examination  of  said  schoolhouse,  and  on  December  15,  1893,  made  an  order 
condemning  said  schoolhouse  as  wholly  unfit  for  use  and  not  worth  repairing, 
and  certifying  that  in  his  opinion  the  sum  of  $750  would  be  necessary  to  erect 
a  schoolhouse  in  said  district  capable  of  accommodating  the  children  of  the  dis- 
trict, which  order  was  filed  with  the  clerk  and  trustee  of  said  district  and  a  copy 
thereof  sent  to  the  Superintendent  of  Public  Instruction;  that  on  January   5, 
1894,  the  appellant  gave  notice  of  a  special  meeting  of  said  school  district  to 
be  held  on  January  16,  1894,  for  the  purpose  of  taking  into  consideration  and 
voting  upon  the  question  of  building  a  new  schoolhouse  or  repairing  the  one  now 
used  for  school  purposes  and  for  voting  tax,  etc.,  said  call  being  an  exact  copy 
of  the  draft  of  call  exhibited  to  the  respondent  by  the  appellant  at  their  inter- 
view in  September  1893;  that  said  special  meeting  was  duly  held  on  January  16, 
1894,  and  the  appellant  submitted  to  the  meeting  plans  and  specifications  that  he 
had  caused  to  be  prepared  for  repairing  said  schoolhouse,  with  the  estimated  cost 
thereof ;  that  said  meeting  voted  by  ballot  upon  a  resolution  whether  a  new  school- 
house  be  built  or  the  old  one  be  repaired,  in  favor  of  repairing  the  present  school- 
house  by  a  vote  of  9  in  favor  of  repairing  and  3  in  favor  of  a  new  schoolhouse ; 
that  said  meeting  unanimously  adopted  the  following  plans  and  specifications  for 
repairs  to  said  schoolhouse:  New   roof,  cove  siding,  windows,  casings,  floors, 
doors,  chimney,  ceiling  of  Georgia  pine,  seats  and  desks,  building  paper  for  out- 
side foundation  to  be  laid  in  mortar,  three  windows  each  at  the  sides  of  the  room 
and  none  at  the  rear  end,  clothesroom,  entry  way  and  partitions  as  now,  or 
nearly  so,  as  in  the  old  house,  the  ceilings  to  be  properly  oiled  and  outside  to 
be  properly  painted  with  two  coats  or  more  if  needed,  such  repairs  to  be  made 
of  good  material  and  to  be  done  in  a  good  workmanlike  manner  and  the  school- 
house  to  be  properly  ventilated,  heated  and  lighted  as  follows:  windows  to  be 
lowered  from  tops  and  raised  from  bottoms  and  a  register  in  ceiling  over  the 
stove,  the  room  to  be  heated  by  a  stove  in  about  the  same  position  as  the  present 
one;  the  light  will  come  from  three  windows  on  each  side;  that  upon  a  vote  by 
ballot  a  resolution   was  adopted  by   10  votes   in  the  affirmative  and  2  in  the 
negative  levying  a  tax  for  the  sum  of  S562.50  for  paying  the  expense  of  such 
repairs;  that  the  meeting  adjourned  for  two  weeks;  that  on  January  20,  1894, 
the  appellant  delivered  to  and  left  with  the  respondent  personally  a  copy  of 
the  proceedings  of  said  special  meeting  of  January  16,  1894,  which  the  respond- 
ent retained,  and  on  January  22,  1894,  the  appellant  and  respondent  met  at  Nor- 
wich, X.  Y.,  went  to  the  law  office  of  George  W.  Marvin  and  the  respondent 
requested  said  Marvin  to  draft  an  approval  of  said  action  so  taken  at  said  special 
meeting  of  said  district  for  him  to  sign ;  that  said  Marvin  drew  a  paper,  stating 


JUDICIAL  decisions:     schoolhouses  855 

in  substance  that  the  inhabitants  of  said  school  district  at  a  meeting  regularly 
called  and  held  had  voted  to  repair  the  present  schoolhouse  therein  in  a  certain 
manner  with  certain  specifications  as  to  ventilation  and  to  expend  the  sum  of 
$562.50,  or  so  much  thereof  as  may  be  necessary  to  make  such  repairs,  and  that 
a  minute  of  such  proceedings,  properly  signed  by  the  proper  officers,  is  hereto 
attached ;  that  the  same  having  been  read  and  examined  by  him  (the  respondent) 
that  he  (the  respondent)  as  commissioner  etc.,  does  hereby  consent  to  and 
approve  of  the  repairs  and  specifications  therefor,  for  the  repairs  of  said  school- 
.house  as  voted  at  said  meeting,  and  also  that  a  sum  not  exceeding  $562.50  be 
raised  by  tax  and  expended  in  making  such  repairs  according  to  the  plans  and 
specifications  named  in  said  minutes  thereto  attached,  such  repairs  to  be  made 
by  or  under  the  directions  of  the  trustee  in  said  district,  and  ordering  that  the 
same  be  done  soon  as  possible  after  May  i,  1894;  that  to  said  paper,  consent  or 
order  was  attached  a  copy  of  the  proceedings  of  the  special  meeting  of  said 
district  held  on  January  16,  1894,  signed  by  the  chairman  of  said  meeting  and 
the  trustees  and  clerk  of  the  district;  that  paper  or  order  was  dated  January  22, 
1894,  and,  after  the  same  was  examined  by  the  respondent,  was  signed  by  him 
as  school  commissioner  of  the  first  commissioner  district  of  Chenango  county ; 
that,  at  the  request  of  the  respondent,  the  appellant  permitted  him  to  take  said 
paper  home  with  him  to  make  a  copy  thereof,  and  on  January  26,  1894,  received 
said  paper  from  said  Marvin,  to  whom  the  respondent  had  delivered  said  paper 
to  be  delivered  to  the  appellant;  that  after  the  making  and  signing  of  the  said 
paper  by  respondent,  the  appellant  made  out  a  tax  list  and  assessment  for  the 
sum  of  $555.67  upon  the  taxable  property  of  said  district,  and  delivered  the  same, 
with  his  warrant,  to  the  collector  of  said  district;  that  the  adjourned  special 
meeting  of  said  district  was  held  on  January  30,  1894,  at  which  the  said  paper  or 
order  of  January  22,  1894,  signed  by  the  respondent,  was  presented  and  recorded 
in  the  school  register,  and  the  trustee  was  empowered  to  have  the  work  of  repairs 
to  the  schoolhouse  let  by  contract,  that  suitable  blinds  be  put  on  the  windows 
on  the  outside,  an  eave  trough  be  furnished  for  west  side  of  house  if  necessary, 
or  grading  be  done  to  avoid  water  striking  against  the  house ;  that  if  necessary 
the  building  be  raised;  that  the  size  of  the  schoolhouse  remain  as  at  present: 
that  a  modern  blackboard  be  placed  at  the  south  end  of  schoolroom ;  that  if  new 
studding  be  necessary  it  be  procured;  that  privies  be  constructed  in  accordance 
with  the  law;  that  all  material  that  will  answer  without  detriment  to  the  new 
work  be  used,  in  the  judgment  of  the  building  committee;  that  on  February  12, 
1894,  the  respondent  made  his  order  revoking  his  order  of  January  22,  1894, 
and  condemning  said  schoolhouse,  which  is  the  order  appealed  from  by  the  appel- 
lant as  trustee  of  said  district,  pursuant  to  a  vote  of  said  district  at  a  special 
meeting  held  therein  on  February  21,  1894,  directing  said  appeal  to  be  taken. 

It  also  appears  from  allegations  contained  in  the  affidavits  in  support  of  this 

appeal,  and  which  are  not  denied,  that  for  some  years  one  Loomis,  the  pro- 

•prietor  of  the  summer  hotel  near  the  schoolhouse,  has  been  urging  the  voters  of 

the  district  to  build  a  new  two-story  school  building,  thereby  afifording  facilities 


856  THE   UXIVKRSITV    OF   THE   STATE    oF    NEW    YORK 

for  a  public  hall  in  said  building,  to  be  used  for  religious  meetings,  concerts  and 
other  gatherings,  and  that  said  district,  while  willing  to  repair  the  present  school- 
house  or  build  a  new  schoolhouse  of  sufficient  dimensions  for  school  purposes 
and  to  acconir.Hvlate  the  children  attending  the  school,  have  steadily  refused  to 
construct  a  two-story  building. 

There  is  a  conflict  of  opinions,  as  set  out  in  the  affidavits  on  both  sides,  of 
carpenters  as  to  the  amount  of  and  value  of  the  material  in  the  present  scliool- 
house  that  can  be  used  in  a  new  building  or  repairing  the  old  one.  I  am  of  the 
opinion  that  it  is  established  that  if  the  present  building  should  be  sold,  as  it 
stands,  that  not  more  than  twenty-five  dollars  could  be  obtained  for  it,  and  that 
if  the  schoolhouse  is  repaired  in  accordance  with  the  plans  and  specifications 
adopted,  material  in  the  value  of  $75  to  $100  in  the  present  building  could  be 
used  advantageously  in  making  such  repairs. 

Under  the  provisions  of  section  13  of  title  2  of  the  Consolidated  School  Law 
of  1S64  and  the  amendments  thereof,  every  school  commissioner  shall  have  the 
power,  and  it  shall  be  his  duty,  by  an  order  under  his  hand,  reciting  the  reason 
or  reasons,  to  condemn  a  schoolhouse  if  he  deems  it  wholly  unlit  for  use  and 
not  worth  rej)airing;  such  order,  if  no  time  for  its  taking  effect  be  stated  therein, 
shall  take  effect  immediately ;  he  shall  also  state  what  sum,  not  exceeding  $800, 
will,  in  his  opinion,  be  necessary  to  erect  a  schoolhouse  capable  of  accommodat- 
ing the  children  of  the  district.  Immediately  ui)on  the  receipt  of  such  order  the 
trustee  or  trustees  shall  call  a  special  meeting  of  the  inhabitants  for  the  purpose 
of  considering  the  question  of  building  a  schoolhouse  thereon,  and  such  meeting 
shall  have  power  to  determine  the  size  of  the  schoolhouse  and  the  material  to 
be  used  in  its  erection  and  to  vote  a  tax  to  build  the  same;  but  shall  have  no 
power  to  reduce  the  estimate  made  by  the  commissioner  by  more  than  25  per 
centum  of  such  estimate.  Where  no  tax  for  building  such  house  shall  have  been 
voted  by  such  district  within  thirty  days  from  the  time  of  holding  the  first  meet- 
ing to  consider  the  question,  it  is  the  duty  of  the  trustee  or  trustees  to  contract 
for  the  building  of  the  schoolhouse  and  to  levy  a  tax  for  the  same. 

I  he  [)ower  conferred  upon  school  commissioners  by  the  section  above  cited 
is  an  arbitrary  one.  and  the  exercise  of  such  power  is  usually  reserved  until 
after  a  district  has  refused  to  build,  or  it  becomes  apparent  that  it  is  not  the 
iiUcntion  of  the  inhabitants  to  take  any  steps  in  the  proper  direction.  Such 
orders,  under  the  school  law  and  decisions  of  this  Department,  are  not  irrevo- 
cable and  may  be  amended  or  revoked  by  the  commissioner,  and  an  appeal  may 
be  taken  therefrom  to  me.  Indeed,  many  of  such  orders,  u!)on  consultation  with 
school  district  officers  and  voters,  and  upon  further  consideration  or  review,  or  a 
fuller  statement  of  the  situation  of  matters  in  the  district,  have  been  revoked  or 
amended. 

W  hde  under  the  school  law  it  is  the  duty  of  the  trustees  of  a  district,  after 
an  order  for  the  condemnation  of  a  schoolhouse  is  served  upon  them,  to  immedi- 
ately call  a  special  meeting  of  the  inhabitants  for  the  purpose  of  considering  the 
question  of  building  a  schoolhouse,  such  trustees  are  not  prohibited  from  calling 
such  meeting  for  the  purpose  of  considering  the  construction  of  a  schoolhouse, 


JUDICIAL  decisions:     schoolhouses  857 

or  repairing  the  schoolhouse.  If,  however,  the  order  of  condemnation  shall  not 
be  appealed  from,  or  altered,  modified  or  revoked,  so  much  of  the  action  of  the 
special  meeting  for  the  repairs  of  the  schoolhouse  would  not  be  operative,  and  if 
the  voters  of  the  district  failed  to  consider  the  question  of  the  construction  of 
the  schoolhouse  under  an  order  of  confirmation  not  appealed  from  or  modified, 
altered  or  revoked,  and  vote  a  tax  to  build  the  same,  and  no  tax  was  voted  within 
thirty  days  after  the  time  of  holding  the  first  meeting  to  consider  the  question,  it 
is  the  duty  of  the  trustees  to  proceed,  under  the  provisions  of  law  above  cited, 
and  their  failure  to  do  so  would  be  a  wilful  violation  and  neglect  of  duty  on 
their  part.  At  a  special  meeting  in  said  district,  held  on  January  16,  1894,  the 
question  of  building  a  schoolhouse  was  considered,  in  voting  upon  the  resolution 
of  building  a  new  schoolhouse  or  repairing  the  present,  and  decided  to  repair  by 
the  affirmative  vote  of  two-thirds  of  the  whole  number  of  votes  cast.  It  adopted 
plans  etc.,  for  such  repairs  and  voted  to  raise  the  sum  of  $562.50  to  pay  for  the 
same,  and  adjourned  for  two  weeks;  that  on  January  20,  1894,  the  appel- 
lant delivered  personally  to  the  respondent  copies  of  the  proceedings  of  said 
meeting  for  the  approval  of  the  respondent,  and  the  respondent  named  January 
22,  1894,  at  the  law  office  of  Mr  Marvin,  in  Norwich,  as  the  time  and  place  to 
meet  the  appellant  upon  the  matter  of  such  approval;  that  the  appellant  and 
respondent  did  meet  at  the  time  and  place  appointed  and  said  Marvin,  at  the 
request  of  respondent,  drew  a  paper  in  which  such  proceedings  of  said  special 
meeting  were  approved  by  the  respondent,  and  the  paper  was  signed  by  him  on 
January  22,  1894;  that  the  respondent,  with  the  consent  of  the  appellant,  retained 
such  paper,  having  annexed  thereto  a  copy  of  the  plans  etc.,  adopted  for  the 
repairs  of  the  schoolhouse,  for  the  purpose  of  making  a  copy  and  subsequently 
delivered  it  to  Mr  Marvin,  who,  on  January  26,  1S94,  delivered  it  to  appellant. 

The  respondent,  when  he  signed  such  order  and  approval  on  January  22, 
1894,  had  been  a  school  commissioner  for  three  years,  and  had  occasion  to  visit 
the  schoolhouse  in  said  district  on  several  occasions;  he  made  a  special  visit  in 
December  1893,  prior  to  making  his  first  order  for  the  condemnation  of  the 
schoolhouse;  he  had  knowledge  of  the  style  of  the  school  building,  its  capacity 
and  its  condition;  that  the  district  was  comprised  of  a  farming  locality  remote 
from  any  village,  had  but  about  twenty  children  of  school  age  residing  therein, 
with  an  average  school  attendance  of  about  nine,  and  that  there  was  no  prospect 
of  any  large  increase  in  numbers;  that  the  aggregate  valuation  of  taxable  prop- 
erty was  about  $32,000;  that  he  had  had,  for  several  days,  a  full  copy  of  the 
proceedings  of  the  special  meeting  of  the  district  of  January  i6th,  showing  that 
two-thirds  of  the  voters  present  were  opposed  to  building  a  new  schoolhouse,  and 
a  full  copy  of  the  plans  and  specifications  of  the  manner  of  repairing  the  school- 
house,  and  the  amount  of  money  to  be  expended  in  such  repairs;  that  upon  such 
knowledge  and  the  facts  presented  to  him  he  made  such  order  and  approval. 

In  my  opinion,  the  action  of  the  respondent  in   said  order  and  approval, 
""signed  by  him  on  January  22,  1894,  was  a  wise  exercise  of  power  and  discretion 
on  his  part,  and  I  hold  that  said  order  and  approval  were  a  revocation  of  the 
order  of  December  15,  1893,  condemning  said  schoolhouse. 


858  Tin-:    UM\  I-KSII  N-    OF    Till-.    STATK    OF    Ni:\V    YORK 

The  respoTuknt,  on  l\bruary  12,  1894,  made  the  order  appealed  from  herein, 
revoking  his  order  and  api)roval  of  January  22,  1894,  and  again  condemning  said 
schoolhousc.  The  respondent  alleges  in  his  answer  that  he  revoked  his  order  of 
approval  of  the  proposed  repairs,  on  application  of  three  persons,  named  by  him, 
who  were  residents  and  taxpayers  of  the  district ;  but  he  does  not  make  proof  of 
any  fact  brought  to  his  attention  relative  to  the  sentiment  in  the  district  upon 
the  question  of  repairing  or  building  that  was  not  before  him  upon  the  applica- 
tion made  to  him  for  his  order  or  approval  of  January  22,  1894,  contained  in 
the  proceedings  of  the  district  meeting  of  January  16,  1894,  nor  of  anything 
brought  to  his  knowledge  different  from  that  before  him  when,  on  January  22, 
1894,  lie  approved  of  the  action  of  the  district  meeting  in  repairing  the  school- 
house. 

L'pon  the  papers  and  proofs  presented  herein,  I  am  of  the  opinion  that 
the  said  schoolhousc,  if  repaired  in  accordance  with  the  plans  and  specifications 
adopted  at  the  meeting  of  the  district,  will  be  practically  a  new  schoolhouse, 
affording  ample  accommodation  to  the  pupils  residing  in  said  district,  and  be 
convenient  and  comfortable  for  use,  well  lighted,  ventilated  and  warmed;  that  it 
was  an  undue  and  unwise  exercise  of  power  and  discretion  on  the  part  of  the 
respondent  in  making  such  order  of  February  12,  1894,  and  that  the  appeal  herein 
should  be  sustained,  and  said  order  of  respondent  be  vacated  and  set  aside. 

Appeal  sustained. 

It  is  ordered,  That  the  order  made  by  Dennis  Thompson,  school  commis- 
sioner of  the  first  commissioner  district  of  the  county  of  Chenango,  dated  Febru- 
ary 12,  1894,  condemning  the  schoolhouse  in  school  district  no.  13,  town  of  New 
Hcrlin,  Chenango  county,  and  revoking  a  former  order  or  approval  of  the  action 
of  the  special  meeting  of  said  district,  held  on  January  16.  1894,  which  order  or 
approval  was  dated  January  22,  1894,  be,  and  the  same  hereby  is,  vacated  and 
set  aside. 


5076 

In  the  matter  of  the  appeal  of  William  S.  Carr  and  Frank  E.  Doolittlc  as  resi- 
dents and  legal  voters  in  and  William  S.  Carr  as  trustee  of  school  district  6, 
Elmira,  Chemung  county  v.  Jess  S.  Kellogg  as  school  commissioner  of 
Chemung  county. 

Where  in  any  common  school  district  the  schoolhouse  therein  has  been  condemned  by  the 
school  commissioner  having  jurisdiction  as  totally  unfit  for  use  and  not  w^orth  repairing 
and  subsequently  at  a  duly  called  and  held  school  meeting  of  the  district  a  new  school- 
house  site  is  designated,  the  consent  of  the  school  commissioner  to  the  change  of  site 
is  not  necessary  under  the  provisions  of  section  19,  article  2,  title  7  of  the  Consolidated 
School  Law  for  the  reason  that  there  was  not  at  the  time  of  the  designation  of  such 
new  site  any  schoolhouse  within  the  meaning  of  the  school  law  situated  upon  or  in 
process  of  erection  upon  the  site  then  owned  by  the  district. 

Decided  May  18,   1903 

Roswell  R.  Moss,  attorney  for  appellants 
Jess  S.  Kellogg,  respondent  in  person 


JUDICIAL    DECISIONS  :       SCHOOLHOUSES  859 

Skinner,  Superintendent 

This  is  an  appeal  by  William  S.  Carr  and  Frank  E.  Doolittle  as  residents 
and  legal  voters  in  and  William  S.  Carr  as  trustee  of  school  district  6,  Elmira, 
Chemung  county  from  the  decision  of  Jess  S.  Kellogg  as  school  commissioner  of 
Chemung  county  refusing  his  consent  to  change  the  site  of  the  schoolhouse  of 
such  district. 

The  appeal  herein  was  filed  in  this  Department  June  23,  1902  and  July  2, 
1902  Commissioner  Kellogg  filed  his  answer  thereto. 

The  main  grounds  alleged  by  the  appellants  for  bringing  the  appeal  herein 
are  that  Commissioner  Kellogg  did  not  wisely  exercise  the  discretion  given  him 
under  the  Consolidated  School  Law  in  such  refusal  to  consent  to  such  change  of 
site,  and  at  the  time  the  district  designated  such  new  site  and  Trustee  Carr 
applied  for  such  consent  there  was  not  a  schoolhouse  erected  or  in  process  of 
erection  upon  the  site  then  owned  by  the  district  and  therefore  no  consent  of 
the  commissioner  was  required  to  a  change  of  such  site  by  the  district. 

The  respondent  asks  that  the  appeal  herein  be  dismissed  on  various  grounds 
alleged  in  his  answer. 

It  is  in  proof  that  some  fifty  years  ago  school  district  6,  Elmira,  Chemung 
county  was  duly  organized,  a  school  site  designated  and  a  schoolhouse  erected 
thereon.  From  the  time  of  such  organization  of  such  district  until  a  few  years 
ago  the  site  upon  which  the  schoolhouse  was  situated,  as  regards  the  school  popu- 
lation in  the  district,  was  near  the  center  of  such  population.  In  the  past  few 
years  such  school  population  has  largely  increased  in  the  eastern  and  southern 
portions  of  the  district  and  has  almost  entirely  ceased  in  the  northern  and  west- 
ern portions.  The  records  of  this  Department  show  that  the  number  of  children 
enrolled  in  the  district  for  the  school  year  1900-1  was  69,  the  number  that 
attended  49  and  the  average  attendance  33.  In  the  school  year  1901-2  the  num- 
ber enrolled  was  86,  the  number  that  attended  42  and  the  average  attendance  35. 

In  subdivision  4,  section  13,  title  5  of  the  Consolidated  School  Law  of  1894, 
as  such  subdivision  was  amended  by  section  i,  chapter  512,  the  Laws  of  1897,  it  is 
enacted  that  a  school  commissioner,  by  an  order  under  his  hand  reciting  the  rea- 
son or  reasons,  may  condemn  a  schoolhouse,  if  he  deems  it  wholly  unfit  for  use 
and  not  worth  repairing,  and  it  is  his  duty  to  deliver  the  order  to  the  trustee 
or  one  of  them  and  transmit  a  copy  to  the  Superintendent  of  Public  Instruction. 
Such  order,  if  no  time  for  its  taking  eft'ect  be  stated  in  it,  shall  take  efifect  imme- 
diately. He  shall  also  state  what  sum  will  in  his  opinion  be  necessary  to  erect  a 
schoolhouse  capable  of  accommodating  the  children  of  the  district.  Immediately 
upon  receipt  of  said  order  the  trustee  or  trustees  of  such  district  shall  call  a 
special  meeting  of  the  inhabitants  of  said  district  for  the  purpose  of  considering 
the  question  of  building  a  schoolhouse  therein  etc. 

August  7,  1901  School  Commissioner  Kellogg  of  Chemung  county  filed  in  this 

Department  a  copy  of  an  order  made  by  him  dated  August  5,  1901  in  which  he 

■"certifies  that  August  5,  1901  he  made  an  examination  of  the  schoolhouse  in  school 

district  6,  Elmira  and  after  reciting  the  condition  of  such  schoolhouse  he  stated 


860  THE   UNIVERSITY    OF  THE   STATE   OF   NEW   YORK 

that  he  deemed  it  wholly  unfit  for  use  for  school  purposes  in  such  district  and 
not  worth  repairing  and  thereupon  ordered  that  such  schoolhouse  be  and  the 
same  was  condenuied.  He  further  certified  that  the  sum  of  $3600  would  in  his 
opinion  be  sufticient  to  build  a  schoolhouse  for  the  needs  of  said  district. 

Xo  appeal  has  been  taken  to  me  from  such  order  of  condemnation,  and 
such  order  remains  in  full  force  and  effect. 

April  22,  1902  at  a  special  meeting  held  in  such  district,  called  by  the  trustee 
of  the  district  for  the  purpose  "  of  selecting,  designating  and  describing  a  new 
site  for  a  schoolhouse  for  the  district  "  a  resolution  was  adopted  by  a  vote  of 
54  ayes  and  52  noes,  the  vote  thereon  being  ascertained  by  taking  and  recording 
the  ayes  and  noes  of  the  qualified  voters  present  and  voting  thereon,  such  reso- 
lution designating  such  new  site  by  metes  and  bounds. 

Subsequently  to  such  special  school  meeting.  Trustee  Carr  communicated  the 
proceedings  taken  thereat  to  Commissioner  Kellogg  and  requested  the  consent  of 
the  commissioner  to  such  change  of  the  site.  On  or  about  May  10,  1902  Trustee 
Carr  received  from  Commissioner  Kellogg  a  letter  dated  May  10,  1902  inclosing 
his  (Kellogg's)  decision  in  writing  under  date  of  May  3,  1901  refusing,  upon 
various  reasons  stated  therein,  to  give  his  consent  to  such  change  of  site.  There- 
upon June  2T„  1902,  the  appellants  herein  brought  their  appeal  from  such  decision 
of  Commissioner  Kellogg. 

1  lie  respondent  asks  that  the  appeal  herein  be  dismissed  for  the  reason 
that  it  was  not  taken  within  thirty  days  after  the  appellants  had  knowledge  of 
such  decision.  Rule  5  of  the  rules  of  practice  of  this  Department  regulating 
appeals  to  the  State  Superintendent  provides  that  such  appeals  must  be  sent  to 
this  Department  within  thirty  days  after  the  making  of  the  decision  or  the  per- 
formance of  the  act  complained  of  or  within  that  time  after  the  knowledge  of 
the  cause  of  complaint  came  to  the  appellant  or  some  satisfactory  excuse  must 
be  rendered  in  the  appeal  for  the  delay.  The  appellants  have  rendered  in  their 
appeal  a  satisfactory  excuse  for  their  delay  in  bringing  their  appeal  and  there- 
fore the  application  of  the  respondent  to  dismiss  the  appeal  is  denied. 

In  section  19,  article  2,  title  7  of  the  Consolidated  School  Law  of  1894  it 
IS  enacted,  "  so  long  as  a  district  shall  remain  unaltered  the  site  of  a  schoolhouse 
owned  by  it,  upon  which  there  is  a  schoolhouse  erected  or  in  process  of  erection, 
shall  not  be  changed  nor  such  schoolhouse  be  removed  unless  by  the  consent  in 
writing  of  the  school  commissioner  having  jurisdiction;  nor  with  such  consent 
unless  a  majority  of  all  the  legal  voters  of  said  district  present  and  voting,  to  be 
ascertained  by  taking  and  recording  the  ayes  and  noes  at  a  special  meeting  called 
for  that  purpose,  shall  adopt  a  written  resolution  designating  such  new  site  and 
describing  such  new  site  by  metes  and  bounds." 

As  the  order  made  by  Commissioner  Kellogg  August  5,  1902  condemning 
the  schoolhouse  in  district  6,  Elmira,  Chemung  county,  which  order  took  effect 
immediately,  has  never  been  revoked,  at  that  date  there  ceased  to  be  any  school- 
house  erected  or  in  i>rocess  of  erection  in  such  district  within  the  intent  and 
meaning  of   said   section    19  above   cited.     When    Commissioner   Kellogg   was 


JUDICIAL    DECISIONS  I       SCHOOLHOUSES  86l 

requested  to  consent  to  a  change  of  the  schoolhouse  site  of  such  district  there 
was  a  building  owned  by  the  district,  but  such  building  had  been  condemned 
August  5,  1901  by  competent  authority  "  as  wholly  unfit  for  use  and  not  worth 
repairing  "  as  a  schoolhouse  or  for  use  for  school  purposes  and  such  building 
is  not  a  schoolhouse  under  the  Consolidated  School  Law. 

I  decide  that  the  consent  of  School  Commissioner  Kellogg  to  the  change 
of  the  schoolhouse  site  of  district  6,  Elmira,  Chemung  county  was  not  required 
under  the  provisions  of  section  19,  article  2,  title  7  of  the  Consolidated  School 
Law  for  the  reason  that  at  the  time  such  site  was  changed  and  such  consent 
asked  there  was  not  a  schoolhouse  then  erected  or  in  process  of  erection  upon 
the  site  then  owned  by  such  district. 

Admitting  for  the  purposes  of  argument  only  that  the  consent  of  Commis- 
sioner Kellogg  to  the  change  of  site  was  required  under  said  section  19,  I  decide 
that  the  decision  of  the  Commissioner,  refusing  to  consent  upon  the  grounds 
stated  by  him,  was  an  unwise  exercise  of  authority  on  his  part  and  his  decision 
should  be  vacated. 

The  growth  of  the  district  in  its  western  portion  and  its  educational  needs 
require  a  larger  site  for  a  schoolhouse  than  that  now  owned  by  the  district  and 
one  located  nearer  the  center  of  such  school  population. 

The  appeal  herein  should  be  sustained  and  the  decision  of  Commissioner 
Kellogg,  refusing  to  consent  to  such  change  of  site,  should  be  vacated  and  set 
aside. 

The  appeal  herein  is  sustained. 

It  is  ordered:  That  the  decision  of  Jess  S.  Kellogg  as  school  commissioner 
of  Chemung  county  dated  May  3,  1902  refusing  to  consent  to  the  change  of  the 
schoolhouse  site  designated  and  adopted  at  a  special  meeting  held  April  22,  1902 
in  school  district  6,  Elmira,  Chemung  county  be  and  the  same  is  hereby  vacated 
and  set  aside  and  altogether  held  for  naught. 


5074 

In  the  matter  of  the  appeal  of  Hiram  Lovell  and  George  W.  Hoffman  2d  from 
special  school  meetings  held  March  5,  April  15  and  April  22,  1902,  in 
school  district  6,  Elmira,  Chemung  county. 

Where  in  a  common  school  district  the  schoolhouse  therein  has  been  condemned  by  a  school 
commissioner  having  jurisdiction  as  wholly  unfit  for  use  and  not  worth  repairing  and 
no  appeal  has  been  duly  taken  from  such  order  of  condemnation,  such  building  ceases 
to  be  a  schoolhouse  of  the  district  within  the  meaning  of  the  provisions  of  the  Con- 
solidated School  Law  relating  to  the  change  of  a  site  of  a  schoolhouse  "upon  which 
there  is  a  schoolhouse  erected  or  in  process  of  erection." 

Decided  May  12,  1903 

-.      Lattin  &  Mills,  attorneys  for  appellants 
Roswell  R.  Moss,  attorney  for  respondents 


86j  the   UNIVEKSITV    UF   TllK    ^JAll.    (H-    NEW    VOKR 

Skinner,  Superintendent 

This  is  an  appeal  from  the  proceedings  of  a  special  meeting  held  March  5, 
1902,  an  adjourned  special  meeting  held  April  15,  1902,  and  a  special  meeting, 
held  April  22,  1902,  in  school  district  6,  Elmira,  Chemung  county. 

The  apj)ellaius  also  ask  me  to  decide  the  proceedings  of  a  special  meeting 
held  on  April  18,  1900,  and  those  of  the  adjourned  meeting  held  on  May  10, 
1900.  were  legal  and  to  take  into  consideration  other  meetings  held  in  such  dis- 
trict during  the  year  1900. 

The  appeal  herein  was  filed  in  this  Department  May  14,  1902.  June  23, 
ic;o2.  William  S.  Carr  and  Frank  E.  Doolittle  filed  an  answer  to  the  appeal. 
July  S,  1902,  the  appellants  filed  a  rei)ly  and  August  18  the  respondents  filed  a 
rejoinder  and  Septemher  13,  1902,  the  appellants  filed  a  surrejoinder. 

The  appeal  herein  was  submitted  to  me  May  i,  1903,  in  an  oral  argument 
made  by  the  attorneys  for  the  respective  parlies. 

The  appellants  allege  various  grounds  for  the  appeal  from  the  special 
school  meetings  held  March  5,  April  15  and  April  22,  1902. 

The  appellants  allege  that  at  the  special  meeting  held  in  said  district  March 
5,  1902,  business  was  transacted  other  than  that  specified  in  the  notice  calling 
the  meeting.  The  notice  for  such  meeting  was  dated  February  27,  1902,  and 
stated  that  a  special  school  meeting  of  the  electors  of  the  district  would  be 
held  on  March  5,  1902,  at  8  p.  m.  for  the  purpose  of  "  considering  the  question 
of  building  a  new  schoolhouse  in  said  district." 

It  appears  that  on  the  evening  of  March  5,  1902,  between  90  and  100  of 
the  qualified  voters  of  such  district  assembled  and  after  the  meeting  was  organ- 
ized a  resolution  was  ofTered  by  Mr  Doolittle  to  the  effect  that  at  the  end  of 
the  then  school  year  the  schoolhouse  and  site  of  the  district  be  abandoned  for 
school  purposes ;  a  new  schoolhouse  be  built  on  a  new  site,  such  site  to  be 
located  not  more  than  100  feet  west  of  Hendy  avenue ;  and  the  sum  of  $2800 
be  appropriated  for  the  school  building,  and  the  further  sum  of  $1000  or  as 
much  less  as  is  necessary  be  appropriated  for  the  purchase  of  such  site,  the 
sum.s  of  money  to  be  raised  in  the  manner  to  be  determined  at  an  adjourned  meet- 
ing to  be  held  on  the  third  Tuesday  of  April ;  and  that  a  committee  be  appointed 
to  select  a  site,  agree  upon  a  price  and  report  at  such  adjourned  meeting  for 
confinnation  or  rejection.  A  motion  was  made  to  amend  such  resolution  to 
the  effect  that  the  district  erect  a  new  school  building  on  the  property  owned 
by  the  district,  but  upon  a  vote  the  amendment  was  defeated  and  thereupon 
the  resolution  of  Mr  Doolittle  was  adopted  by  an  aye  and  no  vote  of  56  ayes 
and  42  noes,  and  a  committee  consisting  of  three  persons  was  appointed  and 
the  meeting  adjourned  to  April  15,  1902,  at  8  p.  m.  April  15,  1902,  an  adjourned 
meeting  was  held  at  which  the  report  of  the  committee  on  site  was  read  by  the 
chairman.  The  chairman  exhibited  plans  for  schoolhouses  furnished  by  the 
State  Superintendent  of  Public  Instruction.  A  motion  to  adopt  the  plan  fur- 
nished was  adopted  and  the  meeting  adjourned  without  day. 


JUDICIAL  decisions:     schoolhouses  863 

April  16,  1902,  Trustee  Carr  issued  a  notice  for  a  special  scliool  meeting 
to  be  held  at  the  schoolhouse  in  said  district  April  22,  1902,  at  8  p.  m.,  for  the 
jjurposes  of  selecting,  designating  and  describing  a  new  site  for  the  schoolhouse 
in  such  district.  Such  notice  was  duly  posted  in  accordance  with  a  resolution 
adopted  at  the  annual  meeting  held  in  said  district  August  6,  1901,  under  the 
])rovisions  contained  in  section  6  of  article  i,  title  7  of  the  Consolidated  School 
Law  of  1894,  authorizing  the  inhabitants  of  any  district,  at  an  annual  meeting, 
to  adopt  a  resolution  prescribing  some  other  mode  of  giving  notice  of  special 
meetings  than  that  prescribed  in  said  section  6.  April  22,  1902,  over  100  voters 
of  such  district  assembled  in  the  building  formerly  used  as  the  schoolhouse  of 
the  district  and  organized  by  the  choice  of  William  S.  Carr,  chairman ;  Charles 
Camp,  district  clerk,  acted  as  clerk.  Mr  Doolittle  offered  the  following  reso- 
lution : 

Resolved,  That  the  site  for  a  new  schoolhouse  in  district  6,  Elmira,  be 
changed  from  its  present  situation  to  that  designated  property  in  said  district 
described  as  follows:  commencing  at  a  point  eighty-two  (82)  feet  from  north 
line  of  tobacco  shed  line  owned  by  B.  G.  Smith  at  the  center  of  Hendy  avenue ; 
thence  north  two  hundred  (20Q)  feet  on  Hendy  avenue;  thence  east  to  W.  F. 
Campbell  line  three  hundred  (300)  feet,  more  or  less,  as  measured  by  site 
committee:  thence  south  two  hundred  (200)  feet  to  a  stake;  thence  west  three 
hundred  (300)  feet  to  the  place  of  beginning,  being  the  same  premises  conveyed 
to  the  said  B.  G.  Smith  by  George  W.  Hoffman  and  wife  by  deed  dated  April 
18,  1898,  and  recorded  in  the  Chemung  county  clerk's  office  April  20,  1898. 

An  aye  and  no  vote  was  taken  upon  the  adoption  of  such  resolution  which 
resulted  in  54  votes  aye  and  52  votes  no.  Thereupon  the  meeting  adjourned 
without  day. 

Under  section  6,  article  i,  title  7  of  the  Consolidated  School  Law  of  1894 
a  special  district  meeting  shall  be  held  when  called  by  the  trustees.  The  notice 
thereof  shall  state  the  purposes  for  which  it  is  called,  and  no  business  shall  be 
transacted  at  such  special  meeting  except  that  which  is  specified  in  the  notice. 

Said  school  law  also  requires  that  the  designation  of  a  schoolhouse  site 
for  a  school  district  can  only  be  made  at  a  special  meeting,  duly  called  for  that 
purpose,  by  a  written  resolution  in  which  the  proposed  site  shall  be  described  by 
metes  and  bounds,  and  which  resolution  must  receive  the  assent  of  a  majority 
of  the  qualified  voters  present  and  voting,  to  be  ascertained  by  taking  and  record- 
ing the  ayes  and  noes. 

The  special  meeting  called  for  March  5,  1902,  was,  as  stated  in  the  notice, 
for  considering  the  question  of  building  a  new  schoolhouse  in  the  district.  The 
meeting  did  not  take  any  action  authorizing  the  building  of  a  schoolhouse  for 
the  district  upon  its  present  site,  but  considered  a  proposition  of  obtaining  a 
new  schoolhouse  site  and  erecting  a  new  schoolhouse  thereon.  At  the  adjourned 
meeting  held  April  15,  1902,  no  action  was  taken  with  reference  to  the  erection 
of  a  new  schoolhouse. 
'"'.  The  special  meeting  held  April  22,  1902,  was  called  for  the  purpose  of 
desip-natino-   a   new    site    for   a   schoolhouse   and   the   meeting   when   assembled 


864  TIIK   UNIVERSITY    (IF   THE   STATE   OF    NEW    YORK 

designated  such  new  site  by  a  written  resolution  describing  the  site  by  metes 
and  bounds,  and  such  resolution  received  the  votes  of  a  majority  of  the  quali- 
fied voters  of  the  district  present  and  voting,  such  vote  being  ascertained  by 
takine  and  recording  the  ayes  and  noes. 

A  vote  to  change  a  schoolhouse  site  may  be  taken  at  a  district  meeting, 
duly  called  and  held  for  that  purpose,  before  the  consent  of  the  school  com- 
missioner having  jurisdiction  is  applied  for. 

School  meetings  have  the  power  to  alter,  repeal  and  modify  their  proceed- 
ings from  time  to  time  as  occasion  may  require  or  it  shall  be  decided.  The 
power  to  repeal  proceedings  must  be  exercised  before  they  have  been  carried 
into  etYect  whereby  other  parties  have  acquired  rights  or  incurred  responsibilities. 
Any  resolution  directly  or  necessarily  repugnant  to  a  previous  one  repeals  it, 
whether  the  intent  to  rei)eal  is  stated  therein  or  not. 

I  am  not  aware  of  any  provision  of  the  school  law  that  prevents  a  school 
district  meeting  adjourning  for  more  than  a  month.  Subdivision  3,  section  34. 
article  4,  title  7,  of  such  law  enacts  that  it  shall  be  the  duty  of  the  district 
clerk  to  affix  a  notice,  in  writing,  of  the  time  and  place  of  any  adjourned  meet- 
ing when  the  meeting  shall  have  adjourned  for  a  longer  time  than  one  month, 
in  at  least  five  of  the  most  public  places  in  such  district  at  least  five  days  before 
the  time  appointed  for  such  adjourned  meeting.  This  Department  has  held 
that  the  failure  of  the  clerk  to  post  such  notices  would  not  of  itself  invalidate 
the  proceedings  taken  at  such  adjourned  meeting. 

The  contention  of  the  appellants  that  subdivision  7,  section  14,  article  i, 
title  7,  of  the  Consolidated  School  Law  of  1894  and  section  19,  article  2,  title 
7.  of  said  law  or  either  of  them  requires  that  notice  of  a  special  meeting  called 
to  designate  a  new  site  for  a  schoolhouse  in  a  district  must  contain  therein  a 
description  of  the  proposed  site  is  not  tenable.  Said  sections  only  require  that 
the  notice  shall  state  that  the  meeting  is  called  for  the  purpose  of  designating 
such  new  site  but  the  meeting  must  adopt  a  resolution  designating  such  new 
site  by  metes  and  bounds.  Subdivision  7,  section  14,  article  i.  title  7,  of  such 
law  relates  only  to  the  designation  of  school  sites  in  the  formation  of  new  school 
districts.  It  is  claimed  as  there  is  no  comma  after  the  word  purpose  in  sub- 
division 7  the  notice  calling  the  special  meeting  must  contain  a  resolution  describ- 
ing the  proposed  site  by  metes  and  bounds.  The  courts  have  held  that  "  there 
is  no  punctuation  in  a  statute  which  ought  to  rule ;  the  general  rule  is  that 
punctuation  is  not  part  of  a  statute;''  in  matter  of  application  of  Brooklyn 
Elevated  Railroad  Company,  etc.,  125  N.  Y.  434. 

I  must  decline  to  express  any  opinion  as  to  the  proceedings  taken  at  school 
meetings  held  in  said  school  district  6  in  the  year  1900,  copies  of  which  are 
annexed  to  the  appeal  herein. 

The  records  of  tliis  Department  show  that  August  5,  1901,  Jess  S.  Kellogg, 
as  school  commissioner  of  Chemung  county,  condemned  the  schoolhouse  in 
school  district  6,  Elmira.  Chemung  county,  as  wholly  unfit  for  use  and  not 
worth  repairing.     No  appeal  was  taken  to  me  from  such  order,  and  such  order 


JUDICIAL  decisions:     sciioolhouses  865 

remains  in  full  force  and  efifect.  It  was  the  duty  of  the  trustee  of  the  district 
to  have  called  a  special  meeting  of  the  qualified  voters  of  the  district  for  imme- 
diate action  for  the  construction  of  a  new  schoolhouse,  but  such  action  does 
not  appear  to  have  been  taken.  I  am  clearly  of  the  opinion  that  after  the  expira- 
tion of  thirty  days  after  the  date  of  the  order  there  ceased  to  be  any  school- 
house  within  the  meaning  of  the  school  law  erected  upon  the  site  owned  by  the 
district  or  in  process  of  erection  thereon.  There  is  now  and  has  been  since 
September  5,  1901,  a  building  owned  by  the  district  which  had  theretofore  been 
condemned  by  competent  authority  as  "  wholly  unfit  for  use  and  not  worth 
repairing "  for  maintaining  a  school  therein  or  for  school  purposes,  but  such 
building  is  not  a  schoolhouse  under  the  school  law. 

The  appeal  herein  is  sustained  as  to  so  much  thereof  as  is  taken  from  the 
proceedings  of  the  special  and  adjourned  special  meetings,  held  in  school  dis- 
trict 6,  Elmira,  Chemung  county,  on  March  5,  and  April  15,  1902;  and  as  to 
all  other  matters  such  appeal  is  dismissed. 

It  is  ordered.  That  the  proceedings  of  special  meetings  held  in  school  dis- 
trict 6,  Elmira.  Chemung  county,  March  5  and  April  15,  1902  be  and  the  same 
are  vacated  and  set  aside. 
28 


SCHOOL   MONEYS 

5092 

In  the  matter  of  the  appeal  of  C.  B.  Stoddard  from  certain  proceedings  of 
annual  meeting  held  August  4,  1903  in  union  free  school  district  3,  Cohoc- 
ton,  Steuben  county. 

Moneys  lost  or  embezzled  by  district  officers  are  recoverable  in  the  first  place  from  such 
officers  and  secondly  from  the  sureties  in  the  official  bond  given  by  such  officers.  The 
school  districts  in  this  State  are  municipal  corporations  except  as  to  the  power  of  re- 
funding an  existing  bonded  indebtedness  and  the  boards  of  education  of  union  free 
school  districts  are  bodies  corporate. 

The  treasurer  of  a  union  free  school  district  is  a  public  officer  having  custody  of  public 
moneys,  the  property  of  the  district.  The  Court  of  Appeals  of  this  State  in  the  appeal 
of  George  S.  Tillinghast  as  county  treasurer  of  the  county  of  Madison  v.  J.  Herman 
Merrill,  supervisor  of  the  town  of  Stockbridge  and  others,  131  N.  Y.  reports,  page  133 
etc.  held  "  public  officers  having  the  custody  of  public  moneys  are  ex  virtute  officii  in- 
surers of  the  same  and  are  liable  for  a  loss  thereof  although  occurring  without  their 
fault  or  negligence."  The  action  of  the  qualified  voters  in  union  free  school  district 
3,  Cohocton,  Steuben  county,  in  adopting  a  resolution  that  the  trustees  be  authorized 
to  add  to  the  tax  levy  $247.30  to  be  placed  in  the  hands  of  the  new  treasurer  such  sum 
or  so  much  thereof  as  may  be  needed  to  be  used  to  reimburse  the  present  treasurer 
for  the  loss  on  account  of  the  failure  of  the  Shults  bank,  was  without  authority  of  law. 

Decided  October  8.  1903  , 

Skinner.  Superintendent 

This  is  an  appeal  from  the  proceedings  taken  at  the  annual  meeting  held 
August  4,  1903,  in  union  free  school  district  3,  Cohocton,  Steuben  county, 
authorizing  the  trustees  of  the  district  to  add  to  the  tax  list  to  be  issued  by  them 
the  sum  of  $247.30.  such  sum  or  so  much  thereof  as  may  be  needed  to  be  used 
to  reimburse  the  present  treasurer  C.  L.  Shattuck  for  loss  on  account  of  the 
failure  of  the  Shults  bank. 

The  appellant  is  one  of  the  members  of  the  board  of  education  of  such  dis- 
trict and  Messrs  Otto.  Wolfanger,  Gray  and  Clement,  the  other  members  of 
such  board  have  joined  with  the  appellant  in  the  allegations  contained  in  the 
appeal. 

The  appeal  contains  a  statement  that  the  allegations  in  the  appeal  herein, 
with  a  letter  of  mine  dated  August  18,  1903  to  the  appellant  Stoddard,  have 
been  read  to  Treasurer  Shattuck  and  he  (Shattuck)  stated  that  he  did  not  care 
to  make  any  answer  thereto  or  to  join  in  or  object  to  the  appeal  herein. 

It  appears  from  the  records  of  this  Department  that  school  district  3, 
Cohocton.  Steuben  county  is  a  union  free  school  district,  organized  under  the 
general  school  law.  whose  limits  do  not  correspond  to  those  of  any  incorporated 
village  or  citv  and  having  a  board  of  education  consisting  of  f^ve  members 
Section  7,  article  i,  title  8  of  the  Consolidated  School  Law  of  1894,  as  amended 

[8661 


JUDICIAL    DECISIONS  :       SCHOOL    MONEYS  86/ 

by  section  i,  chapter  466  of  the  laws  of  1897,  provides  that  boards  of  education 
of  union  free  school  districts  whose  limits  do  not  correspond  to  those  of  an 
incorporated  village  or  city  shall  have  power  to  appoint  one  of  the  taxable  inhabi- 
tants of  their  district  treasurer  and  fix  his  compensation  who  shall  hold  such 
appointment  during  the  pleasure  of  the  board.  Such  treasurer  shall  within  ten 
days  after  notice  in  writing  of  his  appointment  execute  and  deliver  to  said  board 
of  education  a  bond  with  such  sufficient  penalties  and  sureties  as  the  board  may 
require  conditioned  for  the  faithful  discharge  of  the  duties  of  his  office  and,  in 
case  such  bond  shall  not  be  given  within  the  time  specified,  such  office  shall 
thereby  become  vacant  and  said  board  shall  thereupon,  by  appointment,  supply 
such  vacancy. 

It  further  appears  that  C.  L.  Shattuck  has  been  treasurer  of  such  district 
for  the  past  three  years  by  virtue  of  the  appointment  or  appointments  of  the 
board  of  education ;  but  it  does  not  appear  as  to  whether  said  Shattuck  ever 
executed  and  delivered  to  such  board  any  bond  or  bonds  for  the  faithful  dis- 
charge of  the  duties  of  such  treasurer.  He  deposited  the  moneys  which  came 
into  his  possession,  as  such  treasurer,  in  the  W.  J.  Shults  &  Co.  bank  of  Co- 
hocton.  During  the  month  of  June  1903  said  bank  suspended  payment  of  its 
liabilities  and  its  affairs  are  in  process  of  settlement  in  the  bankruptcy  court 
with  the  prospect  of  paying  a  dividend  of  about  20  per  cent  upon  its  indebted- 
ness. At  the  time  of  the  failure  of  such  bank  Treasurer  Shattuck  had  on  deposit 
therein,  of  the  moneys  received  by  him  and  deposited  by  him  as  treasurer  of 
the  district,  the  sum  of  $247.30. 

At  the  annual  meeting  held  in  such  district  August  4,  1903  the  following 
resolution  was  presented :  "  that  the  trustees  be  authorized  to  add  to  the  tax  levy 
$247.30  to  be  placed  in  the  hands  of  the  new  treasurer  and  such  portion  as  may 
be  needed  shall  be  used  to  reimburse  the  present  treasurer,  C.  L.  Shattuck,  for 
the  loss  on  account  of  the  failure  of  the  Shults  bank."  The  vote  upon  this 
resolution  was  taken  by  ballot  and  resulted  as  follows:  Whole  number  of 
votes  cast  62,  of  which  35  were  for  and  27  against  the  resolution,  and  such  reso- 
lution was  declared  adopted. 

It  was  claimed  at  the  annual  meeting  August  4,  1903  by  the  persons  who 
voted  for  such  resolution  that  the  provisions  contained  in  subdivision  15  of  sec- 
tion 14,  article  i,  title  7  of  the  Consolidated  School  Law  of  1894  in  relation  to  the 
power  given  to  inhabitants  of  common  school  districts  at  school  meetings  therein, 
namely,  "  to  vote  a  tax  to  replace  moneys  of  the  district  lost  or  embezzled  by 
district  officers,"  authorize  the  adoption  of  such  resolution.  This  contention  is 
not  tenable.  It  did  not  appear  as  a  fact  that  any  moneys  of  the  district  had  been 
lost  or  embezzled  by  any  district  officers.  It  was  conceded  that  Treasurer  Shat- 
tuck was  solvent  and  financially  responsible  for  the  entire  amount  of  money 
of  the  district  which  remained  on  deposit  in  the  bank  of  Shults  &  Co.  at  the 
time  of  the  failure  of  the  bank,  namely,  $247.30,  and  Shattuck  had  never  stated 
that  he  could  not  or  would  not  make  such  amount  good  to  the  district. 

Moneys  lost  or  embezzled  by  district  officers  are  recoverable  in  the  first 
place  from  such  officers  and  secondly  from  the  sureties  in  the  official  bonds  given 


868  THE   UNIVERSITY    OF  THE   STATE   OF   NEW   YORK 

by  such  officers.  But  before  it  would  be  possible  in  a  suit  at  law  to  regain  the 
money  so  lost  or  embezzled,  the  district  may  be  required  to  pay  debts  and  lia- 
bilities that  could  not  be  postponed  and  hence  the  propriety  of  the  provision  con- 
tained in  subdivision  15  above  cited.  The  proofs  herein  show  that  there  was 
no  immediate  or  urgent  liability  of  such  district  but  on  the  contrary  there  was 
at  the  time  such  meeting  was  held  approximately  $500  the  property  of  the  district 
in  the  hands  of  the  treasurer  not  on  deposit  in  Shults  &  Co.'s  bank. 

The  school  districts  in  this  State  are  municipal  corporations,  except  as  to 
the  jjower  of  refunding  an  existing  bonded  indebtedness,  and  the  boards  of  educa- 
tion of  union  free  school  districts  are  bodies  corporate.  The  treasurer  of  a 
union  free  school  district  is  a  public  officer  having  the  custody  of  public  moneys 
the  property  of  the  district.  The  Court  of  Appeals  of  this  State,  in  the  appeal 
of  George  S.  Tillinghast  as  county  treasurer  of  the  county  of  Madison,  respond- 
ent V.  J.  Merman  Merrill,  supervisor  of  the  town  of  Stockbridge  et  al.  appellants, 
decided  December  i,  1896,  reported  in  131  New  York  reports  on  pages  135  etc. 
held :  "  public  officers  having  the  custody  of  public  moneys  are  ex  virttite  ofncii 
insurers  of  the  same  and  are  liable  for  a  loss  thereof  although  occurring  without 
their  fault  or  negligence." 

I  decide.  That  the  action  of  the  annual  meeting,  held  August  4,  1903,  in 
union  free  school  district  3,  Cohocton,  Steuben  county,  in  the  adoption  of  the 
following  resolution,  namely.  "  that  the  trustees  be  authorized  to  add  to  the  tax 
levy  $247.30  to  be  placed  in  the  hands  of  the  new  treasurer,  and  such  portion 
as  may  be  needed,  shall  be  used  to  reimburse  the  present  treasurer,  C.  L.  Shat- 
tuck.  for  the  loss  on  account  of  the  failure  of  the  Shults  bank,"  was  without 
authority  of  law. 

The  appeal  herein  is  sustained. 

It  is  ordered,  That  so  much  of  the  proceedings  of  such  annual  meeting  as 
relates  to  the  adoption  of  such  resolution,  be,  and  the  same  is,  hereby  vacated 
and  set  aside. 


4441 

In  the  matter  of  the  petition  of  Charles  H.  Simpkins  for  the  removal  from 
office  of  Harvey  S.  Hempstead  as  trustee  of  school  district  no.  3,  town  of 
Coeymans,  Albany  county. 

Under  the  school  law  the  supervisors  of  towns  and  collectors  of  school  districts  are  the 
legal  custodians  of  the  public  moneys  of  the  State  apportioned  to  the  school  districts 
and  of  moneys  collected  upon  tax  lists  by  the  collectors  or  received  by  them  from 
county  treasurer  or  boards  of  supervisors  for  taxes  returned;  and  such  moneys  can  only 
be  paid  out  by  the  supervisors  and  collectors  upon  the  written  order  of  the  trustees  or 
a  majority  of  the  board  of  trustees  to  the  order  of  the  person  or  persons  entitled  to 
receive  the  same.  Trustees  of  school  districts  have  no  lawful  authority  to  receive  or  to 
retain  in  their  custody  any  of  such  moneys. 

Decided  April  9,  1896 

Andrew  Vanderzee,  attorney  for  petitioner 
Lewis  Cass,  attorney  for  respondent 


JUDICIAL  decisions:     school  moneys  S69 

Skinner,  Superintendent 

The  petitioner  in  the  above-entitled  matter  asks  for  the  removal  of  the 
above-named  Hempstead  as  trustee  of  said  school  district  for  wilful  violation 
and  neglect  of  duty  as  such  trustee. 

From  the  papers  presented  herein  the  following  facts  are  established : 
That  at  the  annual  school  meeting  held  in  said  district,  said  Hempstead 
was  elected  as  trustee  of  said  district  and  acted  as  such  during  the  school  year 
of  1894-95 ;  that  at  the  annual  school  meeting  held  in  said  district  in  August 
1895,  said  Hempstead  was  elected  as  trustee  and  ever  since  has  been,  and  still  is, 
acting  as  such  trustee;  that  on  or  about  August  10,  1895,  the  said  Hempstead 
obtained  from  Helen  S.  Willis  of  the  village  and  town  of  Coeymans,  agent  for 
certain  insurance  companies,  a  policy  of  insurance  for  the  sum  of  $1000  upon 
the  schoolhouse  in  said  district,  the  premium  etc.  therefor  to  be  paid,  amounted 
to  the  sum  of  $15;  that  on  or  about  September  19,  1895,  said  Hempstead  pre- 
sented to  Dwight  Butler,  collector  of  said  school  district,  an  order  of  which 
the  following  is  a  copy:  "  Ravena,  N.  Y.,  September  19,  1895.  To  Dwight 
Butler,  collector  of  taxes,  school  district  no.  3,  town  of  Coeymans :  Pay  to  Helen 
Willis  the  sum  of  $22.50  on  premium  on  insurance  on  schoolhouse  in  said  dis- 
trict. H.  S.  Hempstead,  sole  trustee,"  and  said  Hempstead  then  asked  said 
Butler  to  pay  to  him  (Hempstead)  the  said  $22.50,  stating  he  wanted  it  to  pay 
the  insurance  premium  to  Mrs  Willis,  and  thereupon  said  Bulter  paid  to  said 
Hempstead  said  sum  of  $22.50,  and  took  said  order  and  filed  the  same  among 
his  vouchers  of  payments  for  said  school  district;  that  at  some  date  between 
September  i  and  November  8,  1895,  the  said  Willis  and  Hempstead  had  a  con- 
versation at  which  said  Hempstead  stated  in  substance  that  said  premium  could 
not  be  paid  for  the  reason  that  there  were  no  funds  on  hand  available  for  that 
purpose,  and  said  Hempstead  paid  to  said  Willis  the  sum  of  $7.50  owing  by 
him  for  insurance  upon  certain  property  belonging  to  him ;  that  on  or  about 
November  8,  1895,  said  Willis  had  an  interview  with  Butler,  collector  of  said 
district,  and  then  asked  Butler  whether  he  had  received  an  order  for  her,  to 
which  Butler  replied:  "Yes,  have  you  not  received  your  money?"  to  which 
she  replied,  "  No,"  and  thereupon  said  Butler  produced  and  exhibited  to  said 
Willis  the  said  order  of  Hempstead,  dated  September  19,  1895  (of  which  a  copy 
is  hereinbefore  given),  and  stated  that  he  had  paid  to  said  Hempstead  the  said 
sum  of  $22.50;  that  said  Willis  then  informed  said  Butler  that  the  insurance 
premium,  etc.,  was  not  $22.50,  but  $15,  and  took  a  copy  of  said  order;  that  on 
the  same  day  and  after  the  said  interview  with  Collector  Butler,  said  Willis  had 
an  interview  with  said  Hempstead  at  which  he  stated  in  substance,  "  I  am  sorry 
that  we  had  to  keep  you  waiting  so  long  for  this  order,"  and  thereupon  gave  to 
said  Willis  an  order  upon  said  Collector  Butler  for  the  sum  of  $15,  signed  by 
said  Hempstead  as  trustee ;  that  said  Willis  then  exhibited  to  said  Hempstead  the 
aforesaid  copy  of  the  said  order  for  $22.50,  and  asked  Hempstead  "  What  about 
this  order?"  and  said  Hempstead,  after  looking  at  said  copy  of  order,  said  to 
Willis,  "Give  me  that  other  order  and  I  will  pay  you  the  $15  out  of  my  own 


S70  THE   UNIVERSITY   OF  THE   STATE   OF   NEW  YORK 

pocket,"  whereupon  said  Willis  delivered  to  Hempstead  said  order  for  $15  given 
her  hy  liini,  and  Hempstead  paid  to  her  the  sum  of  $15  in  cash;  that  said  Willis 
never  authorized  said  Hempstead  to  draw  said  order  for  $22.50,  either  directly 
or  indirectly,  and  never  knew  of  the  existence  of  said  order  until  November  8, 
1895;  that  the  total  sum  due  and  owing  to  said  Willis  for  insurance,  including 
policy  and  premium,  was  the  sum  of  $15  and  no  more,  and  she  had  no  other 
charge  against  said  district. 

That  on  or  about  October  15.  1895,  the  said  Hempstead,  as  such  trustee,  at 
his  request,  received  from  Collector  Butler  the  sum  of  $80,  giving  to  said  Butler 
his  (Hempstead's)  receipt  as  trustee,  the  said  Hempstead  stating  to  said  Butler 
that  said  sum  of  money  was  for  the  purpose  of  paying  for  things  he  had  bought 
for  the  schoolhouse. 

That  on  or  about  December  4,  1895,  said  Hempstead  received  from  Thomas 
F.  Mason,  deputy  county  treasurer  for  John  Bowe,  county  treasurer  of  Albany 
county,  a  check  of  said  Bowe,  no.  2312,  dated  on  that  day,  drawn  upon  the 
Albany  City  National  Bank,  for  the  sum  of  $60.02,  to  the  order  of  Dwight  But- 
ler, collector,  school  district  no.  3,  Coeymans ;  that  said  check  was  for  certain 
taxes  returned  by  said  collector  as  unpaid  under  the  provisions  of  the  Consoli- 
dated School  Law ;  that  on  said  December  4,  1895,  the  said  Hempstead  indorsed 
the  said  check,  "  Dwight  Butler,  Collector,  District  No.  3,  Coeymans,"  and  also 
"  H.  S.  Hempstead,"  and  received  from  said  bank  said  $60.02;  that  said  Hemp- 
stead has  not  paid  said  sum  of  $60.02  or  any  part  thereof  to  said  Collector  But- 
ler. That  in  the  month  of  May  1895,  there  was  in  the  possession  of  Henry 
Slingerland,  of  Coeymans,  the  sum  of  $9.66  of  moneys  deposited  with  him  by 
the  supervisor  of  the  town  of  Coeymans,  and  on  May  25,  1895,  said  Hempstead, 
as  trustee  of  said  school  district  no.  3,  Coeymans,  requested  said  Slingerland  to 
inform  him  if  there  was  any  public  money  due  to  said  district  in  his  hands 
deposited  by  said  supervisor,  and  said  Slingerland  examined  the  account  of  the 
supervisor  with  said  district  and  found  that  the  sum  of  $9.66  was  due  said  dis- 
trict, and  thereupon,  at  the  request  of  said  Hempstead,  gave  to  Hempstead  his 
check  for  said  sum  of  $9.66,  which  check  was  duly  paid  after  having  been 
indorsed  by  said  Hempstead. 

That  about  January  i,  1895,  said  Hempstead,  as  such  trustee,  made  a  con- 
tract with  Patrick  J.  Sweeney,  of  the  city  of  Albany,  for  a  heater  for  the  school- 
house  in  the  district  for  the  sum  of  $200,  and  the  heater  was  placed  in  said 
schoolhouse;  that  on  or  about  March  5,  1895,  Hempstead  delivered  to  Collector 
Butler  an  order  signed  by  Hempstead,  as  trustee,  for  the  sum  of  $200,  payable 
to  P.  J.  Sweeney,  and  requested  said  Butler  to  pay  him  (Hempstead)  the  $200, 
as  he  was  going  to  Albany  and  would  pay  said  Sweeney  said  $200  for  the  heater, 
and  said  lUitlcr  paid  Hempstead  said  $200;  that  on  or  about  April  2,  1895,  said 
Hempstead  paid  P.  J.  Sweeney  $100  in  money  and  gave  Sweeney  his  (Hemp- 
stead's) note,  as  trustee,  for  $100;  that  said  Hempstead  paid  upon  said  note  at 
different  times  and  in  divers  sums  the  aggregate  sum  of  $75 ;  that  on  or  about 
February  6.   1896,  said  Hempstead,  as  such  trustee,  gave  to  said  Sweeney  an 


JUDICIAL  decisions:     school  moneys  871 

order  upon  Collector  Butler  for  the  sum  of  $25,  in  which  order  it  was  stated 
that  the  sum  stat.ed  therein  was  for  repairs  to  said  heater;  that  said  order  was 
presented  to  said  Collector  Butler  for  payment  and  the  payment  thereof  refused 
by  him  and  said  order  remains  unpaid,  and  there  still  remains  due  and  unpaid 
to  said  Sweeney  said  sum  of  $25 ;  that  at  the  time  said  order  of  $25  was  given 
to  said  Sweeney  there  was  no  sum  due  to  him  for  repairs  to  said  heater. 

The  respondent,  Hempstead,  has  attempted  to  give  an  explanation  of  the 
aforesaid  transaction  with  Mrs  Willis,  but  such  explanation  is  without  merit. 
So  far  as  the  papers  herein  show,  said  Hempstead  has  unlawfully  in  his  pos- 
session the  sum  of  $7.50,  the  property  of  said  district,  and  which  sum  should  be 
in  the  possession  of  the  collector,  Butler.  The  respondent,  Hempstead,  alleges 
that  said  sum  of  $80,  so  as  aforesaid  received  by  him  from  said  collector,  "  has 
been  expended  for  the  sole  benefit,  use  and  profit  of  the  district  as  will  fully 
appear  in  his  report  at  the  next  annual  meeting  of  said  school  district."  Such 
explanation  is  without  merit,  and  is  no  excuse  for  the  unlawful  action  on  his 
part  in  drawing  and  receiving  said  money  from  the  collector  of  the  district. 

In  relation  to  the  $60.02  received  by  the  respondent,  Hempstead,  upon  the 
check  of  County  Treasurer  Bowe,  said  Hempstead  contends  that  he  was  author- 
ized by  Collector  Butler  to  indorse  the  name  of  Butler  upon  the  check,  which 
contention  said  Butler  alleges  is  untrue.  The  respondent  herein  alleges  that  he 
informed  Collector  Butler  he  would  deliver  to  him  said  sum  of  $60.02  at  any 
time  he  (Butler)  would  call  for  it.  So  far  as  this  proceeding  is  concerned,  it  is 
immaterial  whether  the  respondent  had  authority  to  indorse  the  name  of  the  col- 
lector upon  the  check  or  not,  that  is  a  matter  to  be  settled  in  the  criminal  courts ; 
but  the  respondent  admits  having  in  his  possession  the  money,  which  it  is  his 
duty  to  pay  over  to  the  collector,  who  is  the  only  legal  custodian  thereof,  without 
waiting  for  the  collector  to  come  to  him  (Hempstead)  for  it. 

In  relation  to  the  receipt  by  the  respondent  of  said  sum  of  $9.66  from  the 
supervisor  of  Coeymans,  he  acted  in  violation  of  the  school  law,  as  he  should 
have  drawn  his  order  upon  the  supervisor  in  favor  of  the  teacher  to  whom  the 
district  was  indebted. 

The  acts  of  the  respondent  in  relation  to  the  matter  with  Sweeney  in  the 
payment  for  the  heater  was  in  violation  of  the  school  law.  The  respondent  should 
have  drawn  his  order  upon  the  collector  in  favor  of  Sweeney  and  delivered  the 
same  to  Sweeney. 

Under  the  school  law  the  supervisors  are  the  legal  custodians  of  the  public 
moneys  of  the  State  apportioned  to  the  school  district,  and  said  supervisors  can 
only  pay  out  said  moneys  upon  the  orders  of  the  trustees  or  a  majority  of  the 
trustees  in  favor  of  qualified  teachers ;  the  collectors  of  the  school  districts  are 
the  legal  custodians  of  all  moneys  collected  by  them  upon  the  tax  list  issued  to 
them  or  received  from  county  treasurers  or  boards  of  supervisors  for  taxes 
returned,  and  such  moneys  can  only  be  paid  out  by  such  collectors  upon  the 
••Avritten  order  of  the  trustees,  or  a  majority  of  the  board  of  trustees,  to  order 
of  the  person  or  persons  entitled  to  receive  the  same.     Trustees  of  school  dis- 


872  THE   UNIVERSITY    OF   THE   STATE   OF   NEW   YORK 

tricts  have  no  lawful  authority  to  receive  or  retain  in  their  custody  any  of  said 
moneys.  Under  the  school  law  I  have  the  power,  whenever  it  shall  be  proved  to 
my  satisfaction  that  any  school  ofliccr  has  been  guilty  of  any  wilful  violation 
or  neglect  of  duty  under  the  Consolidated  School  Law,  or  any  other  act  per- 
taining to  common  schools,  to  remove  such  school  officer  from  office. 

The  respondent,  Hempstead,  has  been  a  trustee  of  school  district  no.  3, 
town  of  Coeymans,  Albany  county,  since  the  commencing  of  the  school  year 
1894-95.  and,  it  is  presumed,  knows  what  the  law  relating  to  his  duties  as  such 
trustee  is. 

I  do  fmd  and  decide  that  Harvey  S.  Hempstead,  as  trustee  of  school  dis- 
trict no.  3,  town  of  Coeymans,  Albany  county,  has  been  proved  to  my  satisfac- 
tion guilty  of  wilful  violation  and  neglect  of  duty  under  the  Consolidated  School 
Law. 

The  petition  herein  should  be  sustained. 

Whereas,  It  having  been  proved  to  my  satisfaction  that  Harvey  S.  Hemp- 
stead, trustee  of  school  district  no.  3,  town  of  Coeymans,  Albany  county,  has 
been  guilty  of  wilful  violation  and  neglect  of  duty  as  such  trustee,  under  the 
Consolidated  School  Law,  I  do  hereby  remove  said  Harvey  S.  Hempstead  from 
office  as  trustee  of  school  district  no.  3,  town  of  Coeymans,  Albany  county. 


3543 

Charles  W.  Rodman,  George  N.  Gardiner  and  Edmund  Sherer,  trustees  of 
school  district  no.  25  of  the  town  of  Hempstead,  Queens  county  v.  Thomas 
H.  Clowes,  Robert  Seabury,  John  B.  Mesereau  and  Henry  Powell,  trustees 
of  district  no.  i  of  the  town  of  Hempstead. 

APPORTIOXMEXT    OF    SCHOOL    MONEYS 

In  a  school  district  in  which  a  branch  school  has  been  maintained,  and  subsequently  that 
part  of  the  district  where  the  patrons  of  the  branch  school  reside  is  formed  into  a 
separate  district,  so  much  of  the  public  moneys  apportioned  to  the  old  district  upon 
the  statistics  of  the  branch  school  will  be  ordered  paid  to  the  new  district. 

Taxes  levied  and  collected  before  the  formation  of  the  new  district  will  not  be  so  appor- 
tioned. 

There  is  no  provision  of  law  for  a  division  of  common  property  when  a  new  district  is 
set  off  from  an  old  one. 

Decided  November  30,  1886 

Draper.  Superintendent 

Prior  to  April  1885,  the  villa.f^e  of  Garden  City  constituted  a  part  of 
school  district  no.  i  of  the  town  of  Hempstead,  Queens  county.  On  the  20th  of 
April  1885.  the  Legislature  passed  an  act  making  the  village  of  Garden  City  a 
separate  school  district,  to  be  known  as  district  no.  25  of  the  town  of  Hemp- 
stead.    No  meeting  was  held  for  the  purpose  of  electing  officers  and  organizing 


JUDICIAL    DECISIONS  :       SCHOOL    MONEYS  8/3 

the  new  district  until  August  ii,  1885.  For  several  years  prior  to  this,  district 
no.  I  had  maintained  a  school  at  Garden  City,  and,  notwithstanding  the  act  of 
the  Legislature  in  April,  this  was  continued  and  supported  at  the  expense  of 
district  no.  i  till  the  end  of  the  school  year.  At  the  close  of  the^  school  year 
1884-85,  district  no.  i  reported  the  maintenance  of  the  school  at  Garden  City 
during  the  preceding  year,  and  in  the  annual  apportionment  of  school  moneys 
in  the  school  year  1885-86  said  district  received  such  sum  as  would  be  payable 
in  consequence  thereof,  while  the  new  district,  no.  25,  received  nothing.  Dis- 
trict no.  25  brings  the  matter  before  this  Department,  and  demands  that  district 
no.  I  shall  be  required  to  pay  to  it  such  sum  of  money  as  was  apportioned  to 
it  in  consequence  of  the  maintenance  of  a  school  at  Garden  City  during  the 
preceding  school  year. 

It  also  appears  that  in  February  1885,  the  board  of  education  of  district 
no.  I  levied  a  tax  of  fifteen  cents  on  the  hundred  dollars,  which  amounted  to 
the  sum  of  $1351.35,  of  which  sum  Garden  City  paid  her  proportionate  share, 
which  was  $229.20.  Having  parted  company,  Garden  City  now  thinks  and 
demands  that  the  part  which  she  has  paid  of  this  tax  should  be  paid  back  to 
her. 

Again,  chapter  591,  Laws  of  1870,  provides  for  the  distribution  to  the 
several  school  districts  of  the  town  of  Hempstead  of  a  certain  portion  of  the 
income  of  a  fund  which  has  arisen  from  the  sale  or  rental  of  common  lands  of 
the  town,  and  directs  that  such  distribution  shall  be  calculated  and  determined 
"  in  the  same  manner,  and  upon  the  same  basis  as  the  public  school  moneys 
of  the  State  are  apportioned."  After  Garden  City  became  a  separate  school 
district,  and  before  the  commencement  of  this  proceeding,  there  were  two  of 
these  apportionments;  the  first  for  the  six  months  ending  November  i,  1885, 
and  the  second  for  the  period  ending  May  i,  1886,  and  at  each  time  the  sum 
of  $6000  was  distributed.  Of  these  apportionments  from  this  trust  fund  dis- 
trict no.  25  received  only  such  an  allotment  as  was  based  on  school  population, 
and  nothing  on  account  of  "  pupil  attendance  "  or  the  "  district  quota,"  that 
share  going  to  district  no.  i,  pursuant  to  the  school  reports  made  at  the  close 
of  the  school  year  ending  August  20,  1885.  District  no.  25  demands  that 
district  no.  i  shall  be  directed  to  pay  over  to  her  such  sums  as  she  received 
from  these  two  distributions  from  this  fund  on  account  of  the  maintenance 
of  a  school  at  Garden  City  during  the  preceding  school  year. 

District  no.  I  resists  these  several  demands  with  energy.  The  trustees  of 
that  district  in  answering  say  that  the  school  which  they  maintained  at  Garden 
City  was  only  a  branch  of  the  school  at  Hempstead,  and  that  they  were  not 
obliged  to  open  it,  and  that  it  was  done  only  for  the  convenience  of  the  former 
place,  and  that  the  report  which  they  made  at  the  end  of  the  school  year 
1884-85  was  such  as  they  were  required  to  make  by  law.  and  that  the  school 
monevs  based  upon  such  report  which  they  have  received  are  such  and  only 
xsuch  as  the  law  gives  them.  In  relation  to  the  tax  collected  in  February  1885, 
of  which   district  no.  25  demands  that  the  share  which  it  paid  shall  be  paid 


874  THK    I  M\l  KSITY    OF   THE   STATE    OF    NEW    YORK 

back,  they  say  it  was  levied  to  meet  current  expenses  for  the  ensuing  year, 
and  that  Garden  City  received  back  her  share  in  school  privileges.  They  urge, 
also,  that  when  a  new  district  is  set  off  from  an  old  one,  the  property  of  the 
old  district  can  not  be  divided;  that  here  the  new  district  was  set  off  at  its 
own  desire,  and  that  it  must  support  itself  as  best  it  can  until  the  time  when 
its  school  reports,  made  pursuant  to  law,  entitle  it  to  share  in  public 
moneys.  In  illustration,  it  urges  that  when  it  opened  the  school  at  Garden 
City  it  was  obliged  to  maintain  it  the  first  year  with  no  apportionment  of  pub- 
lic moneys  based  on  the  report  of  a  previous  school  year,  and  that  now  this 
district  must  do  the  same. 

The  public  moneys  apportioned  on  or  before  the  20th  day  of  January  in 
each  year,  are  intended  for  teachers'  wages  for  the  school  year  in  the  middle 
of  which  the  apportionment  is  made.  The  apportionment  is  made  upon  the 
school  statistics  for  the  preceding  school  year,  for  the  reason  that  that  is  appar- 
ently the  most  reasonable  basis  for  a  general  apportionment.  Ordinarily,  when 
a  new  district  is  set  off,  it  is  impossible  to  make  any  allotment  to  it  during  the 
first  year  of  its  existence,  because  there  is  no  preceding  year's  statistics  for  a 
basis.  That  is  not  so  in  this  case.  The  school  at  Garden  City  had  been  in 
operation  for  years.  It  had  an  individuality  of  its  own.  For  statistical  pur- 
poses it  was  the  same  school,  was  as  perfectly  and  completely  organized  and 
was  as  separate  and  distinct  from  the  Hempstead  school  before  the  new  dis- 
trict was  erected  as  afterward.  Its  register  of  attendance  for  the  year  1884-85, 
kept  as  required  by  law  and  duly  verified,  is  produced  here.  It  shows  that 
school  was  kept  more  than  28  weeks.  Here  is  the  basis  upon  which  to  deter- 
mine what  amount  of  public  money  belonged  to  it,  equitably  at  least,  for  the 
year  1885-86.  There  can  be  no  doubt  but  that  any  new  district  is,  in  equity, 
entitled  to  share  in  the  State  school  moneys,  even  during  the  first  years  of  its 
organized  existence.  The  difficulty  is  that  the  means  of  determining  how  much 
it  should  have  are  usually  wanting.  That  difficulty  does  not  exist  in  this  case. 
District  no.  i  received  at  the  apportionment  in  1886  more  than  it  was  entitled 
to  for  the  year  1885-86,  and  district  no.  25  received  less  than  its  share,  because 
the  Garden  City  statistics  were  included  in  the  report  of  district  no.  i  at  the 
close  of  the  preceding  year.  This  being  so,  and  there  being  at  hand  the  data 
from  which  to  determine,  with  exactness,  how  much  was  paid  to  no.  i,  which 
should,  in  fairness,  have  been  paid  to  no.  25,  the  matter  should  be  set  right  if 
there  i.s  lawful  authority  for  so  doing. 

The  State  school  moneys  are  apportioned  by  the  Superintendent  of  Public 
Instruction  in  the  manner  provided  by  title  3  of  the  Consolidated  School  Act 
of  1864.  It  was  impossible  to  provide  by  statute  for  all  exigencies  which 
might  arise,  and  it  was  necessary  to  vest  some  discretion  in  the  Superintendent 
for  the  purpose  of  meeting  exceptional  cases.  For  instance  section  10  of  title  3 
directs  the  Superintendent  to  make  a  special  apportionment  to  a  district 
which  has  been  excluded  from  participation  in  the  general  apportionment  by 
reason  of  its  failure  to  comply  with  some  provision  of  law  or  requirement  of 


JUDICIAL  decisions:     school  moneys  875 

the  Department  when  such  omission  was  accidental  or  excusable.  Section 
II  authorizes  him  to  withhold  from  any  district  in  a  subsequent  appor- 
tionment any  sum  which  has  been  given  to  it  in  excess  of  what  it  should 
should  have  had  at  a  prior  apportionment.  Section  12  provides  that  "  if 
a  less  sum  than  it  is  entitled  to  shall  have  been  apportioned  by  the  Superin- 
tendent to  any  county,  part  of  county  or  school  district,  the  Superintendent 
may  make  a  supplementary  apportionment  to  it  of  such  sum  as  shall 
make  up  the  deficiency,  etc.  Reading  the  different  sections  together  and  having 
in  view  the  general  plan  of  apportionment  which  the  Legislature  was  setting  in 
operation,  it  is  manifest  that  it  was  intended  to  clothe  the  Superintendent  with 
authority  to  meet  and  adjust  an  inequality  like  the  one  here  presented.  Although 
the  precise  question  here  involved  has  never  before  been  passed  upon  by  the 
Department,  the  general  authority  requisite  to  meet  it  has  always  been  exercised 
by  it. 

I  shall  therefore,  direct  that  district  no.  i,  Hempstead,  pay  over  to  district 
no.  25  such  sum  as  it  received  in  the  apportionment  of  1886,  on  the  basis  of 
the  Garden  City  statistics ;  or,  in  case  of  failure  to  do  so  before  the  apportion- 
ment of  1887,  that  the  same  be  deducted  from  the  allotment  to  no.  i,  and  added 
to  that  of  no.  25. 

The  demand  of  district  no.  25,  that  it  be  repaid  so  much  of  the  tax  levied 
in  February  1885,  as  was  paid  by  Garden  City,  must  be  denied.  This  tax  was 
raised  before  district  no.  25  was  set  ofif.  It  was  used  in  part  at  least,  to  meet 
common  expenses  in  which  was  included  the  expense  of  the  school  at  Garden 
City.  What  was  not  so  used,  was  district  property  at  the  time  of  the  separation. 
There  is  no  provision  of  law  for  the  division  of  common  property  when  a  new 
district  is  set  off  from  an  old  one,  and  in  the  nature  of  things  there  can  not  be. 

There  is  some  reasonable  question  of  the  power  of  this  Department  to 
correct  the  apportionment  of  the  local  trust  fund  applicable  to  school  purposes 
as  provided  by  chapter  591  of  the  Laws  of  1870.  The  appellants  cite  section  17, 
title  3  of  the  Consolidated  School  Act  which  treats  of  trusts  for  school  pur- 
poses, and  provides  that  "  the  Superintendent  of  Public  Instruction  shall  super- 
vise and  advise  the  trustees,  and  hold  them  to  a  regular  accounting,"  etc.  On 
the  other  hand,  it  is  urged  that  the  .special  act  governing  this  particular  fund 
takes  it  out  of  the  provisions  of  the  general  statute.  It  is  not  necessary  to 
determine  this  question  at  present,  at  least.  The  board  of  town  auditors  of 
Hempstead  have,  as  yet,  committed  no  error.  They  have  complied  with  the 
law  and  followed  the  State  apportionment.  It  is  fair  to  assume  that  they  will 
continue  to  do  so,  and  will  make  the  correction  which  the  State  now  makes,  and 
it  will  be  time  to  consider  what  course  must  be  taken  for  relief  in  that  direction 
when  it  shall  have  become  certain  that  some  steps  are  necessary. 

It  is   accordingly   ordered   that  the  board   of   education   of   district  no.    i, 

Hempstead,  pay  over  to  district  no.  25,  Hempstead,  known  as  the  Garden  City 

.district,  the  sum  of  $66.12,  the  same  being  the  amount  of  one  district  quota 

apportioned   to   no.    i,   Hempstead,   in   the  annual  apportionment  made  by  the 


876  THK    LMVERSITY    OF   THE   STATE    OF   NEW    YORK 

Superintendent  of  Public  Instruction  to  January  1886,  and  reapportioned  by 
the  school  commissioner  of  the  second  commissioner  district  of  Queens  county, 
in  March  1886,  for  the  year  1885-86,  on  the  basis  of  one  duly  qualified  teacher 
cmi)loyed  for  the  legal  term  of  school  in  the  Garden  City  school  for  the  school 
year  beginning  with  August  21,  1884,  and  ending  August  21,  1885;  and  such 
further  sum  as  shall  be  certified  by  the  said  school  commissioner  that  district 
no.  1,  Hempstead,  received  for  the  Garden  City  schools  for  the  year  1885-86, 
on  the  basis  of  the  number  of  resident  children,  the  average  daily  attendance 
of  such  children,  and  for  libraries,  for  the  school  year  1884-85.  But  in  the 
event  of  there  being  no  moneys  in  the  hands  of  the  board  of  education  of  dis- 
trict no.  1,  Hempstead,  or  under  their  control,  and  available  for  this  purpose, 
then  the  said  school  commissioner  shall  deduct  for  district  no.  25,  Hempstead, 
in  the  annual  apportionment  to  be  made  by  him  in  March  1887,  from  the  school 
moneys  to  be  apportioned  to  said  district  no.  i,  for  the  year  1886-87,  the  total 
amount  of  public  school  money  said  district  no.  i  received  for  the  Garden  City 
school  in  the  annual  apportionment  of  1886,  and  apportion  the  same  to  district 
no.  25,  together  with  the  amount  that  no.  25  is  to  receive  for  the  year  1886-87. 


SCHOOL  PROPERTY— USE  OF 

The  trustees  of  school  district  no.  4  in  the  town  of  Champion,  ex  parte. 

Schoolhouses  can  not  be  used  for  any  other  than  common  school  purposes,  excepting  by 

general  consent. 
A. vote  of  a  majority  of  the  inhabitants  does  not  render  it  proper  to  use  schoolhouses  for 

any  other  than  their  legitimate  purposes. 
Decided  February  19,  1833 

Dix,  Superintendent 

This  was  an  appHcation  to  the  Superintendent  for  his  opinion  upon  the 
following  questions : 

1  Whether  the  trustees  have  a  right  to  hold  the  schoolhouse  of  their  dis- 
trict open  for  any  religious  or  temperance  meetings,  when  not  encroaching  on 
school  hours. 

2  Whether  a  vote  of  the  majority  of  the  taxable  inhabitants  in  any  dis- 
trict shall  decide  as  to  the  duty  of  trustees  on  the  question  above  mentioned. 

I  The  trustees  of  each  school  district  have  the  custody  and  safekeeping 
of  the  district  schoolhouse.  They  have  the  custody  of  it  for  the  purposes 
specified  in  the  act  from  which  they  derive  their  authority ;  and  they  have, 
therefore,  strictly  no  more  right  to  allow  it  to  be  used  for  religious  meetings, 
than  the  trustees  of  a  religious  society  would  have  to  allow  the  church  or 
meeting  house  to  be  used  for  keeping  a  school.  There  would  be  no  impropriety 
in  allowing  either  to  be  used  for  one  purpose  or  the  other,  if  no  objection  were 
raised  by  the  district  or  the  society.  But  where  controversies  grow  out  of  the 
application  of  a  schoolhouse  to  purposes  not  contemplated  in  establishing  it,  it 
is  the  duty  of  the  trustees  to  confine  its  use  strictly  to  the  legitimate  objects. 

2  I  do  not  consider  the  voice  of  a  majority  of  the  inhabitants  of  a  district 
as  a  proper  criterion  for  determining  the  propriety  of  applying  a  schoolhouse 
to  other  uses  than  those  for  w^hich  it  was  designed.  The  law  has  determined 
this  question.  It  can  not  with  strict  propriety  be  applied  to  other  than  common 
school  purposes.  It  may  be  otherwise  used  by  the  general  consent  of  the  parties 
interested.  But  if  such  use  were  likely  to  distract  the  district,  by  breeding 
dissensions,  and  a  respectable  minority  should  apply  to  me  for  an  order  to  con- 
fine the  schoolhouse  to  its  legitimate  purposes,  I  should  not  consider  myself  at 
liberty  to  deny  the  application.  The  trustees  therefore  should  so  act  as  to 
render  any  such  application  to  me  unnecessary. 

[877] 


878  THE   UNIVERSITY   OF  THE   STATE   OF   NEW   YORK 

3651 

In  the  matter  of  the  appeal  of  Marquis  Baker,  a  legal  elector  of  school  district 
no.  12,  town  of  Marccllus,  Onondaga  county,  N.  Y.  v.  Seymour  Hull,  as 
sole  trustee  of  said  district. 

When  a  schoolhouse  is  used  for  religious  services  by  permission  of  trustees,  and  such  use 
is  objected  to  by  a  legal  voter  of  the  district;  held,  that  such  use  must  be  discontinued. 
Decided  December  8,  1887 

Draper,  Supcriutcndent 

This  is  an  appeal  by  a  resident  and  legal  voter  of  school  district  no.  12, 
town  of  -Marccllus.  county  of  Onondaga,  from  the  action  of  the  trustee  in  per- 
mitting the  use  of  the  schoolhouse  in  said  district  to  be  used  for  other  than 
school  purposes.  The  appellant  alleges  not  only  that  the  building  is  used  for 
religious  services,  but  that  the  fuel  of  the  district  is  consumed  at  such  religious 
services,  and  district  school  furniture  is  damaged,  and  school  books  mutilated. 

The  answer  of  the  trustee  admits  the  fact  that  the  building  is  used  for  a 
Sunday  school  composed  of  children  who  attend  the  public  school,  but  denies 
the  other  allegations  mentioned  above. 

In  deciding  this  appeal  it  will  not  be  necessary  to  pass  upon  the  disputed 
que.stions  of  fact.  The  question  of  the  right  to  allow  a  schoolhouse  to  be  used 
for  other  than  school  purposes  is  not  new,  and  unless  such  use  is  objected  to, 
this  Department  never  interferes  to  prevent  the  use  for  any  praiseworthy  cause; 
but  when  the  question  is  raised,  we  are  at  once  confronted  with  the  law  which 
prohibits  the  use  of  the  school  building  for  other  than  school  purposes,  unless 
all  the  trustees  of  a  district  consent  thereto,  and  when  the  consent  of  all  is 
obtained,  the  statute  provides  that  such  use  shall  only  be  for  the  purpose  of 
"  giving  and  receiving  instruction  in  any  branch  of  education  or  learning,  or 
in  the  science  or  practice  of  music." 

It  is  true,  the  trustee  adroitly  seeks  to  bring  the  use  to  which  objection  is 
made,  within  the  law,  by  alleging  that  maps  of  the  ancient  world  are  studied, 
and  the  children  instructed  in  the  history  of  the  ancient  world  and  its  people, 
but  the  fact  remains  that  the  use  is  for  religious  purposes,  and  not  for  such 
educational  purposes  as  the  statute  clearly  refers  to. 

It  is  the  settled  policy  of  the  Department  to  sustain  trustees  in  permitting 
the  use  of  school  property  for  other  purposes  than  those  recognized  by  the 
school  laws,  so  long  as  the  residents  of  the  district  do  not  object.  It  can  go 
no  further.  The  Superintendent  would  be  very  glad  if  all  of  the  residents  of 
the  district  here  in  question  would  consent  to  the  careful  use  of  the  property 
for  the  purpose  suggested.  The  use  may,  however,  have  been  so  abused  as  to 
justify  the  objection.  In  any  event,  the  appeal  must  be  sustained,  and  such  ' 
use  in  the  future,  or  until  objection  is  withdrawn,  must  be  prohibited. 


JUDICIAL    DECISIOiNS:       SCHOOL    PROPERTY  —  USE    UF  879 

4021 

In  the  matter  of  the  appeal  of  John  Costello  and  others  v.  the  trustee  of  school 
district  no.  12,  of  the  town  of  Pompey,  county  of  Onondaga. 

A  school  district  trustee  permitted  the  school  building  to  be  used  for  religious  purposes.  Its 
use  did  not  interfere  with  the  school,  was  not  detrimental  to  the  property,  and  was  an 
accommodation  to  people  living  remote  from  an  established  church.  Held,  not  a  case 
for  interference  with  the  discretion  of  the  trustee. 

Decided    Noveml^er   16,   1891 

Draper,  Superintendent 

This  is  an- appeal  from  the  action  of  the  trustee  of  school  district  no.  12 
of  the  town  of  Pompey,  county  of  Onondaga,  in  permitting  the  schoolhouse 
to  be  used  for  the  purpose  of  holding  religious  meetings  therein.  It  is  alleged 
by  the  appellant  that  the  use  complained  of  has  depreciated  the  value  of  the 
property;  that  fuel  provided  by  the  district  has  been  used,  and  that  the  seats 
and  desks  have  been  so  separated  for  the  accommodation  of  adults  as  to  greatly 
inconvenience  the  younger  pupils  of  the  school. 

An  answer  has  been  interposed  by  the  trustee,  and  it  is  therein  admitted 
that,  for  many  years,  the  schoolhouse  has  been  used  for  union  religious  services 
in  which  people  of  all  denominations  participate.  It  is  denied  that  the  seats 
have  been  separated,  as  alleged  by  the  appellant,  and  the  respondent  insists 
that  they  remain  today  as  they  were  when  placed  in  the  schoolhouse  originally. 
He  denies  that  fuel  has  been  used  without  compensation  to  the  district.  It  is 
shown  by  the  respondent  that  the  nearest  church  to  the  schoolhouse  is  three  and 
a  half  miles  away,  and  that  such  church  is  usually  without  a  pastor  or  preacher, 
and  that  the  next  nearest  church  is  four  miles  away.  It  is  insisted  by  the 
respondent  that  instead  of  the  property  being  depreciated  by  the  use  complained 
of,  its  value  has  been  enhanced,  and  that  the  persons  so  using  the  building  are 
interested  in  keeping  it  clean  and  neat  and  pleasant. 

It  seems  clear  to  me  from  the  proof  presented,  that  the  use  of  the  school 
building  to  which  the  appellant  objects,  does  not  in  any  manner  interfere  with 
the  use  of  the  building  for  public  school  purposes,  nor  does  it  appear  to  me 
that  any  injury  or  loss  to  the  district  has  resulted  or  is  likely  to  result  from 
such  use.  It  appears  that  the  holding  of  religious  services  in  the  district  is  an 
accommodation  to  a  very  large  proportion  of  the  inhabitants  of  the  district,  and 
in  view  of  all  the  circumstances,  I  have  concluded  that  there  is  no  case  presented 
which  requires  me  to  interfere  with  the  discretion  of  the  trustee  in  the  matter, 
and  I  therefore  overrule  the  appeal. 


88o  THE   UNIVKKSITV    OF   THE   STATE   OF    NEW    YORK 

3707 

III  the  matter  of  the  appeal  of  James  Cogan,  Oliver  Sancomb,  Dennis  Gregory 
and  James  G.   Knox  v.   Pier   Coolidge,   trustee  of   school   district  no.    11, 
town  of  Ellenburgh,  Clinton  county. 
The  use  of  a  schoolhousc  with  the  trustee's  consent  for  religious  purposes  will  not  be  denied, 
where  it  is  made  to  appear  that  no  damage  has  been  done  to  the  public  property,  or  to 
the  i)roperty  of  pupils  in  consequence  of  such  use. 
Decided  .\ugust  2~,  1S88 

Draper,  Superintendent 

The  trustee  of  the  district  above  named  has  permitted  the  schoolhouse  in 
said  district  to  be  used  for  religious  meetings  on  the  Sabbath.  Objection  is 
made  by  the  appellants  hereto  to  such  use,  and  this  appeal  is  brought  for  the 
purpose  of  preventing  the  schoolhouse  from  being  used  for  such  purposes 
hereafter. 

The  statute  provides  that  the  custody  of  the  schoolhouse  shall  be  in  the 
trustee.  This  Department  has  always  held  that  trustees  might  permit  the  use 
of  schoolhouses  which  they  have  under  their  care  for  religious  services  where 
no  hann  is  thereby  done  to  the  building  or  furniture  or  other  property  of  the 
district.  The  appellants  in  the  present  case  assert  that  the  property  of  the  district 
and  of  pupils  attending  the  school  has  been  damaged  and  destroyed  by  such 
meetings,  and  that  fuel  belonging  to  the  district  has  been  used  at  these 
meetings.  But  this  is  denied;  the  trustee  and  several  credible  witnesses 
swear  that  no  use  whatever  has  been  made  of  the  fuel  of  the  district;  no  fire 
has  even  been  necessary  during  the  time  that  such  meetings  have  been  in 
progress,  and  they  also  seem  to  show  that  no  damage  has  been  done  to  the 
public  property  or  to  the  property  of  pupils  in  consequence  of  the  use  com- 
plained of. 

Therefore,  following  the  long  established  holdings  of  the  Department  upon 
the  question  at  issue,  I  have  come  to  the  conclusion  that  the  appeal  must  be 
dismissed,  and  it  is  so  ordered. 


4653 

In  the  matter  of  the  appeal  of  John  Shettler  v.  Prentiss  Angel,  as  trustee  of 
school  district  no.  13,  Cameron,  Steuben  county. 

When  the  schoolhouse  in  any  district  is  used  for  any  other  purpose  than  for  a  school,  and 
for  holdmg  school  meetmgs  therein,  or  in  any  manner  that  interferes  with  its  use  for 
school  purposes,  or  where  the  property  of  the  district  is  injured  by  such  use,  or 
w-here  there  are  differences  of  opinion  among  the  qualified  voters  of  a  district  as  to  the 
advisability  of  using  the  schoolhouse  for  other  than  school  purposes,  or  where  any  one 
or  more  of  the  qualified  voters  of  the  district  object  to  such  use.  it  becomes  the  duty 
of  the  State  Superintendent  of  Public  Instruction,  upon  appeal  to  him,  to  strictly 
observe  and  enforce  the  provisions  of  the  school  law. 

Decided  May  13,  1898 

D.  M.  Darrin.  attorney  for  appellant 


JUDICIAL    decisions:       school    property USE    OF  88l 

Skinner,  Superintendent 

This  is  an  appeal  from  the  action  of  the  trustee  of  school  district  13, 
Cameron,  Steuben  county,  in  permitting  the  schoolhouse  in  the  district  to  be 
used  for  other  than  school  purposes. 

The  material  facts  alleged  in  the  appeal  are  not  controverted  by  the 
respondent  in  his  answer,  namely,  that  the  respondent,  as  trustee  of  such  dis- 
trict, permits  the  schoolhouse  therein  to  be  used  for  religious  meetings  and 
Sunday  schools,  and  that  the  appellant,  a  resident  of,  and  taxpayer  in,  such 
district,  objects  to  such  use. 

The  respondent  contends  that  under  section  52  of  article  6,  title  7,  of  the 
Consolidated  School  Law  he,  as  trustee  of  such  district,  may  freely  permit 
such  schoolhouse,  when  not  in  use  for  the  district  school,  to  be  used  for  holding 
and  conducting  Sunday  schools  therein,  for  the  reason  that  instruction  is  given 
and  received  therein  in  a  branch  of  education  or  learning.  This  contention  is 
not  tenable.  The  branches  of  education  and  learning  in  which  instruction  may 
be  permitted  under  such  section  52,  means  secular  education  or  learning  as  is 
taught  in  the  schools  and  academies  and  colleges,  and  does  not  mean  religious 
instruction  and  learning  as  taught  in  Sunday  schools  and  in  religious  meetings. 

The  holding  of  Sunday  schools  and  religious  meetings  in  schoolhouses  is 
frequently  the  source  of  dispute  in  every  district  in  which  they  are  so  held,  and 
such  disputes  are  detrimental  to  the  best  educational  interests  of  such  districts. 

When  the  schoolhouse  in  any  district  is  used  for  any  other  purpose  than 
for  a  school,  or  in  any  manner  that  interferes  with  its  use  for  school  purposes, 
or  where  the  property  of  the  district  is  injured  by  such  use,  or  where  there  are 
differences  of  opinion  among  the  qualified  voters  of  a  district  as  to  the  advisa- 
bility of  using  the  schoolhouse  for  any  other  than  school  purposes,  or  where 
any  one  or  more  of  the  quahfied  voters  of  the  district  object  to  such  use,  it 
becomes  the  duty  of  the  State  Superintendent  of  Public  Instruction,  upon  appeal 
to  him,  to  strictly  observe  and  enforce  the  provisions  of  the  school  law.  See 
the  following  decisions:  No.  3577,  by  Superintendent  Draper,  July  21,  1887; 
4334,  Johnson  v.  Winston,  by  Superintendent  Crooker,  :March  7,  1895;  4419, 
Martin  and  others  v.  Weaver,  by  Superintendent  Skinner,  January  16,  1896; 
4450,  Mayer  v.  Barnes,  by  Superintendent  Skinner,  May  11,  1896. 

The  appeal  herein  is  sustained. 

It  is  ordered,  That  Prentiss  Angel,  as  trustee  of  school  district  13,  Cameron. 
Steuben  county,  forthwith  notify  the  persons  conducting  and  attending  such 
Sunday  schools  and  religious  meetings  heretofore  held  in  the  schoolhouse  in 
such  district,  that  no  further  or  other  religious  meetings  and  Sunday  schools 
shall  or  will  be  permitted  to  be  held  in  said  schoolhouse ;  and  that  the  permission 
and  consent  heretofore  given  by  him  that  such  religious  meetings  and  Sunday 
schools  be  so  held,  is  revoked,  canceled  and  withdrawn. 

It  is  further  ordered.  That  said  Prentiss  Angel,  as  such  trustee,  be,  and 
he.  hereby  is,  enjoined  and  restrained  from  permitting  or  consenting  to  the  hold- 


.>.>_■  TIIK    LNUKKSITY    OF   THE   STATE    OF    NEW   YORK 

ing  of  any  religious  meetings  and  Sunday  schools  in  the  schoolhouse  in  said 
district  13,  Cameron.  Steuben  county,  from  and  after  the  date  at  which  he  shall 
receive  notice  of  my  decision  and  orders  herein. 


4522 

In  the  matter  of  the  appeal  of  Enos  Smith  v.  Elihu  D.  Conklin,  trustee,  school 
district  no.  i,  towns  of  Canisteo,  Jasper  and  Greenwood.  Steuben  county. 

Where  an  appeal  is  taken  to  the  State  Superintendent  of  Public  Instruction  from  the  refusal 
of  the  trustee  or  trustees  of  a  school  district  to  permit  the  use  of  the  schoolhouse  for 
religious  nuctinys  and  Sunday  schools,  or  for  any  other  than  school  purposes,  and  it 
appears  liiat  any  qualitied  voter  of  the  district  is  opposed  to  such  use  or  that  such  use 
causes  contentions  and  dissensions  in  the  district,  or  where  the  property  of  the  school 
district  or  of  the  pupils  attending  the  school,  is  injured  by  such  use  it  becomes  the  duty 
of  the  State  Superintendent  to  strictly  observe  and  enforce  the  provisions  of  the  school 
law  upon  the  subject. 

Decided  December  4,  1896 


Almon  W.  Burrell,  attorney  for  appellant 
Milo  M.  Acker,  attorney  for  respondent 


Skinner,  Superintendent 

This  appeal  is  taken  from  the  refusal  of  the  trustee  of  school  district  no.  i, 
towns  of  Canisteo.  Jasper  and  Greenwood,  Steuben  county,  to  permit  the  school- 
house  to  be  used  for  religious  meetings  on  Tuesday  and  Friday  evenings. 

It  appears,  from  the  proofs  presented  herein,  that  for  many  years  the  school- 
house  of  the  district  has  been  used  on  Sundays  for  Sunday  school  and  other 
religious  services,  with  the  permission  of  the  trustee,  and  without  opposition  on 
the  part  of  any  qualified  voter  of  the  district,  and  since  this  appeal  was  taken, 
has  continued  to  be  so  used  with  the  permission  of  the  respondent  herein  as 
trustee;  that  since  August  i,  1896,  public  religious  meetings  conducted  by  religious 
societies  of  the  neighborhood  have  been  held  in  the  schoolhouse  on  Tuesday  and 
Friday  evenings;  that  for  the  period  of  about  six  weeks,  commencing  on  Sep- 
tember 7.  1896,  one  John  H.  Goff  taught  the  school  in  the  district,  and  the 
respondent  was  informed  by  said  Gofif  that  the  persons  attending  the  meetings 
held  on  Tuesday  and  Friday  evenings  were  soiling  and  defacing  the  schoolhouse 
and  property,  and  that  some  of  the  persons  attending  such  meetings  were  in  an 
intoxicated  condition;  that  the  schoolhouse  would  be  left  after  such  evening 
meetings  without  being  swept,  and  with  the  mud  and  dirt  not  taken  care  of ;  that 
a  large  amount  of  tobacco  juice  was  on  the  floor;  the  erasers  and  blackboards 
were  used,  and  in  one  or  two  instances,  chairs  and  other  property  were  broken 
and  damaged. 

It  further  appears  that  the  respondent,  having  knowledge  of  the  condition 
in  which  the  schoolhouse  was  left  after  such  evening  meetings  had  been  held 


JUDICIAL    DECISIONS  :       SCHOOL    PROPERTY USE    OF  883 

therein,  and  after  considering  the  statements  made  to  him  by  Goff,  decided  that 
it  was  for  the  best  interests  of  the  school  property  and  the  children  attending 
the  school,  that  the  schoolhouse  be  closed  against  the  holding  of  such  evening 
meetings  therein,  and  thereupon  locked  the  door  of  the  schoolhouse  and  out- 
buildings against  said  evening  meetings,  and  gave  notice  to  the  appellant  herein 
that  no  evening  meetings  would  be  permitted  to  be  held  in  the  schoolhouse. 

Under  the  school  law  the  trustee  or  trustees  of  every  school  district  are 
the  custodians  of  the  schoolhouse  or  houses  in  their  respective  districts,  but  for 
school  purposes  only,  that  is,  for  maintaining  schools  therein  and  for  school  dis- 
trict meetings.  The  only  provision  of  the  school  law  which  authorizes  trustees 
to  permit  the  use  of  a  schoolhouse  for  other  than  school  purposes  is  contained  in 
section  52,  article  6,  title  7,  of  the  Consolidated  School  Law  of  1894,  and  is  as 
follows:  "  The  trustees,  or  any  one  of  them,  if  not  forbidden  by  another,  may 
freely  permit  the  schoolhouse,  when  not  in  use  for  the  district  school,  to  be  used 
by  persons  assembling  therein  for  the  purpose  of  giving  and  receiving  instruction 
in  any  branch  of  education  or  learning,  or  in  the  science  or  practice  of  music." 

The  "  branch  of  instruction  and  learning  "  contained  in  said  section  is  secu- 
lar education  and  learning  such  as  is  taught  in  the  schools,  academies  and  col- 
leges, and  not  religious  instruction  or  learning. 

The  societies  or  persons  permitted  to  use  the  schoolhouse  for  holding  meet- 
ings must  furnish  the  fuel  and  light  used  at  such  meetings,  and  after  the  close 
of  the  meetings  should  sweep  and  clean  the  schoolhouse.  The  trustees  of  the 
district  have  no  legal  authority  to  permit  the  use  of  the  property  of  the  district 
for  heating  and  lighting  the  schoolhouse  for  such  meetings,  or  to  sweep  and 
clean,  at  the  expense  of  the  district,  the  schoolhouse  after  such  meetings  have 
been  held. 

This  Department  has  uniformly  held  that  where  an  appeal  is  taken  from  the 
refusal  of  the  trustee  or  trustees  of  a  school  district  to  permit  the  use  of  the 
schoolhouse  for  other  than  school  purposes,  and  it  appears  that  any  qualified 
voter  of  the  district  is  opposed  to  such  use,  or  that  such  use  causes  contentions 
and  dissensions  in  the  district,  or  where  the  property  of  the  school  district  or  of 
the  pupils  attending  the  school  is  injured  by  such  use,  it  becomes  the  duty  of  the 
Department  to  strictly  observe  and  enforce  the  law  governing  the  matter. 

The  appeal  herein  is  dismissed. 


4419 


In  the  matter  of  the  appeal  of  Peter  M.  Martin  and  others  v.  Erwin  Weaver, 

trustee  school  district  no.  7,  town  of  Rush.  Monroe  county. 
To  authorize  the  trustee  of  a  school  district  against  the  objection  of  any  one  or  more  of  the 

qualified  voters   therein,  to  permit  the   use  of   the  schoolhouse   for  holding  religious 
'•      meetings  and   Sunday  schools,  or  for  any  other  purpose  than  for  school  purposes,  he 

must  find  some  provision  of  law  giving  him  such  authority.     When  a  school  buildmg 


884  THE   l-NIVERSITY    OF   THE   STATE   OF    NEW    YORK 

is  used  for  any  ullur  than  school  purposes  or  in  any  manner  which  interferes  with 
its  use  for  school  purjKises  or  where  the  property  of  the  district  is  injured  by  such  use, 
or  where  there  are  differences  of  opinion  among  the  inhabitants  of  the  district  as  to 
the  advisability  of  using  the  schoolhouse  for  any  other  than  school  purposes,  it 
becomes  the  duty  of  the  State  Superintendent  of  Pul)lic  Instruction,  upon  an  appeal 
being  taken  to  him,  to  strictly  observe  and  enforce  the  provisions  of  the  school  law 
governing  such  use. 
Decided  January  i6,  1896 

William  Carter,  attorney  for  appellants 

Skinner,  Supcriutcudcnt 

The  appellants  in  the  above-entitled  matter  appeal  from  the  action  of  the 
respondent  in  permitting  the  nse  f)f  the  schoolhouse  in  district  no.  7,  town  of 
Rush,  Monroe  county,  for  the  holding  therein  of  religious  meetings  and  Sun- 
day school. 

An  answer  has  been  made  to  the  appeal  by  the  respondent,  Weaver,  the 
trustee  of  the  said  district. 

It  appears  that  the  respondent,  as  such  trustee  of  said  district,  has  permitted 
the  use  of  the  school  building  in  said  district  for  religious  meetings  and  for 
I^unday  schools;  that  on  or  about  October  19,  1895,  a  paper,  signed  by  thirteen 
of  the  residents  and  qualified  voters  of  said  district,  stating  that  they  objected 
to  the  use  of  said  school  building  for  any  purpose  not  warranted  by  law,  and 
specially  objected  to  its  use  for  religious  meetings,  and  demanding  that  such  use 
be  prohibited  by  the  respondent  as  trustee,  was  delivered  to  the  respondent  as 
trustee:  that  on  or  about  October  22,  1895,  a  paper  signed  by  thirty-five  of  the 
residents  and  qualified  voters  of  said  district,  asking  that  the  schoolhouse  con- 
tinue to  be  used  for  religious  purposes;  that  for  several  years  said  schoolhouse 
has  been  used  for  religious  meetings  and  Sunday  schools  with  the  permission  of 
the  respondent  and  his  predecessors  in  office  as  trustees  of  said  district;  that 
said  religious  meetings  are  not  held  by  any  one  sect  or  denomination,  but  are 
union  services  participated  in  by  persons  of  various  religious  denominations; 
that  the  village  of  West  Rush  is  located  in  said  school  district,  containing  quite 
a  number  of  people  desirous  of  attending  religious  services,  and  that  there  is  no 
hall  or  other  suitable  building  for  use  for  such  purposes ;  that  the  persons  attend- 
ing such  religious  meetings  have,  at  their  own  expense,  placed  in  saitl  school- 
house  a  cabinet  organ,  lainps  and  window  shades,  which  can  be  used,  if  desired, 
in  conducting  the  school  of  the  district ;  that  the  fuel  and  lights  used  at  such 
religious  meetings  are  furnished  by  and  at  the  expense  of  the  persons  attending 
such  meetings. 

It  also  appears  that  the  schoolhouse  has  been  cleaned  at  divers  times  by 
persons  interested  in  said  religious  meetings  and  also  swept  at  diflferent  times, 
and  the  window  shades  washed;  but  it  does  not  affirmatively  appear  that  after 
each  of  said  meetings  or  Sunday  schools  were  held,  that  the  schoolhouse  was 
thoroughly  cleaned,  swept  and  put  in  order  by  or  at  the  expense  of  the  persons 
interested  in  said  meetings. 


JUDICIAL    DECISIONS  :       SCHOOL    PROPERTY USE    OF  885 

It  does  not  appear  that  the  schoolhouse,  or  its  furniture,  aside  from  the 
natural  wear  and  tear  incident  to  its  use  for  said  meetings  and  Sunday  schools, 
has  been  injured. 

Schoolhouses  are  constructed  and  maintained  by  school  districts  for  the 
purpose  of  public  education  by  qualified  teachers  in  the  schools  conducted  therein, 
and  also  to  furnish  a  place  for  the  holding  of  school  meetings,  and  for  no  other 
purpose. 

By  subdivision  6  of  section  47,  article  6,  title  7,  of  the  Consolidated  School 
Law  of  1894,  the  custody  and  safekeeping  of  the  district  schoolhouse  or  houses, 
their  sites  and  appurtenances,  in  the  respective  school  districts  of  the  State, 
are  given  to  the  trustee  or  trustees  of  said  districts  respectively.  The  respondent 
herein,  as  sole  trustee  of  said  school  district  no.  7,  of  Rush,  under  the  school 
law,  is  the  custodian  of  the  schoolhouse  and  appurtenances  of  said  district ;  but 
such  schoolhouse,  etc.,  does  not  thereby  become  his  private  property,  and  he 
can  not  put  it  to  any  use  which  he  sees  fit ;  he  is  to  manage  it  as  the  representa- 
tive of  the  school  district,  and  for  school  purposes  only,  and  so  that  the  instruc- 
tion of  the  pupils  in  the  school  shall  not  be  embarrassed  by  any  use  of  the  house 
other  than  for  school  purposes,  and  that  the  property  of  the  district,  and  the 
furniture,  books  and  papers  belonging  to  the  school  or  the  pupils,  shall  not  be 
injured  or  destroyed.  No  use  of  the  schoolhouse  should  be  permitted  or  tolerated 
by  him  which  may  or  does  give  occasion  to  a  controversy  among  the  inhabitants 
of  the  district. 

To  authorize  the  respondent  herein,  against  the  objection  of  any  one  or  more 
of  the  qualified  voters  in  said  district,  to  permit  the  use  of  the  schoolhouse  for 
any  other  purpose  than  for  school  purposes,  he  must  find  some  provision  of  lav^' 
giving  him  such  authority.  Section  52,  article  6,  title  7,  of  the  Consolidated 
School  Law  of  1894,  gives  authority  to  the  respondent  herein,  as  sole  trustee 
of  said  district,  to  freely  permit  the  schoolhouse  therein,  when  not  in  use  for 
the  district  school,  to  be  used  by  persons  assembling  therein  for  the  purpose  of 
giving  and  receiving  instruction  in  any  branch  of  education  or  learning,  or  in  the 
science  or  practice  of  music. 

The  respondent  herein  contends  that  said  section  52  gives  him  authority  to 
permit  religious  meetings  and  Sunday  schools  to  be  held  in  the  schoolhouse  in 
said  district,  for  the  reason  that  "  instruction  in  the  principles  of  Christianity  is 
the  highest  form  of  education."  Such  contention  is  not  well  taken.  The  school 
law  refers  wholly  to  secular  as  distinguished  from  religious  education  or  learn- 
ing. The  Legislature  intended  in  its  use  of  the  words,  "  in  any  branch  of  educa- 
tion or  learning,"  that  such  branches  of  education  and  learning  as  are  taught  in 
the  common  and  higher  grades  of  schools,  and  in  academies,  colleges  and  uni- 
versities should  be  understood  and  not  instruction  in  religious  education  or  learn- 
ing as  taught  in  Sunday  and  church  schools  and  in  the  churches.  Even  under 
said  section  52  the  respondent,  as  such  trustee,  can  not  make  any  permanent  con- 
-  tract  for  the  occupation  of  the  schoolhouse,  but  can  simply  give  a  license  revoca- 


886  THE   UNIVERSITY    OF   THE   STATE   OE    NEW    VOUK 

ble  at  pleasure.  Strictly  speaking,  he  can  grant  no  right  to  use  the  schoolhouse 
for  any  other  than  educational  purposes;  and  can  only,  by  his  acquiescence  in 
any  such  use,  estop  himself  from  bringing  an  action  for  the  act  of  entering  the 
schoolhouse,  which  would  otherwise  be  a  trespass. 

My  predecessors  in  office  have,  in  many  cases,  refused  to  interfere  with  the 
action  of  trustees  in  permitting  schoolhouses  to  be  used  for  religious  meetings; 
but  each  case  has  been  decided  upon  the  facts  as  established  therein.  No  such 
refusal  to  interfere  has  been  made  in  any  case  in  which  the  action  of  the  trus- 
tee or  trustees  has  given  occasion  to  a  controversy  among  the  inhabitants  of  the 
district. 

It  appears  from  the  papers  presented  in  this  appeal  that  out  of  the  forty- 
eight  residents  and  qualilied  voters  of  the  district  who  have  expressed  their 
opinion  as  to  the  act  of  the  respondent,  thirteen,  more  than  one-fourth,  are 
opposed  to  the  use  of  the  schoolhouse  for  holding  religious  meetings  and  Sun- 
day school.  The  action  of  the  trustee  has  occasioned  a  controversy  among  the 
inhabitants  of  the  district. 

The  holding  of  religious  meetings  in  schoolhouses  is  almost  always  the 
source  of  dispute  in  every  district  in  which  such  a  meeting  is  held,  and  such  dis- 
putes are  detrimental  to  the  best  educational  interests  of  such  districts.  I  am 
not  in  favor  of  the  use  of  the  schoolhouses  for  holding  meetings  for  any  purpose 
or  purposes  whatever  other  than  those  recognized  by  the  school  law,  no  matter 
how  laudable  the  purposes  of  such  assembly  of  persons  may  be. 

I  am  clearly  of  the  opinion  that  when  a  school  building  is  used  for  any  other 
purpose  or  in  any  manner  which  interferes  with  its  use  for  school  purposes,  or 
where  the  property  of  the  district  is  injured  by  such  use,  or  where  there  arc  dif- 
ferences of  opinion  among  the  inhabitants  of  the  district  as  to  the  advisability  of 
using  the  schoolhouse  for  any  other  purpose  than  school  purposes,  it  becomes 
the  duty  of  the  State  Superintendent  of  Public  Instruction,  upon  appeal,  to 
strictly  observe  and  enforce  the  provisions  of  the  school  law  governing  the 
matter. 

The  appeal  herein  is  sustained. 

It  is  ordered,  That  said  Erwin  Weaver,  as  such  trustee  of  school  district 
no.  7,  town  of  Rush,  Monroe  county,  forthwith  notify  the  persons  conducting  and 
attending  said  religious  meetings  and  Sunday  school,  heretofore  held  in  the 
schoolhouse  in  said  district,  that  no  further  or  other  meetings  and  Sunday  schools 
shall  be  or  will  be  permitted  to  be  held  in  said  schoolhouse  in  said  district,  and 
that  the  permission  and  consent  heretofore  given  by  him,  that  such  religious 
meetmgs  and  Sunday  school  be  so  held,  is  revoked,  canceled  and  withdrawn. 

It  is  further  ordered,  That  said  Erwin  Weaver,  as  such  trustee,  be,  and  he 
hereby  is,  enjoined  and  restrained  from  permitting  or  consenting  to  the  holding 
of  any  religious  meetings  and  Sunday  schools  in  the  schoolhouse  in  said  district 
no.  7,  town  of  Rush,  Monroe  county,  from  and  after  the  date  at  which  he  shall 
receive  notice  of  my  decision  and  orders  herein. 


JUDICIAL    decisions:       school    PROrERTY  — use    OF  887 

4450 

In  the  matter  of  the  appeal  of  Joseph  S.  Mayer  v.  Cassius  H.  Barnes,  trustee, 
school  district  no.  2,  town  of  Scriba,  Oswego  county. 

This  Department  has  uniformly  held  for  many  years  that  when  upon  an  appeal  it  is  estab- 
lished that  a  school  building  is  used  for  any  other  purpose  or  in  any  manner  which 
interferes  with  its  use  for  school  purposes,  or  giving  and  receiving  instruction  in  any 
branch  of  education  or  learning,  or  the  science  or  practice  of  music,  or  where  there 
are  differences  of  opinion  among  the  inhabitants  of  the  district  as  to  the  advisa- 
bility of  the  use  of  the  schoolhouse  for  any  other  than  school  purposes;  or  where 
the  property  of  the  district  or  of  the  pupils  is  injured  by  such  use,  it  becomes  the  duty 
of  the  State  Superintendent  of  Public  Instruction  to  strictly  observe  and  enforce  the 
provisions  of  the  school  law  relating  to  such  use. 

Decided  May  11,  1896 

Skinner,  Superintendent 

The  appeal  in  the  above-entitled  matter  is  taken  from  the  action  of  the 
trustee  of  school  district  no.  2,  town  of  Scriba,  Oswego  county,  in  permitting  the 
use  of  the  schoolhouse  of  said  district  for  meetings  of  the  Ontario  lodge  of 
Independent  Order  of  Good  Templars. 

The  pleadings  herein  consist  of  the  appeal,  answer,  reply  and  rejoinder. 

The  facts  material  to  the  issue,  as  appear  from  such  pleadings,  are  as 
follows : 

That  the  Ontario  lodge  of  Independent  Order  of  Good  Templars,  a  secret 
society  or  association  having  its  password,  grips  etc.,  holds  weekly  meetings  in 
the  schoolhouse  of  said  district,  with  the  permission  of  the  trustee  of  said  dis- 
trict, and  have  been  so  held  for  some  considerable  time;  that  at  such  meet- 
ings, when  the  initiation  of  members  takes  place,  none  but  members  of  the  order 
are  admitted,  and  that  at  other  meetings  all  persons  so  desiring  are  admitted; 
that  a  petition  signed  by  twenty-one  persons  who  claim  to  be  voters  and  tax- 
payers, has  been  presented  that  the  schoolhouse  be  closed  against  the  meetings 
of  said  order,  and  a  petition  signed  by  thirty  persons,  who  claim  to  be  taxpayers 
in  said  district,  but  six  of  whom  it  is  stated  upon  the  petition  are  nonresidents 
of  said  school  district,  leaving  the  names  of  twenty-four  residents  of  the  district, 
is  also  presented,  asking  that  the  said  order  be  permitted  to  hold  its  meetings  in 
said  schoolhouse. 

It  is  alleged  by  the  respondents  herein  that  of  the  twenty-one  persons  sign- 
ing said  petition  that  the  schoolhouse  be  closed  against  the  said  meetings  of  said 
order,  eleven  are  not  qualified  voters  in  said  school  district.  Admitting,  for  the 
purpose  of  argument  only,  that  said  allegations  are  true,  it  appears  that  of  the 
thirty-four  qualified  voters  of  said  district  contained  in  the  two  petitions,  more 
than  one-fourth  and  nearly  one-third  are  opposed  to  said  order  holding  its  meet- 
ings in  said  schoolhouse. 

A  large  portion  of  the  matters  contained  in  the  papers  filed  in  this  appeal 
are  not  relevant  to  the  question  at  issue  herein. 


888  THE    UNIVERSITY    OF   THE   STATE    OF    NEW    YORK 

1  As  to  the  action  of  the  annual  school  meeting  held  in  August  1895,  upon 
the  two  resolutions  olTered,  namely,  one  oi)posed  and  one  in  favor  of  permitting 
the  schoolhouse  in  said  district  to  be  used  for  the  meetings  of  said  order,  or 
for  other  use  than  for  school  purposes.  By  subdivision  6  of  section  47,  article  6, 
title  7  of  the  Consolidated  School  Law  of  1894,  it  is  enacted  that  it  shall  be  the 
duty  of  the  trustee  or  trustees  of  every  school  district,  and  they  shall  have  power 
to  "  have  the  custody  and  safekeeping  of  the  district  schoolhouse  or  houses, 
their  sites  and  appurtenances."'  Whether  the  said  annual  school  meeting  voted 
in  favor  of  or  against  permitting  the  use  of  the  schoolhouse  for  any  other  than 
school  purposes  is  wholly  immaterial,  and  the  action  of  the  meeting  was  but  an 
expression  of  opinion  on  the  part  of  those  present  and  voting,  and  would  not 
he  lawfully  binding  upon  the  trustee  of  the  district  any  more  than  a  vote  of  said 
meeting  directing  the  trustees  to  employ  as  teacher  a  person  named  by  the  meet- 
ing, or  that  the  trustee  should  pay  a  sum  fixed  by  the  meeting  as  compensation 
for  the  services  of  a  teacher.  The  school  law  gives  to  the  trustee  of  the  district 
the  custody  and  safekeeping  of  the  schoolhouse  etc.,  therein  and  the  voters  of 
the  district  can  not  change  the  powers  and  duties  of  said  trustee  in  that  regard 
by  any  action  they  may  take. 

2  As  to  whether  or  not  Mrs  Mary  O'Hara  signed  the  petition  against  per- 
mitting the  use  of  the  schoolhouse  for  meetings  of  said  order  under  a  misappre- 
hension of  the  nature  of  the  petition.  It  appears  that  Mrs  O'Hara  has  signed 
both  petitions.  The  erasure  of  her  name  from  the  petition  against  such  use  of 
the  schoolhouse  would  not.  in  any  way,  affect  the  question  at  issue,  as  out  of 
thirty-three  voters  expressing  their  wishes,  nine,  more  than  one-fourth,  are 
opposed  to  said  use  of  the  schoolhouse. 

3  As  to  whether  or  not  any  rent  has  been  paid  by  said  order  for  its  use  of 
the  schoolhouse ;  or  whether  the  order  has  paid  any  part  of  the  compensation  of 
the  janitor;  or  has  paid  for  fuel  and  light  used  at  its  meetings;  or  allowed  the 
school  to  use  the  organ  owned  by  it,  etc.,  are  not,  nor  is  any  or  either  of  them, 
material  in  determining  the  question  at  issue. 

The  question  presented  herein  for  my  decision  is.  Had  or  has  the  trustee  of 
school  district  no.  2,  town  of  Scriba,  Oswego  county,  authority  under  the  school 
law  to  permit  the  schoolhouse  of  said  district  to  be  used  by  the  Ontario  lodge 
of  Independent  Order  of  Good  Templars  for  holding  its  meetings? 

Public  schoolhouses  are  constructed  and  maintained  by  school  districts  for 
the  puri)ose  of  public  instruction  by  qualified  teachers  in  the  schools  conducted 
therein,  and  also  to  furnish  a  place  for  the  holding  of  school  district  meetings. 

Under  the  provisions  of  the  school  law  the  trustees  of  school  districts  are 
charged  with  the  custody  and  safekeeping  of  the  district  schoolhouse  or  houses, 
their  sites  and  appurtenances,  in  the  respective  school  districts  for  the  purpose  of 
public  instruction  and  for  school  district  meetings. 

The  respondent  herein.  Cassius  H.  Barnes,  as  sole  trustee  of  school  district 
no.  2.  town  of  Scriba,  Oswego  county,  under  the  school  law,  is  the  custodian  of 
the  schoolhouse,  site  and  appurtenances  in  said  district.     Such  schoolhouse  etc., 


JUDICIAL    DECISIONS  :       SCHOOL    PROPERTY  —  USE    OF  889 

does  not  thereby  become  his  property,  and  he  can  not  put  it  to  any  use,  or  permit 
it  to  be  used  for  any  purpose  that  he  sees  fit.  His  custody  and  safekeeping 
thereof  must  be  exercised  by  him  as  the  representative  of  the  school  district,  and 
for  school  purposes  only.  No  use  of  the  schoolhouse  should  be  permitted  or 
tolerated  by  him  which  does  or  may  give  occasion  to  a  controversy  among  the 
inhabitants  of  the  district. 

The  respondent  herein,  to  authorize  him  to  permit  the  use  of  the  school- 
house  for  any  other  than  for  school  purposes,  against  the  objection  of  any  one 
or  more  of  the  qualified  voters  in  said  district,  must  find  some  provision  of  law 
giving  him  such  authority. 

Under  section  52,  article  6,  title  7,  of  the  Consolidated  School  Law  of  1894, 
the  respondent  herein,  as  sole  trustee  of  said  district,  has  authority  to  freely 
permit  said  schoolhouse  therein,  when  not  in  use  for  the  district  school,  to  be 
used  by  persons  assembling  therein  for  the  purpose  of  giving  and  receiving 
instruction  in  any  branch  of  education  or  learning,  or  the  science  or  practice  of 
music. 

The  Legislature  clearly  intended  by  the  use  of  the  words  "  in  any  branch 
of  education  or  learning  "  such  branches  of  education  or  learning  as  are  taught 
in  the  common  or  higher  grades  of  schools,  and  in  academies,  colleges  and 
universities. 

It  is  clear,  from  the  proofs  herein,  that  the  Ontario  lodge  of  Independent 
Order  of  Good  Templars  at  their  meetings,  do  not  give,  nor  do  the  persons 
assembled  thereat  receive,  instruction  in  any  branch  of  education  or  learning 
within  the  meaning  intended  by  the  Legislature  as  contained  in  said  section  52. 

Superintendent  Draper  in  July  1887,  in  his  decision  of  an  appeal  taken  to 
him  where  the  question  was  presented  whether  a  district  meeting  or  the  trustee 
can,  over  the  objection  of  any  interested  party,  let  school  property  for  use  at 
certain  times  by  a  temperance  lodge  or  society  said,  "  The  persons  who  were 
permitted  to  use  it  did  not  assemble  for  the  purpose  of  giving  and  receiving 
instruction,  but  for  the  promotion  of  temperance.  However  laudable  the  pur- 
pose of  their  assembly,  it  is  not  a  purpose  recognized  by  the  State.  I  am,  there- 
fore, of  the  opinion  that  the  leasing  complained  of  was  unlawful,  and  that  the 
appeal  must  be  sustained." 

It  is  clear  from  the  proofs  herein  that  not  only  the  objection  of  one  inter- 
ested party  in  said  district  is  mAde  to  the  meetings  of  said  order  in  said  school- 
house,  but  that  nearly  one-third  of  the  qualified  voters  of  said  district  object 
to  said  use  of  said  schoolhouse,  and  that  the  action  of  the  respondent  herein  in 
permitting  such  use  has  occasioned  a  controversy  among  the  inhabitants  of  said 
district.  This  Department  has  uniformly  held  for  many  years,  that  when  upon 
appeal  it  is  established  that  a  school  building  is  used  for  any  other  purpose,  or 
in  any  manner  which  interferes  with  its  use  for  school  purposes,  or  giving  and 
receiving  instruction  in  any  branch  of  education  or  learning,  or  the  science  or 
I'M-actice  of  music  or  where  there  are  diflFerences  of  opinion  among  the  inhabitants 
of  'the  district  as  to  the  advisabilitv  of  using  the  schoolhouse  for  any  other  than 


iyjU  THE   UNIVEKSITV    OF   TlIK   STATE    OF    NEW   YORK 

school  purposes,  or  where  the  properly  of  the  district,  or  one  of  the  pupils  is 
injured  by  such  use,  it  becomes  the  duty  of  the  State  Superintendent  of  Public 
Instruction  to  strictly  observe  and  enforce  the  provisions  of  the  school  law  gov- 
erning the  matter. 

The  appeal  herein  is  sustained. 

It  is  ordered,  That  Cassius  H.  Barnes,  as  trustee  of  school  district  no.  2, 
town  of  Scriba,  Oswego  county,  forthwith  notify  said  Ontario  lodge  of  Inde- 
pendent Order  of  Good  Templars,  or  the  officers  thereof  that  no  further  or  other 
meetings  of  said  Ontario  lodge  of  Independent  Order  of  Good  Templars  shall  be 
or  will  be  permitted  to  be  held  in  the  schoolhouse  in  said  district,  and  that  the 
permission  and  consent  heretofore  given  by  him  that  said  lodge  may  hold  its 
meetings  therein  is  withdrawn,  canceled  and  revoked. 

It  is  further  ordered.  That  said  Cassuis  H.  Barnes,  as  such  trustee,  be,  and 
he  hereby  is,  enjoined  and  restrained  from  permitting  or  consenting  to  the  said 
Ontario  lodge  of  Independent  Order  of  Good  Templars  meeting  in  or  holding 
any  meetings  in  said  schoolhouse  in  said  district,  from  and  after  the  day  or  date 
on  which  he  shall  receive  notice  of  my  decision  and  orders  herein. 


3577 

George  LeFever  v.   Reuben   Milgate,   sole  trustee   of   district  no.   9,   towns   of 
Clarksville  and  Portville,  Allegany  and  Cattaraugus  counties. 

The  trustee  is  the  legal  custodian  of  the  schoolhouse,  but  it  is  not  his  private  property  and 

he  can  not  put  it  to  any  use  he  sees  fit. 
As  a  general  rule,  it  is  to  be  used  only  for  school  purposes. 
The  use  of  a  schoolhouse  for  any  purposes  other  than  those  permitted  by  statute,  however 

laudable,  can  not  be  sustained  when  objected  to  by  interested  parties. 
Decided  July  21,  1887 

I"".  \V.  &  E.  F.  Kruse,  for  appellants 

Draper,  Superintendent 

This  is  an  appeal  of  a  resident  and  taxpayer  in  the  above-named  district 
from  the  action  of  the  sole  trustee  of  the  district  in  renting  the  schoolhouse  for 
one  evening  in  each  week  to  a  temperance  society,  known  as  "  Pleasant  Valley 
Division,  Xo.  107,  of  the  Sons  of  Temperance,"  which  society  upon  such  evenings 
occupies  the  building  exclusively,  permitting  none  but  members  to  be  present, 
and  pays  for  such  use  to  the  trustee  a  small  stipulated  amount. 

The  trustee  in  his  answer  admits  the  leasing  and  the  use  of  the  building  as 
alleged.  He  says  that  at  the  last  annual  school  meeting  it  was  agreed,  by  the 
electors  present,  that  the  building  should  be  rented  for  the  purpose  complained 
of  by  the  appellant.  This  is  denied.  The  record  of  such  action  is  not  produced, 
and  severa.  persons,  including  the  chairman  of  the  meeting,  swear  that  no  such 


JUDICIAL  decisions:     school  property  —  USE  OF  891 

action  was  taken.  There  seems  to  have  been  considerable  interest  in  the  district 
over  the  question,  and  the  fact  probably  is  that  it  was  made  an  issue  in,  and 
was  understood  to  be  determined  by,  the  election  of  the  trustee.  I  consider  it 
immaterial  in  any  event. 

There  is  really  no  dispute  as  to  the  facts,  and  the  question  is  presented 
whether  a  district  meeting  or  the  trustee  can,  over  the  objection  of  any  interested 
party,  let  school  property  for  the  exclusive  use  at  certain  times  of  such  an 
organization  as  that  mentioned  in  the  appeal. 

The  law  constitutes  the  trustee  the  custodian  of  the  schoolhouse.  But  it 
does  not  thereby  become  his  private  property,  and  he  can  not  put  it  to  any 
use  which  he  sees  fit.  He  is,  as  a  general  rule,  to  manage  it  as  the  representative 
of  the  district,  and  for  school  purposes  only.  He  must  find  some  express  pro- 
vision of  statute  authorizing  him  to  permit  it  to  be  used  for  any  other  purpose 
before  he  is  justified  in  doing  so,  provided  objection  is  made  by  any  interested 
party.  The  only  provision  of  the  statute  of  such  a  nature  is  found  in  section 
52  of  title  7  of  chapter  555  of  the  Laws  of  1864,  which  allows  the  trustee  "to 
permit  the  schoolhouse,  when  not  in  use  by  the  district  school,  to  be  used  by 
persons  assembling  therein  for  the  purpose  of  giving  and  receiving  instruction 
in  any  branch  of  education  or  learning  or  in  the  science  or  practice  of  music." 
It  can  not  be  claimed  that  the  leasing  in  the  present  case  was  for  such  a  pur- 
pose as  is  here  mentioned.  In  this  case  the  house  was  given  over  to  the  use  of 
a  secret  society.  The  people  of  the  district  who  were  not  members  of  the 
society  were  excluded.  The  persons  who  were  thus  permitted  to  use  it  did  not 
assemble  for  the  purpose  of  giving  and  receiving  instruction,  but  for  the  pro- 
motion of  temperance.  However  laudable  the  purpose  of  their  assembly,  it  is 
not  a  purpose  recognized  by  the  State.  I  am,  therefore,  of  the  opinion  that  the 
leasing  complained  of  was  unlawful,  and  that  the  appeal  must  be  sustained. 

It  may  be  proper  to  say,  however,  that  it  has  always  been  the  practice  of 
this  Department  to  refrain  from  preventing  the  use  of  school  property  for  other 
than  school  purposes,  when  such  other  use  does  not  interfere  with  the  use  for 
which  such  property  is  maintained,  and  when  such  other  use  is  acquiesced  in  by 
the  taxpayers  and  electors  of  the  district.  This  has,  unquestionably,  been  a  wise 
policy.  Frequently,  in  the  rural  school  districts,  the  schoolhouse  is  the  only 
suitable  place  in  the  district  for  holding  a  meeting  of  any  character,  and  such 
policy  has  greatly  promoted  the  convenience  as  well  as  the  intellectual  and 
moral  activity  of  the  people  of  the  district.  But  when  a  school  building  is  used 
for  any  other  purpose,  or  in  any  manner  which  interferes  with  its  use  for 
school  purposes,  or  where  there  are  differences  of  opinion  among  the  people  of 
the  district  as  to  the  advisability  of  using  the  schoolhouse  for  any  other  purpose 
than  school  purposes,  it  becomes  the  duty  of  the  Department  to  strictly  observe 
and  enforce  the  laws  governing  the  matter. 

The  appeal  is  sustained,  and  the  injunction  granted  on  the  24th  day  of 
"March  1887,  is  made  perpetual. 


892  THE   UNIVERSITY    OF   THE   STATE   OF   NEW    YORK 

4164 

In  the  matter  of  the  appeal  of  Albert  B.  Brown  v.  J.  F.  Stilson,  trustee,  district 
no.  8,  city  of  Rome,  Oneida  county. 

Schoolhouscs  may  l)e  used  out  of  school  hours  and  when  not  in  use  for  district  purposes 
for  religious  meetings,  Sunday  schools,  lectures  or  any  other  moral,  literary  or  useful 
purpose,  with  the  approbation  of  a  majority  of  the  district  and  consent  of  trustees. 
Where  an  appellant  does  not  show  that  any  injury  has  resulted  or  does  result  to  the 
schoolhouse,  or  to  the  district  from  the  holding  of  said  meetings  for  religious  purposes, 
there  is  not  presented  any  grievance  demanding  the  interposition  of  this  Department. 

Decided  February  15,  1893 

Crooker,  Superintendent 

This  is  an  appeal  from  the  action  and  decision  of  the  respondent  in  per- 
mitting the  schoolhouse  in  school  district  no.  8,  city  of  Rome,  Oneida  county, 
to  be  used  for  other  than  educational  purposes  as  against  the  objection  of  the 
appellant. 

The  appellant  shows  that  on  October  25,  1892,  the  appellant  served  upon 
the  respondent  a  notice  not  to  allow  the  schoolhouse  in  said  district  to  be  used 
for  other  than  school  purposes  from  the  date  of  said  notice.  The  appellant  also 
makes  an  aftidavit  of  the  service  of  stich  notice  and  avers  that  the  respondent 
has  disregarded  said  notice  and  continues  to  allow  said  schoolhouse  to  be  used 
for  other  than  educational  purposes,  to  wit,  for  religious  purposes.  That 
(leponent  was  present  at  the  said  schoolhouse  on  Sunday,  November  8,  1892, 
and  that  preaching  was  held  therein,  and  that  the  respondent  was  present  and 
consented  to  and  took  part  therein.  It  is  not  alleged  in  said  appeal  that  any 
injury,  damage  or  loss  has  been  sustained  by  the  district  in  consequence  of  the 
use  of  said  schoolhouse  for  other  than  educational  purposes.  The  appeal  is 
not  supported  by  any  proof  or  affidavit  other  than  that  of  the  appellant. 

The  answer  admits  that  said  schoolhouse  has  been,  and  is,  used  for  other 
than  educational  purposes  and  shows  that  the  schoolhouse  in  said  district  is 
situate  several  miles  from  a  church  in  which  a  Sunday  school  or  religious  meet- 
mg.s  are  held;  that  for  many  years  it  has  been  the  custom  to  hold  religious 
meetmgs  in  said  schoolhouse;  that  about  ten  years  ago,  at  the  request  of  the 
people  residing  in  said  district,  a  union  Sunday  school  was  organized  and  said 
school  held  regularly  on  Sunday  in  said  schoolhouse;  that  said  school  com- 
menced with  eleven  scholars  and  has  increased  to  fifty-five  scholars,  having  a 
regular  average  attendance  of  thirty-five  scholars,  said  scholars  being  child'^en 
of  persons  belonging  to  diflferent  religious  denominations ;  that  at  the  religious 
meetmgs,  which  are  regularly  held  in  said  schoolhouse,  one  Rev.  Mr  Deckel-,  of 
Lowell,  Oneida  county,  is  the  stated  preacher,  and  said  meetings  have  been 
largely  attended  by  the  people  residing  in  said  district,  the  most  of  whom  are 
patrons  of  the  district  school  and  taxpayers  in  the  school  district  That 
prayer  meetings  are  held  in  said  schoolhouse  once  each  month,  and  a  religious 
meeting  is  held  in  said  schoolhouse  once  in  each  month  by  the  Youn^r  People's 


JUDICIAL  decisions:     school  property  —  USE  OF  893 

Society  of  Christian  Endeavor.  That  said  rehgious  societies  have  purchased 
and  placed  in  said  schoolhouse  a  cabinet  organ,  the  free  use  of  which  is  made 
by  the  district  school  every  day  in  which  said  school  is  in  session.  Said  Sun- 
day school  has  also  provided  said  schoolhouse  with  window  shades,  lamps  and 
other  fixtures  and  furniture.  That  said  schoolroom  is  cleaned  once  every  week 
by  the  Sunday  school,  and  said  religious  societies  furnish  the  fuel  and  lights 
used  by  them,  no  fuel  etc.,  of  the  district  being  used  at  said  religious  meetings. 
That  no  injury  has  been  done  to  the  said  school  building  or  fixtures,  nor  to 
any  school  books  or  property  of  the  pupils  therein.  That  a  large  bell,  mounted 
upon  the  schoolhouse,  is  in  use  by  the  district  school,  and  said  bell  was  purchased 
by  the  inhabitants  and  not  by  the  district. 

It  does  not  appear  from  the  papers  presented  upon  this  appeal  that  any 
other  person  than  the  appellant  has  objected  to  the  use  of  said  schoolhouse  for 
said  religious  meetings,  but,  on  the  contrary,  the  affidavits  of  twenty  qualified 
voters,  in  addition  to  that  of  the  respondent,  are  presented  approving  of  such 
use  and  the  action  of  the  respondent  in  permitting  the  same  to  be  so  used. 

Trustees  are  charged  with  the  custody  of  the  schoolhouse  for  the  purpose 
of  public  instruction,  and  it  is  their  duty  to  exercise  a  general  supervision  over 
its  care  and  management  that  the  instruction  of  the  pupils  in  the  school  shall 
not  be  embarrassed  by  any  use  of  the  house  other  than  for  school  purposes, 
and  that  the  property  of  the  district,  and  the  furniture,  books  and  papers  belong- 
ing to  the  school  or  the  pupils  shall  not  be  destroyed  or  injured.  Any  use  of 
the  house  in  subordination  to  these  restrictions,  and  not  inconsistent  with  the 
main  purposes  for  which  it  was  designated  may  be  allowed  by  the  trustees 
under  section  52  of  title  7  of  the  Consolidated  School  Laws  of  1864. 

Superintendent  Van  Dyck,  on  March  15,  1859,  held:  "  The  quiet  assembling 
of  orderly  persons  for  religious  instruction,  not  at  unreasonable  hours  can  not 
be  a  serious  injury  to  the  schoolhouse,  nor  to  educational  interests,  generally, 
of  the  district.  At  all  events,  I  am  not  disposed  to  interfere  with  the  discretion 
of  the  trustees  in  regard  to  a  proper  custody  of  a  schoolhouse,  until  the  abuse 
of  that  discretion  is  clearly  proven  by  evidence  showing  that  positive  injury  and 
damage  have  resulted  from  allowing  the  schoolhouse  to  be  used  for  other  than 
school  purposes."  Superintendent  Van  Dyck,  on  January  7,  i860,  said:  "I 
am  disposed  to  hold,  with  a  previous  opinion  of  this  Department,  found  in 
Randall's  School  System,  220,  that  the  schoolhouse  may  be  used,  out  of  school 
hours  and  when  not  wanted  for  district  purposes,  for  religious  meetings,  Sun- 
day schools,  lectures,  or  any  other  moral,  literary  or  useful  purpose,  with  the 
approbation  of  a  majority  of  the  district,  and  consent  of  trustees." 

The  decision  of  Superintendent  Van  Dyck,  of  March  1854,  was  concurred 
in  by  Superintendent  Weaver,  in  October  23,  1868.  Superintendent  Gilmour, 
in  June  1870,  held:  "  The  trustee  is  the  legal  custodian  of  the  schoolhouse,  and 
whenever  he  permits  it  to  be  used  for  purposes  lawful  and  commendable  in 
.themselves,  which  do  not  interfere  with  the  school,  nor  injure  the  district  prop- 
erty, this  Department  will  not  interfere  in  the  matter." 


8,^4  THK    rSlVEHSITV    OF   Till-:   STATK    UK    NEW    YORK 

I  fully  comiir  with  my  predecessors  in  office  in  their  opinions  and  decisions 
as  above  quoted. 

As  the  appellant  herein  docs  not  show  that  any  injury  has  or  does  result 
to  the  schoolhousc,  nor  to  the  district,  from  the  holding  of  said  meetings  for 
religious  purposes,  there  is  not  presented  any  grievance  demanding  the  inter- 
position of  this  Department. 

Appeal  dismissed. 


4334 

In  the  matter  of  the  appeal  of  Byron  Johnson  v.  William  D.  Winston  as  trustee 
of  school  district  no.  lo,  town  of  Marcy,  Oneida  county. 

In  an  appeal  from  the  action  of  a  trustee  of  a  school  district  in  permitting  a  branch  or 
lodge  of  the  society  or  association  known  as  "  The  Patrons  of  Industry  of  the  State 
of  New  York,"  to  hold  meetings  in  the  schoolhouse  in  his  district :  held,  that  the 
action  of  the  trustee  was  without  authority  of  and  in  violation  of  the  school  law  of 
the  State. 

Decided  March  7,  1895 

E.  A.  Warren,  attorney  for  appellant 

Crooker,  Superintendent 

The  appellant  in  the  above-entitled  matter  appeals  from  the  action  and 
decision  of  the  respondents  herein,  as  trustee  of  school  district  no.  10,  town  of 
Marcy,  Oneida  county,  in  permitting  certain  persons  claiming  to  be  members 
of  an  order,  society  or  association  under  the  name  of  the  "  Patrons  of  Industry 
of  the  State  of  New  York,"  or  a  branch  or  lodge  thereof,  to  meet  in,  and  hold 
meetings  in  the  schoolhouse  of  said  district;  and  upon  the  request  of  the  appel- 
lant herein  that  said  respondent  as  such  trustee  deny  said  order,  society  or  asso- 
ciation the  further  use  of  said  schoolhouse,  the  action  and  decision  of  said 
respondent  as  such  trustee  refusing  to  grant  such  request. 

It  appears,  from  the  proofs  presented  herein,  that  the  appellant  herein  is 
a  qualified  voter  in,  and  a  taxable  inhabitant  of,  said  school  district  no.  10, 
town  of  Marcy.  Oneida  county;  that  the  respondent  herein,  William  D.  Winston, 
IS,  and  has  been  since  the  annual  school  meeting  in  said  school  district,  held  in 
August  1893,  the  sole  trustee  of  said  school  district;  that  some  time  in  the 
spring  of  the  year  1894,  a  person  calling  himself  Norman  Smith  and  claiming  to 
be  grand  organizer  of  the  "  Patrons  of  Industry  of  the  State  of  New  York," 
dehvered  a  lecture  in  the  schoolhouse  of  said  district  upon  the  purposes  and 
objects  of  said  society  or  association  and  the  benefits  to  be  derived  from  mem- 
bership therein ;  that  said  organization  was  a  secret  one  and  the  members  thereof 
were  required  to  keep  such  secrets  although  no  oath  was  required;  that  the 
payment  of  a  membership  fee  of  $1  for  those  joining  that  night  was  required, 
and  $2  for  joining  thereafter,  with  small  dues  payable  once  in  three  months ; 
but   women   were  only  required  to  pay  half  price  and  a   failure  to  pay  dues 


w    # 


JUDICIAL    DECISIONS  :       SCHOOL    PROPERTY  —  USE    OF  895 

terminated  such  membership;  that  all  persons  under  14  years  of  age  were 
excluded  from  membership ;  that  a  paper  was  passed  around  at  such  meeting 
to  obtain  the  signatures  of  those  willing  to  join  said  organization,  and  after 
signatures  had  been  obtained,  those  not  signing  were  requested  to  and  did  leave 
said  schoolroom ;  that  a  branch  or  lodge  of  said  Patrons  of  Industry  was  there- 
upon organized,  the  respondent  herein  becoming  a  member,  some  of  the  members 
therein  being  residents  and  qualified  voters  of  said  district,  and  the  other  mem- 
bers being  nonresidents  of  said  school  district;  that  with  the  permission  of  the 
respondent  herein,  as  trustee  of  said  district,  said  branch  or  lodge  of  the  Patrons 
of  Industry  so  organized,  has  held  its  meetings  in  said  schoolhouse  on  two  nights 
in  each  month  upon  the  agreement  that  said  members  thereof  furnish  the  fuel 
and  lights  and  clean  the  schoolhouse;  that  on  or  about  September  20,  1894, 
the  appellant  herein  personally  served  upon  the  respondent  herein  as  such  trustee 
a  written  notice  requesting  him  to  deny  said  branch  or  lodge  of  Patrons  of 
Industry  the  further  use  of  said  schoolhouse,  which  request  the  respondent  herein 
refused,  stating,  in  substance,  "  that  they  could  use  it  as  usual  "  ;  that  said 
brance  or  lodge  still  uses  said  schoolhouse  for  its  meetings  with  the  permission 
of  the  respondent  herein  as  such  trustee. 

The  respondent  in  his  answer  to  the  appeal  herein  alleges  that  the  object  of 
said  organization,  as  set  forth  in  the  preamble  to  the  constitution,  is  for  the 
"  promotion  o-f  the  interest  of  farmers  and  employees  and  for  the  good  of  the 
nation,"  and  that  during  its  meetings  various  subjects  of  public  interest  are 
discussed  by  the  members. 

The  respondent  has  annexed  to  his  answer  herein  the  written  consent  of 
twenty  qualified  voters  of  the  district  that  said  trustee  may  permit  said  Patrons 
of  Industry  to  occupy  said  schoolhouse  at  such  times  as  will  not  in  any  way 
interfere  with  the  school,  provided  said  Patrons  shall  not  ill  use  the  schoolhouse, 
and  shall  provide  their  own  fuel  and  lights,  and  keep  the  schoolhouse  neat  and 
clean.  The  appellant  herein  objects  to  such  use,  and  annexed  to  his  reply  herein 
are  the  affidavits  of  four  other  qualified  voters  objecting  to  such  use  of  said 
schoolhouse.  It  appears,  therefore,  that  there  are  differences  of  opinion  among 
the  qualified  voters  of  said  district  as  to  the  advisability  and  legal  authority  of 
permitting  the  use  of  said  schoolhouse  by  said  Patrons  of  Industry,  or  for  any 
other  than  school  purposes. 

It  is  not  alleged  or  proved  that  there  is  or  are  no  suitable  building  or  build- 
ings other  than  said  schoolhouse,  in  said  school  district,  in  which  said  Patrons 
of  Industry  could  meet  and  hold  their  meetings. 

Subdivision  6  of  section  47,  article  6,  title  7  of  the  Consolidated  School 
Law  of  1894,  enacts  that  the  trustee  or  trustees  of  every  school  district  shall 
have  the  custody  and  safekeeping  of  the  district  schoolhouse  or  houses,  their 
sites  and  appurtenances,  and  such  has  been  the  law  of  the  State  for  forty  years. 
The  provisions  of  law  above  cited  constitute  the  trustee  or  trustees  of  school 
districts  the  custodian  or  custodians  of  the  schoolhouse  or  houses,  and  their 
sit&s  and  appurtenances,  for  the  purposes  of  public  instruction  and  for  holding 


896  THE   UNIVERSITV    OK  TllK   STATE   OF   NEW   YORK 

the  annual  and  special  school  meetings  of  said  district  under  the  school  law, 
and  for  no  other  purpose.  By  said  provisions  of  law  such  school  property  does 
not  become  the  private  property  of  the  trustee  or  trustees,  and  he  or  they  can  not 
put  it  to  any  use  which  he  or  they  see  fit.  In  1855  Deputy  Superintendent  Smitli 
decided  "  'I'hat  the  trustees  of  each  school  district  have  the  custody  and  control 
of  the  schoolhouse  for  the  purposes  defined  and  specified  in  the  act  conferring 
the  authority.  In  general,  schoolhouses  are  built  for  the  purposes  of  public 
instruction  by  teachers  holding  regular  certificates  of  qualification,  and  also  to 
furnish  a  place  for  the  holding  of  school  district  meetings,  and  for  no  other 
l>urpose.  In  short,  the  employment  of  schoolhouses  for  such  objects  (that  is, 
other  than  school  purposes)  is  only  tolerated  by  general  consent.  This  Depart- 
ment never  raises  the  question*.  It  is,  however,  under  the  necessity  of  sustain- 
ing the  objection  when  it  is  made." 

By  section  52,  article  6.  title  7  of  the  Consolidated  School  Law  of  1894  it 
is  enacted,  "  The  trustee,  or  any  one  of  them,  if  not  forbidden  by  another,  may 
freely  permit  the  schoolhouse,  when  not  in  use  for  the  district  school,  to  be  used 
by  persons  assembling  therein  for  the  purpose  of  giving  and  receiving  instruc- 
tion in  any  branch  of  learning  or  education  or  in  the  science  or  practice  of 
music."  Section  52  above  quoted  is  precisely  the  same  as  section  52  of  the 
sixth  article  of  title  7,  of  the  Consolidated  School  Act  of  1864.  Said  section  52 
contains  the  only  purposes  under  the  school  law  for  which  trustees  of  school 
districts  had  the  legal  right  to  permit  the  schoolhouse  under  their  authority  and 
control  to  be  used,  other  than  those  of  holding  the  schools  and  school  meetings 
of  the  di.strict,  until  the  Consolidated  School  Law  of  1894  went  into  operation. 
Said  section  52  was  enacted  to  prevent  the  disputes  continually  arising  about 
the  right  and  power  of  the  trustees  to  permit  the  schoolhouse  to  be  used  for 
any  purpose  but  a  common  school. 

Even  under  the  provisions  of  said  section  52  the  trustee  or  trustees  of  a 
district  can  not  grant  any  right  to  use  the  district  property  for  any  other  than 
educational  purposes.  As  trustees  are  forbidden  to  lease  or  contract  the  rijrht 
of  occupation  and  use  of  schoolhouses  and  appurtenances,  or  any  part  thereof, 
when  allowing  the  use  of  said  property  under  section  52,  they  can  only  acquiesce 
in  said  use  and  by  such  acquiescence  estop  themselves  from  bringing  an  action  for 
the  act  of  entering  the  schoolhouse,  which  would  otherwise  be  a  trespass. 

Prior  to  the  enactment  of  section  52,  sixth  article,  title  7,  of  the  Consoli- 
dated School  Act  of  1864,  chapter  555,  of  the  Laws  of  1864,  a  trustee  or  trus- 
tees of  a  common  school  district  had  no  legal  power  or  right  to  consent,  or 
permit  the  use  of  the  schoolhouse,  its  site  and  appurtenances,  or  any  part 
thereof,  for  any  purpose  whatever  except  for  public  instruction,  in  the  mainte- 
nance of  a  school  or  schools  therein  and  for  annual  and  special  school  meetings 
of  the  district.  Since  the  passage  of  chapter  556  of  the  Laws  of  1894,  pursu- 
ant to  the  provisions  of  said  section  52,  the  sole  trustee  of  a  district  or  a  board 
of  three  trustees,  if  none  of  them  objected,  had  and  have  the  power  to  freely 
permit  the  schoolhouse  in  their  respective  districts,  when  not  in  use  for  a  district 


JUDICIAL    DECISIONS :       SCHOOL    PROPERTY USE    OF  897 

school,  to  be  used  by  persons  assembling  therein  for  the  purpose  of  giving  and 
receiving  instruction  in  any  branch  of  education  or  learning,  or  in  the  science  or 
practice  of  music.  Such  instruction  given  and  received,  or  any  branch  of  edu- 
cation or  learning,  etc.,  etc.,  by  lectures  or  instruction  in  music  or  other  methods, 
must  be  free  to  the  qualified  voters  of  the  district  and  the  children  residing 
therein  of  school  age,  and  not  restricted  to  the  persons  who  may  be  members  of 
any  society  or  association,  secret  or  otherwise. 

By  section  i6  of  title  5,  and  section  2,  title  10,  of  the  Consolidated  School 
Law  of  1894,  chapter  556  of  the  Laws  of  1894,  trustees  of  school  districts  have 
the  power  and  it  is  their  duty,  to  grant  the  use  of  school  buildings  for  all  exam- 
inations appointed  by  school  commissioners  under  the  provisions  of  the  school 
law,  and  in  which  to  hold  teachers  institutes.  To  sum  up,  a  trustee  or  trustees 
of  a  school  district  has  not  and  have  not  any  legal  right  or  power  whatever  to 
consent  to  or  permit  the  use  of  the  schoolhouse,  school  site  and  appurtenances, 
in  his  or  their  school  district,  or  any  part  thereof,  for  any  purpose  whatever 
except  for  the  purpose  of  public  instruction,  the  conduct  of  the  school  therein, 
and  for  the  school  meetings  of  the  district,  and  the  purposes  mentioned  in  sec- 
tion 52,  article  6,  title  7 ;  section  16,  title  5,  and  section  2,  title  10,  of  the  Con- 
solidated School  Law  of  1894. 

It  does  not  clearly  appear  from  the  proofs  herein,  what  are  the  objects  and 
purposes  of  the  Patrons  of  Lidustry,  and  the  meetings  held,  however  laudable 
they  may  be,  but  it  clearly  appears  that  the  purposes  of  the  meetings  held  in  the 
schoolhouse  in  district  no.  10,  Marcy,  are  not  for  giving  and  receiving  instruc- 
tion in  any  branch  of  education  and  learning,  or  in  the  science  or  practice  of 
music;  and  admitting  for  argument  only  that  such  are  the  purposes  of  said 
meetings,  such  meetings  are  not  open  to  all  of  the  qualified  voters  of  the  dis- 
trict and  the  persons  residing  therein  of  school  age,  but  are  restricted  to  those 
who  are  under  the  constitution  and  laws  thereof,  members  of  such  society  or 
organization. 

There  are  other  good  reasons,  aside  from  the  absence  of  statutory  authority, 
why  trustees  should  not  consent  to  or  permit  the  meetings  of  such  society  in 
the  schoolhouse  of  the  district.  Such  meetings  created  dissensions  and  contro- 
versies among  the  inhabitants  of  the  district ;  one-fifth  are  opposed  to  such 
nieetings.  That  conceding  the  society  provides  for  its  own  fuel  and  lights, 
and  cleans  the  schoolhouse,  there  is  a  continual  wear  and  tear  of  the  schoolroom 
and  furniture  by  reason  of  said  meetings,  which  must  be  borne  by  the  taxable 
inhabitants  of  the  district,  in  keeping  such  furniture  and  schoolroom  in  repair. 
The  attorney  for  the  appellant  had  suggested  that  such  use  of  the  schoolroom 
might  cause  complication  and  loss  to  the  district  in  the  contract  of  insurance  of 
the  schoolhouse  and  furniture.  I  assume  that  the  schoolhouse  and  furniture 
in  said  district  are  (and  if  not,  should  be)  insured  from  loss  or  damage  from 
fire.  The  policy  issued  for  such  insurance  states  the  use  to  which  the  building 
is  to  be  put,  namely,  for  school  purposes ;  a  meeting  of  said  society  is  held  in 
said  school,  and  on  the  evening  or  night  of  such  meeting  the  schoolhouse  and 
29 


898  THE  UNIVERSITY    OF  THE   STATE   OF   NEW   YORK 

furniture  are  daniat;cd  or  destroyed  by  fire;  the  trustee  presents  a  claim  against 
the  insurance  company  under  said  poHcy  for  the  loss  or  damage  sustamed  by 
the  district;  the  insurance  company  ascertaining  that  on  the  night  of  the  fire 
the  schoolhouse  was  occupied  by  the  Patrons  of  Industry  and  not  for  school 
purposes,  refuses  to  pay;  an  action  is  brought,  in  which  the  district  is 
defeated.  An  action,  possibly,  might  be  maintained  by  the  district  against  the 
trustee  for  the  loss  sustained  by  the  district  by  reason  of  the  neglect  or  violation 
of  duty  on  the  part  (jf  such  trustee  in  consenting  to  or  permitting  the  use  of  said 
schoolhouse  for  other  purposes  than  those  mentioned  in  the  policy  of  insurance; 
but  in  the  event  of  the  trustee  being  financially  irresponsible,  the  district  must 
bear  the  loss. 

In  appeal  no.  3577,  decided  by  Superintendent  Draper,  on  July  21,  1887, 
brought  from  the  action  of  trustees  in  permitting  the  use  of  a  schoolhouse  for 
the  meetings  of  a  temperance  society,  he  says :  "  The  law  constitutes  the  trus- 
tee the  custodian  of  the  schoolhouse.  But  it  does  not  thereby  become  his  private 
property,  and  he  can  not  put  it  to  any  use  which  he  sees  fit.  He  is,  as  a  general 
rule,  to  manage  it  as  the  representative  of  the  district,  and  for  school  purposes 
only.  He  must  find  some  express  provision  of  statute  authorizing  him  to  permit 
it  to  be  used  for  any  other  purpose  before  he  is  justified  in  doing  so, 
provided  objection  is  made  by  an  interested  party.  The  only  provision 
of  the  statute  of  such  a  nature  is  found  in  section  52,  of  title  7, 
of  chapter  555,  of  the  Laws  of  1894,  which  allows  the  trustee  "  to  permit  the 
schoolhouse,  when  not  in  use  by  the  district  school,  to  be  used  by  persons 
assembling  therein  for  the  purpose  of  giving  and  receiving  instruction  in  any 
branch  of  education  or  learning  or  in  the  science  or  practice  of  music."  It  can 
not  be  claimed  that  the  leasing  in  the  present  case  was  for  such  a  purpose  as  is 
here  mentioned.  In  this  case,  the  house  was  given  over  to  the  use  of  a  secret 
society.  The  people  of  the  district  who  were  not  members  of  the  society,  were 
excluded.  The  persons  who  were  thus  permitted  to  use  it,  did  not  assemble 
for  the  purpose  of  giving  and  receiving  instruction,  but  for  the  promotion  of 
temperance.  However  laudable  the  purpose  of  their  assembly,  it  is  not  a  pur- 
pose recognized  by  the  State.  I  am,  therefore,  of  the  opinion  that  the  leasing 
complained  of  was  unlawful  and  that  the  appeal  must  be  sustained. 

It  may  be  proper  to  say,  however,  that  it  has  always  been  the  practice 
of  this  Department  to  refrain  from  preventing  the  use  of  school  property  for 
other  than  school  purposes,  when  such  other  use  does  not  interfere  with  the 
use  for  which  such  property  is  maintained,  and  when  such  other  use  is  ac- 
quiesced in  by  the  taxpayers  and  electors  of  the  district.  This  has  unquestion- 
ably been  a  wise  policy.  Frequently,  in  the  rural  school  districts,  the  school- 
house  is  the  only  suitable  place  in  the  district  for  holding  a  meeting  of  any 
character,  and  such  policy  has  greatly  promoted  the  convenience  as  well  as  the 
intellectual  and  moral  activity  of  the  people  of  the  district.  But  when  a  school 
building  is  used  for  any  other  purpose  or  in  any  manner  which  interferes  with 
its  use  for  school  purposes,  or  where  there  are  differences  of  opinion  among  the 


JUDICIAL    DECISIONS :       SCHOOL    PROPERTY  —  USE    OF  899 

people  of  the  district  as  to  the  advisability  of  using  the  schoolhouse  for  any 
other  purpose  than  school  purposes,  it  becomes  the  duty  of  the  Department  to 
strictly  observe  and  enforce  the  laws  governing  the  matter. 

I  concur  fully  with  Superintendent  Draper  in  the  reasons  stated  by  him 
in,  and  the  decision  rendered  by  him  therein,  and  feel  it  my  duty  to  observe 
and  enforce  the  provisions  of  the  school  laws  governing  the  matter  of  the  use 
of  schoolhouses  for  other  than  school  purposes,  and  to  sustain  the  appeal  herein. 

The  appeal  herein  is  sustained. 

I  find  and  decide.  That  the  acts  and  decisions  of  William  D.  Winston, 
as  sole  trustee  of  school  district  no.  10,  town  of  Marcy,  Oneida  county,  in 
consenting  or  permitting  a  branch  or  lodge,  or  by  what  other  name  known,  of 
a  society  or  association  known  as  the  Patrons  of  Industry  of  the  State  of  New 
York,  to  hold  meetings  in  the  schoolhouse  in  said  school  district,  were,  and  are, 
without  authority  of,  and  in  violation  of,  the  school  law  of  the  State. 

It  is  ordered.  That  said  William  D.  Winston,  as  such  sole  trustee  of  said 
district,  forthwith  notify  the  officers  and  members  of  said  society  or  association, 
so  holding  and  attending  at  said  meetings,  that  no  further  meetings  shall  be 
or  will  be  permitted  to  be  held  in  said  schoolhouse  in  said  district;  and  that 
the  consent  and  permission  heretofore  given  by  him,  that  such  meetings  be  so 
held,  are  canceled,  withdrawn  and  revoked. 

It  is  further  ordered,  That  the  said  William  D.  Winston,  as  such  sole  trustee 
of  said  school  district  no.  10,  town  of  Marcy,  Oneida  county,  be,  and  he  hereby 
is,  enjoined  and  restrained  from  consenting,  permitting  or  allowing  said  branch 
or  lodge  of  said  society  or  association  of  the  Patrons  of  Industry  of  the  State 
of  New  York,  and  the  officers  and  members  thereof,  to  hold  any  meeting  or 
meetings  thereof  in  said  schoolhouse  in  said  district  from  and  after  the  date  at 
which  he  shall  receive  notice  of  my  decision  and  orders  herein. 


4941 

In  the  matter  of  the  appeal  of  M.  L.  Twiss  and  Charles  E.  Morse  v.  Andrew 
McCutcheon,  L.  S.  Potter  and  Stevens  S.  Smith  as  trustees  of  school 
district  no.  3,  Java,  Wyoming  county. 

Under  the  provisions  of  the  school  law  and  the  decisions  of  this  Department,  a  sole  trustee 
has  not,  neither  has  a  board  of  trustees  of  a  school  district,  legal  authority  to  consent 
to,  or  permit,  the  use  of  the  schoolhouse,  school  site  or  appurtenances,  or  any  portion 
thereof  in  his  or  their  school  district,  for  any  purpose  whatever  except  for  maintaining 
and  conducting  schools  therein,  and  for  holding  school  district  meetings;  or  by  persons 
assembling  therein  for  the  purpose  of  giving  and  receiving  instruction  in  any  branch 
of  education  or  learning  or  in  the  science  or  practice  of  music;  or  for  examinations 
appointed  by  school  commissioners  or  for  holding  teachers  institutes. 

Decided  June  8,  1901 

■  A.  J.  &  J.  Knight,  attorneys  for  respondents 


QOO  THE   UNIVERSITY    OP'   THE   STATE    OF    NEW   YORK 

Skinner,  Superintendent 

This  is  an  appeal  from  the  action  of  the  trustees  of  school  district  3,  Java, 
Wyoming  county,  in  permitting  the  schoolhouse  or  building  of  the  district  to  be 
used  for  other  than  school  or  educational  purposes. 

The  appellants,  as  residents  and  qualified  voters  in  such  school  district, 
allege,  in  substance,  in  their  appeal,  that  on  February  8,  1901,  a  drama  was 
enacted  in  the  hall  in  the  second  story  of  the  building  of  said  district,  and  that 
in  the  evening  after  the  close  of  the  drama,  a  dance  was  held  in  said  hall;  that 
on  February  28,  1901,  said  hall  in  the  school  building  was  occupied  by  a  travel- 
ing show  called  the  "  German  medicine  company,"  and  such  company,  by  its 
agents  and  servants,  continued  to  occupy  such  room  in  giving  shows  and  exhibi- 
tions and  selling  medicine  up  to  and  including  March  13,  1901 ;  that  the  appel- 
lants and  other  residents  of  said  school  district  object  to  the  use  of  said  school 
building  or  any  part  thereof,  for  other  than  school  or  educational  purposes. 

Tnistees  McCutcheon,  Potter  and  Smith  have  made  answer  to  the  appeal, 
and  admit  substantially  the  allegations  in  the  appeal  as  to  the  use  of  said  room 
or  hall,  and  allege  upon  information  and  belief  that  such  use  of  said  room  or 
hall  meets  the  approval  of  a  large  majority  of  the  taxable  inhabitants  of  the 
district  and  representing  most  of  the  taxable  property  therein.  The  respondents 
alleged  that  none  of  such  entertainments  injured  the  school  building  in  any  way, 
and  that  no  objection  to  such  use  of  the  hall  was  made  to  them  or  either  of 
them  prior  to  said  entertainments  or  any  of  them,  by  any  person  taxable  in  said 
district.  It  appears  that  last  year  a  new  school  building,  consisting  of  two 
stories,  the  upper  story  being  a  hall,  was  erected  in  said  district  at  an  expense 
of  about  $3000;  that  in  the  years  1899  ^^^  1900  several  appeals  were  brought 
to  me  from  proceedings  of  school  meetings  in  said  district  relative  to  a  change 
of  the  school  site  and  the  erection  of  a  new  school  building;  that  in  a  decision 
rendered  November  22,  1899,  in  the  appeal  of  Frank  H.  Hall  and  others,  de- 
cided September  9,  1899,  I  stated  that  a  school  meeting  in  the  district  could  not 
legally  vote  a  tax  to  construct  a  two-story  building,  the  second  story  of  which 
was  to  be  used  for  a  public  hall  to  be  used  for  other  than  school  purposes,  that 
is,  for  shows,  entertainments,  meetings  of  secret  and  other  societies  and 
for  other  purposes  for  which  public  halls  are  used;  that  in  a  decision  rendered 
by  me  on  June  12,  1900,  I  stated  that  the  facts  established  called  for  the  erection 
of  a  new  school  building  that  would  have  two  rooms  to  conduct  the  school,  and 
another  room  in  the  second  stor>'  to  be  used  in  school  examination,  school  ex- 
hibitions, the  observance  of  Arbor  day.  Flag  day,  lectures  upon  educational  topics, 
etc.,  etc. 

Subdivision  6  of  section  47,  article  6,  title  7  of  the  Consolidated  School 
Law  of  1894.  chapter  556  of  the  Laws  of  1894,  enacts  that  the  trustee  or  trustees 
of  every  school  district  shall  have  the  custody  and  safekeeping  of  the  district 
schooliiouse  or  houses,  their  sites  and  appurtenances,  and  such  has  been  the  law 
of  this  State  for  over  fifty  years. 


JUDICIAL  decisions:     school  property  —  USE  OF  901 

The  provisions  of  law  above  cited  constitute  the  trustee  or  trustees  of  school 
districts  the  custodian  or  custodians  of  the  schoolhouse  or  houses,  and  their  sites 
and  appurtenances  for  the  purposes  of  public  instruction  and  for  holding  the 
annual  and  special  school  meetings  of  said  district  or  districts  under  the  school 
law,  and  for  no  other  purposes  whatever.  By  said  provision  of  law  such  school 
property  does  not  become  the  private  property  of  the  trustee  or  trustees,  and 
he  or  they  can  not  put  it  to  any  use  which  he  or  they  see  fit.  By  section  52  of 
article  6,  title  7,  of  the  Consolidated  School  Law  of  1894,  it  is  enacted:  "The 
trustees,  or  any  one  of  them,  if  not  forbidden  by  another,  may  freely  permit 
the  schoolhouse,  when  not  in  use  for  the  district  school,  to  be  used  by  persons 
assembling  therein  for  the  purpose  of  giving  and  receiving  instruction  in  any 
branch  of  education  or  learning,  or  in  the  science  or  practice  of  music." 

Section  52,  above  quoted,  is  precisely  the  same  as  section  52  of  the  sixth 
article  of  title  7  of  the  Consolidated  School  Act  of  1864.  Said  section  52  was 
enacted  to  prevent  disputes  continually  arising  about  the  right  and  power  of 
trustees  to  permit  the  schoolhouse  to  be  used  for  any  purpose  except  school 
or  educational  purposes. 

Since  the  adoption  of  section  52  the  sole  trustee  of  a  district  or  a  board 
of  three  trustees,  if  no  one  of  the  three  objects,  had  and  have  the  power  to  freely 
permit  the  use  of  the  schoolhouse  of  their  respective  districts,  when  not  in  use 
for  a  district  school,  to  be  used  by  persons  assembling  therein  for  the  purpose 
of  giving  and  receiving  instruction  in  any  branch  of  education  or  learning,  or  in 
the  science  or  practice  of  music.  The  education  or  learning  mentioned  in  section 
52  means  such  as  is  taught  in  schools,  academies  and  colleges;  the  science  or 
practice  of  music  means  such  as  is  taught  in  the  schools  and  conservatories  of 
music.  Section  52  does  not  permit  the  school  building  to  be  used  for  religious 
meetings  or  Sunday  schools,  or  for  theatrical  or  vaudeville  exhibitions,  or  for 
dancing,  or  for  meetings  of  any  religious,  charitable,  benevolent  or  other  societies 
or  associations,  or  for  meetings  of  any  political  party. 

By  section  15,  title  5,  and  section  2,  title  10  of  the  Consolidated  School 
Law  of  1894,  chapter  556  of  the  Laws  of  1894,  trustees  of  school  districts  have 
the  power,  and  it  is  their  duty,  to  grant  the  use  of  school  buildings  for  all  ex- 
aminations appointed  by  school  commissioners  under  the  provisions  of  the 
school  law,  and  in  which  to  hold  teachers  institutes. 

It  is  clear  that  under  the  provisions  of  the  school  law  and  the  decisions  of 
this  Department  a  sole  trustee  or  a  board  of  trustees  of  a  school  district  has  not 
the  legal  right  or  power  to  consent  to  or  permit  the  use  of  the  schoolhouse, 
school  site  or  appurtenances,  or  any  part  thereof,  in  his  or  their  school  district, 
for  any  purpose  whatever  except  for  public  instruction,  the  conduct  of  the 
school  therein  and  for  school  meetings,  and  for  the  purposes  mentioned  in  sec- 
tion 52  of  article  6,  title  7;  section  16,  title  5,  and  section  2,  title  10  of  the  Con- 
solidated School  Law  of  1894. 

^ ,     When  the  schoolhouse  in  a  school  district,  or  any  part  thereof,  is  used  for 
any  other  than  for  school  or  educational  purposes,  or  in  any  manner  that  inter- 


902  THE   UNIVERSITY    OF   Till-:    STATE    OF    NEW    YORK 

feres  with  such  use,  or  where  there  are  differences  of  opinion  among  the  qualified 
voters  of  a  district  as  to  the  advisabiUty  of  using  the  schoolhouse,  or  any  part 
thereof,  for  other  than  school  or  educational  purposes,  or  where  any  one  or 
more  of  the  qualified  voters  of  the  district  object  to  such  use,  it  becomes  the 
duty  of  the  State  Superintendent  of  Public  Instruction,  upon  appeal  to  him, 
to  strictly  observe  and  enforce  the  provisions  of  the  school  law.  (See  decisions 
3577.  ^y  Superintendent  Draper,  July  31,  1887;  4334,  Johnson  v.  Winston,  by 
Superintendent  Crooker,  March  7,  1895;  4419.  Martin  and  another  v.  Weaver, 
by  Superintendent  Skinner,  January  16,  1896;  4450,  Mayer  v.  Barnes,  by  Super- 
intendent Skinner,  May  ii,  1896.) 

I  decide  that  the  action  on  the  part  of  Messrs  McCutcheon,  Potter  and 
Smith,  as  trustees  of  school  district  3,  town  of  Java,  Wyoming  county,  in 
consenting  to  and  permitting  the  use  of  the  hall  of  the  schoolhouse  of  the  dis- 
trict on  February  8,  1901,  for  the  enactment  of  a  drama  and  for  dancing  therein, 
and  for  consenting  to  and  permitting  the  use  of  said  hall,  commencing  on  Feb- 
ruary 28,  1901,  to  and  including  March  13,  1901,  by  a  traveling  show  called 
the  "  German  medicine  company,"  in  giving  shows  and  vaudeville  exhibitions 
and  selling  medicines,  was  without  authority  of  law  and  in  violation  of  the  pro- 
visions of  the  school  law  of  this  State,  and  contrary  to  the  rulings  of  this 
Department. 

The  appeal  herein  is  sustained. 

It  is  ordered  that  Andrew  McCutcheon,  L.  S.  Potter  and  Stevens  S.  Smith, 
as  trustees  of  school  district  3,  Java,  Wyoming  county,  be,  and  each  of  them 
is,  hereby  enjoined  and  restrained  from  consenting  to,  permitting  or  allowing 
the  school  building  of  said  district,  or  any  portion  thereof,  to  be  used  for  any 
inirpose  whatever  other  than  for  maintaining  a  school  therein,  and  for  holding 
school  meetings,  and  for  the  educational  purposes  contained  in  section  52  of 
article  6,  title  7;  section  16,  title  5,  and  section  2.  title  10  of  the  Consolidated 
School  Law  of  1894,  chapter  556  of  the  Laws  of  1894. 


3968 

In  the  matter  of  the  appeal  of  Simon  Clark  and  others  v.  Edward  Clark,  as 

trustee  of  school  district  no.   12,  town  of  Pompey,  Onondaga  county. 
An  organization  known  as  the  "Grangers"  was  permitted  to  use  schoolhouse  as  a  place 

for  meetings,  for  suppers  and  entertainments.     Fuel  provided  by  the  district  was  used. 

District  furniture  has  been  damaged.    Held,  unlawful. 
Decided  April  20,  1891 

Draper,  Superintendent 

This  appeal  is  brought  by  several  taxpayers  of  district  no.  12,  town  of 
Pompey,  Onondaga  county,  from  the  action  of  the  trustee  of  said  district  in 
permitting  the  schoolhouse  to  be  used  by  an  organization  known  as  the  Grangers 
for  meetings,  for  suppers  and  entertainments. 


JUDICIAL    DECISIONS  :       SCHOOL    PROPERTY USE    OF  903 

The  evidence  presented  shows  that  fuel,  provided  by  taxation  upon  the 
district,  has  been  used  by  this  organization,  for  which  the  district  has  not  been 
recompensed. 

That  the  furniture  has  at  times  been  removed  from  the  schoolhouse  to  better 
accommodate  the  organization  so  using  the  building  and  has  been  damaged  in 
consequence,  and  a  stove  so  removed  rendered  unfit  for  use. 

No  answer  has  been  interposed.  In  determining  this  appeal,  which  I  sus- 
tain, I  will  quote  as  far  as  applicable  from  a  decision  in  a  similar  case. 

The  law  constitutes  the  trustee  the  custodian  of  the  schoolhouse.  But  it  does 
not  thereby  become  his  private  property,  and  he  can  not  put  it  to  any  use  which 
he  sees  fit. 

He  is,  as  a  general  rule,  to  manage  it  as  the  representative  of  the  district, 
and  for  school  purposes  only. 

The  only  provision  of  statute  which  would  authorize  it  to  be  used  for  any 
other  purpose  is  section  52  of  title  7  of  chapter  555  of  the  Laws  of  i<%4,  which 
allows  the  trustees  "  to  permit  the  schoolhouse  when  not  in  use  by  the  district 
school,  to  be  used  by  persons  assembling  therein  for  the  purposes  of  giving 
and  receiving  instruction  in  any  branch  of  education  or  learning  or  in  the  science 
or  practice  of  music." 

It  can  not  be  claimed  that  the  use  of  the  school  building  in  the  case  pre- 
sented, was  for  such  a  purpose  as  is  here  mentioned.  In  this  case  the  use  of 
the  house  was  given  over  to  a  social  society,  for  the  purpose  of  holding  meetings 
of  the  society,  entertainments  and  suppers.  Such  use  was  not  for  the  purpose 
of  giving  and  receiving  instruction. 

I  am  therefore  of  the  opinion  that  the  use  of  the  building  as  complained 
of  was  unlawful  and  that  the  appeal  must  be  sustained. 

The  views  of  the  State  Superintendent  upon  the  practice  of  using  school 
property  for  other  than  school  purposes,  is  set  forth  in  the  concluding  para- 
graph of  decision  no.  3577,  reported  on  page  641  of  the  Code  of  Public  Instruc- 
tion, edition  of  1887. 


3999 

In  the  matter  of  the  appeal  of  H.  D.  Freer  v.  A.  W.  Van  Aken,  trustee  of  school 

district  no.  5,  town  of  Esopus,  county  of  Ulster. 
A  single  elector  of  a  district  objected  to  the  action  of  the  trustee  in  permitting  the  use 

of  the  school  grounds   on   a  certain  evening  by  a  local  military  band,  composed  of 

pupils  of  the  school,  for  the  purpose  of  a  musical  entertainment. 
The  evidence  shows  that  no  injury  was  done  to  school  property;  in  fact  it  was  improved 

and  the  grounds  rendered  more  sightly.     Held,  that  trustee  had  power  to  grant  such 

use  under  the  statute. 
Decided  September  12,  1891 

"Draper,  Superintendent 

Appeal  by  a  taxable  inhabitant  of  school  district  no.   5,  town  of  Esopus, 
county  of  Ulster,  from  the  action  of  the  trustee  of  said  district  in  permitting  a 


904  THE   UNIVERSITY    or   THE   STATE   OF   NEW    YORK 

local  organization,  known  as  the  St  Renny  Cornet  Band,  to  occupy  the  school- 
house  grounds  on  the  25th  day  of  July  last,  for  the  purpose  of  a  musical  enter- 
tainment and  picnic.  It  is  alleged  by  the  appellant  that  by  such  use  the  school- 
house  grounds  and  the  trees  thereon  were  damaged. 

An  answer  has  been  interposed  by  which  it  appears  that  the  members  of  the 
band  are  pupils  of  the  school,  and  that  the  entertainment  was  given  by  the  band 
for  the  purpose  of  raising  a  sum  of  money  with  which  to  provide  equipments 
for  the  organization.  It  is  claimed  by  the  trustee  that  the  grounds  were  in  better 
condition  for  the  u.se  of  the  pupils  of  the  school  after  the  concert  than  before, 
for  the  reason  that  the  memljers  of  the  organization  caused  the  grass  to  be 
neatly  trimmed  and  otherwise  improved.  It  is  further  made  to  appear  that 
but  one  elector  of  the  district  objected  to  the  use  of  the  grounds. 

In  view  of  these  circumstances  and  the  fact  that  the  statute  contemplates 
the  use  of  the  school  building,  when  not  in  use  for  the  district  school  by  persons 
assembling  therein,  for  the  purpose  of  giving  and  receiving  instruction  in  any 
branch  of  education  or  learning  or  in  the  science  or  practice  of  music,  and  the 
further  fact  that,  at  the  last  annual  meeting  held  in  the  district,  the  action  ap- 
pealed from  was  brought  to  the  attention  of  the  meeting,  and  by  a  unanimous 
vote  sustained,  I  have  concluded  to  dismiss  the  appeal. 


5221 

In  the  matter  of  the  appeal  of  Joseph  H.  Burtis,  a  taxpayer,  from  the  action 
of  the  annual  meeting  in  1905  in  school  district  no.  17,  Hempstead,  Nassau 
county. 

It  is  not  proper  nor  does  the  law  sanction  an  appropriation  of  the  district's  funds  for  the 

erection  of  horse  sheds  upon  a  schoolhouse  site. 
An  order  will  be  made  prohibiting  the  erection  of  such  buildings  upon  the  school  grounds 

and  also  prohibiting  the  use  of  the  district's  funds  for  such  purpose. 
Decided  October  31,  kjos 

Francis  B.  Taylor,  attorney  for  appellant 

Draper,  Commissioner 

The  moving  papers  in  this  appeal  show  that  service  of  such  papers  was 
legally  made  on  the  clerk  and  the  trustee  of  school  district  no.  17,  Hempstead, 
Nassau  county,  on  the  7th  day  of  October  KP5.  No  answer  has  been  received 
at  this  Department  and  under  the  rules  of  practice  the  material  allegations  are 
regarded  as  admitted. 

The  annual  meeting  voted  an  appropriation  of  $200  for  the  purpose  of 
erecting  horse  sheds  upon  the  schoolhouse  site.  The  pleadings  show  that 
Sunday  school  is  usually  held  in  this  schoolhouse.  Appellant  alleges  that  the 
main  purpose  of  erecting  such  sheds  is  for  the  accoinmodation  of  those  who 
drive  to  the  schoolhouse  on  Sundays  to  attend  Sunday  school.    Several  affidavits 


JUDICIAL  decisions:     school  property  —  USE  OF  905 

of  residents  of  the  district  are  submitted  to  sustain  this  allegation.  No  answer 
having  been  made  there  is  no  denial  of  this  allegation. 

It  is  not  proper  nor  does  the  law  sanction  an  appropriation  of  the  district's 
funds  for  a  project  of  this  nature.  It  is  not  only  improper  and  illegal  to  appro- 
priate funds  for  this  purpose,  but  it  is  also  a  violation  of  the  spirit  and  the  letter 
of  the  law  to  erect  upon  the  school  grounds  buildings  for  this  purpose.  This 
Department  has  repeatedly  held  that  when  objection  is  raised  by  a  taxpayer  of 
the  district  the  schoolhouse  can  not  be  used  for  holding  Sunday  school  or  other 
religious  exercises.  The  particular  purpose  for  which  these  sheds  are  to  be 
used  is  not  the  only  objection  to  be  offered  to  their  erection.  They  would  occupy 
space  on  the  school  grounds  which  should  be  reserved  for  the  children  for  pur- 
poses of  recreation.  They  would  be  quite  sure  to  prove  objectionable  from  the 
point  of  sanitation  and  cleanliness.  In  addition  to  the  impropriety  of  erecting 
them  there  is  no  authority  of  law  for  the  erection  of  such  buildings. 

The  appeal  herein  is  sustained. 

It  is  ordered,  That  the  trustees  of  said  school  district  no.  17,  Hempstead, 
Nassau  county,  be,  and  they  hereby  are,  restrained  from  proceeding  with  or 
completing  the  erection  of  sheds  upon  the  school  grounds  of  said  district. 

It  is  further  ordered,  That  the  trustees  of  said  district  no.  17,  Hempstead, 
Nassau  county,  be,  and  they  hereby  are,  restrained  from  raising  by  tax  upon 
the  taxable  property  of  the  district  the  said  $200  or  any  portion  thereof,  voted 
at  the  annual  meeting  of  the  district  to  be  used  for  the  erection  of  sheds  on 
said  school  grounds. 

It  is  also  further  ordered,  That  the  trustees  of  said  district  no.  17,  Hemp- 
stead, Nassau  county,  be,  and  they  hereby  are,  restrained  from  paying  for  the 
erection  of  said  sheds  or  for  any  work  done  toward  the  erection  of  said  sheds, 
any  of  the  funds  of  the  said  district. 


SITES 

3383 

Upon  a  vote  to  change  the  schoolhouse  site,  the  intention  of  the  statute  is  to  preserve  the 
record,  not  merely  of  the  majority,  but  of  those  who  constituted  the  majority  of  the 
legal  voters  of  the  district  who  were  present  and  took  part  in  the  proceedings.  The 
names  of  the  voters  as  well  as  the  way  they  voted  must  be  recorded. 

Decided  November  19,   1884 

Ruggles,  Superintendent 

The  appeal  is  brought  from  the  action  of  a  special  school  meeting,  chang- 
ing the  schoolhouse  site.  The  objection  raised  is  that  the  ayes  and  nays  taken 
in  designating  the  site  in  question  were  not  recorded  as  required  by  law. 

Section  20,  title  7  of  the  Code  of  Public  Instruction,  distinctly  requires 
that  the  site  of  the  schoolhouse  "  shall  not  be  changed,  unless  a  majority  of  all 
the  legal  voters  of  said  district  present  and  voting,  to  be  ascertained  by  taking 
and  recording  the  ayes  and  nays,  at  a  special  meeting  called  for  that  purpose, 
shall  be  in  favor  of  such  new  site."  It  appears  from  the  evidence  that  a  tally 
was  kept  of  the  number  of  voters  in  favor  of  and  against  the  proposition,  and 
this  was  the  only  record  made  of  the  vote.  I  am  of  the  opinion  that  this  is 
not  the  record  contemplated  by  the  statute.  The  legislative  construction  of 
constitutional  provisions,  similar  in  character  to  this  statute,  has  been  gen- 
erally and  concurrently  in  favor  of  the  view  that  a  record  should  be 
made  of  the  persons  voting  for  or  against  the  bill  on  resolution.  Thus  the  Con- 
stitution of  the  State  of  New  York,  article  3,  section  15,  provides  that,  "no 
bill  shall  be  passed  unless  by  the  assent  of  a  majority  of  all  the  members  elected 
to  such  branch  of  the  Legislature,  and  the  question  upon  the  final  passage  shall 
be  taken  immediately  upon  its  last  meeting,  and  the  yeas  and  nays  entered  on 
the  journal."  This  has  been  construed  to  mean  that  the  names  of  members 
shall  be  recorded  upon  the  journal  as  voting  either  yea  or  nay.  It  seems  to  me 
to  be  obvious  that  the  intention  of  the  statute  is  to  preser^^e  the  record,  not 
merely  of  the  majority,  but  of  those  who  constituted  the  majority  of  the  legal 
voters  of  the  district  who  were  present  and  took  part  in  the  proceedings.  I 
deem  the  failure  to  make  such  record  fatal  to  the  action  of  the  meeting  in  desig- 
nating the  site. 


JUDICIAL  decisions:     sites  907 


4233 


In  the  matter  of  the  appeal  of  D.  J.  Tysen,  Thomas  Smith  and  W.  R.  Harris 
from  proceedings  of  a  special  school  meeting  held  on  December  13,  1893, 
in  school  district  no.  3,  towns  of  Southfield,  Middletown  and  Northfield, 
Richmond  county. 

Where,  at  a  school  meeting  duly  called  and  held,  a  new  schoolhouse  site  is  designated,  and 
the  meeting  votes  to  levy  and  raise  by  tax  a  sum  of  money  for  the  purpose  of  build- 
ing a  new  schoolhouse,  and  that  such  tax  be  raised  by  instalments,  such  vote  can 
not  be  reconsidered  except  at  an  adjourned  general  or  special  meeting,  to  be  held  within 
thirty  days  thereafter,  and  the  trustees  of  such  school  district  have  no  legal  authority  to 
call  a  special  meeting  of  said  district  after  said  thirty  days  to  either  directly  or  indirectly 
reconsider  or  rescind  the  vote  taken  at  said  former  meeting  relative  to  voting  a  tax  to 
build  a  schoolhouse  to  be  raised  by  instalments. 

Where  a  schoolhouse  site,  designated  at  a  school  meeting,  is  proved  to  be  unfit  in  a  sanitary 
sense,  by  reason  of  the  proximity  to  it  of  swamps  and  lowlands  which  necessarily 
render  the  site  dangerous  on  account  of  liability  to  malarial  infections,  the  action  of 
said  meeting  in  the  selection  of  such  site  will,  upon  appeal,  be  set  aside. 

Decided  April  12,  1894 

Crooker,  Superintendent 

The  appellants  herein  have  appealed  from  certain  proceedings  had  and 
taken  at  a  special  school  meeting,  held  on  December  13,  1893,  in  school  district 
no.  3,  towns  of  Southfield,  Middletown  and  Northfield,  Richmond  county,  rela- 
tive to  the  designation  of  a  schoolhouse  site,  and  voting  a  tax  to  pay  for  the 
same,  and  in  rescinding  or  reconsidering  a  vote  taken  at  a  special  meeting  of 
said  district  held  on  July  8,  1893,  voting  a  tax  for  the  building  of  a  new  school- 
house  upon  a  site  designated  at  such  meeting,  said  tax  to  be  raised  by  instal- 
ments. 

The  grounds  of  the  appeal  are,  that  the  school  site  designated  at  the  meeting 
on  December  13,  1893,  is  not  central  as  to  population  or  territory,  and  is  un- 
healthy, and  that  the  alleged  reconsidering  or  rescinding  the  vote  of  the  meeting 
of  July  8,  1893,  to  raise  a  tax  for  the  building  of  a  new  schoolhouse  upon  the 
site  designated  at  such  meeting,  said  tax  to  be  raised  by  instalment,  was  m 
violation  of  the  provisions  of  the  school  laws. 

The  appellants  annex  to  their  appeal  the  certificate  of  the  health  officer  of 
each  of  the  towns  of  Southfield  and  Middletown,  stating  in  substance  that  they 
had  visited  a  lot  of  land  designated  as  a  schoolhouse  site  at  said  meeting  of 
December  13,  1S93,  and  found  that  said  lot  slopes  from  the  eastern  and  southern 
boundaries  so  that  the  northwestern  comer  is  within  forty  feet  of  a  large  pool 
of  stagnant  water,  and  another  such  pool  is  close  to  the  northern  boundary ;  that 
about  200  feet  from  the  lot  in  a  northwesterly  direction  lies  a  large  swamp, 
which,  together  with  said  pools,  must  be  a  fruitful  source  of  malarial  infection; 
that,  in  their  opinion,  the  proximity  of  the  swamp  and  pools  of  stagnant  water 
rendered  the  lot  totally  unfit  for  the  location  of  a  schoolhouse. 


9o8  THE   UNIVERSITY   OF   THE   STATE   OF   NEW   YORK 

The  respondents,  the  trustees  of  said  district,  have  interposed  an  answer 
to  the  appeal,  in  which  the  i)rocecdins;s  of  the  special  meeting  held  on  Decem- 
ber 13,  1S93,  alleged  in  the  appeal,  are  not  denied,  except  they  allege  that  the 
said  schoolhouse  site  designated  at  said  meeting  is  centrally  located,  and  is  a 
healthy  site,  and  annexed  a  certificate  signed  by  three  physicians,  namely,  Doc- 
tors Walser,  Michtold  and  Beyer,  stating  in  substance  that  they  had  examined 
a  site  said  to  be  selected  for  a  school  site  on  property  of  one  Robert  Jones,  more 
particularly  described  in  the  schedule  annexed  marked  "A,"  and  that  said  site 
is  on  elevated  ground  higher  than  almost  the  entire  surrounding  country  to  the 
south  and  southeast  all  the  way  to  the  ocean,  and  that  it  naturally  slopes  toward 
the  south  and  southeast;  that,  in  their  opinion,  said  site  is  unobjectionable  in 
regard  to  healthfulness,  and  appears  to  them  certainly  preferable,  from  its  ele- 
vation, to  ground  to  the  south  and  southeast  toward  the  ocean. 

Such  certificate  is  not  in  the  handwriting  of  either  of  the  physicians  by 
whom  it  is  signed ;  that  on  the  back  of  the  certificate  is  "  Schedule  A"  in  a  dif- 
ferent handwriting  purporting  to  give  the  metes  and  bounds  of  the  site  desig- 
nated at  said  meeting  of  December  13,  1893. 

A  reply  on  the  part  of  the  appellants  to  the  answer  of  tlie  respondents 
has  been  made,  in  which  the  appellants  aver,  upon  information  and  belief,  that 
the  respondents  showed  to  Doctor  Walser  a  different  lot  from  the  one  desig- 
nated for  a  site  at  the  special  meeting,  and  thereby  secured  from  him  a  com- 
parative indorsement  of  the  lot  purporting  to  be  the  lot  designated,  and  ap- 
parently with  a  view  of  deceiving  this  Department.  The  information  given  to 
appellants  upon  which  their  belief  is  founded  is  based  upon  a  copy  of  a  letter 
from  Doctor  Walser,  sent  to  the  respondents,  a  copy  of  which  is  annexed  to 
the  reply  herein,  and  a  letter  of  Doctor  Walser  to  Mr  Tysen  (one  of  the  ap- 
pellants), which  is  annexed  to  said  reply.  In  his  letter  to  the  respondents  Doctor 
Walser  states  in  substance,  that  when  called  to  New  Dorp  to  express  an  opinion 
in  reference  to  a  schoolhouse  site  he  was  shown  the  southerly  slope  of  an  ele- 
vation on  Prospect  street,  about  350  feet  from  "  a  spring  "  as  the  most  central 
and  desirable  site,  the  only  other  place  being  "  a  hollow  some  distance  from  the 
center  of  population,  and  only  eight  to  ten  feet  above  the  level  of  the  sea"; 
that  it  was  not  a  very  desirable  site,  but  as  represented  to  him,  at  least  by  com- 
parison, he  gave  his  approval;  that  on  a  second  visit  with  Engineer  Hastings, 
the  said  engineer  pointed  out  to  him  the  lot  designated  for  a  site  at  the  meeting 
of  December  13,  1893,  and  that  the  lot  shown  to  him  on  his  first  visit  was  not 
the  lot  voted  on  by  the  school  meeting;  that  the  pond  was  not  "  a  spring,"  but 
surface  drainage,  the  slope  of  the  lot  was  on  the  northerly  side  of  the  same  hill 
and  only  125  feet  from  the  marsh  or  pond;  that  the  other  lot  was  south  not 
eight  feet  above  sea  level  but  fifty  to  fifty-five  feet;  that  he,  therefore,  con- 
curred with  Doctors  Feeney  and  Thompson  in  condemning  as  a  site  for  a 
schoolhouse  the  lot  designated  at  the  meeting  of  December  13,  1893.  In  the 
letter  of  Doctor  Walser  to  Mr.  Tysen  he  states  that  "  Doctors  Michtold  and  Beyer 


JUDICIAL    DECISIONS  :       SITES  9O9 

received  the  same  verbal  description  of  the  schoolhouse  site  as  I  did,  and  there 
was  no  description  of  the  schoolhouse  site  attached  to  our  paper  ichich  we 
signed." 

It  seems  to  be  clearly  established  that  Doctors  Walser,  Michtold  and  Beyer 
were  not  shown  the  lot  designated  by  the  school  meeting  on  December  13,  1893, 
as  a  school  site,  and  that  the  opinion  expressed  by  them,  as  stated  in  their  certifi- 
cate attached  to  the  answer  herein,  was  in  relation  to  some  other  parcel  of 
land  than  said  selected  site  and  that  the  description  of  the  site  selected,  as 
written  upon  the  back  of  said  certificate,  entitled  "  Schedule  A,"  was  not  written 
thereon  at  the  time  they  signed  the  certificate. 

Said  reply  has  also  attached  a  certificate  of  Doctor  Barber,  the  health 
officer  of  the  town  of  Northfield,  in  which  he  states,  in  substance  that  he  has 
examined  the  site  designated  at  the  meeting  of  December  13,  1893,  and  its  sur- 
roundings, as  to  its  fitness  for  a  school  site,  and  that  in  his  opinion  it  is  not 
sanitary,  and,  therefore,  unfit  for  such  a  purpose  owing  to  proximity  of  swamps 
and  low  lands  on  the  northerly  border,  which  necessarily  must  be  dangerous 
on  account  of  liability  to  malarial  infection;  that  said  lot  slopes  principally 
toward  the  north,  and  near  its  northern  corner  is  a  swamp  which  is  shown  upon 
a  diagram  annexed  to  the  reply,  drawn  by  one  Joseph  Hastings,  engineer  (upon 
the  back  of  which  diagram  Doctor  Barber  has  affixed  his  signature),  which 
swamp  is  125  feet  distant  from  said  lot;,  that  owing  to  the  conformation  of  the 
land  the  soakage  and  surface  drainage  from  the  hill  render  a  considerable  por- 
tion of  the  land,  lying  between  the  lot  and  swamp  proper,  of  a  swampy  nature, 
and,  therefore,  not  healthy. 

There  is  also  annexed  to  said  reply  a  diagram  made  by  Engineer  Hastings, 
of  the  lot  of  land  200  feet  square  and  designated  by  said  special  school  meeting 
of  December  13,  1893,  as  surveyed  by  said  engineer,  giving  the  metes  and  bounds 
as  stated  in  the  resolution  adopted  at  said  meeting  designating  said  site,  and 
upon  said  diagram  is  shown  the  swamp  hereinbefore  referred  to,  lying  north- 
westerly of  and  125  feet  from  the  northwesterly  line  of  said  lot;  such  diagram 
having  upon  it  the  signature  of  Doctor  Barber. 

From  the  proofs  presented,  in  my  opinion,  the  appellants  have  estab- 
lished, by  a  preponderance  of  proof,  that  the  lot  of  land  designated  as  a  school 
site  at  the  special  meeting,  held  on  December  13,  1893,  as  described  in  the  reso- 
lution adopted  at  said  meeting,  is  not  a  proper  or  fit  site  for  a  schoolhouse; 
that  it  is  not  sanitary,  and  therefore,  unfit  for  the  site  of  a  schoolhouse,  by 
reason  of  the  proximity  to  it  of  swamps  and  low  lands,  which  necessarily  render 
the  site  dangerous  on  account  of  liability  to  malarial  infection. 

From  a  copy  of  the  call  of  the  respondents  for  the  special  meeting  of  the 
qualified  voters  of  district  no.  3,  towns  of  Southfield,  Middletown  and  North- 
field,  held  on  December  13,  1893,  ^s  annexed  to  the  appeal  herein,  it  appears 
that  notice  was  given  therein  that  the  meeting  was  called  for  the  purpose  of, 
among  other  things,  "  rescinding  resolutions  passed  at  the  special  meeting  held 


910  THE  UNIVERSITY   OF  THE   STATE   OF  NEW   YORK 

July  S,  1893.  in  relation  to  the  selection  of  a  new  site,  and  the  appropriation 
of  nioncv  for  the  erection  of  a  new  schoolhouse."  also,  to  appropriate  money 
for  the  purchase  of  the  site  and  for  the  erection  of  a  neiv  schoolhouse. 

It  appears  that  at  a  special  meeting  of  said  district,  held  on  Jtdy  8,  1893, 
a  new  sciioolhouse  site  for  said  district  was  duly  designated,  and  that  the  said 
meeting  voted  to  levy  and  raise  by  tax  a  sum  of  money  then  and  there  desig- 
nated, for  the  purpose  of  building  a  new  schoolhouse,  and  voted  that  the  said 
sum  be  raised  by  instalments;  that  said  special  meeting,  when  it  adjourned, 
adjourned  without  day. 

By  section  19  of  title  7  of  the  Consolidated  School  Law  of  1864,  as  amended, 
it  is  provided,  "  and  no  vote  to  levy  any  such  tax  shall  be  reconsidered  except 
at  an  adjourned  gen&ral  or  special  meeting  to  be  held  zi'itlii}i  thirty  days  there- 
after, and  the  same  majority  shall  be  required  for  reconsideration  that  was 
had  to  impose  such  tax." 

The  s])ecial  meeting  of  July  8,  1893,  was  adjourned  sine  die,  and  hence 
there  was  no  adjourned  special  meeting  held  ivithin  thirty  days  after  said  July  8, 
1893,  at  which  said  vote  to  levy  the  tax  for  a  new  schoolhouse  could  be  law- 
fully reconsidered  or  rescinded.  There  is  no  authority  in  the  school  laws  by 
which  the  voters  of  said  school  district  could  or  can  reconsider  or  rescind,  either 
directly  or  indirectly,  the  vote  adopted  on  July  8,  1893,  to  levy  a  tax  for  the 
construction  of  a  new  schoolhouse  in  said  district ;  nor  did  the  trustees  of  said 
district  have  any  power  or  authority,  under  the  school  laws,  to  call  a  special 
meeting  of  the  voters  of  said  district  to  rescind  such  vote. 

I  am  of  the  opinion  that  so  much  of  the  proceedings  of  said  special  meeting 
of  December  13,  1893,  as  voted  to  levy  or  raise  by  tax  any  sum  of  money  for 
constructing  a  schoolhouse  in  said  district,  or  as,  directly  or  indirectly,  recon- 
sidered or  rescinded  said  vote  adopted  on  July  8,  1893,  is,  and  are,  illegal  and 
void. 

The  appeal  herein  is  sustained. 

It  is  ordered,  That  so  much  of  the  proceedings,  action  and  decision  of  said 
special  meeting  of  said  school  district  no.  3  of  the  towns  of  Southfield,  Middle- 
town  and  Northfield,  Richmond  county,  held  on  December  13,  1893,  as  desig- 
nated a  new  school  site  on  Prospect  place,  and  authorized  the  trustees  of  the 
district  to  purchase  the  same  at  the  price  of  $1500;  and  that  a  tax  of  $1600  he 
raised  to  provide  for  the  purchase  price  of  said  site  and  the  lawful  expenses  and 
charges  that  may  be  connected  therewith,  be,  and  the  same  hereby,  are  and  each 
of  them  is,  vacated  and  set  aside. 

It  is  further  ordered.  That  so  much  of  the  proceedings,  action  and  decision 
of  said  special  meeting  as  aforesaid,  as  voted  to  levy  a  tax  for  $5000  to  be 
raised  in  instalments  for  the  purpose  of  building  a  new  schoolhouse  upon  such 
site,  designated  at  such  meeting,  be,  and  the  same  hereby  are,  and  each  of  them 
is,  vacated  and  set  aside  as  illegal  and  void. 


JUDICIAL  decisions:     sites  911 

5209 

In  the  matter  of  the  appeal  of  Harvey  Hall,  Hugh  Clemons,  Wilson  Smead 
and  James  Bonner,  majority  members  of  the  board  of  education  of  union 
free  school  district  no.  i,  towns  of  Hadley  and  Luzerne,  Saratoga  and 
Warren  counties,  from  the  refusal  of  Amasa  Woodard,  Paul  King  and 
Joseph  H.  ]\Ialone  to  sign  certain  notices  for  the  sale  of  bonds  and  also 
their  refusal  to  sign  such  bonds. 

The  action  of  a  district  meeting  in  designating  a  site  will  not  be  set  aside  on  the  allegation 
that  the  purchase  price  of  such  site  is  excessive  unless  such  allegation  is  clearly  sus- 
tained. 

A  site  is  worth  as  much  for  school  purposes  as  it  would  be  worth  for  manufacturing 
or  other  purposes. 

Decided  September  29,  1905 

Frank  Gick,  attorney  for  appellants 

Draper,  Commissioner 

Decision  no.  5197  was  rendered  in  this  appeal  on  the  24th  day  of  August 
1905,  sustaining  the  appeal  and  ordering  the  respondents  herein  to  join  with 
the  majority  members  of  the  board  of  education  of  union  free  school  district  no. 
I,  towns  of  Hadley  and  Luzerne,  Saratoga  and  Warren  counties,  in  signing  cer- 
tain notices  for  the  sale  of  bonds  and  to  also  sign  such  bonds. 

On  September  6,  1905,  attorney  for  appellants  filed  a  petition  with  this 
Department  for  the  removal  of  said  respondents  as  members  of  the  board  of 
education  of  said  union  free  school  district  no.  i,  towns  of  Hadley  and  Luzerne, 
on  the  ground  that  they  had  wilfully  refused  to  obey  the  said  order  of  August 
24,  1905.  Such  petition  was  supported  by  the  affidavit  of  Hugh  Clemons,  one 
of  the  appellants  herein,  to  the  effect  that  he  had  presented  notiees  for  the  sale 
of  such  bonds  to  said  respondents  and  that  they  had  refused  to  sign  them  and  that 
they  had  also  told  him  they  would  not  sign  the  bonds. 

Thereupon  an  order  was  made  by  me  directing  the  said  Amasa  Woodard, 
Paul  King  and  Joseph  Malone,  respondents  herein,  to  appear  before  me  in  my 
office  in  the  Capitol  in  the  city  of  Albany,  on  the  14th  day  of  September  1905, 
at  II  o'clock  in  the  forenoon  to  show  cause  why  they  should  not  be  removed 
from  the  offices  of  trustees  of  said  union  free  school  district  no.  i,  towns  of 
Hadley  and  Luzerne. 

The  said  respondents  appeared  in  person  at  the  time  fixed  for  a  return  on 
the  said  order  to  show  cause  why  they  should  not  be  removed  from  office  and 
acknowledged  that  they  had  refused  to  sign  the  said  notices  of  the  sale  of  bonds. 
They  gave  as  their  reason  for  not  signing  such  notices  that  the  site  which  had 
been  designated  was  assessed  by  the  town  assessors  at  $1300  and  that  the  district 
had  fixed  the  purchase  price  at  $5300.  They  alleged  that  the  price  paid  was 
•la^rgely  in  excess  of  the  real  value  of  such  site  and  that  the  action  of  the  district 
in' voting  to  pay  such  amount  was  a  great  injustice  to  the  taxpayers  of  the  dis- 


ijl2  THE   UNIVERSITY    OF   THE    STATK    OF    NEW    YORK 

trict,  causing  a  waste  of  several  thousand  dollars.     The  following  determination 
was  then  agreed  upon : 

The  determination  for  the  present  is  that  the  Commissioner  of  Education 
will  require  the  trustees  refusing  to  sign  such  notice  and  bonds  to  sign  the  same, 
unless,  as  the  result  of  an  investigation  which  the  Commissioner  will  have 
made,  he  shall  become  satisfied  that  the  proposed  site  is  not  a  suitable  one  for 
the  district,  or  that  the  price  of  said  site  is  not  a  just  one,  and  upon  the  further 
understanding,  to  which  the  refusing  trustees  assent,  that  they  will  abide  the 
determination  of  the  Commissioner,  without  further  objection. 

I  then  directed  Thomas  E.  Finegan,  the  chief  of  the  Law  Division  of  this 
Department,  to  examine  the  site  in  question  and  to  make  a  thorough  investiga- 
tion of  the  value  of  such  site  as  compared  with  the  value  of  other  property  in 
that  community.    Mr  Finegan  made  such  examination  and  reported  as  follows: 

Albany,  N.  Y .,  Sept.  2j,  ipoj 
Hon.  A.  S.  Draper 

Commissioner  of  Education 
.  Albany.  N.  V. 

Dear  sir:  In  comj)liancc  with  your  order  of  the  13th  inst.,  directing  me  to 
make  an  examination  of  the  site  designated  by  a  special  meeting  of  school  dis- 
trict no.  I,  towns  of  Hadley  and  Luzerne,  I  respectfully  submit  the  following 
report:  On  September  19th,  I  wrote  Mr  Hall,  president  of  the  board  of  educa- 
tion, that  I  would  be  at  Luzerne  on  September  26th  to  examine  the  site  and  to 
give  a  hearing  in  order  to  ascertain  its  value  as  compared  with  other  property 
in  that  village.  I  also  wrote  Mr  King  of  the  respondents.  I  advised  both  par- 
ties that  I  would  receive  such  evidence  as  they  might  be  able  to  produce  that 
would  have  any  bearing  on  the  value  of  the  property  in  question.  At  the  hearing 
both  parties  were  represented  by  counsel,  Frank  Gick  appearing  for  appellants 
and  \\^illiam  T.  Moore  for  respondents. 

The  site  in  question  is  centrally  located  as  to  territory  embraced  in  the 
district  and  as  to  school  population.  That  portion  of  the  district  located  in  the 
village  of  Luzerne  contains  168  children  of  school  age  and  that  portion  of  the 
district  located  in  the  village  of  Hadley  contains  63  children'  of  school  age. 
The  site  is  dry  and  the  grade  is  such  as  to  afford  good  drainage  on  each  of  the 
four  sides.  It  contains  1.6  acres  which  is  large  enough  to  afford  ample  room 
for  a  suitable  building  and  a  playground  of  sufficient  size.  The  rear  of  the  site 
borders  on  the  Hudson  river  and  is  about  25  or  30  feet  above  the  water.  This 
is  the  only  criticism  which  can  be  made  on  this  site.  This  does  not  appear  to  be 
a  serious  one.  Proper  safeguards  may  be  erected  on  the  rear  of  this  site  to 
avoid  the  danger,  if  any,  of  the  children  falling  or  running  over  the  rocks  into 
the  river.  The  site  also  contains  several  large  matured  shade  trees.  I  examilSed 
several  pieces  of  property  which  had  been  considered  in  the  selection  of  a  site 
and  which  were  suggested  by  respondents  as  being  available  and  desirable  for 
such  site.  None  of  these  appears  to  be  anywhere  near  so  desirable  for  a  school- 
house  site,  from  any  consideration,  as  the  one  selected  by  the  district  meeting. 

The  site  selected  is  known  as  the  Riverview  site.  There  was  a  hotel  on  it 
which  burned  down  some  years  ago.  There  is  still  upon  it  a  barn.  It  is  gen- 
erally agreed  that  the  expense  of  erecting  such  barn  must  have  been  $3000.    Mr 


JUDICIAL  decisions:     sites 


913 


King,  of  respondents,  agreed  that  such  barn  is  now  worth  $2000.  I  examined 
several  pieces  of  property  with  Mr  Hall  of  appellants  and  Mr  King  of  respond- 
ents. The  following  table  will  show  the  assessed  valuation  of  several  of  the 
pnncipal  pieces  of  property  in  this  district  and  the  value  which  respondents  and 
appellants  placed  upon  them: 


Property 

Arlington  Hotel   

Amasa  Woodard 

Rockwell  Hotel    

E.  M.  Garner,  residence. 

Holleran 

Palmer   

Portous    

E.  M.  Garner,  }i  acre.  . . 

William  J.  Hall 

Morton 

Conklin    , 

Wayside  Hotel  

Garner  Homestead 


Estimated 

Assesssed 

value  by 

valuation 

respondents 

$3  000 

$10  000 

900 

4  000 

3  000 

17  000 

800 

4  000 

550 

2  500 

475 

4  000 

By  appellants 

$750 

$4 

200  to    $5  200 

400 

2 

500 

600 

5 

000 

2  900 

15 

000 

300 

I 

200 

7  800 

35 

000  to    40  000 

600 

4 

000 

The  above  table  fairly  represents  the  assessed  valuations  and  the  estimates 
of  the  actual  value  of  property  in  these  villages.  It  will  be  observed  from  this 
table  that  property  is  assessed  at  one-sixth  to  one-third  its  actual  value.  The 
site  in  question  is  assessed  at  $1300  and  was  purchased  at  $5300. 

In  February  or  March  last  the  site  of  the  Rockwell  hotel  was  purchased 
for  $4500.  It  contains  1.5  acres.  It  is  located  on  the  same  street  and  a  short 
distance  above  the  schoolhouse  site,  but  contains  less  land.  It  was  stated  and 
not  disputed  that  the  Garner  lot  which  is  located  next  to  the  Riverview  site  was 
purchased  four  years  ago  at  $1000  and  contains  less  than  one-half  acre.  The 
grist  mill  property  sold  for  $4000  within  the  last  year  and  is  assessed  for  only 
$1000.  The  estimated  value  of  property  contained  in  the  above  table  appears 
to  be  conservative  as  the  Rockwell  hotel  was  erected  the  present  season  at  a 
cost  slightly  in  excess  of  the  estimated  value.  The  Garner  residence  was  erected 
four  years  ago  at  an  expense  of  $3500  and  its  estimated  value  is  $3000.  The 
price  which  the  district  voted  to  pay  for  this  property  is  all  the  property  is 
worth.  The  transaction  may  even  be  looked  upon  as  an  excellent  sale  on  the 
part  of  the  owner  of  such  property.  However,  property  is  worth  no  more  for 
manufacturing,  hotel  or  other  business  purposes  than  it  is  worth  for  school 
purposes.  A  school  district  may  reasonably  pay  for  a  school  site  as  much  as 
an  individual  or  a  corporation  may  pay  for  such  site  or  similar  sites  for  business 
purposes.  Taking  this  principle  and  the  facts  above  stated  into  consideration, 
I  am  of  the  opinion  that  the  Riverview  site  designated  at  a  special 
meeting  of  the  district  is  not  only  a  most  excellent  and  desirable  one,  but  that 
the  price  paid  is  not  an  exorbitant  one  for  such  property. 

Respectfully  yours 

Thomas  E.  Finegan 
Chief  of  Lazv  D'wision 


914  THE  UXIVERSITY    OF   THE   STATE   OF   NEW  YORK 

In  view  of  all  the  facts  brought  to  my  attention  by  the  several  appeals 
resulting  from  this  controversy  and  passed  upon  by  me  during  the  past  year, 
and  also  of  the  facts  set  forth  in  the  above  report,  I  must  decline  to  modify  the 
said  order  of  this  Department,  made  on  the  24th  day  of  August  1905,  and  must 
hold  that  all  questions  involved  in  this  controversy  shall  be  settled  as  agreed 
between  respondents  and  myself  at  the  hearing  in  my  office  on  the  13th  day  of 
September,  and  as  fully  hereinbefore  set  forth. 


5189 

In  the  matter  of  the  appeal  of  Clayton  L.  Ensign,  George  E.  Merrill  and 
Charles  Shutter  from  the  action  of  a  special  school  meeting  of  school  dis- 
trict no.  6,  Sheridan,  Chautauqua  county. 

A  site  is  not  legally  designated  unless  a  resolution  is  adopted  describing  the  boundaries 
of  such  site  in  metes  and  bounds.  The  vote  by  which  such  resolution  is  adopted  must 
be  by  taking  and  recording  the  ayes  and  noes. 

Decided  July  7,  1905 

Warner  &  Farnham,  attorneys  for  appellants 

Draper,  Commissioner 

The  appellants  herein  ask  that  the  proceedings  of  a  special  meeting  held  in 
district  no.  6,  Sheridan,  Chautauqua  county,  on  the  17th  day  of  May  1905  be 
declared  void.  This  request  is  based  on  two  alleged  irregularities.  It  is  claimed 
that  sufficient  notice  of  this  special  meeting  was  not  given  and  that  the  designa- 
tion of  a  new  site  was  not  in  conformity  to  the  provisions  of  the  Consolidated 
School  Law.  This  appeal  was  filed  in  this  Departinent  June  15,  1905,  and  an 
answer  thereto  should  have  been  filed  within  ten  days  thereafter.  No  answer 
has  been  received  and  no  request  for  an  extension  of  time  in  which  to  file  an 
answer  has  been  received.  Under  the  rules  governing  the  practice  of  appeals 
before  this  Department,  material  allegations  not  denied  are  regarded  as  admitted. 

This  district  is  a  common  school  district  and  notice  of  special  meetings 
therein  must  be  given  as  provided  by  sections  2  and  6  of  title  7  of  the  Consoli- 
dated School  Law.  Under  section  6  of  this  title  an  annual  meeting  may  adopt 
a  particular  method  of  giving  notice  of  special  meetings  and  such  method  shall 
contmue  in  vogue  until  rescinded  or  modified  by  a  subsequent  annual  meeting. 
It  is  not  shown  that  this  district  ever  adopted  a  particular  method  of  giving 
notices  of  special  meetings  and  notice  of  such  meetings  must  therefore  be  given 
as  provided  by  section  2  of  title  7.  This  section  provides  that  notice  of  special 
meetings  must  be  given  to  each  inhabitant  of  the  district  entitled  to  vote  at 
district  meetings  by  reading  the  notice  in  his  hearing,  or  in  case  of  his  absence 
from  home,  by  leaving  a  copy  or  so  much  thereof  as  relates  to  the  time,  place 
and  object  of  the  meeting  at  his  residence.  Such  notice  should  have  been  given 
at  least  five  days  previous  to  the  date  fixed  for  the  special  meetin^r. 


JUDICIAL  decisions:     sites  915 

The  notice  of  the  special  meeting  in  question  was  not  given  in  this  manner. 
It  was  given  by  posting  notices  in  several  conspicuous  places  in  the  district. 
This  was  not  sufficient  and  does  not  satisfy  the  requirements  of  the  law.  This 
Department  has  uniformly  held  that  failure  to  give  notice  of  a  meeting  as  the 
law  directs  is  sufficient  ground  for  setting  aside  any  action  that  may  be  taken  at 
such  meeting. 

It  appears  that  one  of  the  things  which  this  meeting  did,  was  to  designate 
a  site.  Subdivision  7  of  section  14,  title  7  of  the  Consolidated  School  Law 
provides  that  a  site  shall  be  designated  at  a  special  meeting  and  by  written  reso- 
lution containing  a  description  thereof  in  metes  and  bounds.  The  vote  on  such 
resolution  must  be  by  taking  and  recording  the  ayes  and  noes.  The  vote  desig- 
nating this  site  was  by  ballot  and  no  resolution  describing  the  boundaries  of 
such  site  in  metes  and  bounds  was  offered.    The  site  was  not  legally  designated. 

Repairs  to  the  school  property  in  this  district  appear  to  be  necessary. 
Appropriations  to  make  such  repairs  should  be  voted  by  the  district.  All  pro- 
ceedings, however,  in  relation  thereto  must  be  in  accordance  with  the  law  gov- 
erning the  same.  Another  meeting  should  be  called  by  the  trustee  and  notice 
thereof  given  as  the  law  requires.  If  a  change  in  the  site  of  the  schoolhouse 
should  be  made  the  provisions  of  subdivision  7,  section  14,  title  8  and  of  section 
19,  title  8  should  be  observed. 

The  appeal  herein  is  sustained. 

It  is  ordered,  That  all  proceedings  of  the  special  meeting  of  school  district 
no.  6,  Sheridan,  Chautauqua  county,  held  on  the  17th  day  of  Alay  1905,  be, 
and  they  are,  hereby  declared  void. 


5270 

In  the  matter  of  the  appeal  of  Lincoln  Sackett  and  others  from  the  action  of 
a  special  meeting  of  school  district  no.  9,  town  of  New  Lebanon,  county  of 
Columbia,  in  designating  a  site  on  the  30th  day  of  June  1906. 

The  action  of  a  meeting  in  designating  a  site  so  far  from  the  center  of  the  district  as  to 
operate  as  a  hardship  to  a  portion  of  the  children  of  a  district  and  to  interfere  with 
their  regular  attendance  upon  school  will  be  set  aside. 

Decided  September  11,  1906 

Draper,  Commissioner 

At  a  special  meeting  of  school  district  no.  9,  town  of  New  Lebanon,  Co- 
lumbia county  held  on  the  30th  day  of  June  1906,  a  new  site  for  a  schoolhouse 
was  designated.  The  law  authorizes  the  voters  of  a  school  district  to  select  a 
site.  The  action  of  a  meeting  in  selecting  a  site  will  not  be  interfered  with  by 
this  Department  unless  it  is  shown  that  the  site  selected  is  unsanitary  or  that 
by  reason  of  its  distance  from  the  remote  parts  of  the  district  it  operates  as  a 
hardship  upon  the  children  required  to  walk  to  and  from  school.  No  irregularity 
of  procedure  is  alleged.     It  is  not  claimed  that  the  site  chosen  is  unsanitary. 


giC  THE  UNIVERSITY   OF  THE   STATE   OF   NEW   YORK 

Tliis  appeal  is  brought  by  twenty-three  residents  of  the  district  upon  the  sole 
ground  that  the  site  chosen  is  in  an  extreme  end  of  the  district  and  that  some  of 
the  children  will  therefore  be  required  to  travel  two  and  three-quarters  miles  to 
attend  school. 

The  pleadings  show  that  the  district  embraces  the  village  of  Lebanon 
Springs.  This  village  is  located  south  of  the  center  of  the  district.  The  site 
chosen  is  still  south  of  the  village  and  within  one-half  a  mile  of  the  south- 
ern boundary  of  the  district.  The  distance  from  one  end  of  the  district  to  the 
other  appears  to  be  more  than  three  miles.  Some  of  the  children  will  be  required 
to  travel  as  alleged  two  and  three-quarters  miles  to  reach  school  in  the  morn- 
ine  and  the  same  distance  to  return  in  the  afternoon,  making  a  distance  of  five 
and  one-half  miles  which  these  children  must  travel  daily  in  order  to  attend 
school.  This  imposes  too  great  a  burden  upon  children  of  tender  ages.  It  is 
claimed  by  appellants  and  not  denied  by  respondents  that  a  site  equally  as  good 
in  every  way  as  the  one  selected  could  be  designated  west  of  the  village 
which  would  bring  all  children  within  a  walking  distance  of  the  schoolhouse. 
By  selecting  a  site  in  this  section  of  the  district  the  children  living  in  the  village 
would  have  no  farther  to  walk  than  they  would  to  attend  school  at  the  site 
selected.  None  of  the  children  living  south  of  the  village  would  have  more  than 
one  mile  to  walk  and  the  children  living  in  the  northern  part  of  the  district  would 
then  have  a  little  over  four  miles  to  walk  each  day  instead  of  five  and  one-half 
miles.  Appellants  also  state  that  this  arrangement  will  be  satisfactory  to  them. 
When  small  children  are  required  to  travel  long  distances  daily  to  attend  school 
a  reduction  in  such  distance  of  only  two-thirds  mile  is  an  important  consideration. 

The  appellants  claim  that  if  any  of  the  children  reside  more  than  two  miles 
from  the  schoolhouse  the  district  is  required  by  law  to  provide  transportation 
for  such  children  to  and  from  school.  There  is  no  provision  of  law  nor  is  there 
a  decision  of  the  Commissioner  of  Education  establishing  any  fixed  limit  whereby 
a  district  is  required  to  provide  transportation.  The  rule  is  that  a  parent  is 
required  to  get  his  children  to  and  from  school  and  provide  transportation  when 
necessary.  A  district  maintaining  a  home  school  is  not  required  to  provide  trans- 
portation for  children  unless  it  is  clearly  shown  that  the  distance  is  too  great 
for  the  children  to  walk  and  that  it  is  absolutely  impossible  for  the  parent  to 
provide  transportation. 

It  appears  clear  that  the  meeting  did  not  give  proper  consideration  to  the 
rights  of  the  people  living  in  the  northern  part  of  the  district  and  that  in  select- 
mg  such  site  the  meeting  imposed  an  unnecessary  burden  upon  the  children 
hving  in  the  northern  part  of  the  district  which  will  operate  as  a  hardship  and 
mterfere  with  their  regular  attendance  at  school.  I  therefore  conclude  that  it 
is  my  duty  to  set  aside  the  action  of  the  meeting  in  adopting  the  site  in  question 
and  to  direct  the  trustee  to  call  another  meeting  for  the  purpose  of  selecting  a 
site  which  shall  correct  the  injustice  which  has  been  imposed  upon  certain 
residents  of  the  district  in  the  designation  of  this  site. 

The  appeal  herein  is  sustained. 


JUDICIAL  decisions:     sites  917 

It  is  ordered,  That  the  action  of  said  school  district  no.  9,  town  of  New 
Lebanon,  in  designating  a  site  on  the  30th  day  of  June  1906,  be,  and  the  same 
hereby  is,  vacated. 

It  is  also  ordered.  That  the  trustee  of  said  district  no.  9,  town  of  New 
Lebanon,  be,  and  he  hereby  is,  directed  without  unnecessary  delay,  to  call  a 
special  meeting  of  said  district  to  designate  a  site  which  shall  conform  to  the 
views  expressed  in  the  foregoing  opinion. 


5234 

In  the  matter  of  the  appeal  of  James  R.  Yates  and  others  from  the  action  of 
a  special  meeting  in  school  district  no.  12,  Rotterdam  and  Niskayuna, 
Schenectady  county. 

The  site  of  a  populous  district  rapidly  developing  and  increasing  in  population  should  be 
selected  so  as  to  equalize  as  far  as  possible  the  distance  which  pupils  residing  in  all 
sections  of  the  district  will  be  required  to  travel  to  attend  school. 

Decided  October  17,  1906 

Elmer  E.  Barnes,  attorney  for  respondent 

Draper,  Commissioner 

District  no.  12,  Rotterdam  and  Niskayuna,  Schenectady  county,  has  voted 
to  erect  a  new  schoolhouse.  At  a  special  meeting  of  the  district  held  July  13, 
1906,  it  was  decided  to  build  such  schoolhouse  upon  the  present  site.  This 
appeal  is  from  such  action  and  the  principal  ground  upon  which  the  appeal  is 
brought  is  that  the  present  site  is  not  centrally  located. 

This  district  embraces  a  populous  region  adjoining  the  eastern  boundary 
of  the  city  of  Schenectady.  About  three  years  ago  the  boundary  lines  of  the 
city  of  Schenectady  were  extended  and  a  portion  of  the  western  part  of  this 
district  was  included  within  the  city  limits.  Before  the  absorption  of  the  west- 
ern portion  of  this  district  by  the  city  of  Schenectady  the  schoolhouse  was  quite 
centrally  located  both  as  to  distance  and  school  population.  Since  the  western 
portion  of  the  district  was  annexed  to  the  city  of  Schenectady  the  schoolhouse 
of  this  district  has  been  in  the  extreme  western  end  of  the  district.  It  appears 
from  the  evidence  submitted  that  the  northern,  eastern  and  southern  sections 
of  the  district  are  rapidly  developing  and  increasing  in  population.  The  resi- 
dents of  these  sections  of  the  district  feel  that  since  a  new  building  is  to  be 
erected  it  should  be  built  upon  a  site  which  will  equalize  the  distance  which 
the  children  of  the  district  will  be  required  to  walk  to  reach  school.  Their  claim 
is  not  unreasonable  but  appears  fair  and  just  to  all.  Upon  the  other  hand,  tu 
require  the  children  from  the  northern,  eastern  and  southern  sections  of  the 
district  to  travel  to  the  center  of  the  district  as  they  are  required  and  then  go 
to  the  extreme  western  end  of  the  district  is  not  only  unjust  but  would  operate 
as-  a  hardship  upon  the  younger  children.  The  action  complained  of  must 
therefore  be  set  aside. 


(;l8  THE   UNIVERSITY   OF  THE   STATE   OF   NEW   YORK 

It  appears  that  three  proposed  sites  near  the  center  of  the  district  have  been 
considered  but  that  a  majority  of  the  residents  are  not  satisfied  with  them. 
It  is  alleged  by  respondents  that  these  proposed  sites  are  on  low  ground  and 
that  they  are  unsanitary.  If  this  is  true  a  site  should  be  proposed  which  is  not 
open  to  this  criticism.  To  ascertain  whether  a  suitable  site  could  be  selected 
near  the  center  of  the  district  I  directed  Mr  A.  E.  Hall,  Inspector  of  Buildings 
in  this  Department,  to  make  an  examination  of  the  district.  Mr  Hall's  report 
shows  that  by  proper  grading  the  proposed  site  on  State  street  near  the  center 
of  the  district  would  be  satisfactory.  He  also  reports  that  a  most  admirable 
site  could  be  selected  near  the  center  of  the  district  on  State  street  nearly  oppo- 
site the  State  street  site  which  has  been  under  consideration. 

The  district  will  be  permitted  to  select  its  site  but  the  one  designated  must 
be  free  from  sanitary  objections  and  must  be  one  which  shall  afford  equal  school 
facilities  to  all  the  children  in  the  district.  The  trustee  should  therefore  call 
a  special  meeting  of  the  district  to  designate  a  site  and  in  his  call  should  include 
such  proposed  sites  as  meet  the  conditions  above  described. 

The  appeal  herein  is  sustained. 

It  is  ordered,  That  action  of  the  special  meeting  of  school  district  no.  12, 
Rotterdam  and  Niskayuna,  Schenectady  county,  held  on  the  13th  day  of  July 
1906.  in  directing  that  the  new  schoolhouse  authorized  by  that  district  shall  be 
erected  upon  the  present  site,  be,  and  the  same  hereby  is,  vacated. 

It  is  also  ordered.  That  the  trustee  of  said  district  be,  and  he  hereby  is, 
directed  to  call  a  special  meeting  of  said  district  for  the  purpose  of  designating 
a  new  site  which  shall  be  central  and  sanitary. 


5321 

In  the  matter  of  the  appeal  of  certain  electors  of  school  district  no.  2,  of  the 
town  of  Brutus.  Cayuga  county,  from  the  action  of  the  board  of  education, 
taken  at  a  meeting  held  March  11,  1907. 

The  general  rule  of  this  Department  has  always  been  that  before  its  aid  can  be  invoked 
to  interfere  with  the  action  of  a  district  meeting  regularly  and  lawfully  taken,  in  desig- 
nating a  site  it  must  be  shown  that  such  site  is  unsanitarj',  does  not  afiford  adequate 
facilities,  or  that  it  is  inaccessible  to  some  portion  of  the  district  and  operates  as  a 
hardship  upon  the  children  residing  therein. 

Decided  June  22,  1907 

John  T.  Kingston  Esq.,  attorney  for  appellants 
Hon.  T.  E.  Hancock,  attorney  for  respondent 

Draper,  Commissioner 

School  district  no.  2,  town  of  Brutus,  includes  within  its  boundaries  the 
village  of  Weedsport.  At  the  annual  meeting  of  this  district  in  August  1906 
the  voters  authorized  the  erection  of  a  new  schoolhouse  at  a  cost  of  $30,000 
and  they  also  directed  the  board  of  education  to  call  a  special  meeting  of  the 


JUDICIAL  decisions:     sites  919 

district  to  designate  a  site.  The  board  of  education  called  this  special  meeting 
for  November  14,  1906.  In  its  call  of  such  special  meeting  the  board  submitted 
four  propositions  on  the  question  of  a  site.  The  voters  therefore  had  an 
opportunity  to  select  one  of  four  proposed  sites.    These  four  were  as  follows: 

1  The  site  upon  which  the  present  schoolhouse  is  located. 

2  The  present  site  and  an  adjoining  lot  known  as  the  Walrath  property. 

3  A  site  known  as  the  Bircher  property. 

4  A  site  known  as  the  Stevens  property. 

The  first  proposition  to  build  the  new  schoolhouse  on  the  present  site  re- 
ceived 26  votes.  The  second  proposition  to  purchase  the  Walrath  lot  adjoining 
the  present  site  as  an  addition  to  such  site  received  12  votes.  The  third  propo- 
sition to  designate  the  Bircher  site  received  6  votes.  The  fourth  proposition 
to  designate  the  Stevens  property  for  a  site  received  84  votes  or  a  majority  of 
40  over  the  three  other  propositions. 

The  regularity  of  the  notice  given  and  the  form  of  procedure  at  the  special 
meeting  are  not  questioned  in  any  way  whatever  by  appellants.  It  appears  that 
all  the  voters  of  the  district  received  due  notice  of  such  meeting  and  that  it  was 
generally  understood  that  the  four  sites  above  stated  would  be  voted  upon. 

A  faction  in  the  district  appears  to  be  dissatisfied  with  the  site  selected  and 
it  appears  that  such  faction  desires  another  lot  known  as  the  Sturge  property 
selected  for  a  site.  The  matter  came  informally  before  this  Department  by  cor- 
respondence and  upon  request  from  the  district  an  inspector  of  this  Department 
met  the  board  of  education  and  residents  of  the  district  and  examined  all  pieces 
of  property  which  had  been  considered  in  connection  with  the  designation  of  a 
site,  including  the  Sturge  property.  It  was  the  opinion  of  the  inspector  that 
the  old  site  and  the  Walrath  property  adjoining  was  the  most  desirable  one  on 
which  to  erect  a  new  building.  He  strongly  recommended  this  site.  In  view  of 
the  feeling  which  it  was  apparent  existed  in  the  district  the  inspector  suggested 
that  the  board  of  education  should  call  another  special  meeting  and  submit  the 
site  designated  at  the  November  meeting,  the  Sturge  site  and  the  old  site  with 
the  adjoining  Walrath  lot  to  be  voted  upon.  It  does  not  appear  that  the  inspector 
ever  recommended  the  Sturge  property  as  a  suitable  site  for  this  new  building. 
He  suggested  that  it  should  be  included  in  the  proposed  sites  simply  because 
certain  residents  of  the  district  wanted  an  opportunity  to  vote  upon  it.  It  also 
appears  that  at  such  time  the  board  of  education  had  an  option  upon  the  Wal- 
rath lot.  The  board  of  education  at  a  meeting  held  January  14,  1907,  authorized 
the  call  of  a  special  meeting  to  submit  to  the  voters  of  the  district  the  three 
proposed  sites  from  which  a  site  should  be  selected.  At  a  meeting  of  the  board 
of  education  held  March  11,  1907,  the  action  of  the  board  taken  at  the  January 
meeting  authorizing  the  call  of  another  special  meeting  was  rescinded  and  a 
contract  for  the  purchase  of  the  Stevens  property  pursuant  to  the  action  of  the 
special  meeting  of  November  1906  was  authorized. 

''\  It  is  from  this  action  of  the  board  that  this  appeal  is  instituted,  and  an 
order  prayed  for,  directing  the  board  to  call. a  special  meeting  and  submit  the 
question  of  the  designation  of  the  site  to  the  voters  of  the  district  once  more. 


920  THE  UNIVERSITY   OF  THE   STATE   OF  NEW  YORK 

The  board  of  education  in  rescinding  its  resolution  authorizing  another 
meeting  predicated  its  action  upon  the  statement  that  the  owner  of  the  Wal- 
rath  property  had  withdrawn  the  option  given  to  the  board  upon  his  property 
and  refused  to  sell  such  property.  This  is  not  denied  by  appellants.  In  fact 
appellants  do  not  appear  to  be  interested  in  having  submitted  to  the  voters  of 
the  district  the  proposition  including  the  Walrath  property.  It  is  to  be  remem- 
bered that  this  proposition  at  the  November  meeting  received  only  12  votes  and 
that  at  such  time  the  owner  offered  it  for  sale. 

The  real  question  in  this  appeal  therefore  is  whether  the  Stevens  property 
or  the  Sturge  property  shall  be  selected  as  the  district  site.  The  pleadings  of 
appellants  and  the  argument  of  their  attorney  were  directed  mainly  to  this  one 
question.  The  moving  papers  contain  numerous  photographs  to  show  the 
adaptability  of  the  Sturge  property  for  a  site  and  to  also  show  that  the  sur- 
roundings of  the  Stevens  property  are  such  as  to  render  that  property  unfit 
for  a  site.  The  map  submitted  by  appellants  in  their  moving  papers  show  that 
the  Sturge  property  contains  a  little  over  i  acre  of  land  and  that  the  Stevens 
property  contains  a  little  over  3  acres.  Appellants  do  not  show  that  the  general 
location  or  surroundings  of  the  Sturge  property  render  it  more  suitable  for  a 
site  than  the  Stevens  property.  One  fact  is  clear  and  that  is  that  a  site  containing 
only  I  acre  of  land  is  inadequate  for  a  district  of  the  population  of  the  Weeds- 
port  district.  The  Stevens  site  which  contains  three  acres  has  a  distinct  advan- 
tage over  the  Sturge  site. 

The  general  rule  of  this  Department  has  always  been  that  before  its  aid 
can  be  invoked  to  interfere  with  the  action  of  a  district  meeting  regularly  and 
lawfully  taken,  in  designating  a  site  it  must  be  shown  that  such  site  is  unsani- 
tary, does  not  afford  adequate  facilities,  or  that  its  inaccessibility  to  some  portion 
of  the  district  operates  as  a  hardship  upon  the  children  residing  therein.  None 
of  these  conditions  are  even  alleged  to  exist  in  this  case. 

The  appeal  herein  is  dismissed. 

It  is  ordered.  That  the  restraining  order  made  by  me  in  this  proceeding  on 
the  20th  day  of  March  1907,  be,  and  it  hereby  is,  vacated. 


5345 
In  the  matter  of  the  appeal  of  William  J.  Burnham  from  the  action  of  a  meet- 
ing of  union  free  school  district  no.  7,  town  of  Corinth,  county  of  Sara- 
toga. 

1  he  Commissioner  of  Education  will  not  interfere  with  the  action  of  a  district  meeting 
m  regularly  designating  a  site  unless  it  is  shown  that  such  site  is  unsanitary  or  not 
adapted  for  such  use  or  that  it  is  not  centrally  located  and  thereby  operates  as  a  hard- 
ship upon  the  children  of  some  section  of  the  district. 

Decided  September  28,  1907 

T.  J.  Dillon,  attorney  for  appellant. 

S.  M.  Richards,  attorney  for  respondents 


JUDICIAL  decisions:     sites  921 

Draper,  Commissioner 

In  1905  union  free  school  district  no.  7,  town  of  Corinth,  county  of  Sara- 
toga, authorized  the  erection  of  two  new  primary  school  buildings  at  a  cost 
of  $10,000  each.  There  has  been  a  contention  over  the  designation  of  a  site  for 
one  of  these  buildings.  The  site  on  which  the  present  building  is  located  is 
wholly  inadequate.  Such  site  should  be  enlarged  or  a  new  site  designated.  A 
special  meeting  was  held  to  consider  the  proposition  to  enlarge  such  site.  This 
proposition  was  defeated  by  a  decisive  vote.  Another  special  meeting  was  held 
several  months  thereafter  to  vote  upon  the  proposition  to  designate  a  new  site. 
At  such  meeting  a  new  site  was  designated  known  as  the  cemetery  site.  The 
vote  by  which  such  site  was  designated  was  quite  as  decisive  as  the  vote  by  which 
the  proposition  to  enlarge  the  old  site  was  defeated. 

The  regularity  of  the  procedure  in  designating  such  site  is  not  in  any  way 
whatever  questioned  by  appellants.  It  is  conceded  that  the  site  chosen  is  sani- 
tary and  free  from  physical  objection.  The  sole  claim  is  that  the  site  is  not 
centrally  located  and  that  the  title  thereto  is  not  clear.  This  site  is  only  1000 
feet  from  the  site  on  which  the  present  building  is  located  and  which  site  ap- 
pears satisfactory  to  appellants.  It  can  not  be  held  that  this  difference  in  dis- 
tance between  the  two  sites  in  question  is  sufficient  to  warrant  my  interfering 
with  the  action  of  the  residents  of  the  district.  The  action  of  a  district  meeting 
in  regularly  designating  a  site  should  stand  unless  it  is  shown  that  such  site  is 
unsanitary  or  not  adapted  for  such  use  or  that  it  is  not  centrally  located  and 
thereby  operates  as  a  hardship  upon  the  children  of  some  section  of  the  district. 
The  site  in  question  appears  free  from  all  of  these  objections. 

The  contention  that  the  title  to  the  site  is  not  clear  does  not  appear  to  be 
sustained. 

This  district  voted  a  tax  for  the  erection  of  two  new  buildings  about  two 
years  ago.  Because  of  a  controversy  over  the  site  for  one  of  these  buildings 
no  progress  has  been  made  toward  the  erection  of  such  buildings.  The  board 
of  education  should  now  proceed  to  give  effect  to  the  wishes  expressed  by  the 
voters  of  the  district. 

The  appeal  herein  is  dismissed. 


5186 

In  the  matter  of  the  appeal  of  H.  H.  Van  Sickle  from  the  action  of  school 
district  no.  8,  towns  of  Seneca  and  Geneva,  Ontario  county. 

School  authorities  are  required  by  direct  provision  of  law  to  provide  school  buildings 
erected  to  meet  sanitary  requirements  so  that  the  health  of  children  shall  not  be  endan- 
gered. They  must  be  governed  by  the  same  principle  in  selecting  sites  and  are  bound 
to  provide  sites  which  shall  afford  children  an  opportunity  to  attend  school  without 
being  subject  to  the  danger  of  bodily  injury.  If,  in  attending  school  on  this  site,  chil- 
dren are  exposed  to  undue  risks  such  site  is  an  improper  one  and  the  district  should 
\  not  erect  a  new  building  thereon. 

Decided  May  15,  1905 


922  THE   UNIVERSITY    OF  THE   STATE   OF   NEW   YORK 

Draper,  Commissioner 

In  1893  school  district  no.  8,  towns  of  Seneca  and  Geneva,  Ontario  county, 
sold  a  portion  of  its  site  adjoining  the  highway  known  as  Castle  road  to  the 
Rochester  and  Eastern  Rapid  Railway  Company.  This  company  has  constructed 
a  trolley  line  which  extends  along  the  Castle  road  and  the  southern  boundary  of 
the  site  of  said  school  district.  In  the  latter  part  of  November  1904  the  school 
building  of  this  district  was  burned.  At  a  special  meeting  held  in  February  1905 
the  district  voted  to  erect  a  new  building  on  the  present  site. 

The  appellant  claims  that  the  trolley  line  is  so  close  to  the  district  site  that 
children  can  not  reach  the  school  grounds  or  leave  them  without  being  subjected 
to  the  danger  of  injury  to  person  or  loss  of  life  and  that  the  present  site  is  not 
therefore  a  proper  one  on  which  to  erect  a  new  building. 

School  authorities  are  required  by  direct  provision  of  law  to  provide  school 
buildings  erected  to  meet  sanitary  requirements  so  that  the  health  of  children 
shall  not  be  endangered.  They  must  be  governed  by  the  same  principle  in  select- 
ing sites  and  are  bound  to  provide  sites  which  shall  afford  children  an  oppor- 
tunity to  attend  school  without  being  subject  to  the  danger  of  bodily  injury.  If, 
in  attending  school  on  this  site,  children  are  exposed  to  undue  risks  such  site  is 
an  improper  one  and  the  district  should  not  erect  a  new  building  thereon. 

Many  good  reasons  exist  for  building  on  the  pre.ent  site.  It  is  centrally 
located  in  the  district.  It  is  in  an  improved  cundition  containing  many  well- 
developed  shade  trees.  It  also  contains  a  good  well.  Brick,  stone  and  other 
material  from  the  remaining  portions  of  the  former  building  are  on  the  grounds 
available  for  use  in  erecting  the  new  building.  All  these  conditions  render  the 
old  site  a  desirable  one  on  which  to  erect  a  new  building.  These  conditions, 
however,  should  not  have  a  prevailing  influence  if  the  use  of  this  site  is  to  expose 
the  children  to  danger. 

The  district  site  is  inclosed  on  all  sides  by  a  substantial  fence  four  feet 
high.  The  entrance  to  the  site  is  from  the  highway  known  as  the 
Johnson  road  on  the  east  side  through  a  closed  gate.  The  trolley  line 
in  question  extends  along  the  south  side  of  the  district  site.  The  Johnson 
road  intersects  the  trolley  tracks  at  right  angles.  To  reach  the  trolley 
tracks  children  in  the  school  building  must  go  from  such  building  through  the 
gate  at  the  entrance  to  the  grounds  on  the  Johnson  road,  a  distance  of  37  feet 
and  must  thence  go  south  over  the  Johnson  road  some  distance.  The  children 
are  fully  protected  while  on  the  school  grounds.  The  only  apparent  danger  to 
which  they  are  subject  is  in  crossing  the  trolley  tracks  in  going  to  and  returning 
from  school.  It  is  impossible  to  obtain  a  site  which  would  relieve  all  children 
from  the  necessity  of  crossing  these  tracks  to  attend  school.  The  distance  from 
the  school  building  to  the  tracks  and  the  manner  of  approaching  such  tracks  do 
not  appear  to  expose  the  children  to  greater  danger  than  is  usual  in  crossing  the 
tracks  of  any  trolley  line. 

It  appears  proper  to  refer  to  correspondence  on  this  question  between  the 
Law  Division  of  this  Department  and  residents  of  said  school  district.  An  ex- 
parte  statement  of  this  case  was  submitted  to  this  Department  asking  for  an 


JUDICIAL    DECISIONS:       SITES  923 

opinion  as  to  the  wisdom  of  building  a  new  schoolhouse  on  the  site  in  question. 
This  statement  was  referred  to  the  Law  Division  for  consideration.  On  the  con- 
ditions set  forth  in  such  statement  the  chief  of  the  Law  Division  advised  that  it 
was  not  wise  to  erect  a  new  building  on  such  site.  The  statement  on  which  such 
advice  was  given  showed  that  the  exit  from  the  school  grounds  was  on  the  south 
side  and  directly  to  the  trolley  line  and  that  the  distance  from  schoolhouse  to 
the  tracks  was  only  i6  feet.  Had  this  been  the  case  it  would  have  been  unwise 
to  have  erected  a  building  on  this  site. 

The  pleadings  do  not  show  the  exact  distance  from  the  intersection  of  the 
Johnson  road  and  the  trolley  tracks  to  the  entrance  gate  to  the  school  grounds. 
It  seems  advisable  to  locate  such  gate  near  the  center  of  the  east  side  of  the 
grounds  so  as  to  bring  it  a  reasonably  safe  distance  from  the  trolley  tracks.  This 
action  should  be  taken  by  the  district. 

The  appeal  herein  is  dismissed. 


5455 

In  the  matter  of  the  appeal  of  Millard  Davis  and  others  to  set  aside  a  special 
school  meeting  in  district  no.  6,  town  of  Olive,  Ulster  county. 

Schoolhouse  site;  former  site  acquired  by  New  York  City  for  Ashokan  dam.  Where 
the  title  to  a  site  and  schoolhouse  had  been  acquired  by  the  city  of  New  York  for  the 
construction  of  the  so-called  Ashokan  dam,  the  trustees  of  the  district  are  justified  in 
calling  a  special  meeting  to  vote  upon  the  selection  of  a  new  site.  The  action  of  the 
meeting  in  selecting  a  new  site  and  voting  to  build  a  new  schoolhouse  thereon  will  not 
be  disturbed  on  the  assumption  that  the  city  of  New  York  would  permit  the  use  of  the 
old  schoolhouse  for  a  considerable  time. 

Accessibility  of  site.  The  selection  of  a  site  should  not  be  set  aside  on  the  mere  possibility 
that  its  convenience  and  accessibility  may  be  affected  by  prospective  changes  in  the 
location  of  certain  highways. 

Notice  of  meeting.  Appellants  waived  failure  to  serve  notices  of  a  special  meeting  upon 
them  by  appearing  at  the  meeting  and  taking  part  in  its  proceedings. 

Consent  of  school  commissioner.  Section  ii8  of  the  Education  Law  of  1909,  requiring 
the  consent  of  the  school  commissioner  to  a  change  of  the  site  of  a  schoolhouse  owned 
by  the  district,  does  not  apply  where  the  former  site  has  been  acquired  by  a  municipality 
for  a  public  purpose. 

Description  of  site.  The  site  selected  at  a  district  meeting  was  described  in  writing  by 
metes  and  bounds  on  a  paper  presented  by  one  of  the  trustees;  this  description  was 
then  read  to  the  voters  present  and  a  motion  was  made  to  purchase  the  site  described; 
the  description  of  the  site  was  then  included  in  the  minutes  of  the  meeting,  but  there 
was  no  prefix  giving  it  the  form  of  a  resolution.  It  was  held  that  this  technical  defect 
did  not  nullify  the  action  of  the  meeting  in  selecting  the  site. 

Decided  June  4,  1910 

Arthur  E.  Rose,  attorney  for  appellants 
Frank  W.  Brooks,  attorney  for  respondents 

Draper,  Commissioner 

This  appeal  is  brought  to  set  aside  the  action  of  a  special  meeting  in  school 
district  no.  6,  town  of  Olive,  county  of  Ulster,  held  February  15,  1910,  in  select- 


924  THE  UNIVERSITY   OF  THE   STATE   OF   NEW   YORK 

ing  a  schoolliouse  site  for  such  district  and  providing  for  the  erection  thereon  of 
a  new  schoolhouse. 

It  api)cnrs  from  the  papers  filed  tliat  tlie  present  schoolhouse  and  site  belong- 
ing to  such  district  have  been  acquired  by  the  city  of  New  York  for  the  con- 
struction of  the  so-called  Ashokan  dam,  under  the  provisions  of  chapter  724  of 
the  Laws  of  H705,  being  an  act  providing  for  an  additional  supply  of  pure  and 
wholesome  water  for  the  city  of  New  York.  The  title  to  such  site  and  school- 
house  has  already  vested  in  the  city,  and  the  district  has  been  paid  therefor  the 
sum  of  $1300.  which  amount  is  now  available  for  the  purchase  of  a  new  site  and 
the  erection  of  a  new  school  building.  The  district  is  still  using  the  old  school- 
house,  under  an  apparently  tacit  agreement  with  the  authorities  of  the  city  of 
Xew  York.  The  appellants  claim  that  the  district  has  been  assured  by  the  city 
officials  that  notice  will  be  given  the  district  when  the  schoolhouse  must  be 
vacated,  so  that  ample  time  will  be  afforded  for  the  erection  of  a  new  school- 
house.  The  respondent  trustees  deny  knowledge  of  any  such  assurance.  They 
rightfully  insist  that  if  any  definite  action  had  been  taken  by  the  city  officials  in 
respect  to  the  continued  use  of  the  district  property,  they  would  have  been  noti- 
fied. The  uncertainty  of  the  district's  tenure  of  the  property  used  by  it  for  school 
purposes,  and  the  fact  that  money  was  available  for  the  purchase  of  a  site  and  the 
erection  of  a  schoolhouse,  justified  the  call  of  a  special  meeting  with  a  view  of 
providing  suitable  school  accommodations  for  the  district  when  compelled  to 
vacate  the  property  acquired  and  paid  for  by  the  city.  The  trustees  were  author- 
ized to  call  such  a  meeting  and  the  qualified  electors  of  the  district  could  properly 
pass  upon  the  question  of  expending  the  proceeds  of  the  sale  of  the  district  prop- 
erty for  the  purchase  of  a  new  site  and  the  erection  of  a  new  schoolhouse,  and 
their  action  should  not  be  disturbed  upon  the  assumption  that  there  was  no  neces- 
sity for  immediate  action. 

It  is  asserted  by  the  appellants  that  the  construction  of  the  Ashokan  dam 
and  the  acquisition  of  lands  therefor  by  the  city  of  New  York  may  so  change 
the  location  of  the  Ulster  &  Delaware  Railroad  and  of  public  highways  in  the  dis- 
trict as  to  make  the  site  selected  unsuitable  and  inconvenient  for  school  pur- 
poses. The  papers  presented  contain  no  specific  allegations  as  to  such  changes 
of  location,  and  the  assertion  seems  based  on  mere  conjecture.  The  respondents 
deny  that  any  radical  changes  of  location  are  contemplated,  and  insist  that  even 
if  new  roads  are  laid  out  the  site  selected  will  retain  its  accessibility.  Under 
present  conditions  the  site  is  located  near  the  junction  of  three  public  highways. 
There  is  no  proof  that  the  location  of  either  of  these  highways  is  to  be  changed, 
so  as  to  make  the  site  less  accessible  to  any  of  the  patrons  of  the  school.  The 
selection  of  the  site  should  not  be  set  aside  on  the  mere  possibility  that  its  con- 
venience may  be  affected  by  prospective  changes  in  the  location  of  certain 
highways. 

Certain  defects  are  alleged  pertaining  to  the  notices  of  the  meeting  and  the 
proceeding  thereat.  Some  of  the  petitioners  appeared  at  the  meeting  and  com- 
plained that  they  had  not  been  served  with  notices  of  the  meeting.     Having 


JUDICIAL  decisions:     sites  925 

appeared  at  the  meeting  they  waived  any  objection  which  they  might  have  legally 
made  to  the  sufficiency  of  the  notices.  It  appears  also  that  one  of  the  petitioners 
was  the  clerk  of  the  district  who  undertook  to  serve  the  notices  of  the  meeting 
upon  the  qualified  electors  of  the  district.  If  there  was  any  fraud  or  wilful  omis- 
sion to  give  proper  notice,  it  was  that  of  one  of  the  petitioners,  and  it  would  be 
inequitable  to  permit  the  other  petitioners  to  profit  by  his  wrongful  act.  But 
there  is  no  charge  of  fraud  or  wilful  omission,  and  under  the  statute  (Education 
Law,  §  90,  as  amended  by  L.  1910,  ch.  140),  the  proceedings  can  not  be  invali- 
dated for  want  of  due  notice  to  all  qualified  electors  in  the  district,  unless  it  shall 
appear  that  the  omission  to  give  the  notice  was  wilful  and  fraudulent. 

It  is  also  insisted  that  the  selection  of  the  site  was  inefifectual  because  the 
school  commissioner  failed  to  give  his  consent  in  writing  as  required  by  section 
118  of  the  Education  Law  of  1909.  This  section  refers  to  a  change  ''  of  the  site 
of  a  schoolhouse  owned  by  the  district,"  and  has  no  application  to  this  case.  The 
site  of  the  schoolhouse  in  this  district  had  been  acquired  by  the  city  of  New  York, 
and  was  not  owned  by  the  district  when  the  new  site  was  selected.  The  written 
consent  of  the  school  commissioner  was  not  required  t6  make  the  selection  of  a 
new  site  effectual  and  valid. 

The  statute  (see  Education  Law  of  1909,  §  96,  subd.  7)  provides  that: 

The  designation  of  a  site  for  a  schoolhouse  can  only  be  made  at  a  special 
meeting  of  the  district,  duly  called  for  such  purpose  by  a  written  resolution 
in  which  the  proposed  site  shall  be  described  by  metes  and  bounds,  and  which 
resolution  must  receive  the  assent  of  a  majority  of  the  qualified  voters  present 
and  voting,  to  be  ascertained  by  taking  and  recording  the  ayes  and  noes. 

The  appellants  insist  that  this  provision  was  not  complied  with.  The  min- 
utes of  the  meeting  are  annexed  to  the  petition  and  show  that  two  sites  were 
under  consideration.  One  of  the  trustees  read  written  descriptions  of  both  sites. 
One  of  these  sites  was  designated  as  the  Morrison  lot  and  the  other  as  the 
McKelvy  lot.  There  were  no  voters  present  in  favor  of  the  Morrison  lot.  The 
McKelvy  lot  is  described  in  the  minutes  as  follows : 

Land  of  J.  and  M.  McKelvy,  as  follows,  viz  commencing  at  an  apple  tree 
alone  the  road  (east  side)  then  south  209  feet  to  a  stake,  then  east  209  feet  to 
a  stake,  then  north  209  feet  to  a  stake,  then  west  209  feet  to  the  apple  tree,  place 
of  beginning,  being  at  or  near  the  place  where  the  two  proposed  highways  to  be 
built  around  the  Ashokan  Dam  join  the  highway  on  the  McKelvy  flat. 

A  motion  was  made  and  seconded  "  that  the  district  purchase  the  IMcKelvy 
lot  for  a  schoolhouse  site."  The  names  of  the  voters  present  and  voting  in  favor 
of  such  motion  are  recorded  in  the  minutes  of  the  meeting.  There  were  no  votes 
against  such  motion. 

The  minutes  of  the  meeting  also  contain  the  following: 

The  next  question  voted  was :  Do  you  want  to  authorize  the  trustee  and 
committee  to  be  named  to  use  the  money  received  from  the  sale  of  the  old  school- 
house  property   (Dist.  no.  6)    for  buying  schoolhouse  site  and  buildmg  a  new 


926  TllK    IM\KRSITY    OF   TIIK   STATE    OF    NEW   YORK 

schoolhouse?    Motion  made  by  Chas.  Fenny  and  seconded  by  Daniel  Lane  that 
we  do  so,  after  which  it  was  voted  on  and  carried  unanimously. 

The  names  of  those  voting  in  favor  of  such  motion  are  then  recorded  in  the 
minutes. 

The  appellants  have  raised  the  question  that  the  selection  of  the  site  was  not 
by  a  "  written  resolution  "  as  required  by  the  above  quoted  provision  of  the 
Education  Law  of  1909,  and  of  section  119  thereof,  which  is  to  the  same  eflfect. 
There  was  a  lack  of  formality  in  the  presentation  of  the  question  of  the  selection 
of  a  site.  The  purpose  of  the  statute  was  to  inform  the  qualified  electors  of  a 
district  as  to  the  quantity  and  location  of  the  land  to  be  acquired  as  a  site,  and 
also  to  furnish  the  trustees  with  definite  knowledge  as  to  the  particular  land  which 
they  are  to  purchase.  It  appears  that  the  trustees  staked  out  and  measured  the 
two  sites  considered  by  the  meeting.  Each  was  sufficiently  described  to  leave  free 
from  doubt  the  quantity  and  location  of  the  land.  The  description  of  the 
McKelvy  lot  was  in  writing;  it  was  read  to  the  voters  present  at  the  meeting  and 
duly  entered  on  the  minutes.  There  could  have  been  no  uncertainty  as  to  the 
character,  extent  and  location  of  the  site  selected.  There  was  thus  a  substantial 
compliance  with  the  evident  purpose  of  the  statute.  The  only  omission  was  the 
prefix  required  to  give  the  act  of  selection  the  technical  form  of  a  resolution. 
School  meetings  are  not  always  conducted  strictly  in  accordance  with  parlia- 
mentary rules.  Technical  failure  to  comply  with  such  rules  will  not  necessarily 
nullify  their  proceedings.  So  in  this  case,  a  technical  omission  in  the  form  of 
the  resolution  selecting  the  new  site,  should  not  be  held  to  defeat  the  unanimous 
act  of  voters  present  at  the  meeting.  There  was  an  apparent  attempt  to  comply 
with  the  terms  of  the  statute  requiring  a  written  resolution  containing  a  descrip- 
tion of  the  site  to  be  selected.  The  action  taken  by  the  meeting  in  selecting  the 
site  did  not,  because  of  the  technical  defect  insisted  upon  by  the  appellants,  preju- 
dice their  rights.  An  administrative  act  by  a  public  officer  or  meeting  is  not  void 
because  of  a  failure  to  strictly  observe  statutory  directions,  if  the  performance  of 
such  act  accomplishes  the  substantial  purposes  of  the  statute,  and  does  not 
adversely  afTect  the  rights  of  interested  parties  (see  Lewis-Sutherland  Statutory 
Constniction,  §  611).  This  principle  is  established  by  competent  judicial  author- 
ity and  needs  not  be  elaborated  upon.  The  appellants  are  not  injured  by  the  fail- 
ure of  the  meeting  to  observe  the  technical  requirements  of  a  formal  resolution ; 
since  there  is  ample  proof  that  the  evident  purpose  of  the  statute  as  to  the  selection 
of  a  site  has  been  substantially  accomplished,  it  would  not  be  equitable  to  nullify 
the  selection  of  the  site  because  of  the  technical  defect  under  consideration. 

Some  question  is  also  raised  as  to  the  suitability  of  the  site  selected.  There 
IS  proof  that  a  majority  of  the  pupils  are  more  conveniently  served  by  the  site 
selected  than  by  the  one  formerly  occupied.  The  appellants  have  furnished  no 
map  and  have  submitted  nothing  which  indicates  that  a  schoolhouse  may  not  be 
properly  built  upon  such  site,  except  that  it  is  near  highways  which,  when  com- 
pleted, will  be  much  used  by  automobiles,  and  that  the  route  of  the  Ulster  & 


JUDICIAL    DECISIONS  :       SITES  927 

Delaware  Railroad  may  be  changed  so  as  to  come  dangerously  near  such  new  site. 
These  alleged  conditions  are  not  established  by  a  preponderance  of  evidence.    The 
presumption  is  that  the  site  selected  is  a  suitable  one.     The  appellants  have  not 
overcome  this  presumption. 
The  appeal  is  dismissed. 


4547 

In  the  matter  of  the  appeal  of  Stanley  E.  Filkins  and  others  v.  board  of  education 
of  union  free  school  district  no.  12,  towns  of  Ridgeway  and  Shelby,  Orleans 
county. 

The  qualified  voters  of  a  school  district  at  a  school  meeting  at  which  it  is  voted  to  con- 
struct a  new  school  building  upon  a  site  owned  by  the  district,  have  authority  to  desig- 
nate the  particular  spot  or  place  upon  such  site  where  such  new  building  shall  be  erected. 
In  the  absence  of  any  such  special  designation  by  the  district  meeting  the  trustees  or 
boards  of  education  have  full  power  and  authority  to  designate  the  place  upon  such 
site  upon  which  such  building  shall  be  erected,  and  this  Department  will  not  interfere 
with  such  action  or  decision. 

Decided  May  15,  1897 

S.  E.  Filkins,  attorney  for  appellants 
Edmund  L.  Pitts,  attorney  for  respondents 

Skinner,  Superintendent 

The  appellants  in  the  above-entitled  matter  appeal  from  the  action  of  the 
board  of  education  of  union  free  school  district  no.  12,  towns  of  Ridgeway  and 
Shelby,  Orleans  county,  taken  on  April  2,  1897,  in  locating  the  place  for  a  new 
high  school  building  ordered  to  be  built,  at  a  school  meeting  of  said  district,  upon 
a  schoolhouse  site  owned  by  such  district,  and  upon  which  site  there  is  now  situate 
a  schoolhouse,  by  the  adoption  of  the  following  resolution,  namely :  "  That  the 
high  school  be  placed  facing  South  Academy  street,  and  that  the  northeast  comer 
of  the  new  building  be  placed  forty-five  feet  directly  west  of  the  southwest  cor- 
ner of  the  present  building." 

The  appellants  allege  several  grounds  for  such  appeal.  Seven  of  the  nine 
members  of  the  board  of  education  have  joined  in  the  answer  to  the  appeal.  It 
appears  from  the  papers  filed  herein  that  on  March  12,  1897,  such  union  free 
school  district  owned  certain  property  situate  in  said  district  known  as  the  cen- 
tral school  grounds  upon  a  portion  of  which  was  situated  a  school  building;  that 
on  March  12,  1897,  at  a  school  meeting  duly  called  and  held  in  such  district  the 
construction  of  a  new  high  school  building  on  said  central  school  grounds  was 
duly  voted,  but  such  meeting  did  not  designate  the  particular  location  or  spot 
upon  such  central  school  groimds  where  such  new  school  building  should  be  con- 
structed;  that  at  such  meeting  a  committee,  consisting  of  five  persons,  was 
^^pointed  to  advise  with  the  board  of  education  of  the  district  with  reference 
to- the  erection  of  such  new  school  building;  that  the  members  of  the  said  board 


928  THE   UNIVERSITY   OF  THE   STATE   OF   NEW   YORK 

of  education  and  of  such  advisory  committee  viewed  the  grounds  and  discussed 
the  location  of  the  new  building  and  held  several  meetings,  and  gave  full  oppor- 
tunity to  the  inhabitants  of  the  school  district  to  express  their  views  thereon,  and 
at  a  meeting  of  such  board  of  education  held  on  April  2,  1897,  adopted  the  reso- 
lution hereinbefore  set  forth  and  from  which  this  appeal  is  taken,  locating  the 
new  building. 

It  further  appears  that  at  the  time  of  the  adoption  of  such  resolution  the 
members  of  such  board  were  divided  as  follows :  Five  being  for  the  resolution, 
and  four  against ;  but  at  the  time  of  the  filing  of  the  answer  to  the  appeal  herein, 
the  members  stand  seven  in  favor  and  two  against  the  location  of  the  new  build- 
ing as  designated  in  such  resolution. 

The  qualified  voters  of  the  school  district,  present  at  the  meeting  at  which 
it  was  voted  to  construct  the  new  school  building,  had  authority  to  designate  the 
particular  place  or  spot  upon  the  central  school  grounds  where  such  new  building 
should  be  erected.  In  the  absence  of  any  such  special  designation  by  such  district 
meeting,  it  was  competent  for  the  board  of  education  of  the  district,  and  it  had 
full  power  and  authority,  to  designate  the  place  or  spot  upon  such  grounds  on 
which,  in  its  judgment  it  would  be  for  the  best  interests  of  the  district  that  the 
new  building  should  be  erected. 

This  Department  will  not  interfere  with  such  action  and  decision  of  the 
board  of  education  of  the  district. 

The  appeal  herein  is  dismissed. 


50735<^ 


In  the  matter  of  the  appeal  of  James  V.  Rose  from  proceedings  of  special 
meeting  held  March  2,  1903,  in  school  district  no.  7,  Corning,  Steuben 
county. 

In  notices  of  special  meetings  in  common  school  districts  to  consider  the  proposition  to 
designate  a  new  schoolhoiise  site,  the  Consolidated  School  Law  does  not  require  that 
such  notice  should  contain  a  description  of  a  new  site  by  metes  and  bounds. 

A  resolution  presented  at  any  duly  called  meeting,  designating  a  new  schoolhouse  site,  must 
contain  a  description  by  metes  and  bounds.  In  common  school  districts,  at  a  meeting 
duly  called,  a  vote  may  be  adopted  for  the  purchase  of  a  site  and  the  sum  to  be  appro- 
priated is  not  limited  but  a  tax  for  the  purchase  of  such  site  can  not  be  raised  in  in- 
stalments but  must  be  levied  in  one  sum.  There  is  no  provision  of  the  Consolidated 
School  Law  forbidding  the  erection  of  a  schoolhouse  near  a  building  used  as  a  hotel. 

Under  the  provisions  of  the  liquor  tax  law  of  the  State  the  traffic  in  liquor  can  not  be 
permitted  in  any  building,  etc.,  which  shall  be  on  the  same  street  or  avenue  and  within 
200  feet  of  a  building  occupied  exclusively  as  a  church  or  schoolhouse. 

Decided  April  30,  1903 


Leslie  \V.  ^^'ellington,  attorney  for  appellant 
Sebring,  Cheney  &  Rogers,  attorneys  for  respondent 


JUDICIAL  decisions:     sites  929 

Skinner,  Superintendent 

This  is  an  appeal  from  the  proceedings  of  a  special  meeting  held  March  2, 
1903,  in  school  district  7,  Corning,  Steuben  county,  relative  to  the  designation  of 
a  new  schoolhouse  site,  and  the  erection  of  a  new  schoolhouse  thereon. 

The  appeal  herein  was  filed  March  13,  1903.  An  answer  to  the  appeal  by 
Frank  H.  Rose,  trustee,  and  Alfred  G.  Wilcox,  district  clerk,  was  filed  March  23, 
1903,  and  to  such  reply  a  rejoinder  was  filed  April  6,  1903. 

The  appellant  alleges  in  substance  the  following  grounds  for  bringing  his 
appeal : 

The  special  meeting  was  not  legally  called;  the  notice  of  such  meeting  was 
not  in  compliance  with  the  requirements  of  the  school  law ;  the  resolution  adopted 
designating  a  new  school  site  was  not  in  accordance  with  the  school  law ;  the  vote 
upon  the  resolutions  was  not  as  required  by  the  school  law ;  votes  by  persons  not 
qualified  were  received;  the  site  designated  is  not  a  suitable  one. 

The  pleading  and  proofs  herein  are  voluminous  and  have  been  carefully  read 
and  considered. 

The  first  contention  of  the  appellant  that  the  special  meeting  held  in  said 
district  March  2,  1903,  was  not  legally  called,  nor  was  a  proper  legal  notice 
thereof  given,  nor  did  the  notice  as  given  comply  with  the  requirements  of  the 
Consolidated  School  Law,  is  not  well  taken. 

The  proofs  herein  show  that  the  notices  were  printed,  except  the  signature 
of  the  trustee  and  district  clerk,  the  date  when  so  signed  and  the  day  in  March 
when  the  meeting  was  to  be  held  and  each  notice  was  signed  by  such  district  offi- 
cer. The  district  clerk  served  such  notice  upon  all  the  qualified  voters  of  the 
district  at  least  six  days  before  March  2,  1903,  in  the  manner  prescribed  by  sec- 
tions 2  and  6,  article  i,  title  7  of  the  Consolidated  School  Law  upon  each  of  the 
qualified  voters  of  the  district,  except  Edwin  F.  Van  Etten  who  was  present  at 
the  meeting.  The  notice  stated  fully  the  purposes  for  which  the  special  meeting 
was  called,  namely,  whether  the  school  site  of  the  district  should  be  changed  and 
a  new  site  acquired;  if  the  meeting  should  vote  to  change  the  site,  then  for  it  to 
designate  a  new  site  and  authorize  its  purchase;  if  a  new  site  was  designated  to 
decide  whether  the  district  would  authorize  the  erection  of  a  new  schoolhouse 
thereon  and  provide  for  its  construction ;  to  authorize  the  raising  of  money  sufli- 
cient  to  purchase  the  new  site,  if  one  should  be  designated,  and  to  construct  a 
new  schoolhouse,  if  one  should  be  voted. 

After  the  organization  of  said  special  meeting  a  resolution  was  oflfered  that 
school  district  7,  Corning,  Steuben  county,  change  the  site  of  the  schoolhouse 
owned  by  it  in  the  village  of  Gibson  and  purchase  a  new  site  for  the  schoolhouse. 
An  objection  to  the  voting  upon  such  resolution  was  made  on  the  ground  that 
the  notice  of  the  meeting  did  not  contain  a  description  of  the  proposed  new  site 
by  metes  and  bounds.  This  objection  was  not  well  taken.  Section  19,  article  2, 
title  7  of  the  Consolidated  School  Law  provides  that  "  so  long  as  a  district  shall 
remain  unaltered,  the  site  of  a  schoolhouse  owned  by  it,  upon  which  there  is  a 
schoolhouse  erected  or  in  process  of  erection,  shall  not  be  changed,  nor  such 
30 


y30  THE    fMVEKSnv    ol-     TllK    STATE    OF   NEW    YORK 

schoolhouse  be  removed,  unless  by  the  consent  in  writing  of  the  school  commis- 
sioner having  jurisdiction;  nor  with  such  consent,  unless  a  majority  of  all  the 
legal  voters  of  said  district  present  and  voting,  to  be  ascertained  by  taking  and 
recording  the  ayes  and  noes  at  a  special  meeting  called  for  that  purpose,  shall 
adopt  a  written  resolution  designating  such  new  site  and  describing  such  new 
site  by  nietcs  and  bounds." 

This  provision  does  not  require  that  the  notice  of  the  special  meeting  to  be 
held  in  district  7  to  consider  the  change  of  the  school  site  therein  should  contain 
therein  a  description  of  a  new  site  by  metes  and  bounds  'but  that  any  resolution 
presented  for  the  action  of  the  meeting  designating  a  new  site  must  contain  such 
description.  The  resolution  offered,  to  which  objection  was  made,  was  not  one 
designating  a  new  site  but  to  ascertain  the  views  of  the  voters  present  as  to 
whether  a  change  of  site  was  desired. 

It  appears  that  99  persons  voted  upon  such  resolution,  namely :  55  aye  and 
44  no,  showing  a  majority  of  11  for  the  resolution.  The  appellant  claims  that  10 
of  the  persons  who  voted  aye  were  not  qualified  voters.  Admitting,  for  the  pur- 
]'o^e  of  argument  only,  that  such  claim  is  valid,  the  resolution  was  adopted  by  a 
majority  of  one.  The  respondents  have  established  that  all  of  said  10  persons 
were  qualified  voters.  The  rule  is  well  settled  that  proceedings  will  not  be 
vitiated  by  illegal  votes  unless  a  different  result  would  have  been  produced  by 
excluding  such  votes.  It  is  also  well  settled  that  a  party  knowing  a  person  to  be 
unqualified  and  permitting  him  or  her  to  vote  without  challenge  will  not  be  allowed 
to  object  to  the  proceedings  of  the  meeting  because  such  unqualified  person  par- 
ticipated in  them. 

A  resolution  in  writing  was  then  offered  that  said  district  designate  as  a 
new  site  a  certain  parcel  of  land  described  therein  by  metes  and  bounds  and 
the  trustee  be  authorized  to  purchase  such  land  for  said  district  for  the  sum 
of  $700.  The  vote  thereon  was  ascertained  by  taking  and  recording  the  ayes 
and  noes,  69  persons  voting,  and  the  resolution  was  adopted  by  a  majority  of 
43,  56  voting  aye  and  13  no.  March  14,  1903,  Fred  J.  Smith,  school  commissioner 
of  the  second  commissioner  district  of  Steuben  county,  approved  in  writing  such 
new  site  so  designated  at  such  district  meeting. 

A  resolution  was  adopted  that  said  district  erect  a  new  schoolhouse  upon 
the  lot  selected  as  a  new  site  at  an  expense  of  not  to  exceed  $3000,  the  plans 
of  such  building  to  be  approved  by  the  school  commissioner,  the  vote  thereon  being 
48  ayes  and  2  noes. 

The  following  resolution  was  adopted : 

Resolved,  That  a  tax  of  $500  be  levied  forthwith  upon  the  taxable  property 
of  school  district  7,  Corning,  Steuben  county,  to  be  used  towards  the  purchase 
price  of  the  new  school  site  selected  and  designated  by  said  district  and  the  con- 
struction of  a  new  school  house  thereon;  and  that  the  trustee  raise  the  balance 
of  the  sum  needed  to  purchase  said  new  site  and  construct  said  new  school- 
house,  not  exceeding  the  sum  of  $3200,  by  issuing  ihe  bonds  or  other  obligations 


JUDICIAL  decisions:     sites  931 

of  said  district  payable  in  instalments  of  $400  and  interest  each  year  hereafter, 
until  fully  paid,  beginning  with  1904. 

Such  resolution  was  adopted  by  an  aye  and  no  vote  of  48  ayes  and  2  noes. 

Section  17,  article  2,  title  7  of  the  Consolidated  School  Law  enacts  that 
"  no  tax  voted  at  a  district  meeting  for  building,  hiring  or  purchasing  a  school- 
house  or  an  addition  to  a  schoolhouse,  exceeding  the  sum  of  $500  shall  be  levied 
by  the  trustees,  unless  the  commissioner  in  whose  district  the  schoolhouse  of  the 
district,  so  to  be  built,  hired  or  purchased,  or  added  to  is  situated,  shall  certify, 
in  writing,  his  approval  of  such  larger  sum." 

Before  any  action  is  taken  by  Trustee  Rose  relative  to  the  erection  of  the 
new  schoolhouse  in  his  district,  he  should  obtain  from  School  Commisioner  Fred 
J.  Smith  his  certificate  in  writing  approving  the  expenditure  of  the  sum  of 
$3000  for  such  new  schoolhouse. 

Under  the  school  law,  the  amount  a  school  district  can  vote  for  a  site  is 
unlimited,  but  the  tax  for  the  purchase  of  a  site  can  not  be  raised  in  instalments, 
but  must  be  levied  in  one  sum.  Trustee  Rose  must  levy  a  tax  of  $700  for  the 
purchase  of  the  site,  instead  of  $500  voted  at  the  meeting.  The  sum  of  $3000 
voted  for  the  building  of  the  new  schoolhouse  may  be  levied  in  equal  annual 
instalments  under  the  provisions  of  section  18,  article  2,  title  7  of  the  Consoli- 
dated School  Law  of  1894,  as  section  18  was  amended  by  section  i,  chapter 
274,  Laws  of  1895. 

The  contention  of  the  appellant  herein  that  the  new  school  site  designated  by 
the  meeting  is  within  less  than  100  feet  of  a  hotel  in  which  the  traffic  in  liquor 
is  carried  on  and  therefore  would  be  detrimental  to  the  good  morals  of  the  pupils 
attending  a  school  in  a  house  thereon  is  not  well  taken. 

It  appears  that  Benjamin  F.  Edger  is  the  owner  of  a  building  situated  in 
such  school  district,  in  which  he  resides  with  his  family  and  conducts  a  hotel. 
Said  hotel  entrance  is  146  feet  from  the  nearest  point  of  the  new  school  site; 
the  corner  of  the  hotel  nearest  to  the  new  site  is  114  feet  from  the  nearest  point 
of  such  site.  It  is  proposed  to  place  the  new  schoolhouse  near  the  center  of  the 
new  site  and  well  back  from  the  street,  at  a  distance  of  246  feet  from  the  en- 
trance to  said  hotel  and  the  nearest  point  of  the  new  school  building  from  the 
nearest  point  of  the  hotel  will  be  about  200  feet. 

There  is  no  provision  of  the  school  law  forbidding  the  erection  of  a  school- 
house  near  a  building  used  as  a  hotel.  Subdivision  2  of  section  24  of  the  liquor 
tax  law  provides  that  the  traffic  in  liquor  shall  not  be  permitted  in  any  building, 
yard,  booth  or  other  place  which  shall  be  on  llie  same  street  or  avenue  and  within 
200  feet  of  a  building  occupied  exclusively  as  a  church  or  schoolhouse ;  the  meas- 
urements to  be  taken  in  a  straight  line  from  the  center  of  the  nearest  entrance 
of  the  building  used  for  such  church  or  school  to  the  center  of  the  nearest  en- 
trance of  the  place  in  which  such  liquor  traffic  is  desired  to  be  carried  on. 

The  appellant  herein  has  failed  to  sustain  his  appeal  by  a  preponderance 
ol  proof  and  his  appeal  should  be  dismissed. 

Appeal  dismissed. 


932  THE  UNIVERSITY  OF  THE  STATE  OF  NEW  YORK 

3525 

J.  C  Fargo  and  others  from  the  action  of  the  district  meeting  held  in  joint 
school  district  no.   11   of  the  towns  of  New  Hudson,  in  Allegany  county, 
and  Lyndon,  in  Cattaraugus  county,  on  May  29,  1886. 
Two  months  and  a  half  delay  in  bringing  an  appeal  sufficient  to  bar  it  unless  satisfactorily 

explained. 
The  Department  will  not  enjoin  trustees  from  proceeding  to  erect  a  new  building  upon  an 
old  site  as  directed  by  a  school  meeting,  in  order  to  afford  time  to  work  up  sentiment 
for  a  change  of  site. 
Decided  August  26,  1886 

Draper,  Superintendent 

This  is  an  appeal  by  J.  C.  Fargo,  a  resident  voter  and  taxpayer  of  the 
district,  and  others,  from  the  action  of  the  district  meeting  in  joint  district  no. 
II,  towns  of  New  Hudson,  in  Allegany  county,  and  Lyndon,  in  Cattaraugus 
county,  alleged  by  the  appellants  to  have  been  held  on  May  29,  1886,  at  which 
a  resolution  was  adopted  to  build  a  schoolhouse  for  said  district,  and  appointing 
Arden  M.  Franey  and  Addison  S.  Thompson  as  a  committee  to  act  with  the 
trustee  in  carrying  out  such  resolution.  The  appellants  ask  that  the  building  of 
such  schoolhouse  be  stayed  pending  a  decision  upon  this  appeal. 

The  appellants  allege  the  following  grounds  of  appeal : 

1  That  the  present  schoolhouse  site  is  in  the  northern  part  of  the  district; 
that  the  district  was  formed  more  than  thirty  years  ago  by  adding  or  annexing 
the  southern  portion  to  the  northern,  and  at  that  time  the  present  site  was 
adopted. 

That  the  present  site  is  not  in  the  center  of  the  district,  and  that  more  tax- 
payers reside  south  of  than  north  of  said  site. 

That  appellants  propose  at  once  to  take  such  proceedings  as  will  cause  the 
present  site  to  be  abandoned,  and  one  selected  further  south,  and  in  the  geo- 
graphical center  of  the  district. 

2  That  the  special  meetings,  at  which  the  present  acting  trustee  was  elected 
and  the  resolutions  adopted,  were  not  regularly  called,  and  the  proceedings 
thereof  iriiegular. 

3  That  contracts  have  been  entered  into  for  an  amount  in  excess  of  the 
amount  authorized  by  the  district. 

The  appeal  in  this  proceeding  was  taken  on  the  nth  day  of  August  1886, 
nearly  two  months  and  a  half  after  the  date  of  the  meeting  as  alleged  by  appel- 
lants from  the  proceedings  of  which  this  appeal  is  taken. 

But  the  respondents  aver,  and  have  filed  affidavits  of  at  least  three  persons 
to  prove  it,  that  the  said  meeting  alleged  to  have  been  held  on  May  29th  was, 
m  fact,  held  on  the  ist  day  of  May,  which  was  a  regularly  adjourned  meeting 
day. 

Appellants  have  in  no  manner  excused  their  delay  in  taking  this  appeal: 
they  are  clearly  barred  by  their  laches,  but  I  have  not  been  content  to  dismiss 


JUDICIAL  decisions:     sites  933 

the  appeal  upon  a  technicality,  and  I  have  carefully  considered  all  the  papers 
submitted  by  the  appellants  and  the  respondents  on  this  appeal,  and  I  am  forced 
to  the  conclusion  that  the  best  interests  of  the  district  would  be  subserved  by 
carrying  out  the  direction  of  the  district  meeting  and  completing  the  schoolhouse 
on  the  present  site,  so  as  to  resume  sessions  of  the  school  as  soon  as  possible. 

For  thirty  years  this  has  been  the  site  of  the  schoolhouse,  and  as  there  is 
no  evidence  of  opposition  to  such  site  until  very  recently,  I  must  assume  that 
it  has  been  a  very  satisfactory  location  for  the  school.  Besides,  the  purchase  of 
a  new  site  involves  the  loss  of  the  old  with  but  little  compensation  therefor, 
owing  to  the  fact  that  the  grant  thereof  to  the  district  was  conditional,  the 
expenses  attending  purchase  of  new  site,  expense  of  moving  buildings,  etc.,  all 
lead  me  to  the  conclusion  that  the  voters  at  the  district  meetings  and  the  officers 
who  are  carrying  out  the  directions  of  such  meetings,  acted,  and  are  acting  in 
good  faith,  and'  for  the  best  interests  of  the  district  and  the  school  therein. 

Reasoning  as  I  have  done,  I  am  compelled  to  deny  this  application  for  a 
stay  of  proceedings  and  dismiss  the  appeal. 


Where  trustees  purchase  a  site  designated  by  the  district,  an  appeal  from  their  action  will 
not  lie ;  it  should  be  brought  from  the  proceedings  of  the  meeting  in  designating  that  site. 
Decided  July  9,  i860 

Van  Dyck,  Superintendent 

This  is  an  appeal  from  the  action  of  the  trustees  in  purchasing  a  school- 
house  site,  and  contracting  for  the  building  of  a  schoolhouse  thereon. 

The  acts  complained  of  were  under  the  authority  and  direction  of  votes  of 
the  inhabitants,  duly  convened  in  district  meeting.  The  appeal  should  have  been 
brought  from  these  proceedings  before  thirty  days  had  expired,  and  before  the 
trustees,  in  obedience  to  the  votes  of  these  meetings,  had  contracted  for  the  site 
and  for  the  building  of  the  house.  The  district  is  bound  by  these  contracts,  and 
the  matter  has  now  passed  beyond  the  reach  of  equitable  interposition  by  this 
Department,  and  must,  therefore,  be  permitted  to  take  its  natural  course. 


3675 

In  the  matter  of  the  appeal  of  Walter  Tait  and  others,  from  the  action  of  John 

H.  Berry,  supervisor  of  the  town  of  Rossie,  county  of  St  Lawrence. 
The  action  of  a  supervisor,  now  school  commissioner,  in  refusing  to  consent  to  a  change 
of  the  schoolhouse  site,  will  be  sustained  when  it  is  made  to  appear  that  the  district 
meeting  has  neglected  definitely  to  designate  the  site. 
A  district  meetincr  can  not  delegate  authority  to  a  committee  to  purchase  a  site  and  to 

•  take  as  much  land  as  may  be  deemed  necessary. 
Decided  March  28,  1888 


934  THE   UNlVilKSITV  Ol"  TllK  STATE  OF   NEW   YORK 

Draper,  Superintendent 

At  a  special  meeting:  held  in  district  no.  3  of  the  town  of  Rossie,  St 
Lawrence  county,  on  the  22d  day  of  October  1887.  a  motion  was  adopted,  by 
a  vote  of  35  to  2t„  that  the  site  of  the  schoolliouse  be  changed  to  a  proposed 
site  on  a  lot  belonging  to  D.  \V.  Church.  After  this  action,  it  was  resolved  that 
a  committee,  consisting  of  Walter  Tait  and  others,  be  appointed  to  confer  with 
the  supervisor  of  the  town  and  procure  his  consent  to  the  proposed  change. 
Subsequent  to  this,  the  committee  acted  pursuant  to  its  directions,  and,  after 
some  delay,  the  supervisor  notified  the  committee  that  he  would  withhold  his 
consent.     From  the  refusal  of  the  supervisor,  this  appeal  is  taken. 

Able  counsel  on  each  side  have  been  at  great  pains  to  prove  that  the  old 
site  or  the  proposed  one  was  best  suited  to  the  educational  interests  of  the 
district,  and  innumerable  reasons  have  been  urged  to  show  that  each  location 
was  the  best  and  that  the  other  was  altogether  undesirable.  So  elaborate  and 
painstaking  has  been  this  work  on  each  side,  that  I  find  myself,  after  listening  to 
a  most  elaborate  argument  and  after  reading  the  unduly  voluminous  papers  in 
the  case,  in  difficulty  about  reaching  a  conclusion  in  the  premises. 

It  is  customary  to  sustain  the  action  of  a  majority  of  voters  as  expressed 
in  a  district  meeting  in  a  matter  of  this  kind,  unless  it  shall  be  made  clearly  to 
appear  that  such  majority  is  not  acting  wisely.  Before  it  should  be  held  that 
the  majority  is  not  acting  wisely,  that  fact  should  be  made  clearly  to  appear, 
and  it  devolves  upon  the  minority  to  show  it.  This  fact  is  not  shown  with  any 
such  clearness  as  to  satisfy  me  of  the  unwisdom  of  the  act  of  the  majority  in 
desiring  to  change.  But  the  looseness  with  which  the  district  meeting  transacted 
its  business  is  such  as  to  prevent  me  from  overruling  the  supervisor,  if  I  should 
otherwise  feel  it  my  duty  to  do  so.  The  district  meeting  did  not  designate  any 
specific  site  with  definiteness  and  certainty.  It  did  nothing  more  than  to  resolve 
that  the  schoolhouse  site  be  changed  to  the  lot  of  D.  \\\  Church.  The  proposed 
site  was  not  to  occupy  the  whole  of  Church's  lot.  The  site  which  it  is  proposed 
to  take,  is  not  only  not  described  by  metes  and  bounds,  but  it  is  not  even  stated 
how  much  land  it  was  proposed  to  take.  The  size  of  the  lot  does  not  appear  to 
have  been  determined  upon  in  the  district  meeting.  A  district  can  not  delegate 
authority  to  purchase  a  site  to  a  committee.  It  is  alleged  that  the  committee 
which  was  appointed  was  to  take  so  much  of  Church's  land  as  it  thought  to  be 
necessary,  and  to  locate  a  site  upon  one  side  or  the  other  of  his  lot,  as  it  thought 
best.  The  committee  does  not  seem  to  have  reported  to  the  meeting,  and  has 
never,  so  far  as  the  papers  show,  determined  just  where  the  new  site  shall  be 
located  or  just  how  large  it  shall  be.  This  indcfiniteness  of  action  is  sufficient 
alone  to  render  it  impossible  for  me  to  overrule  the  refusal  of  the  supervisor, 
and  the  appeal  is  dismissed. 


JUDICIAL  decisions:     sites  9S5 

3681 

In  the  matter  of  the  appeal  of  E.  P.  Abbott,  T.  N.  Carr  and  others,  members 
of  the  board  of  education  of  union  free  school  district  no.  i,  town  of  Whites- 
town,  county  of  Oneida  v.  Robert  A.  Jones,  as  supervisor  of  the  town  of 
Whitestown. 

Until   a   new   site   has    been    designated,   a   supervisor    (now    school   commissioner)    is   not 

bound  to  consent  to  a  change  of  site. 
A  niere  resolution  in   favor  of  the  purchase  of  a  new  site  is  insufficient.     The  supervisor 

is  entitled  to  know  what  site  is  to  be  selected  before  he  is  called  upon  to  pass  judgment 

upon  the  proposed  change  of  site. 
Decided  April  2^, 


Harry  S.  Patten,  attorney  for  respondent 

Draper,  Superi>iteiident 

In  the  above  district  a  special  school  meeting  was  held  November  22,  1887, 
for  the  purpose  of  considering  the  advisability  of  purchasing  a  new  site  and  erect- 
ing a  new  schoolhouse.  The  statement  of  the  appellant  shows  that  at  such 
meeting  the  following  resolution  was  proposed : 

Resolved,  That  union  district  no.  i,  in  the  town  of  Whitestown,  appropriate 
$16,000  with  which  to  purchase  and  improve  a  new  site,  to  erect  thereon  a  new 
brick  schoolhouse,  and  to  equip  the  same  with  proper  furniture  and  apparatus. 

The  resolution  was  amended  so  as  to  make  the  amount  appropriated  $10,000 
instead  of  $16,000,  and  was  then  adopted. 

Subsequently  to  this,  application  was  made  to  the  supervisor  of  the  town 
of  Whitestown  for  his  consent  to  the  change  of  site.  Consent  was  refused,  and 
from  such  refusal  this  appeal  is  taken. 

The  papers  in  the  case  are  very  voluminous,  containing  much  irrelevant 
matter  and  indicating  a  marked  division  of  sentiment  and  much  feeling  among 
the  inhabitants  of  the  district.  It  seems  to  be  practically  conceded  on  both  sides 
that  the  district  ought  to  have  increased  and  improved  school  accommodations. 
The  principal  disagreement  seems  to  be  over  the  question  whether  a  new  build- 
ing shall  be  erected  upon  tlie  present  site  or  upon  a  different  one.  On  the  one 
side  it  is  attempted  to  be  proved  that  the  present  site  is  too  small,  lies  below 
the  level  of  the  highway  and  is  wet  and  unhealthy.  On  the  other  side  it  is 
denied  that  the  present  site  is  unhealthy  and  is  asserted  that  if  it  is  too  small 
it  can  be  enlarged  by  the  acquisition  of  adjacent  land.  The  assertions  of  the 
parties  are  so  antagonistic  that,  from  them,  I  have  not  been  able  to  arrive  at 
any  confident  conclusion  as  to  the  truth  of  the  matter  and  have,  consequently, 
been  put  to  the  trouble  of  a  personal  inspection  of  the  premises.  From  such  an 
inspection  I  am  of  the  opinion  that  the  district  ought  to  have  a  new  school 
building  and  that  the  present  site  is,  in  its  present  extent  and  condition,  not 
suitable  for  the  erection  of  a  new  and  proper  building  and  for  the  needs  of  the 
district.     It  is  not  large  enough  and  it  needs  raising  up  several  feet.     It  seems 


^f,  THE  UNIVERSITY  OF  THE  STATE  OF  NEW  YORK 

to  be  conceded  that  it  is  wet.  It  is  in  close  proximity  to  steep  declivities  and 
running  water.  Whether  or  not  sufficient  adjacent  land  can  be  acquired  to 
permit  the  placing  of  the  new  building  back  a  proper  distance  from  the  highway 
or  to  permit  the  arrangement  of  suitable  school  grounds  in  the  rear  of  the  build- 
ing is  doubtful.  If  that  could  be  done  it  would  seem  that  the  other  difficulties 
could  be  overcome.  In  any  event  it  seems  to  me  that  the  expense  of  enlarging 
and  suitably  improving  the  present  site  would  not  be  far  short  of  the  cost  of  a 
new  site  and  perhaps  would  exceed  it.  That,  however,  is  a  matter  for  the  district 
to  determine.  It  is  only  for  the  Department  to  see  to  it  that  proper  and  suitable 
school  facilities  are  provided.  The  district  must  say  in  what  manner  it  will 
provide  them.  The  majority  of  the  electors  represented  in  a  district  meeting 
have  decided  that  a  change  of  site  shall  be  made.  Upon  the  facts  of  the  case 
I  should  uphold  that  decision  if  the  meeting  had  gone  on  and  designated  another 
site  which  promised  to  be  an  improvement  upon  the  present  one.  But  this  is 
an  appeal  from  the  refusal  of  the  supervisor  to  consent  to  a  change.  In  my 
opinion  the  action  of  the  district  meeting  was  incomplete  and  the  application 
to  the  supervisor  premature.  He  could  not  properly  be  asked  to  consent  to  a 
change  imtil  he  was  shown  what  it  was  proposed  to  change  to.  If  we  are  to 
assume  that  the  present  site  is  unsuitable,  cither  because  of  its  extent,  its  con- 
dition, its  proximity  to  adjacent  banks  and  streams,  or  its  location  in  the  district, 
matters  will  not  be  mended  until  not  only  a  different  one  but  a  better  one  shall 
be  chosen.  Upon  this  point  the  appellants  cite  a  decision  of  Superintendent 
Rice,  in  1856,  as  sustaining  the  right  of  the  district  to  exact  the  consent  of  the 
supervisor  before  designating  the  new  site  and  solely  with  reference  to  the 
circumstances  of  the  old  one.  But  that  case  does  not  sustain  the  proposition, 
for  it  was  an  instance  where  the  district  had  been  altered  and  it  was  held  that 
no  consent  whatever  was  necessary.  If  the  district  in  the  present  case  had  been 
changed  no  consent  would  be  necessary.  I  am  clearly  of  the  opinion  that  in 
cases  where  the  consent  of  a  supervisor  is  necessary,  the  location  and  circum- 
stances of  the  new  site  are  elements  which  must  properly  be  taken  into  con- 
sideration by  him  in  determining  his  action  in  the  premises.  The  supervisor  in 
the  present  case  might,  therefore,  very  properly  have  refused  to  consider  the 
matter  at  all  until  the  district  had  decided  upon  the  site  to  which  it  proposed 
to  change  and  it  would  have  been  better  if  he  had  done  so. 

The  appeal  can  not  be  sustained.  The  district  can  hold  another  meeting 
and  take  action  looking  to  the  designation  of  a  new  site.  Having  done  so,  it 
can  renew  its  application  to  the  supervisor,  who  would  probably  be  guided  in  his 
determination  by  the  views  hereinbefore  expressed.  The  resolution  of  the  dis- 
trict meeting  is  ineflfectual  for  the  erection  of  a  building  upon  the  present  site, 
for  it  contains  no  reference  to  such  action.  Such  a  course  would  involve  the 
necessity  of  further  action. 

The  appeal  is  dismissed- 


JUDICIAL  decisions:     sites  937 

3644 

In  the  matter  of  the  appeal  of  Silas  F.  Overton  and  Jesse  G.  Case,  trustees  of 
school  district  no.  7,  in  the  town  of  Southold,  county  of  Sufifolk,  v.  Henrv 
A.  Reeves,  supervisor  of  said  town. 

When  a  district  meeting  determines,  by  an  undisputed  vote,  that  a  change  of  site  for  a 
new  school  building  is  desirable,  it  is  the  duty  of  the  supervisor  of  the  town  to  consent, 
unless  there  are  most  substantial  reasons  why  the  site  should  not  be  changed,  or  the  one 
proposed  purchased.  The  people  of  the  district,  who  are  to  be  taxed  for  the  expense, 
are  best  able  to  determine  what  they  can  afford  to  do,  and  where  they  desire  to  locate 
the  schoolhouse,  and  their  determination  will  be  upheld,  unless  manifestly  against  the 
educational  interests  of  the  district. 

Decided  November  23,  1887 

Jesse  L.  Case,  Esq.,  attorney  for  appellant 
Timothy  M.  Griffing,  Esq.,  attorney  for  respondent 

Draper,  Superintendent 

At  a  special  school  meeting  held  in  district  no.  7,  in  the  town  of  Southold, 
Suffolk  county,  on  the  25th  day  of  June  1887,  it  was  duly  voted  by  a  majority  of 
the  legal  voters  of  said  district  present,  and  voting  at  said  meeting,  ascertained 
by  taking  and  recording  the  ayes  and  noes,  that  the  trustees  of  the  district  should 
be  authorized  to  take  necessary  measures  to  procure,  by  the  right  of  eminent 
domain,  an  acre  of  land  for  a  new  schoolhouse  site,  which  was  specifically  men- 
tioned and  described  in  the  resolution  adopted  by  the  meeting.  Subsequently  to 
this  action  of  the  district  meeting,  the  trustees  of  the  district  made  application 
to  the  respondent,  as  supervisor  of  the  town  of  Southold,  for  his  consent  to  the 
proposed  change  of  site.  The  supervisor  declined  to  give  such  assent,  and 
from  his  refusal  so  to  do  this  appeal  is  brought. 

It  is  the  policy  of  this  Department  tt)  sustain  the  right  of  the  majority  of 
voters  in  district  meetings  to  do  whatsoever  they  may  determine  to  be  best, 
unless  their  determination  shall  appear  to  be  clearly  without  authority  of  law, 
and  against  the  manifest  educational  interests  of  the  district.  It  must  be 
assumed  that  the  vote  of  the  majority  assembled  in  the  district  meeting  in 
determining  the  question  as  to  whether  a  new  school  building  should  be  erected 
upon  the  present  site,  or  upon  a  new  site,  will,  ordinarily,  best  indicate  the 
wisest  thing  to  do.  In  any  event,  the  majority  of  a  district  ought  to  have  an 
opportunity  to  locate  a  new  schoolhouse  which  they  have  determined  to  build  at 
such  place  as  they  think  best.  The  provision  of  law  which  requires  that  a  change 
of  site  should  have  the  approval  of  the  supervisor  was  intended  as  a  check  upon 
unwise  or  inconsiderate  action,  and,  as  such,  is  undoubtedly  a  proper  and  whole- 
some provision.  But  the  reasons  assigned  by  the  supervisor  for  withholding 
his  consent  to  a  change  which  is  desired  by  a  majority  of  the  electors  in  the 
district  must  be  strong,  if  not  overwhelming  reasons,  why  it  is  not  to  the  educa- 
ti(5nal  advantage  of  the  district  that  the  change  should  be  made.  The  supervisor, 
in  the  present  case,  assigns  as  his  reasons  for  withholding  his  consent  that  the 


938  THE  UNIVERSITY  OF  THE  STATE  OF   NEW   YORK 

present  school  site  has  been  in  nse  a  great  many  years ;  that  the  elevation  is 
higher,  the  soil  more  gravelly  and,  while  he  practically  concedes  that  it  is  not 
suhiciently  large  for  the  purposes  of  the  new  building,  he  says  that  it  may  readily 
be  enlarged  by  adding  to  it  adjacent  territory.  The  trustees  of  the  district,  and 
numerous  other  residents  of  unquestioned  standing,  insist  that  the  proposed  site 
is  much  preferable  to  the  old  one :  that  it  is  not  practicable  to  add  to  the  old  site 
by  acquiring  adjacent  land,  for  the  reason  that  there  are  valleys  or  gullies  near 
the  same  which,  during  a  part  of  the  year,  are  filled  with  water  to  so  great  an 
extent  as  to  make  that  land  entirely  unsuitable  for  a  school  site.  The  supervisor 
states  that  this  land  can  be  drained  by  culverts,  and  also  that  the  proposed  site 
will  cost  the  district  more  than  it  would  cost  to  acquire  additional  land  adjoining 
the  old  site.  It  seems  to  me  that  these  are  questions  which  must  properly  address 
themselves  to  the  people  of  the  district,  and  that  their  determination  of  them 
ought  to  be  sustained.  If  they  prefer  to  pay  a  larger  sum  for  the  new  site  than 
for  acquiring  additional  territory  adjacent  to  the  old  one,  they  ought  to  have  the 
privilege  of  doing  so. 

Taking  all  the  circumstances  into  consideration,  I  have  arrived  at  the  con- 
clusion that  no  sufficient  reason  is  assigned  for  overruling  the  majority  of  the 
district  meeting  touching  the  location  of  their  new  schoolhouse,  and  that  I  ought 
to  sustain  the  appeal,  and  it  is  so  ordered. 


3555 

In  the  matter  of  the  appeal  of  Coleman  Townsend   from  the  proceedings  of 

district  meeting,  held  in  district  no.  3,  town  of  Carmel,  Putnam  county. 
The  proceedings  of  a  district  meeting,  at  which  the  site  of  a  schoolhouse  was  changed,  will 

not  be  set  aside  when  it  appears  that  ev^ry  possible  eflfort  was  made  to  give  notice  of 

the  meeting  to  every  voter,  and  all  the  voters  attended  the  meeting  but  three,  and  they 

had  been  duly  notified. 
Unless  it  is  made  to  appear  that  a  sufficient  number  were  ignorant  of  the  meeting,  and  were 

opposed  to  the  action  taken,  to  have  changed  the  result,  the  proceedings  of  the  meeting 

will  be  sustained. 
When  it  is  claimed  that  illegal  votes  were  cast  at  a  district  meeting  it  must  clearly  appear 

that  there  were  a  sufficient  number  of  such  to  have  changed  the  result  before  the  State 

Superintendent  will  set  aside  regular  action  taken  at  such  meeting. 
Decided  January  5,   1887 

F.  S.  Barnum.  Esq.,  attorney  for  appellant 

Draper,  Superintendent 

This  is  an  appeal  from  the  action  of  an  adjourned  meeting  in  district  no.  3, 
town  of  Carmel,  Putnam  county,  held  at  the  schoolhouse  in  said  district  upon 
the  sixth  day  of  October  1886,  in  voting  to  change  the  site  and  erect  a  new 
schoolhouse. 

It  appears  that  the  legal  voters  in  this  district  are  very  nearly  evenly  divided 
upon  the  expediency  of  changing  the  site  and  erecting  a  new  school  building. 


JUDICIAL    DECISIONS  I       SITES  939 

At  the  meeting  called  for  the  purpose  of  determining  the  matter,  43  persons 
voted  for  the  change  of  site  and  37  against,  and  upon  a  motion  to  raise  $1000 
for  the  purpose  of  building  a  new  schoolhouse  38  votes  were  cast  in  the  affirmative 
and  17  in  the  negative.  It  is  now  alleged  by  the  appellant  (o)  that  notice  of  this 
meeting  was  not  served  upon  all  the  legal  voters  of  the  district;  (&)  that  several 
persons  voted  in  the  affirmative,  and  were  counted,  who  were  not  entitled  to  vote ; 
(c)  that  the  new  site  is  not  convenient  to  the  greater  number  of  patrons  of  the 
school,  and  is  not  as  suitable  for  school  purposes  as  the  old  one,  because  of  its 
proximity  to  an  ore  mine  and  a  stream  of  water.  The  respondent,  in  his  answer, 
swear.s  that  he  is  54  years  old  and  is  well  acquainted  with  the  voters  of  the 
district,  and  that  every  possible  efifort  was  made  to  serve  each  one,  and  that 
every  voter  of  the  district  was  present  at  the  meeting,  except  three,  all  of  whom 
had  been  notified.  I  am  satisfied  of  the  good  faith  and  the  active  efforts  of  the 
trustee  in  giving  general  notice  of  the  meeting,  and  this  Department  has  never 
required  more,  unless  it  is  made  to  appear  that  a  sufficient  number  were  ignorant 
of  the  meeting  and  all  opposed  to  the  action  taken  to  have  changed  the  result. 

The  evidence  is  conflicting  as  to  the  qualification  of  certain  voters  who  were 
counted  upon  the  determination  of  the  question.  I  am  unable  to  pass  upon  this 
branch  of  the  case  with  any  degree  of  confidence,  but  the  appellant  has  failed 
to  show  to  my  satisfaction  that  a  sufficient  number  of  illegal  voters  voted  in  the 
affirmative  upon  the  motion  to  adopt  a  new  site,  to  have  changed  the  result. 

I  am  led  to  give  considerable  weight  to  an  affidavit  of  the  school  commissioner 
of  Putnam  county,  who  swears  that  he  attended  the  meeting  in  question  and 
witnessed  the  deliberations  and  proceedings  taken  thereat,  and  that  he  saw  no 
irregularities  in  the  conduct  of  the  meeting,  and  furthermore,  that  he  is  familiar 
with  the  old  site  a:.d  the  proposed  site,  and  that  while  "  both  locations  are  suffi- 
ciently central,  yet  the  new  site  is  quite  as  convenient  as  the  old,  and  is  much 
preferable  by  reason  of  the  grounds  being  more  spacious,  dry  and  healthy,  and 
much  better  adapted  in  every  respect  to  the  requirements  of  a  proper  site  for 
a  schoolhouse." 

In  view  of  the  foregoing  considerations,  the  appeal  is  dismissed. 


3629 

In  the  matter  of  the  appeal  of  Theron  \^an  Auken  and  others  v.  Edwin  J.  Cook, 

sole  trustee  of  school  district  no.  20,  town  of  Phelps,  Ontario  county 
Trustee  refused  to  call  a  special  meeting  to  locate  a  site  for  a  new  schoolhouse.     Ordered 

that  a  meeting  be  called. 
Decided  July  21,  1887 

Draper,  Supcrititendent 

This  is  an  appeal  by  several  residents  and  taxpayers,  appearing  to  represent 
a  clear  majority  of  the  electors  as  well  as  the  own'^r  of  the  hr^,^  part  of  the 
tJTxable  property  of  the  district,  from  the  refusal  of  the  trustee  to  call  a  special 
meeting  to  consider  the  location  of  a  new  school  building  which  it  is  proposed  ic 
erect. 


940  THE   UNIVERSITY    OF  THE   STATE   OF   NEW   YORK 

The  trustee  answers  that  several  special  meetings  have  already  been  held,  at 
which  different  deterniinalions,  touching  the  subject,  have  been  arrived  at,  and 
that  much  bitterness  exists  in  the  district  over  the  matter,  and  that  another 
meeting  will  make  matters  worse  and  more  complicated,  rather  than  better. 

It  seems  that  at  one  meeting  it  was  agreed  to  accept  an  ofifer  of  William 
P.  Dimock  to  exchange  the  present  site  for  an  acre  of  land  which  he  would  give. 
Subsequently  Mr  Dimock's  ofTer  was  reduced  to  one-half  an  acre.  Then  a  special 
meeting  voted  to  reconsider  the  former  action  and  refused  to  accept  the  half 
acre  and  change  the  site.  Following  this,  it  appears  that  Mr  Dimock  renewed 
his  offer,  or  made  another,  which  a  majority  of  the  patrons  of  the  school  seemed 
desirous  of  accepting. 

The  majority  of  the  electors  of  this  district  ought  to  have  the  right  to  set 
the  new  schoolhouse  where  they  want  it.  I  am  unwilling  to  believe  that  the  people 
in  a  school  district  in  Ontario  county  can  not  assemble  in  a  special  meeting,  treat 
each  other  as  well  as  people  in  civilized  society  are  accustomed  to,  and  intelli- 
gently decide  by  the  vote  of  the  majority  where  it  is  best  to  put  the  new  building. 
1  am  in  favor  of  giving  them  the  opportunity.  I  can  not  think  the  refusal  of  the 
trustee  is  based  upon  sufficient  reasons. 

The  appeal  is  sustained  and  the  trustee  is  directed  to  call  a  special  meeting 
of  the  district  to  consider  the  location  of  a  new  school  building  within  fifteen 
days  from  the  time  this  decision  shall  be  filed  in  the  district  clerk's  office. 


3542 

Leander  Cole  v.  the  trustees,  etc.,  of  school  district  no.  i  of  the  towns  of  Rox- 

bury,  Prattsville,  Conesville  and  Gilboa,  in  the  counties  of  Delaware,  Greene 

and  Schoharie. 

The  proceedings  of  a  district  meeting,  properly  called  and  conducted  in  an  orderly  manner, 

changmg  a  schoolhouse  site,  will  not  be  disturbed,  unless  it  is  made  to  appear  clearly 

that  the  site  selected  is  unsuitable  or  would  not  be  convenient  to  the  greater  number  of 

patrons. 

But  little  weight  can  be  given  to  the  statement  of  a  public  officer  made  for  the  purpose  of 

impeaching  his  own  official  act. 
Decided  November  24,  1886 

Draper,  Superintendent 

This  is  an  appeal  by  Leander  Cole,  a  resident  and  taxpaver.  against  the  action 
of  the  district  meeting  held  September  9,  1886,  in  joint  school  district  no.  i  of 
the  towns  of  Roxbury  in  Delaware  county,  Prattsville  in  Greene  county,  and 
Lonesville  and  Gilboa  in  Schoharie  county,  in  voting  to  change  the  site  of  the 
district  schoolhouse. 

There  is  no  allegation  against  the  regularity  of  the  proceedings.  The  school 
meeting  was  regularly  convened.  Due  notice  was  given  to  aU,  and  it  seems  that 
all  of  the  duly  qualified  voters  of  the  district  were  present  at  the  meeting      It 


JUDICIAL  decisions:     sites  941 

is  said  that  the  resolution  changing  the  schoolhouse  site  was  taken  inconsider- 
ately, but  it  is  shown  to  have  been  under  discussion  some  three-quarters  of  an 
hour.  The  proposition  to  change  the  site  has  since  received  the  approval  of 
the  supervisors  of  the  four  towns  in  which  the  district  is  located.  One  of  these 
supervisors  makes  affidavit,  in  which  he  swears  that  he  gave  his  assent  under  a 
misunderstanding  of  the  circumstances,  and  regrets  that  he  did  it;  and  one  or 
two  of  the  others  are  alleged  to  have  made  statements  somewhat  in  the  same 
direction.  It  is  impossible  to  give  much  weight  to  such  statements  on  the  part 
of  a  public  officer,  made  for  the  purpose  of  impeaching  his  own  official  act, 
and  there  seems  to  be  no  reason  why  the  action  of  the  meeting  should  be  set 
aside  on  this  account.  The  main  question  for  me  to  determine  is,  whether  the 
change  in  the  site  will  be  to  the  convenience  of  the  greater  number  of  patrons 
of  the  school  or  not.  The  statements  of  the  respective  parties  upon  this  subject 
are  exceedingly  contradictory.  It  must  be  assumed  that  the  majority  of  legal 
voters  assembled  in  a  school  meeting  will  locate  the  school  site  at  the  point  which 
is  best  calculated  to  promote  the  convenience  of  the  greater  number  in  the  dis- 
trict. Before  the  Department  will  be  justified  in  overturning  the  action  of  the 
majority,  it  must  have  clear  proof  to  the  contrary.  There  is  no  such  clearness 
of  proof  in  this  case.  The  new  site  has  been  conveyed  to  the  district  free  of 
cost.  It  is  said  to  be  not  more  than  fifty-six  rods  from  the  old  site.  There  is 
considerable  proof  that  the  old  site  is  not  a  suitable  one  for  a  schoolhouse,  being 
surrounded  by  the  forest  and  not  in  sight  of  any  house,  and  dangerously  near 
a  high  precipice  overhanging  the  Schoharie  creek,  while  the  new  site  is  said  to 
be  removed  from  the  precipice  and  in  sight  of  three  residences.  In  all  sparsely 
settled  school  districts  some  people  must  be  farther  from  the  school  than  others, 
and  be  inconvenienced  by  the  long  distance  which  their  children  are  obliged  to 
traverse.  That  is  undoubtedly  true  in  this  case;  but  the  proofs  do  not  show 
that  the  greater  number  are  put  to  increased  inconvenience  by  this  change,  while 
I  think  that  it  is  proved  that  the  proposed  site  is  more  suitable  for  school  pur- 
poses than  the  old. 

I  am  unable  to  sustain  the  appeal,  and  it  will  be  dismissed. 


3509 

In  the  matter  of  the  appeal  of  William  McCune  from  the  proceedings  of  a  special 
school  meeting  in  school  district  no.  14,  Bovina,  Delaware  county. 

Notice  of  a  special  school  meeting  sustained  when  objection  raised  is  frivolous. 
Unintentional  omission  to  serve  notice  upon  each  school  elector  will  not  render  void  the 

proceedings  of  a  meeting  when  it  does  not  appear  that  any  one  has  been  injured  by 

such  omission. 
The  designation  of  a  schoolhouse  site  controlled  by  school  district. 

The  State  Superintendent  of  Public  Instruction  will  not  dictate  in  such  a  matter  and  will 
•  not  interfere  or  set  aside  a  designation  unless  proceedings  therefor  were  clearly  illegal 

or  against  the  educational  interests  of  the  district. 
Decided  June  ?,  1886 


()42  THE    rNlVKKSITV    OF   Till-:   STATE    OF    NEW    VUKK 

1  draper,  Snf'crintciuioit 

This  is  a  procealiiig  by  William  McCune,  a  taxable  inhabitant  and  legal 
voter  in  school  district  no.  14.  Bovina.  Delaware  county,  N.  Y.,  appealing  from 
the  proceedings  of  a  special  meeting  in  said  district  held  March  10,  1886. 

The  appellant  alleges  substantially  as  the  grounds  of  this  appeal: 

1  The  notice  for  the  meeting  was  defective  for  the  reason  that  it  did  not 
state  that  a  tax  was  to  be  voted  at  the  meeting  for  any  purpose  whatever. 

2  The  notice  was  not  served  upon  all  the  voters  of  the  district,  and  that 
the  omission  to  serve  was  wilful  and  fraudulent;  also  that  the  notice  as  served 
upon  several  of  the  voters  did  not  state  that  the  meeting  was  called  for  the 
purpose  of  changing  the  schoolhouse  site. 

3  There  is  no  necessity  for  a  change  of  site.  The  site  designated  is  not  a 
j)roper  one  for  school  purposes  and  the  owner  of  the  land  is  unwilling  to  sell 
the  same  to  the  district. 

I'Vom  an  examination  of  the  testimony  in  the  case,  it  appears  that  a  special 
meeting  was  called  in  said  district  by  the  service  of  the  following  notice: 

To  the  Inliabitauts  of  School  District  No.  14  of  the  Tozvn  of  Bovina: 

Take  notice  that  a  special  school  meeting  of  district  no.  14  will  be  held  at  7 
I),  m.  on  the  loth  day  of  March  1886,  at  schoolhouse  in  Rushland,  for  the  pur- 
pose of  taking  into  consideration  the  propriety  of  enlarging  the  schoolhouse 
<o  as  to  accommodate  two  teachers,  or  of  purchasing  a  new  site  and  building  a 
new  schoolhouse  and  transacting  such  other  business  as  may  legally  come  before 
•uch  meeting. 

Dated  February  2j,  1886 

[Signed]       John  F.  Miller 

Trustee 

The  special  meeting  so  called  was  held  on  the   loth  day  of   March   1886, 
and  36  voters  out  of  a  voting  population  of  nearly  100  were  present.    The  meet- 
ing adopted  a  resolution  designating  a  new  site  for  the  schoolhouse  by  a  vote  of 
-'<;  to  4.     The  resolution  properly  designated  a  new  site  by  metes  and  bounds, 
and  was  adopted  by  taking  and  recording  the  ayes  and  noes.     A  tax  of  $500 
was  voted  to  pay  for  the  new  site.     The  meeting  then  adopted  a  resolution  to 
build  a  new  schoolhouse  upon  the  new  site,  and  directing  the  levying  of  a  tax 
of  $1500  to  pay  for  the  same,  less  the  amount  received  from  the  old  house  and 
site,  the  trustee  being  directed  to  make  such  sale  at  public  auction. 
I  will  examine  the  objections  in  the  order  of  their  statement: 
I  The  notice  clearly  set  forth  that  the  object  of  the  meeting  was  to  take 
•  into  consideration  the  propriety  of  enlarging  the  schoolhouse  so  as  to  accom- 
modate two  teachers,  or  of  purchasing  a  new  site,  and  building  a  new  school- 
house     .     .     ." 

The  meeting  could  not  very  well  provide  for  the  purchase  of  a  new  site, 
and  the  erection  of  a  new  schoolhouse  without  voting  a  tax  for  the  same.  It 
^eems  to  me  that  the  objection  that  the  notice  did  not  say  a  tax  would  be  raised 


JUDICIAL  decisions:     sites  943 

after  stating  that  the  meeting  was  for  the  purpose  of  providing  for  the  purchase 
of  a  new  site  and  the  building  of  a  new  schoolhouse  is  frivolous.  No  one  could 
be  misled  by  such  omission.  Will  any  one  pretend  that  he  was  led  to  believe 
by  the  wording  of  the  notice  that  the  meeting  was  only  for  the  purpose  of  select- 
ing a  new  site,  and  resolving  to  build  a  new  schoolhouse,  and  there  stop?  I 
think  not.  While  it  could  well  have  inserted  in  the  notice  that  the  meeting  would 
levy  a  tax  for  these  purposes,  I  think  the  notice  was  broad  enough,  and  that 
the  words  "  purchasing  a  new  site,  and  building  a  new  schoolhouse  "  necessarily 
implied  the  levying  of  a  tax  therefor. 

2  The  appellant  alleges  that  the  notice  was  not  served  upon  all  the  voters 
of  the  district.  He  presents  the  affidavits  of  four  persons.  L.  Washburn,  John 
W.  Browley,  Gilbert  J.  Dickerson  and  John  Hastings,  who  say  when  the  clerk 
read  the  notice  to  them  he  did  not  say  that  one  of  the  purposes  of  the  meeting 
was  to  change  the  site.  Thomas  Miller  stated  that  when  the  clerk  attempted 
to  serve  the  notice  on  him  he  told  him  he  knew  of  the  meeting,  and  the  clerk 
need  not  read  the  notice.  Three  others,  William  J.  Oliver,  Maggie  Coulter  and 
George  L.  Davidson,  filed  with  their  affidavits  the  notice  served  upon  them,  which 
does  not  state  the  object  of  the  meeting.  Julia  McSherson  says  no  notice  what- 
ever was  served  upon  her. 

The  statute  provides  that  the  notice  for  a  special  meeting  "  shall  state  the 
purpose  for  which  it  is  called,  and  no  business  shall  be  transacted  at  such  special 
meeting,  except  that  which  is  specified  in  the  notice,"  and  it  also  provides  that 
"  the  proceedings  of  no  neighborhood  or  district  meeting,  annual  or  special,  shall 
be  held  illegal  for  want  of  a  due  notice  to  all  of  the  persons  qualified  to  vote 
thereat  unless  it  shall  appear  that  the  omission  to  give  such  notice  was  wilful 
and  fraudulent."  There  is  no  question  but  what  the  original  notice  embraced 
the  notice  of  a  proposed  change  of  site.  The  clerk  swears  that  he  read  the 
whole  of  the  notice  to  the  four  persons  first  named,  and  would  have  read  it  to 
Browley  had  he  not  stopped  him.  There  is  no  question  but  what  the  written 
notices  served  upon  William  J.  Oliver,  Maggie  Coulter  and  George  L.  Davidson 
were  not  full;  but  the  clerk  explains  the  omission  by  stating  that  Oliver  resided 
at  so  great  a  distance  away  that  he  sent  the  notice  to  him,  and  that  Davidson 
and  Maggie  Coulter  were  not  at  home  when  he  called  to  notify  them,  and  he 
left  the  short  or  slip  notice  for  them.  Julia  McSherson,  he  admits  was  not  served. 
but  he  says  that  her  husband  told  him  it  would  not  be  necessary  for  him  to  do 
so,  as  he  would  tell  her.  While  the  appellant  makes  a  charge  that  many  persons 
were  not  notified  of  the  meeting,  the  above  are  all  that  he  shows  to  have  received 
defective  notices  or  to  have  been  entirely  omitted  in  the  service  of  the  notices. 
Out  of  a  voting  population  of  nearly  lOO,  it  is  not  surprising  that  some  should 
have  been  omitted  in  the  service  of  the  notice;  this  is  the  reason  for  the  pro- 
vision of  the  statute,  that  such  omissions  must  appear  to  have  been  wilful  and 
fraudulent  before  the  proceedings  of  the  meeting  can  be  set  aside.  With  the 
"ejfception  of  Hastings,  it  is  not  claimed  that  any  of  the  nine  persons  mentioned 
above  were  misled,  or  would  have  attended  the  meeting  had  they  been  notified 


944  THE   UNIVERSITY    OF   THE   STATE   OF   NEW   YORK  ' 

that  the  purpose  of  such  meeting  was  to  change  the  schoolhousc  site.  It  docs 
not  appear  that  any  of  the  eight  remained  away  from  the  meeting,  while  it  does 
appear  that  three  or  four  were  present  and  participated  in  the  proceedings.  In 
regard  to  Hastings,  it  appears  that  he  is  the  owner  of  the  proposed  site,  and 
it  is  conclusively  shown  that  hefore  the  meeting  he  had  several  conversations  with 
different  persons  about  the  location  of  a  schoolhouse  site  and  as  to  what  he 
would  sell  the  district  a  site  for.  Knowing  that  this  subject  was  being  agitated 
in  the  district,  and  that  a  special  meeting  had  been  called,  he  remained  away 
from  the  meeting.  A  careful  examination  of  the  testimony  fails  to  show  that 
there  was  any  wilful  or  fraudulent  intent  on  the  part  of  either  the  clerk  or 
the  trustee  in  failing  to  serve  the  notice  upon  every  voter  in  the  district.  And 
there  is  a  complete  failure  on  the  part  of  the  appellant  to  show  that  anyone 
has  been  injured  by  the  alleged  irregularity  in  the  notice  or  the  service  thereof, 
and  that  the  results  of  the  meeting  would,  under  any  circumstances,  have  been  dif- 
ferent. 

3  This  brings  me  to  the  last  objection  of  the  appellant.  An  effort  has  been 
made  to  show  that  the  old  site  is  sufficient  for  the  district,  and  that  the  new 
site,  as  designated  by  the  meeting,  is  not  a  suitable  one  for  school  purposes. 
From  an  examination  of  the  testimony,  I  am  of  the  opinion  that  the  appellant 
fails  to  establish  either  of  these  allegations.  School  districts  have  control  of 
the  designation  of  their  schoolhouse  sites,  and  this  Department  will  not  dictate 
in  the  matter,  and  will  only  set  aside  the  proceedings  designating  or  changing  a 
site  unless  such  proceedings  are  illegal  or  grossly  opposed  to  the  health  and 
welfare  of  the  school.  It  is  no  ground  for  appeal  or  reason  for  this  Department 
to  set  aside  the  designation  of  a  schoolhouse  site  for  the  reason  that  the  owner 
of  the  land  refuses  to  sell  the  same  to  the  district.  The  law  provides  the  pro- 
cedure to  obtain  title,  and  in  this  case  it  appears  that  proceedings  have  already 
been  commenced  in  the  county  court  for  this  purpose. 

The  appeal  is  overruled,  and  the  action  appealed  from  affirmed. 


3637 

In  the  matter  of  the  appeal  of  David  Sliter  v.  George  L.  Hull,  sole  trustee  of 

school  district  no.  16,  town  of  Middletown,  Delaware  county. 

.\  school  trustee  was  directed  by  the  district  to  purchase  forty-nine  square  rods  of  land  for 
the  purpose  of  enlarging  the  schoolhouse  site,  for  a  reasonable  compensation.  The 
trustee  agreed  with  the  owner  to  submit  the  question  of  value  to  three  arbitrators,  and 
each  agreed  to  abide  the  result,  the  trustee  assuming  to  bind  the  district  by  written 
articles.  The  arbitrators  considered  the  matter  and  decided  that  fifty-eight  square  rods 
were  worth  $300.  In  determining  this,  they  took  into  consideration  the  inconvenience 
the  owner,  whose  other  lands  adjoined,  would  sustain  by  having  the  school  site  adjoin 
his  property;  also,  the  expense  he  would  be  compelled  to  meet  in  erecting  a  division 
fence. 


JUDICIAL  decisions:     sites  945 

Held,  That  tlic  selection  of  arbitrators  was  illegal;  that  while  the  district  empowered  the 
trustee  to  determine  the  reasonable  compensation  with  the  owner,  it  did  not  empower 
these  other  persons  to  do  so  for  him.  The  decision  of  the  arbitrators  can  not  in  any 
event  be  sustained,  for  they  did  not  determine  the  question  (that  is,  the  value  of  forty- 
nine  square  rods)  submitted  to  them.  They  also  considered  matters  in  determining 
what  should  be  paid  for  the  land,  which  they  ought  not  to  have  done. 

Decided  October  6,  1887 

Draper,  Superintendent 

At  the  last  annual  school  meeting  in  school  district  no.  16,  of  the  town  of 
Middletown,  Delaware  county,  a  motion  was  made  and  adopted  by  a  majority 
vote,  as  shown  by  the  ofificial  record  of  the  meeting,  "  to  enlarge  the  schoolhouse 
site  by  buying  a  piece  of  land  containing  forty-nine  square  rods,  beginning  at 
the  junction  of  the  Margaretville  and  Arkville  roads,  and  running  easterly  along 
the  center  of  the  Arkville  road  seven  rods ;  thence  running  at  right  angles  north- 
erly seven  rods  to  stake  and  stones;  thence  westerly  to  the  center  of  the  Mar- 
garetville road;  thence  along  the  center  of  said  road  seven  rods  to  the  place  of 
beginning,  and  that  the  school  district  pay  the  owner  a  reasonable  compensation 
for  said  land."  No  provision  was  made  as  to  the  manner  of  determining  what 
"  reasonable  compensation  "  was.  Under  such  circumstances,  it  must  have  been 
left  for  the  trustee  to  determine.  It  seems  that  the  trustee  negotiated  with  the 
owner  of  the  land  for  the  purchase  thereof,  and  that  the  two,  being  unable  to 
agree  as  to  a  price,  they  finally  agreed  to  submit  the  matter  to  the  determination 
of  three  arbitrators.  They  entered  into  a  written  stipulation,  in  which  it  was 
agreed  by  the  owner  that  he  would  deliver  a  sufficient  conveyance  of  the  prop- 
erty to  the  trustee  on  or  before  a  specified  time  in  consideration  of  the  payment 
to  him  of  the  sum  which  the  arbitrators  should  find  to  be  a  just  compensation 
for  the  value  of  the  land.  It  was  agreed  by  the  trustee  for  and  on  behalf  of 
the  district,  that  upon  the  delivery  to  him  of  the  conveyance  of  the  property, 
he  would  pay  to  the  grantor  such  sum  of  money  as  the  arbitrators  should  certify 
to  be  the  value  of  the  property.  It  was  also  stipulated  in  this  arbitration  agree- 
ment that  the  costs  and  expenses  thereof  should  be  a  charge  upon  the  district. 
The  parties  to  the  arbitration  respectively  entered  into  bonds,  in  which  the 
owner  of  the  land  bound  himself  to  abide  by  the  determination  of  the  arbitrators, 
and  the  trustee  assumed  to  bind  the  district  in  like  manner.  The  arbitrators 
named  in  the  agreement  acted  in  the  matter,  and  finally  made  and  signed  a  de- 
cision or  award,  in  which  they  found  that  the  value  of  fifty-eight  square  rods 
of  land  was  $300. 

Mr  Sliter  brings  an  appeal  from  the  acts  of  the  trustee  as  above  set  forth, 
and  asks  that  his  course  in  submitting  the  matter  to  arbitrators  be  set  aside, 
and  that  he  be  enjoined  from  levying  a  tax  upon  the  district  with  which  to  raise 
the  sum  found  by  the  arbitrators  to  be  the  value  of  the  land  in  question.  He 
objects  to  the  course  of  the  trustee  on  the' ground,  first,  that  the  district  never 
authorized  the  trustee  to  submit  the  question  to  arbitration  ;  second,  that  the  school 
law  provides  the  method  for  acquiring  the  title  to  land  needed  for  school  pur- 
poses and  for  appraising  the  value  thereof ;  third,  that  the  arbitrators  took  into 


;46  Till-:  (  \i\i.KMrv  of  tiif.  statf.  of  nfw  york 

account  the  expense  of  building  a  fence,  to  which  expense  the  grantor  would 
be  <u])jccted  in  consequence  of  the  conveyance,  and  also  that  they  look  into 
account  the  annoyance  which  a  school  in  the  neighborhood  would  be  to  the 
grantor;  fourth,  that  the  arbitrators  fixed  the  value  of  fifty-eight  square  rods 
of  land,  when  the  school  meeting  authorized  the  purchase  of  but  forty-nine,  and 
when  only  the  value  of  forty-nine  rods  was  submitted  to  arbitration;  fifth,  that 
the  arbitrators  fixed  the  value  of  the  land  too  high ;  sixth,  that  the  trustee  had 
no  right  to  bind  the  district  to  pay  the  expenses  of  arbitration.  There  would 
seem  to  be  no  question  about  the  right  of  the  trustee,  under  the  action  of  the 
district  meeting,  to  have  determined  in  his  own  mind  what  was  "  reasonable 
compensation  "  for  the  site  which  the  meeting  voted  to  purchase.  But  the  trustee 
went  further  than  this.  Rather  than  exercise  his  own  judgment  in  the  matter,  he 
saw  fit  to  submit  the  question  of  value  to  three  other  persons.  Perhaps  this 
was  the  only  way  in  which  he  could  hope  to  reach  an  agreement  with  the  owner 
of  the  land.  It  is  extremely  doubtful  if  he  had  the  right  to  do  this.  While  the 
district  meeting  may  have  been  willing  to  leave  it  to  the  trustee  to  have  deter- 
mined upon  his  own  judgment  what  the  value  was,  they  may  not  have  been 
willing  to  leave  it  to  other  persons.  Whether  the  trustee  had  the  right  to  enter 
into  any  such  arrangement  is  doubtful,  but  it  is  not  essential  to  the  determina- 
tion of  the  specific  question  here  presented  to  decide  that  question.  If  he  had 
the  right  to  enter  into  any  such  agreement  as  he  did,  he  clearly  had  no  right  to 
undertake  to  charge  the  district  with  the  expense  of  the  arbitration.  Further- 
more, this  arbitration  could  not  be  upheld  for  another  reason.  If  there  is  any 
rule  of  law  which  is  well  settled,  it  is  that  the  decision  of  arbitrators  is  binding 
upon  the  parties  to  the  arbitration  only  when  the  arbitrators  act  zdiolly 
within  the  terms  of  the  submission.  If  they  acted  contrary  to  the  arbitra- 
tion agreement,  or  if  they  undertook  to  decide  a  question  other  than  the  exact 
question  submitted,  their  decision  is  vitiated.  In  the  present  case  the  district 
voted  to  purchase  forty-nine  square  rods  of  land.  The  trustee  submitted  the 
question  as  to  what  was  "  reasonable  compensation  "  for  forty-nine  square  rods 
of  land  to  three  arbitrators.  They  reported  that  fifty-eight  square  rods  was 
worth  $300.  They  did  not  decide  the  question  submitted  to  them,  and  so  their 
decision  could  not  in  any  event  be  binding  upon  anybody.  Wliether  there  is 
force  in  the  other  objections  raised  by  the  appellant,  it  is  unnecessary  to  inquire. 
In  view  of  the  foregoing  considerations,  it  becomes  necessary  to  sustain  the 
appeal  and  set  aside  the  acts  of  the  trustee  in  the  premises. 


3667 

In  the  matter  of  the  appeal  of  Henry  M.  Stilwell  and  others  v.  school  district 

no.  3,  town  of  New  Utrecht,  Kings  county. 
.\  district  meeting  voted  in  August  to  purchase  a  site  for  a  schoolhouse,  authorized  a  tax 

to  pay  for  the  same  and  to  erect  a  schoolhouse  thereon. 
The  tax  was  levied,  the  money  needed  to  purchase  site  was  collected,  and  the  title  to  the 

property  was  acquired  by  the  trustees. 


JUDICIAL    DECISIONS  :       SITES  947 

At  a  subsequent  meeting  of  the  electors  held  in  December  following,  which  was  very 
largely  attended,  it  was  voted  to  purchase  a  different  site  and  sell  the  one  first  purchased. 

This  last  selection  was  approved  by  the  board  of  supervisors  of  the  county. 

Held,  That  the  action  of  the  latter  meeting  was  regular,  and  being  the  expression  of  a  largely 
attended  meeting  of  the  electors,  will  be  sustained,  in  the  absence  of  any  evidence  to 
show  that  the  site  selected  was  not  a  desirable  one. 

Decided  February   i,   1888 

Isaac  F.  Russell,  attorney  for  the  appellants 
Hubbard  &  Rushmore,  attorneys  for  the  respondents 

Draper,  Superintendent 

At  a  special  school  meeting  held  in  district  no.  3,  of  the  town  of  New 
Utrecht,  Kings  county,  on  the  5th  day  of  August  1887,  called  for  the  purpose  of 
purchasing  a  site  and  erecting  a  new  schoolhouse,  it  was  determined  to  purchase 
a  site  100  feet  wide  between  Fifty-sixth  and  Fifty-seventh  streets,  being  100  feet 
east  from  Twelfth  avenue.  It  was  also  voted  to  raise  the  sum  of  $1200  to  pay 
for  such  site,  and  also  the  sum  of  $10,000  to  erect  the  building.  Soon  there- 
after the  purchase  price  was  raised  and  paid  for  the  site,  and  the  title  thereto 
was  duly  conveyed  to  the  district.  The  deed  of  conveyance  contains  the  follow- 
ing covenant,  namely,  "The  parties  of  the  second  part  (the  trustees  of  the 
school  district)  further  covenant  and  agree  to  erect  and  build  on  said  lots  a  sub- 
stantial schoolhouse  to  cost  no  less  than  $5000." 

At  the  annual  school  meeting,  on  the  last  Tuesday  of  Atigust,  no  action 
concerning  the  purchase  of  the  site  was  taken. 

A  special  district  meeting  was  held  on  the  5th  day  of  December  1887,  ^-inder 
the  call  of  two  of  the  trustees,  for  the  purpose  of  considering  propositions  to 
sell  the  site  recently  purchased  and  to  purchase  a  different  one  located  on  Fifty- 
third  and  Fifty-fourth  streets  and  Fourteenth  avenue.  At  such  meeting  the 
majority  voted  against  the  proposition  to  sell  the  site  recently  purchased. 

On  the  22d  day  of  December  1887,  another  special  district  meeting  was  held 
under  the  call  of  all  three  trustees  of  the  district,  for  the  purpose  of  again  con- 
sidering a  proposition  to  sell  the  site  and  purchase  a  different  one,  and  the  propo- 
sititon  to  sell  was  adopted  by  a  majority  vote.  It  was  then  voted  to  purchase  the 
site  on  Fourteenth  avenue,  and  the  action  was  subsequently  approved  by  the 
board  of  supervisors  of  Kings  county. 

From  such  action  this  appeal  is  taken.  The  appellants  claim  (a)  that  the 
determination  to  purchase  the  first  site  could  not  be  disturbed  after  the  expira- 
tion of  the  time  allowed  for  appeal;  (b)  that  the  first  site  is  best  suited  to  the 
needs  of  the  district;  (c)  that  it  is  against  public  policy  to  uphold  a  continuous 
agitation  of  such  a  matter  in  dispute;  (d)  that  the  district  meeting  was  bound 
to  rescind  the  resolution  of  Atigust  5th  before  taking  different  action,  which  was 
not  done;  (e)  that  the  determination  of  December  12th  could  not  be  set  aside  by  a 
subsequent  meeting,  but,  if  it  was  to  be  done  at  all,  it  must  be  through  an  appeal 
Tathe  Department;  (/)  that  the  meeting  of  December  22d  could  not  purchase  the 
site  on  Fourteenth  avenue,  for  the  reason  thnt  the  notice  of  the  meeting  con- 


948  TllK    L'NIVERSITY    OF   THE   STATE    OF    NEW    YORK 

tained  no  reference  to  that  site;  (g)  that  the  grantors  of  the  site  conveyed  to 
the  district,  and  also  third  parties,  have  acquired  rights  under  the  resolution  of 
August  5th  wiiich  must  be  respected. 

The  three  trustees  of  the  district,  answering  the  appeal,  uphold  the  action 
of  December  22d,  and  say  (a)  that  they  have  procured  the  grantor  of  the  site 
purchased  to  release  the  district  from  the  covenant  to  build;  (b)  that  at  the 
first  meeting  but  28  persons  were  present  and  voted;  at  the  second  meeting 
there  were  98,  and  at  the  last  there  were  141 ;  (c)  that  the  Fourteenth  avenue 
site  is  the  better  one  and  more  fully  meets  the  convenience  of  the  district;  (d) 
that  the  action  of  the  board  of  supervisors  in  authorizing  the  sale  and  purchase 
is  conclusive. 

The  several  meetings  seem  to  have  been  assembled  upon  proper  and  suf- 
ficient notice  and  to  have  proceeded  with  regularity.  No  high-handed  proceed- 
ings are  shown  which  would  be  sufficient  to  invalidate  the  action  taken.  The 
manner  of  taking  a  vote  upon  a  proposition  to  change  a  site  which  the  statute 
rcfiuires,  seems  to  have  been  observed.  The  fact  that  the  meetings  grew  in  size 
from  28  voters  at  the  first  one  to  141  at  the  last,  is  of  considerable  importance 
and  should  give  greater  weight  to  the  later  action.  It  is  true  that  the  Department 
discourages  the  agitation  of  a  matter  about  which  opinions  differ  after  an  author- 
ized and  regular  determination  of  it.  If  the  trustees  in  this  case  had  refused 
to  call  the  second  or  third  special  meeting  and  an  appeal  had  been  taken  from 
such  refusal,  unusual  circumstances  must  have  been  shown  before  the  Depart- 
ment would  have  required  them  to  issue  a  call.  But  the  meetings  have  been  held 
and  the  result  seems  to  show  that  the  earlier  decision  was  not  in  accordance 
with  the  wishes  of  a  majority  of  qualified  electors  of  the  district.  The  only 
ground  for  refusing  to  call  further  meetings  is  the  presumption  that  the  earlier 
ones  are  expressive  of  the  will  of  the  district.  That  presumption  has  been  over- 
turned in  this  case.  While  the  way  of  appeal  was  open  to  such  persons  as 
objected  to  the  site  determined  upon  at  the  first  meeting,  it  can  hardly  be  denied 
that  they  also  had  the  right  to  ask  that  another  meeting  should  be  held  and  to 
overturn  the  first  action  by  vote  of  the  electors  of  the  district  if  the  majority 
were  opposed  to  it.  There  is  little  force  to  the  claim  that  the  last  meeting  must 
reconsider  the  resolution  designating  a  site  before  selecting  another  site.  In  this 
case  the  previous  action  was  an  accomplished  fact  and  could  not  be  reconsidered. 
All  that  could  be  done  was  to  vote  to  sell  the  site  already  purchased  and  to  pur- 
chase another.  I  am  of  the  opinion  that  the  notice  of  the  meeting  of  December 
22d  was  broad  enough  to  justify  the  action  taken.  It  was  not  necessary  to 
specify  a  particular  site.  To  my  mind  the  most  serious  question  raised  by  the 
appellants  is  that  in  relation  to  the  covenant  in  the  deed  by  the  trustees  to  build 
a  schoolhouse  on  the  ground  conveyed.  But  for  the  fact  that  it  appears,  and 
is  not  controverted,  that  the  grantors  have  waived  their  right  to  the  performance 
of  the  same.  I  should  have  the  greatest  difficulty  in  upholding  the  action  of  the 
meeting  of  December  22d.  As  it  is  shown  that  question  is  eliminated  from  the 
case,  I  can  not  think  that  any  other  persons  acquired  rights  because  of  the  action 
of  August  5th.  which  the  district  is  legally  bound  to  respect. 


JUDICIAL  decisions:     sites  949 

Inasmuch,  then,  as  no  irregularity  on  the  part  of  the  district  meetings  is 
shown,  and  as  the  requirements  of  the  statute  touching  a  change  of  sites  seem 
to  have  been  observed,  I  come  to  the  question  whether  the  action  appealed  from 
was  contrary  to  the  educational  interests  of  the  district.  In  this  branch  of  the 
case  the  burden  is  upon  the  appellants  to  show  that  the  site  last  chosen  is  unsuit- 
able. They  fail  to  do  so.  Indeed  it  is  clear  that  that  site  is  more  accessible  to 
nearly  all  of  the  residents  of  the  district  than  the  other.  It  also  faces  three 
streets.  All  three  of  the  trustees  of  the  district  are  in  favor  of  it.  No  reason 
is  shown  why  it  is  not  as  well  suited  to  the  needs  of  the  district  as  the  other. 
This  being  so,  the  will  of  the  majority  of  the  people  of  the  district  ought  to 
govern  in  the  matter,  and  as  they  have  proceeded  without  irregularity  their  de- 
termination must  be  upheld. 

The  appeal  is  dismissed. 


3639 

In  the  matter  of  the  appeal  of  Edward  D.  Baker,  Dwight  Merrill  and  Hosea 
Dimmick  v.  union  free  school  district  no.  i,  of  the  town  of  Norwich,  county 
of  Chenango. 

The  action  of  a  district  meeting  which  is  regularly  called  and  orderly  in  its  deliberations, 
which  directs  the  purchase  of  a  new  site  and  the  construction  of  a  new  school  building 
will  never  be  disturbed  by  the  State  Superintendent  unless  it  is  most  clearly  shown 
that  the  action  taken  is  adverse  to  the  interests  of  education. 

Notice  that  a  proposition  to  raise  $40,000  to  erect  a  new  schoolhouse  and  purchase  a  new 
site  would  be  submitted  at  the  next  annual  meeting  in  the  district  was  given,  as  the 
statute  requires.  It  is  now  objected,  on  appeal,  that  the  notice  should  have  specified 
the  amount  which  it  was  proposed  to  expend  for  the  building  and  how  much  for  the 
site,  separately. 

Held,  That  the  notice  was  sufficient  and  that  the  objection  should  have  been  raised  at  the 
meeting. 

Decided  October  21,   1887 

Draper,  Superintendent 

At  the  annual  school  meeting  in  district  no.  i,  of  the  town  of  Norwich, 
county  of  Chenango,  held  upon  the  30th  day  of  August  1887,  a  resolution  was 
adopted  directing  the  trustees  of  said  district  to  cause  to  be  built  a  new  school 
building  for  the  use  of  the  schools  of  the  district,  and  also  directing  the  said 
trustees  to  obtain  the  title  by  purchase,  or  by  legal  proceedings,  of  a  new  site 
which  was  specifically  described  in  the  resolution.  It  was  also  voted  that  the 
sum  of  forty  thousand  ($40,000)  dollars  be  raised  upon  the  taxable  property 
of  the  district,  payable  in  ten  equal  annual  instalments  for  the  purpose  of  paying 
for  such  building  and  site,  and  that  the  trustees  borrow  the  money,  or  so  much 
of  said  amount  as  should  be  necessary,  at  the  lowest  practicable  rate  of  interest, 
-ajid  issue  bonds  or  other  evidences  of  indebtedness  therefor.  The  notice  of  such 
proposed  action,  signed  by  the  board  of  education,  had  been  given  in  accord- 


950  THE    UNlVliKSlTV    (»K   Till-:   STATE    OF    NEW    YORK 

aiicc  with  llie  provisions  of  the  staiulc.  The  appellants  object  to  and  appeal 
fronithis  action  upon  several  grounds.  It  is  particularly  claimed  that  the  notice 
of  the  action  taken  was  not  in  accordance  with  the  provisions  of  section  lo  of 
title  9  of  the  Consolidated  School  Act,  as  amended  by  chapter  595  of  the  Laws 
of  i88<),  in  that  the  amount  which  it  was  proposed  to  expend  for  a  site,  and  the 
amount  which  it  was  proposed  to  expend  for  a  building,  should  have  been  speci- 
fied sei)araiely  in  the  notice  of  the  proposed  action,  which  was  not  done.  I  do 
not  think  the  objection  has  force.  The  portion  of  the  statute  which  covers  the 
question  is  as  follows : 

"  But  no  addition  to  or  change  of  site,  or  purchase  of  a  new  site,  or  tax 
for  the  j)urchase  of  any  new  site  or  structure,  or  for  the  purchase  of  an  addition 
to  the  site  of  any  schoolhouse,  or  for  building  any  new  schoolhouse,  or  for  the 
erection  of  an  addition  to  any  schoolhouse  already  built,  shall  be  voted  at  any 
such  meeting,  unless  a  notice  by  the  board  of  education  stating  that  such  tax 
will  be  proposed  and  specifying  the  amount  and  object  thereof  shall  have  been 
published  once  in  each  week  for  the  four  weeks  next  preceding  such  district 
meeting,"'  etc. 

I  hardly  think  it  can  fairly  be  claimed  that  this  provision  of  the  statute 
required  the  board  to  specify  the  amount  as  to  each  particular  item  for  which 
it  was  proposed  to  ask  the  favorable  consideration  of  the  district  meeting.  In 
the  notice  the  board  stated  that  "  a  proposition  or  resolution  will  be  submitted 
to  such  meeting  to  raise  by  tax  upon  the  taxable  property  of  said  district  the 
sum  of  $40,000,  to  be  assessed  and  levied  in  ten  annual  instalments,  for  the  pur- 
pose of  erecting  a  new  school  building  and  for  the  purpose  of  a  new  site,  to  be 
designated  by  such  meeting,  on  which  to  erect  such  building  and  to  provide  for 
the  payment  thereof  by  the  issuing  of  bonds  to  be  paid  in  ten  equal  annual  instal- 
ments. I  think  this  was  a  sufficient  compliance  with  the  requirement  of  the 
statute.  Furthermore,  if  there  was  objection  to  the  sufficiency  of  the  notice,  it 
seems  to  me  that  it  should  have  been  raised  at  the  district  meeting  when  the 
resolution  was  proposed  for  action,  and  if  there  was  a  desire  that  the  proposition 
to  erect  a  new  building  and  the  proposition  to  change  the  site  should  have  been 
acted  upon  separately,  a  division  of  the  question  should  have  been  sought  at  the 
time  of  action  upon  the  resolution.  This  was  not  done,  and  I  feel  obliged  to 
dismiss  the  anpc.il.  so  far  as  this  objection  is  concerned. 

The  other  objections  of  the  appellants  have  reference  to  the  advisability 
of  the  proposed  action.  It  is  claimed  that  the  present  site  is  sufficient,  and  that 
the  proposed  one  is  not  the  most  advisable,  and  that  the  expense  thereof  is  not 
necessary. 

This  Department  never  overrules  the  action  of  a  district  meeting  for  such 
reasons  as  this,  unless  it  is  most  clearly  shown  that  the  action  taken  is  adverse 
to  the  mtercsts  of  education.  That  fact  is  not  made  to  appear  in  this  case  It 
is  to  be  assumed,  in  the  absence  of  such  proof,  that  the  legal  voters  of  the  dis- 
tnct  know  better  what  it  is  advisable  to  do  in  such  a  matter  than  the  Superin- 
tendent at  his  distance  from  the  scene. 

The  aj^jv-il   i<  dl>:missed. 


JUDICIAL  decisions:     sites  95: 

3906 

In  the  matter  of  the  appeal  of  George  E.  Soper  v.  school  district  no.  5,  of  the 

town  of  Smithtown,  in  the  county  of  Suffolk. 
Land  to  be  leased  for  school  district  purposes  must  be  clearly  described  so  as  to  guide  the 

trustee  in  carrying  out  the  intent  of  the  district  meeting.     Failure  to  so  describe  held 

sufficient  ground  for  setting  aside  the  action  of  the  meeting. 
Decided  September  8,  1890 

Draper,  Superintendent 

At  a  special  meeting  held  in  the  above-named  district  on  the  20th  day  of 
May  1890,  it  was  assumed  by  the  meeting  to  lease  one-half  acre  of  land  adjoin- 
ing the  present  schoolhouse  site  for  an  indefinite  term,  at  a  nominal  rent  of  one 
dollar  per  year.  The  half  acre  referred  to  was  not  described  by  metes  and 
bounds,  and  the  vote  upon  the  proposition  was  not  taken  by  calling  and  record- 
ing the  ayes  and  noes.  The  appellant  objects  to  this  proceeding  and  brings  his 
appeal  for  the  purpose  of  determining  its  legality.  Numerous  residents  of  the 
district  answer  the  appeal  and  strenuously  uphold  the  proceeding. 

The  law  does  not  favor  the  leasing  of  lands  for  schoolhouse  purposes  hy 
common  school  districts.  Without  holding  that  the  action  of  this  meeting 
amounted  to  a  change  in  their  schoolhouse  site,  and  that  it  could  only  be  effected 
by  the  taking  and  recording  of  the  ayes  and  noes  upon  a  resolution  specifically 
describing  the  land  by  metes  and  bounds,  I  still  have  no  hesitation  in  arriving  at 
the  conclusion  that  the  action  of  the  meeting  in  this  case  ought  not  to  be  upheld. 
The  action  of  the  meeting  does  not  even  locate  the  land  which  it  has  proposed 
to  lease  upon  one  side  or  the  other  of  the  school  building.  The  trustee  is  to  be 
guided  by  the  action  of  the  district  meeting,  and  from  such  action  it  is  impossible 
for  him  to  determine  the  land  of  which  he  has  official  care  and  control.  I  think 
this  is  a  fatal  defect.  If  the  district  proposes  to  lease  land  in  this  manner  it 
must  clearly  indicate  in  its  action  the  location  and  boundaries  of  the  parce' 
leased,  and  the  length  of  time  for  which  the  lease  is  to  run. 

From  these  considerations  it  follows  that  the  appeal  must  be  sustained  and 
the  action  appealed  from  set  aside. 


3612 

In  the  matter  of  the  appeal  of  Ebenezer  W.  Taylor  and  others  from  the  action 
of  a  special  school  meeting  held  in  school  district  no.  2,  town  of  Red  House, 
county  of  Cattaraugus,  November  13,  1886. 
The  vote  of  a  district  meeting  changing  a  site  set  aside  and  a  special  meeting  ordered  to 
determine  the  question,  where  it  appeared  the  vote  was   nearly  even   for  and  against, 
and  that  the  failure  to  give  due  notice  of  the  meeting  had  prevented  the  attendance  of 
certain  voters,  who,  by  their  votes,  would  have  changed  the  result,  if  present. 
Decided  June  23,  1887 

■     Coke  &  Whipple,  attorneys  for  appellants 

James  G.  Johnson,  Esq.,  attorney  for  respondents 


952  THE   UNIVI.IMIV    OF   THE   STATF.    OF    NEW   YORK 

Draper,  Superintendent 

This  is  an  appeal  by  Ebcnczer  W.  Taylor,  district  clerk  of  school  district 
no.  2,  town  of  Red  House,  county  of  Cattaraugus,  and  other  residents  thereof, 
alleged  by  appellants  to  be  a  majority  of  the  legal  voters  of  said  district,  from 
the  action  of  the  school  meeting  held  in  said  district,  November  13,  1886,  at 
which  meeting  it  was  decided  to  build  a  new  schoolhouse  upon  the  old  site. 

It  appears  from  the  pleadings  of  the  respective  parties  that  the  vote  for  the 
new  building  stood  15  for  and  14  against. 

The  district  clerk  unintentionally  omitted  to  give  notice  of  the  meeting  to 
several  alleged  legal  voters  who  state  under  oath'  that  if  they  had  been  notified 
and  in  attendance  at  the  meeting,  they  would  have  voted  in  the  negative. 

The  real  difficulty  in  this  district  appears  to  be  that  the  district  is  nearly  six 
miles  in  length.  The  present  site  is  situated  about  two  and  one-half  miles  from 
one  extreme  end  and  three  and  one-half  miles  from  the  other. 

The  opponents  of  the  new  building  are  desirous  of  having  two  schoolhouses 
erected,  which  will  give  better  accommodation  to  the  children  of  the  district. 
The  evidence  shows  that  there  are  about  one  hundred  children  of  school  age 
in  the  district  and  that  about  fifty  attend  school.  The  papers  do  not  disclose 
where  the  children  reside  with  respect  to  the  present  site,  or  the  assessed  value 
of  the  property  of  the  district  liable  to  taxation  for  the  support  of  the  school. 

I  have  hesitated  about  disturbing  the  action  of  the  meeting  appealed  from, 
and  would  not  if  the  vote  had  not  been  so  nearly  even. 

I  prefer  to  hold  that  the  legal  voters  of  a  district  know  their  wants  in  rela- 
tion to  school  matters,  and  to  leave  them  to  determine  such  matters  except  when 
a  clear  abuse  of  power  appears.  In  view  of  the  want  of  notice  to  some  of  the 
electors  of  the  district,  I  have  concluded  to  sustain  this  appeal  and  set  aside 
the  action  of  the  school  district  meeting  appealed  from,  in  order  that  an  unques- 
tionable decision  as  to  the  building  of  a  schoolhouse  may  be  made  by  all  the 
legal  voters  of  the  district,  or  at  least  by  such  as  take  sufficient  interest  to  attend 
the  meeting. 

The  district  clerk  is  hereby  directed  within  twenty  days  from  the  date  of 
this  decision  to  give  notice  of  a  special  meeting,  to  be  held  at  least  fifteen  days 
subsequent  to  the  first  posting  of  the  notices  thereof,  for  the  purpose  of  deter- 
mining the  wishes  of  the  legal  voters  in  regard  to  building  a  schoolhouse  or 
houses  or  any  change  of  site  or  the  advisability  of  requesting  the  school  commis- 
sioner to  divide  the  district  or  the  estabhshment  of  more  than  one  school  in  said 
district.  The  clerk  will  not  only  give  personal  notice,  but  in  view  of  the  impor- 
tance of  this  proposed  meeting,  post  at  least  three  written  or  printed  notices  in 
conspicuous  public  places  in  the  district. 


JUDICIAL  decisions:     sites  953 

3809 

In  the  matter  of  the  appeal  of  Joseph  H.  Ramsey  v.  school  district  no.  5,  of  the 
towns  of  Cobleskill  and  Schoharie,  county  of  Schoharie. 

The  action  of  a  district  meeting  in  designating  a  site  for  a  school  building  set  aside,  when 
it  was  shown  that  a  series  of  meetings  had  been  held  and  a  different  site  named  at 
each,  and  at  the  last  meeting  but  few  voters  were  present,  not  supposing  an  attempt 
would  be  made  to  change  the  site  previously  selected. 

Special  meeting  ordered  to  select  a  site. 

Decided  September  18,  1889 

J.  G.  Runkle,  attorney  for  appellant  1 

Draper,  Superintendent 

It  seems  that  between  the  ist  day  of  February  1889,  and  August  6,  1889,  no 
less  than  eight  special  school  meetings  were  held  in  the  above  district  to  consider 
the  matter  of  changing  site  and  erecting  a  new  schoolhouse.  Action  was  taken 
from  time  to  time,  only  to  be  overthrown  and  made  away  for  something  else  at 
a  subsequent  meeting.  Frequently  the  action  of  the  several  meetings  was 
impulsive  and  inconsiderate.  Much  of  the  time  it  was  irregular  and  ineffective, 
because  not  taken  in  compliance  with  the  provisions  of  the  statute.  It  appears 
that  at  a  meeting  held  on  the  22d  day  of  March  one  site  was  designated,  but  the 
vote  was  not  taken  by  ayes  and  noes  and  recorded.  At  a  meeting  held  on  the 
19th  of  April  another  site  was  named.  The  clerk's  minutes  do  not  show  that 
the  ayes  and  noes  were  taken  and  recorded,  but  the  appellant  undertakes  to 
supply  the.  deficiency  by  showing  that  it  was  done  in  fact,  although  not  appear- 
ing in  the  record.  Still  another  site  was  named  at  a  meeting  held  on  the  22d 
day  of  June.  The  clerk's  record  shows  that  upon  this  last  occasion  the  detail 
vote  was  fully  recorded.  The  appellant,  however,  attacks  the  action  of  June  22d 
on  the  ground  that  the  meeting  was  attended  by  but  few,  and  does  not  represent 
the  desires  of  the  majority  of  the  people  of  the  district.  He  says  the  people 
had  become  tired  of  attending  meetings,  and  did  not  suppose  any  attempt  would 
be  made  to  overthrow  the  action  of  April  19th. 

After  careful  consideration,  I  have  concluded  to  direct  that  another  meeting 
he  held  to  select  a  site.  There  is  good  reason  to  believe  that  the  last  site  chosen 
does  not  have  the  approval  of  the  greater  number  of  residents  of  the  district.  I 
do  not  feel  justified  in  upholding  the  action  of  April  19th,  for,  technically  at 
least,  it  was  set  aside  by  a  subsequent  district  meeting.  The  district  has  appro- 
priated $2000  for  a  new  site  and  building.  This  ought  to  secure  a  very  creditable 
building  for  the  district,  and  it  should  be  located  where  the  majority  of  voters 
deliberately  determine  to  have  it.  After  the  large  experience  which  the  district 
has  had  in  the  way  of  special  school  meetings,  it  ought  to  be  able  to  decide  by 
a  majority  vote,  where  the  new  building  had  better  be  located,  and  the  minority 
ought  to  be  willing  to  accept  the  determination  cheerfully. 

■    The  appeal  is  sustained,  so  far  as  it  concerns  the  action  of  June  22d  and 
the    subsequent    action    of   the   trustee    predicated    thereupon.      The    temporary 


(,54  IlIE    UNIVERSITY    OK   TIIK    STATE    OF    NEW    YORK 

injunction  heretofore  granted  herein,  is  made  permanent.  The  trustee  is  directed 
to  call  a  special  meeting  for  the  purpose  of  selecting  a  site,  at  which  care  shall 
be  taken  to  describe  the  new  site  with  particularity,  and  the  vote  in  determining 
the  same  shall  be  taken  by  ayes  and  noes,  and  recorded. 


3587 

In  the  matter  of  the  appeal  of  E.  D.  Girvan  and  others,  from  the  proceedings  of 
a  district  meeting  held  I'^ebruary  28,  1887,  in  school  district  no.  3,  town 
of  Harrisburgh,  county  of  Lewis. 

When  a  district  meeting  is  held  on  a  very  stormy  night,  and  at  a  time  when  roads  in  the 
district  were  almost  impassable  —  in  consequence  of  which  voters  were  unal)le  to 
attend  —  and  by  a  very  close  vote  of  those  present  a  change  of  site  is  decided  upun, 
and  such  vote  results  in  much  apparent  dissatisfaction  in  the  district,  the  action  of  the 
meeting  will  be  set  aside,  and  a  special  meeting  ordered  to  obtain  a  clear  expression  of 
the  voters  of  the  district  upon  the  proposed  change  of  site. 

.v.cidcd  April  15,  1887 

Draper.  Suf'criiitciulciit 

1  his  appeal  is  taken  by  legal  voters  in  school  district  no.  3,  town  of  Harris- 
burgh. county  of  Lewis,  from  the  action  of  a  district  meeting  at  which  it  was 
agreed  to  change  the  site  by  a  vote  of  11  to  9.  The  grounds  alleged  by  the  appel- 
lants are: 

1  That  a  majority  of  the  district  are  opposed  to  the  contemplated  change. 

2  Ihat  at  the  time  of  the  meeting  at  which  the  change  was  voted  the 
weather  was  so  severe  and  the  roads  in  such  condition  that  legal  voters  opposed 
to  the  change  could  not  get  to  the  meeting. 

3  'I'liat  the  contemplated  site  is  not  centrally  located,  is  low  and  at  times 
mundated,  has  no  wholesome  drinking  water  near  it,  and  in  winter  could  not 
be  reached  by  many  children  after  heavy  snowstorms. 

4  That  the  present  site  is  suflicient  for  the  wants  of  the  district. 

I  he  trustee  and  his  associate  respondents  deny  that  the  present  site  is 
suitable,  that  the  contemplated  site  is  not  centrally  located,  or  that  it  is  low 
ground  and  inundated,  as  alleged  by  the  appellants ;' they  allege  that  the  present 
site  is  simply  held  by  the  district  conditionally,  the  district  not  being  the  owner 
of  the  fee;  that  it  is  insufficient  in  size,  and  that  adjoining  land  can  not  be 
secured  for  its  enlargement. 

In  deciding  this  appeal  it  is  proper  that  I  should  advise  against  the  practice 
of  erectmg  school  buildings  upon  sites  of  which  the  district  is  not  the  absolute 
owner.  I  wish  to  encourage,  as  far  as  possible,  the  purchase  of  sites  by  dis- 
tricts when  a  new  schoolhouse  is  to  be  constructed.  The  site  to  be  selected 
should  be  as  nearly  centrally  located  for  the  convenience  of  patrons  of  the  school 
as  possible.     It  should  be  a  healthful  spot,  and  one  easy  of  access  at  all  times 


JUDICIAL  decisions:     sites  955 

of  the  3ear.  I  find  the  evidence  presented  upon  this  appeal  very  conflicting  upon 
this  point.  It  appears  that  the  selection  of  the  contemplated  site  was  secured 
by  a  very  close  vote,  and  that  enough  legal  voters  were  prevented  by  stormy 
weather  from  attending  the  district  meeting  to  have  changed  the  result.  A  site 
chosen  should  be  the  choice  of  a  majority  of  the  legal  voters  of  a  district  after 
deliberate  consideration,  and  one  which  the  supervisor  of  the  town  will  approve 
of,  as  required  by  the  statute.  I  have  concluded  therefore  to  sustain  the  appeal, 
in  order  to  give  the  legal  voters  of  the  district  an  opportunity  to  give  full  and 
fair  expression  of  their  opinion  upon  the  selection  of  a  site,  but  not  intending 
to  declare  any  opinion  as  to  the  desirability  of  the  contemplated  site.  The  pro- 
ceedings of  the  meeting  held  on  the  28th  day  of  February  last  are  set  aside,  and 
I  hereby  order  a  special  meeting  of  the  legal  voters  to  obtain  such  an  expression, 
and  the  trustee  is  hereby  directed  to  cause  such  a  meeting  to  be  called  within 
ten  days  after  receiving  a  copy  of  this  decision. 
-    The  appeal  is  sustained. 


3549 

In  the  matter  of  the  appeal  of  Joseph  W.  Rood,  from  the  proceedings  of  district 
meeting  held  in  district  no.  16,  town  of  Pomfret,  Chautauqua  county,  Octo- 
ber 5,  1886. 

PENDENCY   OF   APPEAL   DOES    NOT    STAY    PKOCEEDINGS 
Committee  to  purchase  site.     District  meeting  can  not  delegate  the  authority  to  determine  a 

site. 
Proceedings  of  a  district  meeting  will  not  be  set  aside  for  the  reason  that  the  records  of 

the  meetings  were  not  properly  kept.     There  must  be  specific  acts  complained  of,  and  it 

must  appear  that  there  has  not  been  opportunity  for  an  expression  of  the  will  of  the 

district,  or  that  it  has  been  thwarted. 
Decided  December  15,  1886 

Draper,  Supcrintctidcnt 

Two  appeals  are  here  presented,  the  llrst  being  an  appeal  by  Joseph  \\  . 
Rood,  a  resident  and  taxable  inhabitant  of  school  district  no.  lO,  in  the  town  of 
Pcfmfret,  Chautauqua  county,  whereby  the  appellant  seeks  to  have  the  proceed- 
ings of  a  district  meeting,  called  by  School  Commissioner  E.  J.  Swift,  upon  the 
formation  of  the  said  district,  and  held  September  2t„  1886,  set  aside  upon  the 
following  grounds,  namely :  that  the  district  is  illegally  organized ;  that  the 
pendency  of  an  appeal  taken  in  1877,  from  the  refusal  of  a  former  school  com- 
missioner to  form  the  district  operates  as  a  stay,  and  prevents  the  formation  of 
the  new  district ;  that  a  pending  appeal  from  the  action  of  the  present  commis- 
sioner, E.  I.  Swift,  in  forming  said  district,  stays  all  proceedings,  and  the  first 
.meeting  could  not  legally  be  held  pending  such  appeal ;  that  the  meeting  was  not 
pfoperly  conducted  ;  that  certain  district  officers  were  not  properly  chosen ;  that 


956  THE    UNIVERSITY    OF   THE   STATE    OF   NEW    YORK 

Other  irregularities  occurred  in  the  conduct  of  said  meeting.  The  respondents 
present  several  affidavits  in  answer  to  the  appellant's  affidavits,  and  controvert 
many  of  the  allcijations. 

By  the  second  appeal  the  appellant  seeks  to  set  aside  the  proceedings  of  a 
district  meeting  held  in  said  school  district  no.  i6,  on  the  5th  day  of  October 
1880,  upon  the  following  grounds:  that  the  district  is  illegally  organized  and 
established  as  stated  in  the  former  appeal ;  that  no  person  had  a  right  to  call  said 
meeting ;  that  the  record  of  the  meeting  is  defective,  among  other  defects  failing 
to  show  the  time  and  place  of  meeting;  that  the  action  of  the  meeting  held  Octo- 
ber 5th,  in  selecting  a  committee  to  procure  a  site  for  a  schoolhouse,  was  illegal. 
The  appellant's  allegations  upon  this  appeal  are  also  controverted  by  several 
affidavits. 

The  several  appeals  from  this  school  district  and  the  character  of  the  affi- 
davits presented  on  both  sides  indicate  a  divided  and  unfortunate  feeling  among 
the  people  of  the  district  upon  school  matters,  which  should  not  exist.  Educa- 
tional interests  should  not  be  allowed  to  sufifer  because  of  the  quarrels  and  dis- 
agreements of  the  voters  of  the  district.  In  a  previous  decision,  I  have  sus- 
tained the  action  of  the  commissioner  in  forming  this  district.  So  much  then 
of  the  appellant's  ground  of  appeal  is,  therefore,  disposed  of,  and  the  only 
questions  left  for  consideration  are  those  relating  to  the  calling  and  conduct  of 
the  meetings  of  September  and  October.  The  first  was  properly  called  by  the 
commissioner.  The  proceedings  were  not  so  orderly  as  they  should  have  been, 
but  it  is  rarely  the  case,  where  intense  feeling  has  been  engendered  in  a  district 
that  they  are.  The  school  district  having  been  formed,  it  was  next  in  order  to 
elect  district  officers.  This  has  been  done,  and  to  perfect  the  school  organiza- 
tion and  advance  the  interests  of  education,  I  have  determined  to  overrule  the 
appeals  above  entitled,  except  as  hereinafter  stated. 

It  is  claimed  that  the  records  of  the  meetings  were  not  properly  kept.  I 
regret  that  this  is  too  often  the  case  at  school  meetings.  Carelessness  and  negli- 
gence are  usually  the  cause  of  it.  I  would  regard  these  appeals  more  favorably 
if  the  appellant  had  selected  some  particular  action  of  the  meetings  for  com- 
plaint, instead  of  making  such  general  charges  against  everything  done  and 
attempted  to  be  done  to  form  the  district,  select  officers  and  provi.le  for  a 
school. 

The  delegation  of  power  by  the  district  meeting  held  October  5th,  to  a 
committee  to  select  and  purchase  a  site,  is  illegal.  The  statute  does  not  author- 
ize such  a  proceeding.  The  district  meeting  alone  has  the  power  to  designate 
a  schoolhouse  site,  and  so  far  as  this  action  is  concerned,  the  last  above  entitled 
appeal  is  sustained. 

I  have  therefore  reached  the  conclusion  to  dismiss  the  foregoing  appeals. 
except  so  far  as  the  action  of  the  second  meeting  of  the  inhabitants  of  the 
district  at  which  they  attempted  to  delegate  the  power  of  selecting  and  purchas- 
ing a  schoolhouse  site  to  a  committee,  and  the  appeal  from  that  action  is  sus- 


JUDICIAL  decisions:     sites  957 

tained.  The  trustee  of  the  district  is  hereby  directed  to  call  a  special  meeting 
of  the  qualified  voters  of  the  district  within  thirty  days  from  the  date  of  this 
decision  for  the  purpose  of  taking  action  upon  the  selection  of  a  schoolhouse 
site. 


3779 

In  the  matter  of  the  appeal  of  James  Stratton,  trustee  of  school  district  no.  12, 
town  of  Owego,  county  of  Tioga,  from  the  proceedings  of  an  adjourned  dis- 
trict meeting  held  October  5,  i^ 


The  action  of  a  district  meeting  in  selecting  a  schoolhouse  site  will  not  be  sustained  when 
it  does  not  clearly  appear  that  a  majority  of  the  inhabitants  present  and  voting  at  a 
district  meeting  called  for  that  purpose,  voted  in  favor  of  the  selection  of  the  site,  nor 
when  the  site  was  not  sufficiently  described  in  order  to  enable  the  trustee,  or  any  other 
person,  to  procure  a  title  to  the  same. 

Decided  April  13,  1889 


Sears  &  Lynch,  attorneys  for  appellant 
George  F.  Andrews,  attorney  for  respondent 


Draper,  Superintendent 

This  appeal  is  brought  by  the  trustee  of  school  district  no.  12,  town  of  Owego, 
county  of  Tioga,  for  the  purpose  of  having  certain  acts  of  a  district  meeting  held 
on  the  ist  day  of  October  1888,  and  at  an  adjourned  meeting  held  on  the  5th  day 
of  October  1888,  construed  and  passed  upon.  The  appeal  papers  were  served 
upon  a  resident  of  the  district,  one  Robert  Burgett,  who  has  made  answer 
thereto,  although  he  is  at  loss  to  know  why  he  should  have  been  made  the 
respondent  in  the  matter  of  the  appeal. 

The  facts,  as  shown  by  the  pleadings  are,  that  on  the  24th  day  of  Septem- 
ber last  the  school  building  was  destroyed  by  fire,  and  that  only  the  foundation 
walls  remain ;  that  the  site  is  not  owned  by  the  district  and  that  the  rights  of  the 
district  thereto  will  cease  whenever  the  same  ceases  to  be  used  for  school 
purposes. 

A  meeting  was  called  for  the  ist  day  of  October  last,  which  was  held  for 
the  purpose  of  determining  whether  a  schoolhouse'  site  should  be  purchased,  and 
to  consider  the  building  of  a  new  schoolhouse.  At  the  meeting  held  pursuant  to 
such  call,  a  motion  was  made  to  locate  the  schoolhouse  on  the  top  of  McLeon's 
hill  on  James  Stratton's  corner,  which  was  a  diflferent  location  from  that  upon 
which  the  schoolhouse  stood  which  had  been  destroyed  by  fire.  A  motion  was 
also  made  that  the  schoolhouse  site  should  be  six  rods  square,  and  the  further 
motion  was  m.ade  to  pay  James  Stratton  $10  for  his  site.  All  these  motions  were 
declared  carried  by  the  chair,  the  vote  having  been  taken  viva  voce,  and  votes 
being  cast  both  for  and  against  each  of  the  motions.  Subsequently  the  meeting 
was  adjourned,  as  the  appellant  alleges,  for  the  purpose  of  considering  plans  and 


958  Tin:    UNIVERSITY    OF   TlIK    STATE    OF    NEW    YORK 

specifications  for  a  new  school  building.  l)ut  this  is  strenuously  denied  by  the 
respondent,  who  alleges  that  there  was  no  reservation  whatever  in  relation  to  the 
adjournment.  At  the  adjourned  meeting,  a  motion  was  made  to  locate  the  site 
at  a  different  place  than  that  selected  at  the  previous  meeting,  and  this  motion 
was  declared  out  of  order  by  the  chaimian,  who  stated  that  the  only  business  was 
to  consider  plans  and  specifications  for  building  a  schoolhouse.  A  majority  of 
the  voters  present  at  the  meeting  substituted  another  chairman,  and  the  meeting 
proceeded  by  calling  the  roll  and  taking  and  recording  the  vote  by  ayes  and  noes 
to  select  a  site  on  the  farm  of  one  I'etcr  Moot,  which  is  a  different  site  both  from 
the  one  previously  selected,  and  the  one  upon  which  the  schoolhouse  which  was 
destroyed  by  fire  had  formerly  stood. 

It  is  alleged  by  the  respondent  that  James  Stratton  owns  no  real  estate  within 
the  district,  and  that  the  intention  evidently  was  to  select  a  portion  of  land  owned 
by  one  Edna  Stratton. 

My  decision  is  that  the  proceedings  of  the  first  meeting  can  not  be  sustained, 
for  the  reasons: 

First,  that  I  am  unable  to  determine,  from  any  evidence  before  me,  that  a 
majority  of  the  inhabitants  present  and  voting  were  in  favor  of  the  proposed 
Stratton  site. 

Second,  the  site  was  not  sufficiently  described  in  order  to  enable  the  trustee. 
or  any  other  person,  to  procure  a  title  to  it. 

In  relation  to  the  second  or  adjourned  meeting,  I  must  hold  that  that  meet- 
ing was  simply  a  continuation  of  the  meeting  of  October  ist,  and  that  any  busi- 
ness which  could  lawfully  be  transacted  at  the  meeting  of  October  ist,  could 
also  be  considered  at  the  adjourned  meeting.  I  must  also  hold  that  the  proceed- 
ings of  the  second  meeting  can  not  be  sustained  because  it  does  not  appear  that 
the  resolution  by  which  the  .Moot  site  was  selected  was  described  by  metes  and 
bounds  as  the  law  requires,  and  so  as  to  enable  the  trustee  to  acquire  title  to 
the  same. 

All  proceedings  which  have,  therefore,  been  taken  as  appears  by  the  papers 
presented,  in  relation  to  the  selection  of  a  new  site,  are  hereby  vacated  and  set 
aside,  and  the  trustee  of  the  district  is  directed  to  forthwith  call  a  special  meet- 
ing of  the  inhabitants,  to  be  held  within  fifteen  days  from  the  date  of  this  decision, 
for  tlie  purpose  of  determining  upon  a  school  site,  and  for  considering  the  erec- 
tion of  a  new  school  building  thereon. 

I  hereby  direct  that  all  questions  relating  to  these  subjects  shall  be  detcr- 
mmed  by  a  call  of  the  roll  of  the  qualified  voters  of  the  district,  and  the  taking 
and  recording  ot  the  vote  by  ayes  and  noes,  and  that,  in  the  selection  of  a  site. 
If  the  site  IS  to  be  changed,  the  meeting  shall  describe  and  designate  the  same  by 
metes  and  bounds,  as  required  by  law. 

The  appeal  from  the  proceedings  of  the  second  meeting  is  sustained,  as  well 
as  the  counter-appeal  which  is  made  by  the  respondent  from  the  proceedings  of 
the  first  meeting.  ** 


JUDICIAL  decisions:     sites  959 

4262 

In  the  matter  of  the  appeal  of  James  W.  Hughes  and  William  O.  Ross  from 
action  of  special  meeting  held  May  26,  1894,  in  school  district  no.  3,  town 
of  Southfield,  Richmond  county. 

Where  an  appeal  is  taken  from  the  action  of  a  school  meeting,  duly  and  legally  designating 
a  schoolhouse  site  and  authorizing  the  trustees  of  the  district  to  purchase  the  same, 
and  the  appellants  fail  to  show  by  preponderance  of  proof  that  they  are  injured  by  the 
action  of  said  meeting  in  the  designation  of  said  site,  or  that  the  site  will  not  be  ac- 
cessible for  school  purposes,  or  that  it  is  not  a  suitable  site  for  school  purposes,  the 
appeal  should  be  dismissed. 

Decided  July  25,  1894 

Crooker,  Superintendent 

On  May  26,  1894,  a  special  school  meeting  of  the  qualified  voters  of  school 
district  no.  3,  town  of  Southfield,  Richmond  county,  was  held,  upon  notice  duly 
and  legally  given,  to  consider  and  vote  upon  the  matter  of  changing  the  schoolhouse 
site  and  authorizing  the  trustees  to  purchase  a  new  site ;  for  building  a  new 
schoolhouse ;  for  bonding  the  district  for  raising  money  to  build  and  furnish 
schoolhouse ;  for  selling  old  schoolhouse  and  site,  etc.,  etc. 

That  at  said  meeting  a  resolution  was  presented  and  adopted  for  the  selection 
of  a  new  schoolhouse  site  for  said  district,  said  site  being  offered  by  D.  J.  Tysen 
for  the  sum  of  $500,  and  which  new  site  was  described  by  metes  and  bounds, 
being  a  plot  of  land  200  feet  by  200  feet.  That  the  vote  upon  said  resolution 
was  ascertained  by  taking  and  recording  the  ayes  and  noes  of  the  legal  voters  of 
said  district,  present  and  voting  at  said  meeting,  the  result  of  said  vote  so  ascer- 
tained being  47  ayes  and  28  noes.  That  said  resolution  also  contained  a  clause 
authorizing  the  trustees  of  said  district  to  purchase  said  new  site.  That  a  reso- 
lution was  also  adopted  at  said  meeting  authorizing  the  trustees  of  said  district 
to  sell  the  old  (or  present)  schoolhouse  and  site. 

The  appellants  herein  appeal  from  so  much  of  the  action  and  decision  as 
relates  to  the  selection  of  a  new  school  site,  or  the  change  of  the  present  school- 
house  site,  on  the  grounds  : 

1  That  the  resolution  was  not  in  accordance  with  the  requirements  of  the 
school  law,  and  was  calculated  to  force  two  sites  upon  the  district,  if  the  district 
did  not  subsequently  abandon  the  present  site ;  and, 

2  That  the  appellants  are  the  owners  of  a  reserved  strip  of  land  lying  along 
and  northerly  of  the  lot  designated  at  the  meeting  as  a  school  site,  and  that  no 
action  having  been  taken  at  said  school  meeting  to  acquire  access  across  said  strip, 
school  children  living  north  of  Tenth  street  in  said  district  would  be  tres- 
passers upon  the  reserved  lands  of  such  appellants  in  gaining  access  to  the  school 
site  and  house. 

It  is  alleged  in  the  answer  of  the  trustees  of  said  district  to  the  appeal  herein, 
and  jiot  denied  by  the  appellants,  that  the  school  site  selected  and  designated  on 
May'26,  1894,  is  the  same  site  selected  in  1892,  approved  by  School  Commissioner 


960  THE   UNIVEKSITY    OF   Tllli   STATE    OF   NEW    YORK 

Kenney  and  also  approved  by  me  in  an  appeal  to  me  relative  to  such  site,  anvl 
that  the  present  school  commissioner,  Mrs  West,  has  approved  of,  and  consented 
to,  such  site,  and  that  the  trustees  have  entered  into  a  contract  for  the  purchase 
of  said  site  in  accordance  with  the  vote  of  such  meeting.  Under  the  provisions 
of  subdivision  6,  of  section  16,  title  7,  of  the  Consolidated  School  Law  of  1864 
and  the  amendments  thereof,  in  force  on  May  26,  1894,  the  qualified  voters  of 
any  common  school  district  have  the  power,  by  a  majority  vote,  to  designate  a 
site  for  a  schoolhouse,  or,  with  the  consent  of  the  commissioner  or  commissioners 
within  whose  district  or  districts  the  school  district  lies,  to  designate  sites  for 
two  or  more  schoolhouses  for  the  district.  Under  the  call  for  the  meeting  of 
May  26,  1894,  the  meeting  had  authority  to  designate  and  direct  the  purchase  of 
a  new  or  additional  school  site,  or  to  change  their  school  site.  The  action  of  the 
meeting  in  designating  a  new  or  additional  school  site,  and  directing  its  purchase 
by  the  trustees,  and  in  authorizing  the  sale  of  the  school  site  and  schoolhouse 
then  owned  by  the  district,  was  in  fact  a  change  of  school  site.  This  the  meeting 
had  the  power  to  do  under  sections  20  and  21,  title  7  of  the  School  Law  of  1864 
and  amendments,  with  the  consent  of  the  school  commissioner,  which  consent  has 
been  given.  The  trustees  of  said  district  having  become  (and  the  district  having 
become  by  reason  of  its  action  at  said  meeting)  legally  responsible  by  a  valid 
contract  to  purchase  said  site,  in  pursuance  of  a  resolution  of  the  district,  it  has 
become  an  established  site  so  that  the  resolution  designating  it  and  directing  its 
purchase  can  not  be  rescinded  under  the  general  principle  that  a  resolution  that 
has  been  executed  can  not  be  revoked  to  the  prejudice  of  those  who  have  acquired 
rights  and  assumed  liabilities  under  it. 

The  main  ground  of  this  appeal  appears  to  be  that  the  appellants  claim  that 
there  is  a  reservation  of  a  strip  of  land  five  feet  in  width,  their  property,  lying 
along  the  entire  southerly  side  of  Tenth  street,  and  that  the  land  for  a  school 
site  designated  by  said  meeting  is  upon  lands  outside  and  beyond  said  reserved 
strip  and  completely  cut  oflF  from  access  to  and  from  said  site  to  the  streets  of 
New  Dorp. 

I  do  not  think  the  appellants,  upon  the  proofs  presented  in  said  appeal,  have 
sustained  said  claim.  The  map  annexed  to  the  appeal  herein,  I  assume,  is  a  full 
and  correct  map  of  the  property  at  New  Dorp  of  the  appellants,  and  that  seems 
to  be  all  that  it  claims  to  be.  The  map  does  not  show  the  "  farming  lands  "  men- 
tioned in  the  appeal  lying  southerly  of  Tenth  street,  easterly  of  New  Dorp  avenue 
and  westerly  of  Beach  avenue,  except  in  a  very  limited  way,  and  is  not  sufficiently 
plain  and  clear  to  warrant  me  in  finding  in  this  appeal  that  the  appellants  have 
established  said  claim. 

It  is  in  proof  that  at  said  meeting  of  May  26,  1894,  and  at  which  the  appel- 
lants were  present,  a  contract  was  read  by  which  the  owner  of  the  land  which 
was  voted  as  a  school  site,  D.  J.  Tysen,  agreed  to  open  a  street  fifty  feet  wide 
through  his  property  from  New  Dorp  avenue  to  and  in  front  of  said  new  site, 
and  which  street  will  aflFord  access  to  said  school  site,  as  appears  to  me  from  said 
map  annrxod  to  the  appeal  and  Beers's  map  of  Stalen  island,  filed  by  respondent 


JUDICIAL  decisions:     sites  961 

in  this  appeal,  without  any  trespass  upon  the  land  of  appellants,  and  afford 
accommodation  for  the  larger  number  of  pupils  in  the  district  who  will  attend 
at  the  schoolhouse  to  be  erected  upon  said  site.  The  appellants  in  their  reply  to 
the  answer  of  the  respondents  herein,  state  that  said  contract  was  not  acted 
upon  by  the  district  meeting  and  is  not  filed  with  the  district  clerk,  and  that  as 
they  (the  appellants)  understand  it,  it  amounts  in  legal  effect  to  a  mere  gratuitous 
and  revocable  easement,  leaving  it  in  Tysen's  power  to  close  the  road  after  he 
shall  have  opened  it.  The  respondents,  the  trustees  of  the  district,  say  in  their 
answer  herein  that  they  appealed  to  Tysen  to  open  the  street  and  that  he  agreed 
to  do  so  and  executed  a  contract  to  that  effect,  which  contract  was  read  at  the 
district  meeting.  A  copy  of  said  contract  has  been  filed  by  the  respondents  with 
their  rejoinder  and  I  am  of  the  opinion  the  contract  is  made  for  a  valuable  con- 
sideration and  the  trustees  of  the  district  can  compel  the  performance  by  Tysen 
of  his  covenants  therein. 

It  was  not  necessary  that  the  meeting  should  take  action  upon  said  contract 
nor  that  it  should  be  filed  with  the  district  clerk. 

The  burden  of  proof  is  upon  the  appellants.  It  is  for  them  to  show  that  they 
are  injured  by  the  action  of  said  meeting  in  said  designation  of  a  new  site  or 
change  of  site ;  that  the  site  will  not  be  accessible  for  school  purposes ;  that  it  is 
not  a  suitable  site  for  school  purposes.  In  this  the  appellants  have  failed  and 
the  appeal  herein  should  be  dismissed. 

Appeal  dismissed. 


4319 

In  the  matter  of  the  appeal  of  George  Stephan  and  Joseph  Karl  from  proceed- 
ings of  special  meeting  held  October  2,  1894,  in  school  district  no.  11,  town 
of  Allegany,  Cattaraugus  county. 

In  rural  school  districts  some  of  the  children  must  be  farther  from  the  schoolhouse  than 
others  and  be  inconvenienced  by  the  longer  distance  which  they  are  obliged  to  travel; 
but  it  must  be  assumed  that  the  majority  of  the  legal  voters,  assembled  in  a  school 
meeting  in  any  such  district  to  locate  a  new  school  site,  will  so  locate  it  at  a  point  which, 
in  their  judgment,  is  best  calculated  to  promote  the  convenience  of  the  greater  number 
of  the  children  of  the  district  in  attending  the  school.  This  Department  will  not  be 
justified  in  vacating  the  action  of  the  majority  of  such  meeting,  unless  there  is  clear 
proof  that  such  majority  has  acted  to  the  contrary. 

Decided  February  11,  1895 

F.  M.  and  E.  F.  Kruse,  attorneys  for  respondents 

Crooker,  Superintendent 

This  appeal  is  taken  from  the  action  of  a  special  school  meeting  held  on 
October  2,  1894,  in  district  no.  11,  town  of  Allegany,  Cattaraugus  county,  in  vot- 
ing to  abandon  the  schoolhouse,  or  discontinue  the  schools  located  at  North  Pole 
an'd  Rock  View  in  said  district  and  to  purchase  a  site  on  the  Brandle  farm,  and 
erect  a  schoolhouse  thereon. 
31 


962  THE   UNIVERSITY   OF  THE  STATE   OF   NEW   YORK 

The  appellants  do  not  claim  that  said  special  meeting  was  not  duly  and  legally 
called  and  held,  nor  that  the  action  of  the  meeting  in  discontinuing  the  said  two 
schools  and  designating  the  new  schoolhouse  site  and  for  the  erection  of  a  new 
schoolhousc  thereon  was  not  duly  and  legally  had,  nor  that  the  new  site  is  not  a 
proper  and  healthy  one.  The  main  grounds  upon  which  said  appeal  is  taken  are 
that  the  new  site  designated  is  not  centrally  located  and  that  the  greater  number 
of  children  in  the  district  who  will  attend  the  school,  if  a  schoolhouse  is  erected 
upon  such  site,  will  be  required  to  travel  a  long  distance,  and  in  some  cases,  over 
roads  that  in  the  winter  are  filled  with  snow. 

It  is  claimed  in  the  appeal  that  persons  voted  at  said  meeting  who  were  not 
qualified  voters  in  the  district ;  but  the  appellants  have  failed  to  establish  affirm- 
atively that  any  such  persons  voted,  or  that  if  they  voted,  such  votes  were  cast 
for  the  resolution  or  resolutions  adopted;  nor  do  they  show  that  if  such  votes 
were  excluded  the  resolution  or  resolutions  would  have  been  defeated. 

The  appellants  and  respondents  each  annex  to  their  papers  a  map  of  the 
district,  but  small  in  size,  without  having  marked  thereon  the  number  of  children 
of  school  age.  and  the  roads  marked  thereon  upon  which  such  children  reside,  or 
the  portions  of  the  district  upon  which  they  reside.  Neither  party  claims  their 
map  is  correct  and  accurate,  and  each  denies  the  correctness  and  accuracy  of  the 
other  party's  map.  Neither  party  has  furnished  a  copy  of  the  proceedings  of  said 
special  meeting  of  October  2,  1894,  each  stating  iii  his  own  language  the  sub- 
stance of  the  action  of  said  meeting  in  reference  to  the  discontinuance  of  the  two 
schools,  and  the  designation  of  a  new  schoolhouse  site  and  the  erection  of  a 
schoolhouse  thereon. 

As  to  the  main  question  presented  by  the  appeal  for  decision,  namely, 
whether  such  new  site  is  convenient  for  the  greater  number  of  pupils  who  would 
attend  the  school,  and  the  distance  such  pupils  will  be  required  to  travel  to  attend 
said  school,  the  proofs  are  somewhat  contradictory. 

From  the  proofs  presented  the  following  facts  are  established:  that  said 
school  district  no.  11,  town  of  Allegany,  Cattaraugus  county,  was  formed  many 
years  ago.  and  is  about  three  miles  in  length  and  about  two  miles  and  one-fourth 
in  width ;  that  at  one  time  it  had  four  schoolhouses,  and  on  October  2,  1894,  said 
district  had  three  schoolhouses,  one  known  as  the  North  Pole  schoolhouse,  situate 
about  three-fourths  of  a  mile  from  the  northern  boundary  of  said  district;  the 
Rock  View  schoolhouse,  situate  about  one  and  one-half  miles  from  the  northern 
boundary  of  said  district  and  near  the  center  of  said  district;  and  the  Knapp's 
Creek  schoolhouse.  situate  near  the  southerly  boundary  of  the  district  and  in 
southwest  square  lot  of  said  district;  that  running  from  the  northern  boundary 
of  said  district  ,s  what  is  known  as  the  "  main  road  "  which  runs  nearly  south 
by  the  North  Pole  schoolhouse  and  thence  southwesterly  by  the  Rock  View 
schoolhouse  and  down  to  Knapp's  Creek  and  near  the  Knapp's  Creek  schoolhouse 
near  the  southerly  boundary  of  said  district;  that  from  said  main  road,  near  the 
North  I  ole  schoolhouse,  there  is  a  road  known  as  the  "  Four  Mile  Road  "  run- 
ning in  a  southeasterly  direction  to  the  eastern  boundary  of  said  district;  that 


JUDICIAL  decisions:     sites  963 

from  said  main  road  near  said  North  Pole  schoolhouse  there  is  a  road  running 
west,  known  as  the  "  Stephen  Hollow  Road  " ;  that  out  of  said  main  road  a  short 
distance  northerly  of  the  Rock  View  schoolhouse,  there  is  a  road  known  as  the 
"  Bucker  Hollow  Road,"  running  in  a  southeasterly  direction. 

It  further  appears  that  the  northerly  portion  of  said  school  district  was,  and 
still  is,  settled  by  a  farming  community;  that  in  1876  oil  was  discovered  in  said 
school  district,  and  all  of  said  district  lying  south  of  the  two  north  tiers  of  lots 
developed  into  good  oil  territory  and  became  filled  up  with  persons  dependent  on 
oil  producing  for  a  livelihood ;  that  the  schoolhouse  at  North  Pole  was  constructed 
several  years  prior  to  1876  and  the  increased  population  consequent  upon  the 
discovery  of  oil  in  the  district  necessitated  the  erection  of  three  additional  school- 
houses,  namely,  one  at  Rock  View  and  one  at  Knapp's  Creek,  and  one  other 
which  has  been  abandoned;  that  since  the  oil  in  said  district  has  been  exhausted 
a  large  share  of  the  population,  dependent  upon  its  production,  has  left  the  dis- 
trict ;  but  the  clearing  up  of  the  land  and  taking  up  of  new  farms,  the  placing  of 
rough  timber  land  under  cultivation,  the  erection  of  farmhouses  and  buildings, 
have  been,  and  still  are,  going  on  in  the  center  and  southern  portion  of  said 
district. 

It  further  appears  that  on  or  about  July  23,  1894,  F.  H.  Chapin,  school  com- 
missioner of  the  first  commissioner  district  of  Cattaraugus  county,  condemned 
the  schoolhouse  at  North  Pole;  that  at  a  special  meeting  of  the  district,  held  on 
September  12,  1894,  it  was  voted  to  build  a  new  schoolhouse  at  North  Pole  to 
take  the  place  of  the  Rock  View  and  North  Pole  schoolhouses,  such  school  build- 
ing to  be  built  on  the  same  site  on  which  the  North  Pole  schoolhouse  stood ; 
that  subsequently  said  school  commissioner  refused  to  approve  the  said  site  for 
the  new  schoolhouse  for  the  reason  that  said  site  was  not  a  suitable  one;  that 
thereupon  the  said  special  meeting  of  October  2,  1894,  was  called  and  held  and 
at  said  meeting,  by  a  vote  of  23  in  favor  and  18  against,  a  new  schoolhouse  site 
was  designated,  located  on  the  Brandle  farm,  and  that  a  new  school  building  be 
erected  thereon  and  the  schools  held  in  the  North  Pole  and  Rock  View  houses 
respectively  be  discontinued  or  abandoned. 

The  exact  point  on  the  main  road  between  the  North  Pole  and  Rock  View 
schoolhouses,  at  which  the  new  school  site  is  situate,  does  not  appear  by  the 
proofs;  but  it  seems  to  be  situated  about  half  way  between  said  scho®lhouses. 
That  the  children  who  attended  the  school  at  North  Pole  and  Rock  View 
respectively,  will  be  required  to  travel  about  one-third  of  a  mile  farther  to  attend 
the  school  to  be  maintained  upon  the  new  site  designated. 

In  the  rural  school  district  some  of  the  children  must  be  farther  from  the 
schoolhouse  than  others,  and  be  inconvenienced  by  the  longer  distance  which  they 
are  obliged  to  travel.  It  must  be  assumed  that  the  majority  of  the  legal  voters 
assembled  in  a  school  meeting  will  locate  the  school  site  at  a  point  which,  in  their 
judgment,  is  best  calculated  to  promote  the  convenience  of  the  greater  number 
of'ihe  children  of  the  district  attending  the  school.  Before  this  Department  will 
be  justified  in  overturning  the  action  of  the  majority  it  must  have  clear  proof  to 
the  contrary,  and  there  is  no  such  clearness  of  proof  in  this  appeal. 


964  THE  UNIVERSITY   OF  THE   STATE   OF   NEW   YORK 

The  appellants  allege  in  their  appeal  that  on  account  of  none  of  the  inhab- 
itants of  Knapp's  Creek  village  being  residents  of  the  territory  in  which  the  chil- 
dren will  attend  the  proposed  new  school,  but  attending  the  school  in  Knapp's 
Creek,  that  such  inhabitants  are  not  interested  in  the  state  of  the  proposed  new 
school,  and  that  at  said  special  meeting  fourteen  persons,  residents  of  Knapp's 
Creek,  attended  and  voted.  It  is  clear  that  all  qualified  voters  of  said  school  dis- 
trict no.  4,  town  of  Allegany,  Cattaraugus  county,  no  matter  in  what  portion  of 
the  said  district  they  resided,  or  at  which  one  of  the  schools  maintained  in  the 
district  their  children  attended,  had  the  right,  under  the  school  law,  to  attend  any 
and  all  meetings  of  said  district,  and  to  vote  upon  all  questions  brought  before 
said  meeting. 

The  appellants  herein  have  failed  in  establishing  that  any  improper  means 
were  used  by  the  respondents,  or  any  one,  to  induce  the  voters  of  said  district  to 
attend  such  special  meeting,  or  in  voting  at  said  meeting. 

On  petition  of  the  appellants  herein  I  made  an  order,  dated  October  2'],  1894, 
staying  all  proceedings  on  the  part  of  the  trustees  of  said  school  district  no.  11 
and  of  each  of  them,  under  and  pursuant  to  the  proceedings  of  said  special  meet- 
ing of  October  2,  1894,  until  the  hearing  and  decision  of  the  appeal  herein,  or 
until  a  further  order  should  be  made  by  me  in  this  appeal. 

The  appeal  herein  should  be  dismissed. 

It  is  ordered.  That  the  appeal  herein  be,  and  the  same  hereby  is  dismissed. 

It  is  further  ordered.  That  said  order  made  by  me  herein  on  said  October 
27,  1894,  staying  all  proceedings  on  the  part  of  the  trustees  of  said  school  district 
no.  II,  and  of  each  of  them,  under  and  pursuant  to  the  proceedings  of  said 
special  meeting  of  October  2,  1894,  be,  and  the  same  hereby  is,  vacated  and 
set  aside. 


4915 

In  the  matter  of  the  appeal  of  board  of  education  of  union  school  district  no.  5, 
Southold,  Suffolk  county,  from  proceedings  of  spc>cial  meeting  held  October 
22,  1900,  in  said  district. 

A  special  school  meeting  held  in  a  union  school  district  whose  limits  do  not  correspond  to 
those  of  an  incorporated  village  or  city,  pursuant  to  a  notice  issued  by  the  board  of 
education,  which  was  published  in  the  only  newspaper  published  in  the  district,  for  two 
weeks  only  was  not  a  legally  called  meeting  under  the  provisions  of  the  Consolidated 
School  Law  of  1894.  Said  school  law  requires  that  in  the  designation  of  a  site  or  sites 
for  school  purposes,  at  a  meeting  in  a  union  school  district,  such  designation  must  be 
by  wnttcn  resolution  containing  a  description  thereof  by  metes  and  bounds,  and  such 
resolution  must  receive  the  assent  of  a  majority  of  the  qualified  voters  present  and 
voting  at  such  meeting,  to  be  ascertained  by  taking  and  recording  the  ayes  and  noes, 
thatis  the  clerk  of  the  meeting  should  record  the  name  of  each  person  whose  vote  is 
received  on  such  resolution  and  set  opposite  to  each  name  whether  such  person  voted 
aye  or  no.  *^ 

Decided  December  19,  1900 


JUDICIAL  decisions:     sites  965 

Skinner,  Superintendent 

This  is  an  appeal  by  the  board  of  education  of  union  school  district  5, 
Southold,  Suffolk  county,  from  the  proceedings  of  a  special  meeting  held  in  said 
school  district  on  October  22,  1900.  The  clerk  of  the  district  acknowledged  in 
writing  upon  the  appeal  that  a  copy  thereof  was  served  upon  him  on  November 
12,  1900.  On  November  17,  1900,  there  was  filed  in  this  Department  an  affidavit 
of  Joseph  W.  Hallock,  the  printer  and  publisher  of  the  Long  Island  Traveler, 
which  paper  is  published  in  said  school  district  5,  Southold,  Suffolk  county,  of  a 
notice  of  a  special  meeting  called  by  the  board  of  education  of  such  district,  to  be 
held  in  the  schoolhouse  on  Main  street,  in  the  village  of  Southold,  October  22, 
1900,  for  the  purpose  of  determining  whether  such  district  should  purchase  either 
of  the  two  parcels  of  land  named  therein  for  a  school  site,  or  purchase  a  parcel 
of  land  of  one  acre,  described  therein,  adjoining  the  present  school  site,  for  the 
enlarging  of  such  present  site;  and  that  such  notice  was  published  in  said  paper 
once  in  each  week  for  two  successive  weeks,  the  first  publication  being  made 
October  12,  1900.  On  said  November  17,  1900,  there  was  also  filed  in  this 
Department  a  copy  of  the  proceedings  taken  at  such  special  meeting  held  in  said 
district  October  22,  1900,  verified  by  the  affidavit  of  W.  Y.  Fithian,  clerk  of  the 
district. 

The  grounds  alleged  by  the  appellants  for  bringing  their  appeal  are  that 
such  meeting  was  not  duly  and  legally  called,  and  that  the  vote  upon  the  resolu- 
tion to  designate  a  new  schoolhouse  site  was  not  ascertained  by  taking  and  record- 
ing the  ayes  and  noes  of  the  persons  present  and  voting  thereon. 

No  answer  has  been  filed  in  this  Department  to  such  appeal,  and  under  the 
uniform  rulings  of  this  Department  the  material  allegations  contained  in  the 
appeal  are  deemed  admitted. 

It  appears  that  October  22,  1900,  a  large  number  of  the  inhabitants  of  such 
school  district  assembled  at  the  school  building  therein,  and  such  meeting  was 
called  to  order  by  the  president  of  the  board  of  education,  and  a  chairman  of  the 
meeting  was  elected.  District  Clerk  Fithian  acting  as  clerk,  and  two  persons  were 
appointed  inspectors  of  election;  a  written  resolution  was  offered  for  action  by 
the  meeting  that  the  Oak  Lawn  avenue  lot,  being  one  of  the  parcels  of  land  men- 
tioned in  the  call  for  the  special  meeting  published  in  the  Long  Island  Traveler, 
be  chosen  for  the  new  school  site  of  the  district.  The  chairman  decided  that  the 
vote  upon  such  resolution  must  be  by  ballot,  such  ballot  to  have  written  thereon 
by  the  voters  the  words  "  yes  "  or  "  no."  A  ballot  was  thereupon  taken  upon 
such  resolution,  which  resulted  in  167  votes  being  cast,  of  which  89  were  in  favor 
of  the  Oak  Lawn  avenue  lot  and  78  votes  against  said  lot.  The  chairman  declared 
that  such  lot  having  received  a  majority  of  all  the  votes  cast,  such  lot  had  been 
chosen  for  the  new  schoolhouse  site. 

Section  10,  article  2,  title  8  of  the  Consolidated  School  Law  of  1894,  as 
amended  by  section  15  of  chapter  264  of  the  Laws  of  1896,  provides  that  a 
majority  of  the  voters  of  any  union  school  district,  other  than  those  whose  limits 
correspond  to  those  of  an  incorporated  village  or  city,  present  at  any  annual  or 


966  THE   UNIVERSITY   OF  THE   STATE   OF   NEW   YORK 

Special  district  meeting,  duly  convened,  may  authorize  such  acts  and  vote  such 
taxes  as  they  shall  deem  expedient  ...  or  for  the  purchase  of  other  sites 
or  structures,  or  for  a  change  of  sites  .  .  .  ;  but  no  addition  to  or  change 
of  site  or  purchase  of  a  ueic  site,  or  tax  for  the  purchase  of  any  new  site  or  struc- 
ture,   or   for    the    purchase    of   an    addition   to    the   site    of    any   schoolhouse 

.  .  ,  shall  be  voted  at  any  such  meeting  unless  a  notice  by  the  board  of 
education,  stating  the  object  thereof,  shall  have  been  published  once  in  each  zveek 
for  four  xvceks  next  preceding  such  district  meeting,  in  two  newspapers,  if  there 
shall  be  tzvo,  or  in  one  nen'spaper,  if  there  shall  be  but  one,  published  in  such 
ilistrict. 

Such  section  also  provides  that  the  designation  of  a  site  or  sites  by  the  dis- 
trict meeting  shall  be  by  a  written  resolution  containi}ig  a  description  thereof  by 
metes  and  bounds,  and  such  resolution  must  receive  the  assent  of  a  majority  of 
the  qualified  voters  present  and  voting  at  said  meeting,  to  be  ascertained  by  tak- 
ing and  recording  the  ayes  and  noes. 

This  Department  has  uniformly  ruled  that  the  provisions  of  the  school  law 
requiring  that  a  vote  taken  at  a  school  meeting  shall  be  "  ascertained  by  taking 
and  recording  the  ayes  and  noes  of  the  qualified  voters  present  and  voting," 
means  that  the  clerk  of  the  meeting  shall  record  the  name  of  each  person  whose 
vote  is  received,  and  set  opposite  to  each  name  whether  such  person  votes  aye 
or  no. 

Under  the  provisions  contained  in  section  10  of  article  2,  title  8  of  the  Con- 
solidated School  Law  of  1894,  as  amended  by  section  15  of  chapter  264  of  the 
Laws  of  1896,  it  is  clear  that  the  meeting  held  in  union  school  district  5,  Southold, 
Suffolk  county,  October  22,  1900,  was  not  a  legal  meeting,  for  the  reason  that  the 
notice  of  such  meeting  was  not  given  in  the  manner  required  by  said  section  10, 
above  cited. 

The  notice  of  such  meeting  should  have  been  published  in  tzvo  newspapers, 
if  there  were  two,  or  in  one  newspaper  if  there  was  but  one  published  in  the  dis- 
trict, once  in  each  zveek  for  the  four  weeks  preceding  such  district  meeting,  and 
the  first  publication  should  have  been  made  full  four  weeks,  that  is,  28  days,  pre- 
ceding such  meeting.  This  Department  has  uniformly  advised  that  under  section 
10  the  safer  course  is  the  insertion  of  such  notice  once  in  each  week  for  five 
weeks,  that  is,  five  insertions. 

Assuming,  for  the  purpose  of  argument  only,  that  legal  notice  was  given  of 
the  special  meeting  held  October  22,  1900,  the  Oak  Lawn  avenue  lot  was  not 
legally  designated  as  a  new  school  site  for  the  district,  for  the  reason  that  a  writ- 
ten resolution  containing  a  description  of  such  new  site  by  metes  and  bounds 
was  not  presented  to  or  acted  upon  by  such  meeting,  and  for  the  further  reason 
that  the  vote  taken  at  such  meeting,  relating  to  the  desigation  of  a  new  site,  was 
not  ascertained  by  taking  and  recording  the  ayes  and  noes  of  the  qualified  voters 
attending  and  voting  thereon. 

The  appeal  herein  is  sustained. 


JUDICIAL  decisions:     sites  967 

It  is  ordered  that  the  special  meeting  held  October  22,  1900,  in  union  school 
district  5,  Southold,  Suffolk  county,  be,  and  the  same  is  hereby,  vacated  and 
set  aside. 


3974 

In  the  matter  of  the  appeal  of  Fayette  Balcom  v.  the  trustees  of  school  district 
no.  II,  towns  of  Caneadea  and  Rushford,  county  of  Allegany. 

The  trustees  of  a  school  district  proceeded,  under  the  provisions  of  chapter  800  of  the 
Laws  of  1866,  to  take  proceedings  to  acquire  title  to  certain  land  for  a  school  site. 
Appeal  is  taken  from  the  trustee's  action. 

The  district  has  acquired  title  to  the  site.  Held,  that  the  matter  is  one  over  which  this 
Department  has  no  jurisdiction.    Relief  must  be  sought  before  the  courts. 

Decided  April  21,  1891 

Draper,  Superintendent 

This  is  an  appeal  from  the  action  of  the  trustees  of  school  district  no.  11, 
towns  of  Caneadea  and  Rushford,  county  of  Allegany,  in  proceeding  to  acquire 
title  to  certain  lands  for  a  school  site,  which  proceedings  were  instituted  under  the 
provisions  of  chapter  800  of  the  Laws  of  1866. 

From  the  an'swer  of  the  respondents,  it  appears  that  the  proceedings  have 
been  carried  so  far  that  the  district  had,  at  the  time  the  appeal  was  brought, 
acquired  title  to  the  land  to  which  the  appeal  refers.  This  proceeding  which  has 
been  instituted  by  the  respondents,  is  a  matter  before  the  courts,  over  which  the 
courts  have  exclusive  jurisdiction,  and  this  Department  has  none.  Whatever 
relief  the  appellant  may  consider  himself  entitled  to,  must  be  sought  for  before 
the  proper  tribunal. 

I  therefore  dismiss  the  appeal. 


3798 

In  the  matter  of  the  appeal  of  James  D.  Smith  v.  school  district  no.  8,  of  the 
town  of  Martinsburgh,  county  of  Lewis. 

Proceedings  of  a  district  meeting  designating  a  new  site,  directing  removal  of  the  old 
schoolhouse  thereto,  and  that  the  same  be  repaired,  will  not  be  disturbed,  although 
there  was  some  confusion  at  the  meeting,  particularly  so  in  view  of  the  fact  that  the 
site  has  been  secured  and  paid  for,  the  house  removed  and  repaired,  before  action 
was  commenced. 

Decided  July  29,  1889 

Draper,  Superintendent 

This  is  an  appeal  from  the  action  of  a  district  meeting  in  the  above-named 
'district,  held  on  the  ist  day  of  July  1889,  designating  a  new  site,  directing  that 


968  THE  UNIVERSITY   OF  THE   STATE   OF   NEW   YORK 

the  old  schoolhousc  be  removed  to  it  and  repaired,  and  that  an  addition  to  the 
same  should  be  erected  to  cost  not  to  exceed  $750. 

While  it  is  ai)i)arent  that  there  was  some  confusion  at  the  meeting  and  that 
some  of  the  proceedings  complained  of  were  hasty,  if  not  precipitated,  I  fail, 
nevertheless,  to  discover  any  sufficient  ground  for  setting  aside  the  action  com- 
plained of.  Particularly  so,  in  view  of  the  fact  that  the  new  site  has  already 
been  purchased  and  paid  for,  and  the  building  removed  to  it. 

The  appeal  is  dismissed. 


3852 

In  the  matter  of  the  appeal  of  Franklin  D.  Rice  v.  school  district  no.  8,  of  the 
town  of  Homer,  in  the  county  of  Cortland. 

Selection  of  a  site  for  schoolhouse  by  a  district  meeting  will  not  be  disturbed  unless  it  can 
be  conclusively  shown  that  the  proceedings  therefor  were  irregular,  and  not  in  con- 
formity to  the  statute,  or  that  the  action  was  ill  advised,  and  not  for  the  educational  in- 
terests of  the  district. 

Decided  January  8,  1890 

Franklin  Pierce,  attorney  for  appellant 
William  I^.  Tuttle,  attorney  for  respondent 

Draper,  Superintendent 

This  is  an  appeal  from  the  action  of  a  special  meeting  in  the  district  above 
named,  held  on  the  ist  day  of  October  1889,  in  selecting  a  new  site  for  a  school- 
house. 

The  papers  are  voluininous,  and  I  have  read  them  with  care.  There  are  two 
questions  to  be  considered.  First,  whether  the  action  taken  was  regularly  taken, 
and  in  the  manner  directed  by  the  statute ;  and,  second,  whether  the  action  taken 
was  manifestly  against  the  educational  interests  of  the  district.  I  find  no  allega- 
tion against  the  regularity  of  the  special  meeting.  Such  action  seems  to  have 
been  taken  with  deliberation,  and  all  the  requirements  of  the  law  seem  to  have 
been  complied  with.  This  being  so,  it  is  to  be  upheld,  unless  it  is  clearly  shown 
to  be  against  the  educational  interests  of  the  district.  The  papers  show  great  dif- 
ferences of  opinion  concerning  the  propriety  of  taking  the  site  which  the  trus- 
tee was  directed  to  purchase.  Strong  affidavits  are  not  lacking  on  either  side. 
The  burden  of  proof  is  upon  the  appellant ;  it  is  for  him  to  show  by  overwhelming 
evidence,  if  he  can,  that  the  site  is  not  suitable  for  school  purposes.  This  he  fails 
to  do.  in  view  of  the  statements  of  the  opposition.  If  persons  failed  to  attend 
the  meeting,  that  was  their  own  fault.  The  deliberate  determination  of  a  dis- 
trict meeting  must  be  upheld,  unless  it  appears  very  clearly  that  it  was  ill  advised. 
The  State  Superintendent,  at  a  distance  from  the  scene  of  controversy,  and  with- 
out behig  able  to  personally  inspect  the  site,  is  not  justified  in  overruling  the 
determination  of  a  district  meeting  unless  the  proof  is  clear  and  strong,  that  he 


JUDICIAL  decisions:     sites  969 

should  do  so  in  order  to  save  the  district  from  a  great  error.  The  proofs  in  this 
case  do  not  satisfy  me  that  it  is  my  duty  to  intervene. 

I  observe  that  the  point  is  made  in  the  papers  that  the  trustee  has  purchased 
the  new  site  of  his  own  father.  I  know  of  no  legal  reason  why  he  could  not  do 
this,  and  in  view  of  the  fact  that  he  followed  the  specific  directions  of  the  dis- 
trict meeting  as  to  the  site  and  price,  I  fail  to  see  any  other  reason  why  his  act 
should  be  set  aside  because  of  that  relationship. 

The  appeal  is  dismissed. 


3668 

In  the  matter  of  the  appeal  of  George  Bielby,  W.  H.  Hamlin  and  others  v.  school 
district  no.  25,   town  of   Sanford,   Broome  county. 

The  inconvenience  of  a  few  families  when  a  large  majority  of  the  district  are  suited  with 
the  school  site  selected,  not  a  sufficient  cause  for  reversing  the  action  of  a  district 
meeting  in  designating  such  site. 

Decided  February  21,  1888 

C.  T.  Alverson,  attorney  for  appellants 
John  Swart,  attorney  for  respondents 

Draper,  Superintendent 

This  is  an  appeal  from  the  action  of  a  special  meeting  held  December  9, 
1887,  in  school  district  no.  25,  town  of  Sanford,  Broome  county,  changing  a 
site  to  a  location  about  200  rods  south  of  the  old  schoolhouse,  and  providing 
for  the  erection  of  a  new  schoolhouse.  It  is  conceded  by  the  appellants  that 
a  new  schoolhouse  is  necessary,  but  they  object  to  the  change  in  location.  It 
is  not  claimed  that  there  has  been  any  irregularity  in  the  proceedings  which 
would  invalidate  them,  nor  is  it  said  that  the  proposed  new  site  is  unsuitable 
for  school  purposes.  It  is  urged  that  the  proposed  eite  is  farther  from  the 
center  of  the  district  than  the  old  one,  and  that  the  change  will  work  very  much 
to  the  disadvantage  of  some  residents  living  in  the  north  part  of  the  district. 
From  a  careful  reading  of  the  papers,  I  conclude  that  the  change  will  con- 
venience the  greater  number  of  the  residents  of  the  district,  but  that  it  will 
seriously  inconvenience  a  few  families.  It  not  infrequently  happens  in  such 
matters  that  a  few  are  made  to  suffer  in  order  that  the  many  may  be  suited. 
It  can  not  be  otherwise.  It  would  seem  as  though  two  or  three  families  who 
are  farthest  from  the  new  site,  might  with  propriety  and  advantage  to  them 
be  set  off  into  an  adjoining  district,  and  thereby  be  brought  nearer  to  a  school- 
house.  In  any  event,  no  sufficient  reason  is  shown  to  justify  me  in  overruling 
the  action  of  the  district  meeting. 
.-^     The  appeal  is  dismissed. 


970 


THE  UNIVERSITY    OF  THE   STATE   OF   NEW   YORK 


3648 


In  the  matter  of  the  appeal  of  W.  S.  Hinman  and  others  from  the  proceedings 
of  certain  district  meetings  held  in  school  district  no.  9,  town  of  Vernon, 
county  of  Oneida,  at  which  a  change  of  site  was  voted. 

The  action  of  a  majority  of  a  district  meeting  in  changing  a  site  will  not  be  set  aside  when 
all  the  requirements  of  the  law  have  been  complied  with  because  it  is  alleged  by  ap- 
pellants that  the  location  decided  upon  is  unhealthy,  unless  that  fact  is  clearly  shown. 

The  fact  that  persons  qualified  to  vote  were  not  aware  of  their  rights  and  did  not  vote  upon 
the  question,  is  no  sufficient  reason  for  setting  aside  the  action  of  a  school  meeting. 

Decided  December  9,  1887 

Lynott  B.  Root,  Esq.,  attorney  for  appellant 

Draper,  Stit>erintendent 

This  proceeding  is  an  appeal  to  set  aside  the  action  of  a  series  of  district 
meetings  held  in  district  no.  9,  town  of  Vernon,  county  of  Oneida,  at  which  the 
subject  of  repairing  the  old  schoolhouse,  building  a  new  schoolhouse,  and  chang- 
ing the  schoolhouse  site  was  fully  considered,  and  it  was  decided  to  build  a  new 
schoolhouse  upon  a  new  site.  It  appears  that  at  the  time  the  appeal  was  taken, 
the  new  site  had  been  acquired,  and  contracts  entered  into  for  the  building  of 
a  schoolhouse,  and  that  the  supervisor  of  the  town  had  consented  to  the  change, 
and  the  statute  respecting  a  change  of  site  seems  to  have  been  fully  complied 
with. 

The  only  ground  for  considering  the  appeal  is,  that  the  new  site  is  not  cen- 
trally located  and  is  an  unhealthy  one.  I  do  not  propose  to  go  into  the  question 
of  the  sufficiency  of  notice  of  the  meetings,  or  the  fact  that  some  women  who 
were  eligible  to  vote  were  not  aware  of  their  rights  in  the  premises. 

The  questions  of  building  a  new  schoolhouse  and  changing  the  site  were 
discussed  and  considered,  in  one  aspect  or  another,  at  several  successive  meetings, 
and  every  voter  of  the  district  must  have  been  fully  aware  of  the  question 
agitating  the  district.  At  each  meeting  it  was  manifested  that  a  majority  favored 
both  propositions. 

Upon  the  question  of  healthfulness  of  the  site  and  suitable  location,  the 
burthen  of  proving  the  contrary  is  upon  the  appellants.  This  they  do  not  do, 
to  my  mind,  and  I  am  therefore  obliged  to  overrule  the  appeal. 


3745 

In  the  matter  of  the  appeal  of  Cornelius  O'Neill  from  the  proceedings  of  a 
district  meeting  held  November  7,  1888,  in  district  no.  8,  town  of  Massena, 
county  of  St  Lawrence. 

A  district  meeting  must  decide  a  proposed  site  for  a  school  lot  definitely. 

The  designation  must  be  such  as  will  enable  a  trustee  to  know  precisely  what  land  he  is  to 

purchase. 
Decided  January  5,  1889 


JUDICIAL  decisions:     sites  971 

Draper,  Superintendent 

This  appeal  is  taken  by  a  taxable  inhabitant  of  district  no.  8,  town  of 
Massena,  county  of  St  Lawrence,  from  the  proceedings  of  a  district  meeting 
held  in  said  district  on  November  7,  1888,  by  which  a  new  site  was  designated. 

The  ground  alleged  for  the  appeal  is,  that  the  designation  was  too  vague 
and  indefinite.  There  are  many  other  allegations,  such  as  that  the  trustee  of 
the  district  is  ineligible  to  hold  the  office  of  trustee;  that  proper  notice  of  the 
district  meeting  had  not  been  given;  that  the  location  of  the  proposed  site  is 
near  a  site  formerly  selected,  and  which,  on  a  former  appeal  by  the  appellant 
herein,  the  Department  decided  against;  that  the  location  of  the  proposed  site 
is  unsuitable  and,  at  times,  inaccessible. 

Upon  an  examination  of  the  proofs  submitted,  I  find  it  to  be  conceded 
that  the  resolution  designating  the  site  was  in  these  words :  "  That  piece  or 
parcel  of  ground  (five  rods  one  way,  and  eight  rods  the  other)  situated  on  the 
southeast  corner  of  the  Patrick  Smith  farm,  bounded  as  follows :  on  the  west 
by  the  new  highway,  on  the  north  and  east  by  the  Patrick  Smith  farm,  and  on 
the  south  by  the  Joseph  Hall  farm." 

I  am  constrained  to  hold  that  the  above  description  of  a  lot  of  land  to  be 
purchased  for  a  site  is  fatally  defective.  There  must  be  ^uch  a  designation  by 
the  meeting  as  will  enable  the  trustee  to  know  precisely  what  land  he  is  to 
purchase.  By  the  above  description,  a  lot  five  rods  front  and  eight  rods  deep, 
or  eight  rods  wide  and  five  rods  deep  would  answer  the  designation.  This 
would  leave  it  to  the  trustee  to  determine  just  what  the  site  should  be,  a  duty  the 
district  meeting  must  determine. 

In  sustaining  so  much  of  the  appeal,  I  do  so  with  no  intention  of  criticising 
the  site  selected;  in  fact,  I  am  led  to  believe  that  it  is  a  suitable  selection  and 
very  centrally  located.  In  a  former  decision,  I  did  not  intend  it  to  be  under- 
stood as  disapproving  of  the  site  then  selected.  That  appeal  was,  and  this 
appeal  is,  sustained  simply  upon  irregularities  in  the  proceedings  of  the  district 
meetings.  There  is  no  proof  before  me  that  the  trustee  is  not  a  legal  voter  in 
the  district. 

It  appears  that  the  meeting  was  well  attended,  and  that  notice  had  been 
given  as  a  previous  annual  meeting  had  directed  notice  to  be  given. 

As  to  all  other  allegations  of  the  appeal  but  that  of  the  defective  description, 
the  appeal  is  dismissed,  and  sustained  upon  that  ground  alone. 

A  district  meeting  should  be  held  to  designate  a  site,  either  the  one  now  or 
formerly  proposed,  or  a  new  site,  as  a  majority  may  prefer. 


4001 

In  the  matter  of  the  appeal  of  John   Wangelin  and  others  v.   school   district 
no.  2,  of  the  town  of  Colden,  in  the  county  of  Erie. 

Proceedings   of  a   school   district  meeting  changing  a  site   for  a  schoolhouse,   which  were 
sustained  by  a  bare  majority,  some  of  those  voting  with  the  majority  bei  g  illegal  or 


972  THE  UNIVERSITY   OF  THE   STATE   OF   NEW   YORK 

questionable  voters,  set  asidf,  when  it  is  shown  thai  at  several  successive  meetings  held 

within  the  period  of  six  months  previous,  the  proposition  had  been  voted  down. 
When  the  iiueslion  of  a  change  of  site  is  in  doubt,  held,  that  it  would  be  better  to  retain 

the  old  site  until  the  doubts  are  removed  and  a  clear  majority  of  the  electors  favor  a 

change. 
Decided  September  15,  i8yi 

G.  M.  Addington,  Esq.,  attorney  for  the  appellants 
David  J.  Wilcox,  Esq.,  attorney  for  tlie  respondents 

Draper,  Suf'crintendent 

This  is  an  appeal  from  the  action  of  a  special  district  meeting,  held  in  the 
district  above  named  on  the  26th  of  June  1891,  in  voting  to  change  the  site  of 
the  district  schoolhouse.  It  appears  that  meetings  were  held  at  the  schoolhouse 
in  said  district,  on  the  10th  day  of  January  1891,  on  the  24th  day  of  January 
1891,  on  the  2ist  day  of  March  1891,  at  each  of  which  meetings  the  proposition 
to  change  the  schoolhouse  site  was  voted  down.  A  fourth  meeting  for  the  same 
purjjose  was  held  on  the  15th  day  of  June  1891,  when  the  proposition  was 
defeated  through  the  adoption  of  a  motion  to  adjourn  sine  die.  Notwithstanding 
these  several  decisions  upon  the  proposition,  a  meeting  was  called  on  the  26th 
day  of  June  1891,  te  consider  the  same  matter.  This  last  meeting  was  not 
called  at  the  district  schoolhouse  but  at  an  uninhabited  house,  some  three- 
quarters  of  a  mile  distant  from  the  schoolhouse.  There  was  considerable  dis- 
order at  this  meeting.  The  vote  was  larger  than  upon  the  previous  occasions. 
It  is  clear  to  me  that  several  persons  voted  on  each  side,  who  were  not  qualified 
electors  in  the  district.  By  a  vote  of  27  to  25,  it  was  determined  to  change  the 
site. 

After  reading  all  the  papers  and  the  briefs  of  counsel  with  care,  I  have 
come  to  the  conclusion  that  the  proceedings  of  this  meeting  can  not  be  upheld. 
There  is  no  reason  in  calling  meetings  without  limit  to  consider  a  proposition 
which  has  been  repeatedly  voted  down,  and  particularly  so  when  it  is  not  made 
to  appear  that  the  proposition  had  been  repeatedly  voted  down  by  unfair  means, 
or  by  the  casting  of  illegal  votes.  It  is  clear  that  the  respondents  resorted  to 
most  unusual  and  questionable  means  to  carry  their  point.  From  such  examina- 
tion as  I  have  been  able  to  give  as  to  the  legal  right  of  the  persons  voting  on 
each  side  and  whose  right  to  vote  is  challenged,  I  am  of  the  opinion  that  there 
were  more  illegal  votes  cast  in  favor  of  the  proposition,  at  the  meeting  held  on 
June  26th,  than  against  it. 

Again,  a  schoolhouse  site  should  not  be  changed,  unless  after  full  considera- 
tion a  clear  majority  of  the  qualified  electors  in  the  district  are  in  favor  of  such 
change.  If  the  question  of  a  change  is  in  doubt,  it  had  better  remain  upon  the 
old  site  until  the  doubts  are  removed. 

The  appeal  is.  therefore,  sustained  and  the  special  meeting  in  the  district 
above  named,  held  June  26,  1891,  is  held  to  be  of  no  effect. 


JUDICIAL    DECISIONS  :       SITES  973 

3610 

In  the  matter  of  the  appeal  of  Charles  G.  Vandenburgh  v.  F.  J.   Farrington, 
supervisor  of  the  town  of  La  Fayette,  Onondaga  county. 

A  supervisor  refused  to  consent  to  a  change  of  site  for  a  schoolhouse,  and  the  trustee  and 

many  taxable  inhabitants  sustained  him. 
Held,  that  in  view  of  the  near  approach  to  the  annual  meeting  when  the  question  can  be 

considered,  and  a  trustee  chosen  who  will  reflect  the  sentiment  of  the  majority,  the 

supervisor  will  be  sustained. 
Decided  June  20,  1887 

Draper,  Superintendcn  t 

This  is  an  appeal  by  a  resident  and  taxpayer  of  school  district  no.  i  of 
the  town  of  La  Fayette,  Onondaga  county,  from  the  refusal  of  the  respondent 
to  consent  to  a  change  of  the  schoolhouse  site. 

The  appellant  alleges  that  at  a  district  meeting  held  in  said  district  the 
voters  present,  by  a  vote  of  41  for  to  25  against,  voted  to  change  the  site;  that 
the  present  site  is  not  sufficiently  large  to  accommodate  the  children  of  the  dis- 
trict, and  the  building  is  old  and  dilapidated;  that  the  site  belongs  only  in  part 
to  the  district ;  that  the  present  site  was  established  over  seventy  years  ago,  since 
which  time  the  district  has  been  so  altered  that  the  site  is  no  longer  geographi- 
cally centrally  located ;  that  the  new  site  is  eligible  and  will  better  accommodate 
a  majority  of  the  children  of  school  age. 

The  trustee  of  the  district  and  the  supervisor  file  separate  answers,  and 
allege  that  the  present  site  is  owned  by  the  district,  and  that  the  trustee  holds 
a  deed  for  the  same;  that  additional  land  adjoining  the  present  site  can  be  pro- 
cured for  a  small  amount  of  money;  that  extensive  repairs  have  recently  been 
made  upon  the  school  building  in  accordance  with  the  directions  of  a  district 
meeting  after  a  recommendation  so  to  do  by  a  committee  appointed  to  examine 
the  building  by  a  district  meeting;  that  the  new  site  is  low  and  would  require 
filling,  and  that,  in  consequence  of  a  deep  creek  crossed  by  a  small  bridge,  the 
school  building  could  not  be  moved  to  the  proposed  new  site. 

Ordinarily  I  should  sustain  the  action  of  the  district  meeting,  a  majority 
of  the  voters  and  taxable  inhabitants  being  present,  and  a  preponderance  of  the 
taxable  property  being  represented  by  the  owners  favoring  the  same,  but  finding 
tITe  trustee  and  the  supervisor  both  opposed,  together  with  a  large  number  of 
voters  and  taxpayers,  I  feel  constrained  to  overrule  the  appeal.  The  present 
site  has  met  the  requirements  of  the  district  for  over  seventy  years.  The  annual 
school  meeting  will  soon  be  held,  and  the  district  can  then  register  its  wishes 
by  the  selection  of  a  trustee  who  will  reflect  the  sentiment  of  the  people  upon 
this  subject,  if  the  present  incumbent  fails  to  do  so. 

The  appeal  is  dismissed. 


(jj^  THE  UNIVERSITY   OF  THE  STATE   OF   NEW   YORK 

3733 

In  the  matter  of  the  appeal  of  WilHam  Smith  v.  school  district  no.  i,  town  of 

Kort right,  county  of  Delaware. 
When  it  is  made  to  appear  that  a  site  selected  for  a  schoolhouse  is  not  advantageously 

situated,  the  action  of  a  district  meeting  in  selecting  such  site  will  not  be  upheld. 
Decided  November  21,  1888 

Draper,  Superintendent 

This  is  an  ai)peal  from  the  action  of  a  special  meeting  held  in  the  above- 
named  district  on  the  14th  day  of  September  1888,  changing  the  schoolhouse 
site.  There  is  no  question  raised  about  the  regularity  of  the  proceedings.  The 
vote  at  the  district  meeting  stood  23  to  22.  There  seems  to  be  much  feeling  in 
the  district  over  the  matter.  The  opinion  of  the  people  as  to  the  wisdom  of  the 
selection,  seems  to  be  divided  about  equally,  and  the  respective  parties  state  their 
views  very  strongly.  On  one  side,  it  is  insisted  that  the  proposed  site  is  near 
a  swamp  which  is  dangerous  to  health.  At  least  three  physicians  certify  to  this. 
On  the  other  side,  it  is  said  that  the  so-called  swamp  is  only  a  stream  of  whole- 
some water.  On  one  side  it  is  said  that  the  proposed  site  is  uneven  in  surface 
and  in  no  wise  suitable  for  school  purposes.  On  the  other,  it  is  said  that  the 
site  is  the  best  that  can  be  procured  in  the  village,  and  can  be  graded  at  small 
expense.  On  one  side  it  is  insisted  very  strenuously  that  the  proposed  site  is 
located  on  a  very  narrow  thoroughfare,  at  least  forty  rods  distant  from  the  main 
street,  that  this  passageway  is  not  more  than  fifteen  or  sixteen  feet  in  width 
and  that  teams  can  pass  only  with  difficulty,  and  that,  substantially,  all  the 
children  of  the  district  would  be  compelled  to  repass  through  this  narrow  road- 
way, at  great  danger  to  themselves.  The  other  side  admit  that  the  roadway 
leading  to  the  proposed  site  is  narrow,  but  deny  that  it  is  dangerous. 

From  a  very  careful  reading  of  all  the  papers  submitted,  as  well  as  from 
an  examination  of  a  map  of  the  district,  I  am  satisfied  that  if  the  schoolhouse 
should  be  located  upon  the  proposed  site,  it  will  be  a  matter  of  regret  hereafter. 
The  statements  of  the  parties  are  so  contradictory  that  I  can  not  determine 
with  any  confidence  all  of  the  facts  touching  the  proposed  site,  but  it  may  safely 
be  said  that  such  site  is  not  near  the  center  of  the  district,  nor  of  the  village 
of  Bloomville,  which  comprises  the  greater  part  of  the  district,  and  that  it  is 
not  upon  the  main  street  of  the  village,  in  a  place  of  sufficient  prominence  for 
such  a  building.  I  think  that  it  may  also  safely  be  said  that  the  narrowness  of 
the  passageway  from  the  main  street  to  the  proposed  site  is  such  as  to  render 
the  action  of  the  district  meeting  unadvisable. 

In  view  of  the  fact  that  the  old  schoolhouse  in  the  district  has  been  con- 
demned as  unsuitable  for  school  purposes,  it  is  important  that  the  electors  of  the 
district  should,  without  unreasonable  delay,  hold  another  special  meeting,  and 
agree  upon  a  site  which  will  be  convenient  and  above  criticism,  and  the  hope  is 
expressed  that  this  may  be  done  at  an  early  day  without  further  and  unseemly 
controversy. 

The  appeal  is  sustained  and  action  appealed  from  is  set  aside  and  declared 
to  be  null  and  void. 


JUDICIAL  decisions:     sites  975 

3721 

In  the  matter  of  the  appeal  of  Cornelius  O'Neill  v.  school  district  no.  8,  town 
of  Massena,  in  the  county  of  St  Lawrence. 

The  action  of  a  district  meeting  changing  a  schoolhouse  site,  can  not  be  sustained  unless 
the  record  of  the  meeting  shows  that  the  vote  to  change  was  ascertained  by  taking  and 
recording  the  ayes  and  noes,  and  that  the  change  was  approved  by  the  school  commis- 
sioners having  jurisdiction. 

Decided  October  25,  1888 

Draper,   Superintendent 

This  is  an  appeal  from  the  action  of  a  special  meeting  held  in  district  no. 
8  of  the  town  of  Massena,  in  the  county  of  St  Lawrence,  in  July  1888,  changing 
the  schoolhouse  site. 

The  papers  are  exceedingly  voluminous.  I  have  read  them  with  care.  The 
appellant  urges  that  the  notice  of  the  special  meeting  was  not  sufiiciently  broad 
to  justify  the  action  taken.  He  also  claims  that  the  notice  was  not  served  upon 
all  the  inhabitants;  he  claims  also  that  the  site  chosen  is  located  disadvantage- 
ously  to  the  greater  number  of  people  in  the  district,  upon  a  road  but  recently 
laid  out.  There  are  charges  of  illegal  votes  being  cast  upon  each  side  to  an 
extent  sufficient  to  have  affected  the  result.  I  deem  it  unnecessary  to  discuss 
here  all  the  phases  of  the  controversy  presented  by  the  respective  parties.  I 
certainly  can  not  undertake  to  determine  the  qualifications  of  all  the  electors 
whose  right  to  vote  is  called  in  question  by  one  party  or  the  other,  and  it  would 
be  necessary  to  do  that  in  order  to  uphold  the  action  of  the  meeting.  I  observe 
one  fact,  moreover,  which  seems  to  me  to  be  sufficient  alone  to  prevent  me  from 
sustaining  the  action  of  the  district  meeting.  The  law  provides  that  a  school- 
house  site  shall  not  be  changed  "  unless  a  majority  of  all  the  legal  voters  of  said 
district,  present  and  voting,  to  be  ascertained  by  taking  and  recording  the  ayes 
and  noes,  at  a  special  meeting  called  for  that  purpose,  shall  be  in  favor  of  such 
new  site."  The  record  of  the  special  meeting  does  not  show  that  the  ayes  and 
noes  were  recorded.  This,  of  itself,  would,  in  my  opinion,  be  fatal  to  the 
proceedings.  Moreover,  it  is  not  shown  that  the  change  has  been  officially  ap- 
proved by  the  school  commissioner  having  jurisdiction. 

In  view  of  these  considerations,  I  am  led  to  sustain  the  appeal. 


3677 

In  the  matter  of  the  appeal  of  Henry  M.  Choate  and  others  v.  William  Thayer, 
sole  trustee  of  district  no.  6,  town  of  Darien,  Genesee  county. 

At  a  district  meeting  upon  the  question  of  approving  of  the  trustee's  action  in  purchasing 
a  piece  of  land  for  enlarging  a  schoolhouse  site,  where  the  amount  paid  exceeded  the 
*"  \  sum  previously  authorized  for  the  purpose,  the  chairman  voted  in  the  affirmative,  when 
the  vote  was  discovered  to  be  a  tie,  and  the  chairman  then  assumed  and  exercised  the 
right  to  break  the  tie  and  declare  the  motion  adopted,  thereby  casting  two  votes  upon 
the  question. 


976  THE  UNIVERSITY    OF  THE  STATE   OF   NEW   YORK 

Held,  That  the  chairman  had  an  undoubted  right  to  cast  one  vote  at  the  time  the  question 
was  bcinn  cnnsificrtd,  but  his  subsequent  action  in  assuming  to  vote  again  to  break  a 
tie  vote  was  illegal. 

Decided  April  6.  1888 

Draper,  Superintendent 

At  the  annual  school  meeting  held  in  district  no.  6  of  the  town  of  Darien, 
Genesee  county,  in  August  1887,  the  trustee  was  instructed  to  purchase  a  certain 
piece  of  land  adjoining  the  school  site,  at  a  price  not  to  exceed  $25.  He  sub- 
sequently purchased  a  piece  of  land,  alleged  to  be  much  smaller  than  the  piece 
which  he  was  directed  to  purchase,  and  paid  therefor  the  sum  of  $50.  At  a 
special  district  meeting,  subsequently  held,  the  matter  was  considered.  Upon 
a  motion  to  approve  the  action  of  the  trustee,  two  persons  voted  in  the  affirma- 
tive, who,  it  is  alleged  by  the  appellants,  were  nonresidents  of  the  district.  The 
chairman  also  voted  in  the  affirmative.  The  result  of  the  voting  was  a  tie,  when 
the  chairman  assumed  and  exercised  the  right  to  dissolve  the  tie  by  again  voting 
for  the  proposition,  and  declared  it  adopted.  The  appellants  insist  that  the 
same  was  not  legally  adopted.  The  trustee  has  interposed  no  answer  to  the 
appeal,  and  I  am,  therefore,  obliged  to  assume  that  the  statements  set  forth  by 
the  api)e]lants  arc  true.  If  they  are  true,  the  action  of  the  meeting  can  not  be 
sustained,  nor  can  the  trustee  be  sustained  in  levying  and  collecting  a  tax  for 
the  payment  of  the  purchase  price  of  the  land  referred  to.  The  appeal  is  sus- 
tained and  the  trustee  is  perpetually  enjoined  from  proceeding  with  the  collection 
of  the  tax  for  the  purpose  mentioned,  until  there  shall  be  further  action  in  a 
district  meeting. 


3767 

In  the  matter  of  the  appeal  of  Henry  C.  Northam  and  Rufus  J.  Richardson  v. 
school  district  no.  2,  of  the  town  of  Lowville,  county  of  Lewis. 

Where  a  school  district  trustee  is  authorized  by  a  district  meeting  to  purchase  such  amount 
of  land  for  a  school  site,  as  he  may  see  fit,  and  to  pay  therefor  such  amount  of  money 
as  he  may  determine  to  be  proper;  held,  not  to  be  in  accordance  with  the  plan  and 
provisions  of  law,  and  such  action  is  void, 
for  a  schoolhouse  site,  it  is  fair  to  assume  that  such  action  is  not  so  contrary  to  the 

When  a  district  meeting,  by  a  strong  and  overwhelming  vote,  has  passed  upon  a  location 
interests  of  the  school  as  to  justify  the  Superintendent  in  interfering. 

The  language  of  the  statute  concernmg  the  levying  of  taxes  by  instalments,  for  the  con- 
struction of  schoolhouses.  is  somewhat  obscure.  The  purpose  of  the  statute  in  directing 
how  the  vote  shall  be  taken  and  recorded  in  cases  where  the  amount  to  be  raised,  at 
different  and  remote  times,  was  for  the  purpose  of  establishing  a  record  which  would 
sustain  the  validity  of  bonds  issued  pursuant  thereto,  and  for  the  protection  of  pur- 
chasers of  such  securities. 

A  vote  taken  that  the  amount  authorized  for  building  purposes  should  be  levied  in  two 
instalments,  six  months  apart,  was  clearly  to  avoid  the  issuance  of  bonds  and  to  raise 
the  money  as  fast  and  only  as  fast  as  it  should  be  needed  for  the  purpose. 

Decided  March  18,  1889 


JUDICIAL    DECISIONS  :       SITES  9/7 

Draper,  Superintendent 

The  annual  school  meeting  in  the  above-named  district  held  on  the  28th 
day  of  August  1888,  considered  the  advisability  of  providing  additional  school 
accommodations  in  the  district,  and,  without  reaching  any  definite  conclusion, 
adjourned  from  time  to  time  for  the  further  consideration  of  the  subject.  At 
an  adjourned  meeting  held  on  the  loth  day  of  January  1889,  it  was  determined 
to  erect  an  addition  in  the  rear  of  the  present  building.  The  trustee  was  also 
authorized  to  purchase  additional  land.  The  vote  to  this  effect  w^as  63  in  the 
affirmative  and  6  in  the  negative.  It  was  taken  by  requesting  persons  voting 
on  each  side  to  rise  and  be  counted,  and  no  record  was  made  of  the  names  of 
persons  voting  for  and  against  the  proposition.  It  was  then  moved  that  the 
trustee  levy  a  tax  of  $7500,  or  so  much  thereof  as  might  be  necessary  to  pay 
for  such  addition,  and  that  the  same  be  levied  in  two  instalments,  six  months 
apart,  the  first  one  of  which  should  be  levied  at  the  discretion  of  the  trustee. 
This  motion  was  adopted  unanimously,  the  record  showing  that  50  persons  voted 
in  favor  thereof. 

The  appellants  are  opposed  to  this  action,  and  raise  the  following  objections: 

1  That  the  action  of  the  meeting  does  not  clearly  indicate  or  describe  the 
additional  land  which  was  to  be  purchased,  the  metes  and  bounds  thereof  not 
being  set  forth. 

2  That  the  land  in  the  rear  of  the  present  schoolhouse  is  not  suitable  for 
such  an  addition  to  the  building. 

3  That  the  power  to  purchase  an  addition  to  a  schoolhouse  site  can  not 
be  delegated  to  a  trustee. 

4  That  the  action  does  not  instruct  or  limit  the  trustee  as  to  the  amount 
of  money  which  should  be  expended  for  additional  land,  and  the  amount  which 
might  be  expended  for  extending  the  building. 

5  That  the  vote  directing  that  the  $7500  should  be  levied  in  two  instalments 
is  inoperative,  because  of  the  provisions  of  section  19  of  title  7  of  the  Consoli- 
dated School  Act,  which  requires  that  whenever  money  is  raised  for  a  new 
schoolhouse,  by  instalments,  the  vote  authorizing  the  levying  of  the  tax  shall 
be  ascertained  by  taking  and  recording  the  ayes  and  noes  of  the  inhabitants  at- 
tending and  voting  at  the  meeting. 

The  question  most  discussed  by  the  respective  parties  is  covered  by  the  fifth 
objection  of  the  appellants,  as  above  set  forth.  The  language  of  the  statute 
concerning  the  levying  of  taxes  for  schoolhouses  by  instalments,  is  somewhat 
obscure.  The  respondents  contend  that  the  statute  only  requires  that  the  vote 
shall  be  taken  by  recording  the  ayes  and  noes,  in  cases  where  the  whole  amount 
to  be  raised  is  ordered  to  be  levied  in  separate  instalments,  and  bonds  are  issued. 
I  am  inclined  to  think  that  the  purpose  of  the  statute,  in  directing  how  the  vote 
shall  be  taken  and  recorded,  in  cases  where  the  amount  to  be  raised  is  to  be 
levied  at  different  and  remote  times,  was  for  the  purpose  of  establishing  a  record 
""which  would  sustain  the  validity  of  bonds  issued  pursuant  thereto  and  for  the 
protection  of  the  purchasers  of  such  securities,  and  to  adopt  the  reasoning  of 


978  THE  UXIVERSITY   OF  THE   STATE   OF   NEW  YORK 

the  respondents,  and  hold  that  the  purpose  of  the  meeting  in  the  present  case, 
in  directing  that  the  amount  authorized  should  be  levied  in  two  instalments,  six 
months  apart,  was  clearly  to  avoid  the  issuance  of  bonds  and  to  raise  the  money 
as  fast,  and  only  as  fast,  as  the  trustees  should  need  the  same  for  use. 

It  is  clear  to  me,  however,  that  the  trustee  has  no  power  to  purchase  ad- 
ditional land.  The  statutes  which  authorize  school  meetings  to  designate  sites 
or  additions  thereto,  and  to  levy  taxes  for  the  purchase  thereof,  do  not  permit 
such  meetings  to  delegate  any  portion  of  their  authority  in  that  connection.  It 
has  been  repeatedly  held  by  this  Department,  through  a  great  many  years,  that 
the  resolution  of  the  district  meeting  must  clearly  describe  by  metes  and  bounds 
the  land  authorized  to  be  purchased,  and  must  name  the  amount  authorized  to 
be  paid  therefor,  before  the  purchase  can  be  consummated,  and  before  a  valid 
tax  can  be  levied.  In  the  present  case,  the  action  of  the  district  meeting  is  most 
indefinite  and  general.  No  certain  or  specific  directions  are  given  to  the  trustee. 
It  is  left  to  him  to  purchase  such  amount  of  land  as  he  may  see  fit,  and  to  pay 
therefor  such  amount  of  money  as  he  may  determine  to  be  proper.  This  is  not 
in  accordance  with  the  plan  and  provisions  of  the  law,  and  such  action  is  void. 

I  do  hot  deem  it  necessary  to  go  into  the  question  as  to  whether  it  is  ad- 
visable to  purchase  land  adjacent  to  the  present  schoolhouse  and  to  erect  an 
addition  thereupon,  or  to  purchase  a  site  elsewhere  and  erect  a  new  school  build- 
ing. The  vote  being  as  strong  and  overwhelming  upon  that  question  as  it  was, 
it  is  fair  to  assume  that  the  former  course  is  not  so  contrary  to  the  interests  of 
the  school  as  to  justify  the  Superintendent  in  interfering.  It  is  shown  that  there 
is  room  upon  land  now  owned  by  the  district  and  in  the  rear  of  the  present 
schoolhouse  for  erecting  the  proposed  addition.  This  being  so,  and  the  vote 
being  practically  unanimous  in  favor  of  that  course,  after  a  long  and  full  con- 
sideration of  the  question,  I  do  not  feel  justified  in  saying  that  it  shall  not  be 
done.  If  it  shall  afterwards  appear  that  outbuildings  in  the  rear  of  the  school- 
house  are  so  near  as  to  be  offensive,  the  district  will  be  under  the  necessity  of 
making  other  provisions  for  them. 

The  appeal  is  dismissed. 


3778 

In  the  matter  of  the  appeal  of  Patrick  Murphy  v.  school  district  no.   i,  town 

of  Bangor,  Franklin  county. 

A.  district  meeting  which  has  been  held  for  the  purpose  of  selecting  a  site  and  voting  a 
tax  to  pay  for  the  same,  pursuant  to  a  notice  which  is  proper  in  form  and  had  been 
generally  served  upon  the  voters  of  the  district,  will  be  upheld,  even  though,  in  a  few 
instances,  without  wilful  intent,  notice  failed  to  reach  a  few  of  the  inhabitants,  the 
action  of  the  meeting  having  been  approved  by  a  largely  preponderating  vote. 

Before  an  appeal  was  taken  a  trustee,  pursuant  to  the  vote  of  the  district  meeting,  had 
employed  counsel  and  initiated  proceedings  before  the  county  court  for  the  condem- 
nation of  a  site  proposed.    Held,  too  late  to  be  entertained. 


JUDICIAL  decisions:     sites  979 

The  State  Superintendent  of  Public  Instruction  would  not  feel  justified  in  interfering 
with  the  selection  of  a  site  shown  to  be  adopted  to  schoolhouse  purposes,  because  cer- 
tain inhabitants  of  the  district,  interested  in  the  selection  of  a  new  site,  had  failed 
to  exercise  their  prerogatives  at  a  district  meeting.  Their  negligence  will  not  be  per- 
mitted to  overturn  the  action  of  the  residents  who  did  attend  and  participate,  nor  to 
involve  such  residents  in  additional  expense. 

Decided  March  30,  1889 

John  I.  Gilbert,  attorney  for  appellant 
John  P.  Badger,  attorney  for  respondent 

Draper,   Superintendent 

A  special  district  meeting  was  held  in  the  district  above  named  on  the  14th 
day  of  December  1888,  pursuant  to  the  following  notice : 

Notice  is  hereby  given  that  a  special  meeting  of  the  inhabitants  of  school 
district  no.  i,  of  the  town  of  Bangor,  will  be  held  in  the  schoolhouse  m  said 
district,  on  Friday,  December  14,  1888,  at  7  o'clock  p.  m.,  for  the  following  pur- 
poses :  I  St.  To  ascertain  if  the  district  inhabitants  will  consent  to  the  sale  of  the 
old  schoolhouse  and  site.  2d.  To  take  into  consideration  the  purchase  of  a  new 
site  and  the  building  of  a  new  and  better  schoolhouse. 
Dated  Bangor,  December    j,  1888 

E.  S.  Russell 

District  Clerk 
(By  order  of  trustees) 

At  such  meeting  a  resolution  was  offered  authorizing  the  trustees  to  sell 
the  old  schoolhouse  and  site  at  public  auction  to  the  highest  bidder,  as  soon  as 
a  larger  site  should  be  purchased  and  a  new  schoolhouse  built.  The  ayes  and 
noes  were  taken  and  recorded  upon  this  motion.     The  result  was  33  ayes  and 

8  noes.  A  resolution  was  then  proposed  authorizing  the  trustees  to  purchase  a 
new  site,  which  was  specifically  described  by  metes  and  bounds.  The  ayes  and 
noes  were  also  taken  upon  this  resolution,  and  the  vote  resulted  in  34  ayes  and 

9  noes.  A  resolution  was  then  proposed  authorizing  the  trustees  to  levy  a  tax 
for  the  purpose  of  carrying  out  the  action  previously  taken.  Upon  the  vote 
being  taken  it  was  declared  adopted  by  39  ayes  and  2  noes.  The  meeting  then 
selected  certain  persons  to  act  with  the  trustee  in  an  advisory  capacity  concerning 
the  erection  of  the  new  building,  and  adjourned  to  a  subsequent  time,  when 
plans  for  such  building  were  considered  and  approved. 

The  appellant  objects  to  this  action,  and  appeals  therefrom.  He  alleges 
that  the  notice  of  the  meeting  at  which  such  action  was  taken  was  not  sufficient 
under  the  law.  He  also  alleges  that  the  site  selected  is  not  a  convenient  one 
for  the  majority  of  the- residents  of  the  district,  and  that  the  action  taken  is  not 
approved  by  such  majority. 

The  appeal  was  not  brought  in  time.  The  action  appealed  from  was  taken 
upon  the  12th  day  of  December.  The  papers  were  not  served  upon  the  respond- 
^it  until  the  27th  day  of  February.  I  do  not  think  any  sufficient  reason  for  the 
delay  is  shown,  but  still  I  have  examined  the  papers. 


980  THE  UNIVFKSITV   OF  THE   STATE   OF   NEW   YORK 

The  notice  of  the  meeting  from  the  action  of  which  the  appeal  is  taken, 
is  sliowii  to  have  hecn  more  generally  served  upon  the  voters  of  the  district  than 
is  found  to  be  the  case  ordinarily.  The  district  clerk  swears  that  he  served  said 
notices  upon  each  and  all  of  the  voters  of  the  district  by  reading  the  same  to 
them  and  each  of  them,  as  he  then  verily  believed,  except  in  perhaps  half  a 
dozen  instances,  where  he  was  unable  to  see  the  voter  himself,  and  left  word  with 
some  member  of  his  family.  In  most  of  these  exceptional  cases  it  was  shown 
that  actual  notice  of  the  meeting  reached  the  voter.  The  statute  expressly  pro- 
vides that  the  proceedings  of  no  district  meeting  shall  be  held  to  be  illegal  for 
the  want  of  a  due  notice  to  all  persons  qualified  to  vote  thereat,  unless  it  shall 
appear  that  the  omission  to  give  such  notice  was  wilful  or  fraudulent.  This 
does  not  appear  in  the  present  case.  It  is  not  pretended  to  have  been  the  fact 
that  there  was  any  wilful  or  fraudulent  failure  to  serve  the  notice  in  the  technical 
manner  prescribed  by  the  statute  upon  every  voter  of  the  district.  It  must  be 
said  that  the  district  clerk  acted  in  good  faith,  and,  I  thhik,  with  due  diligence. 
Moreover,  the  several  votes  taken  in  the  district  meeting  were  overwhelming,  and 
it  does  not  appear,  and  can  not  be  the  fact,  that  persons  were  absent  from  that 
meeting  because  of  a  lack  of  notice  of  the  same  in  sufficient  number,  by  any 
possibility,  to  have  changed  the  result. 

The  action  of  the  district  meeting  appears  to  have  been  entirely  regular  and 
in  strict  conformity  with  the  requirements  of  the  statutes  concerning  such  action. 

The  resolution  to  purchase  a  new  site  and  erect  a  new  schoolhouse  was 
evidently  drawn  with  care,  as  was  also  the  other  resolution  authorizing  the  pur- 
chase of  a  specified  site,  and  describing  that  site  by  metes  and  bounds.  The 
ayes  and  noes  were  taken  and  recorded,  and  the  vote  was  overwhelmingly  in 
favor  of  the  proposed  action. 

It  also  appears  that,  subsequent  to  the  district  meeting,  the  trustee  entered 
into  negotiations  with  the  owner  of  the  proposed  site  for  the  purchase  thereof, 
but  was  unable  to  consummate  the  same  because  of  the  exorbitant  demands  of  the 
owner;  that  he  thereupon  employed  counsel  and  initiated  proceedings  in  the 
county  court  for  the  condemnation  of  the  proposed  site,  and  that  such  proceedings 
resulted  in  the  appointment  of  appraisers,  and  in  the  appraisal  of  the  property 
and  in  the  final  order  of  the  court  condemning  the  property  for  a  schoolhouse 
site.  The  proposed  new  site  has  also  been  approved  by  the  school  commissioner 
of  the  district. 

All  of  these  proceedings  must  have  been  known  in  the  district,  and  yet 
they  were  allowed  to  go  forward  to  completion  without  opposition,  and  before 
an  appeal  was  taken  from  the  action  of  the  district  meeting. 

The  trustee  has  issued  his  tax  list,  and  a  portion  of  the  same  has  been  col- 
lected. 

I  fail  to  find  any  sufficient  ground  for  setting  aside  the  action  of  the  dis- 
trict meeting.  There  certainly  is  no  reason  assigned  which  would  be  a  sufficient 
foundation  for  sustaining  the  appeal,  unless  it  be  that  the  site  selected  is  not 
central,  and  is  not  suitable  to  the  majority  of  the  people  of  the  district. 


JUDICIAL  decisions:     sites  9S1 

The  appellant  makes  a  somewhat  strong  showing  upon  this  point,  but  after 
somewhat  full  consideration  of  all  that  is  said  in  that  connection,  I  have  come 
to  the  conclusion  that  I  should  not  be  justified  in  interfering.  I  find  that  the 
new  site  is  less  than  seventy-five  rods  from  the  old  one.  It  is  practically  admitted 
by  all  in  the  district  that  a  new  site  should  be  selected  and  a  new  schoolhouse 
erected.  If  persons  interested  in  the  selection  of  the  new  site  failed  to  exercise 
their  prerogative  at  the  district  meeting,  their  negligence  should  not  be  permitted 
to  overturn  the  action  of  the  residents  who  did  attend  and  participate,  nor  should 
it  be  permitted  to  involve  such  residents  in  additional  expense,  inasmuch  as 
there  was  general  notice  of  the  proposed  action  given  throughout  the  district, 
and  inasmuch  as  there  is  no  allegation  that  the  site  chosen  is  not  well  adapted  to 
schoolhouse  purposes. 

For  these  considerations,  I  am  obliged  to  dismiss  the  appeal. 


3780 

In  the  matter  of  the  appeal  of  John  R.  Russell  and  others  from  the  proceedings 
of  a  special  school  meeting,  held  in  district  no.  4,  of  the  town  of  Ellery, 

Chautauqua  county,  March  4,  1889. 
Appeal    sustained    when    a    resolution    designating   a   site    was    not   sufficiently    descriptive 

thereof  to  comply  with  the  statute. 
Decided  April  15,  1889 

Draper,  Superintendent 

This  appeal  is  taken  from  the  proceedings  of  a  special  school  meeting,  held 
in  district  no.  4,  of  the  town  of  Ellery,  Chautauqua  county,  at  which  a  change 
of  schoolhouse  site  was  proposed  and  voted. 

Many  reasons  are  given  by  the  appellants  for  a  reversal  of  the  proceedings 
of  the  meeting.  It  is  unnecessary  for  me  to  examine  them  fully,  as  the  repre- 
sentative of  the  respondent  concedes,  in  a  communication  in  relation 'to  the  ap- 
peal, that  the  resolution  designating  the  site  was  not  sufficiently  descriptive 
thereof  to  comply  with  the  statute.  This  being  conceded,  I  sustain  the  appeal, 
and  authorize  the  trustee  of  the  district  to  forthwith  give  notice  for  a  special 
meeting  to  be  held  within  fifteen  days  from  this  date,  for  the  purpose  of  de- 
termining the  question  of  the  selection  of  a  schoolhouse  site. 


3600 

In  the  matter  of  the  appeal  of  Emmet  S.  Elmer  v.  the  action  of  a  district  meet- 
ing in  school  district  no.  9,  of  the  town  of  Monroe,  Orange  county. 

The  proceedings  of  a  district  meeting  in  deciding  by  a  strong  affirmative  vote  to  change 
a  schoolhouse  site  and  build  a  new  schoolhouse  will  not  be  disturbed  for  irregularities 
*"  \    at  the  meeting  which  are  not  specified  with  clearness  and  proof. 
Decided  May  18,  1887 


i>8j  the  university  of  the  state  of  new   vukk 

Draper,  Superintendent 

This  is  an  apical  from  llic  action  of  a  special  school  meeting  held  in  school 
district  no.  9.  in  the  town  of  Monroe,  Orange  county,  N.  Y.,  upon  the  18th  day 
of  Febniary  1887,  and  by  which  it  was  determined  to  change  the  site  and  erect 
a  new  school  building.  The  appellant  alleges  several  irregularities  in  the  pro- 
ceedings of  the  meeting.  None  are  specified  with  much  clearness,  and  no  proof 
is  offered  to  sustain  the  allegations  which  are  set  forth  in  the  appeal  papers. 
From  the  minutes  of  the  meeting,  it  would  appear  that  tHere  were  yy  qualified 
electors  of  the  district  present  at  the  meeting;  that  the  matter  of  changing  the 
site  and  erecting  a  school  building  was  discussed  at  length  and  deliberately  voted 
upon.  Forty-eight  votes  were  cast  in  favor  of  a  new  school  building  and  29 
against.  Forty-two  votes  were  cast  in  favor  of  changing  the  site  and  31  votes 
against.  The  record  book  of  the  district  shows  that  the  names  of  the  persons 
present  were  called  and  a  record  of  their  votes  was  made. 

There  may  have  been  slight  irregularities  in  the  manner  of  giving  notice 
and  in  some  of  the  proceedings  of  the  meeting,  but  I  do  not  see  any  of  sufficient 
gravity  to  justify  me  in  overturning  the  will  of  a  clear  majority  of  the  qualified 
voters  of  the  district  present  at  the  meeting.  No  fraud  is  alleged.  The  appel- 
lant admits  in  his  appeal  that  this  district  is  almost  wholly  in  favor  of  a  new 
school  building. 

In  view  of  these  considerations,  I  feel  compelled  to  dismiss  the  appeal. 


3853 

In  the  matter  of  the  appeal  of  David  M.  Elliott  and  others  from  the  proceedings 
of  a  special  school  meeting,  held  December  7,   1889,  in  school  district  no. 
6,  town  of  East  Greenbush,  Rensselaer  county. 
A  site  for  a  schoolhuuse,  selected  by  the  district  meeting,  and  satisfactory  to  a  large  majority 
of  the  district,  will  not  be  disturbed  unless  selection  was  brought  about  by  illegal  or 
improper  means. 
Decided  January  17,   1890 

Draper,  Superintendent 

At  a  special  school  meeting,  held  on  December  7,  1889,  in  school  district 
no^6,  of  the  town  of  East  Greenbush,  Rensselaer  county,  it  was  decided  by  a 
sufficient  vote  to  enlarge  the  present  schoolhouse  site  by  acquiring  title  to  ad- 
jomnig  lan.l.  From  this  action  this  appeal  is  taken.  The  grounds  of  the  appeal 
are  that  the  site  agreed  upon  is  unfit  for  schoolhouse  purposes;  that  the  spot 
IS  a  bleak  one  and  much  exposed  to  wind;  that  another  site  has  been  proposed 
which  ,s  nearer  to  a  village  which  forms  a  part  of  this  district;  that  the  last 
mentioned  site  is  upon  level  ground  and  sheltered  from  storms  and  wind,  and 
that  the  inhabitants  of  the  district  are  nearly  evenly  divided  in  their  prefer- 
ences between  the  respective  sites. 


JUDICIAL  decisions:     sites  983 

An  answer  has  been  interposed  by  a  committee  of  taxpayers  of  the  district, 
selected  by  a  district  meeting  for  that  purpose.  It  appears  that  the  site  selected 
at  the  district  meeting  is  located  very  near  the  center  of  the  district,  and  that 
although  it  is  upon  high  ground,  it  is  in  the  immediate  vicinity  of  farmhouses  and 
improved  real  estate.  It  is  clear  to  me  that  the  site  selected  by  the  district  meet- 
ing is  satisfactory  to  a  large  majority  of  the  inhabitants  of  the  district  and  is 
believed  by  them  to  be  the  location  which  will  best  accommodate  the  children 
of  the  district.  It  is  not  claimed  by  the  appellants  that  any  undue  advantage 
was  taken  of  them  at  that  district  meeting  at  which  the  site  was  selected,  nor 
that  the  result  was  brought  about  by  illegal  or  any  improper  means. 

I  therefore  fail  to  discover  any  reason  why  I  should  interfere  with  the 
expressed  will  of  the  inhabitants.  The  appeal  is  overruled,  and  the  stay  here- 
tofore granted  upon  the  application  of  the  appellant  is  vacated  and  set  aside. 


3816 

Charles  L.  Rowell  v.  school  district  no.  3  of  the  town  of  Franklin,  county  of 

Delaware 

The  fact  that  a  newly  selected  school  site  is  inconvenient  for  some  patrons  is  not  sufficient 

for  setting  aside  the  action  selecting  it. 
Decided  October  9,  1889 

Draper,  Superintendent 

This  is  an  appeal  from  the  action  of  a  special  district  meeting  held  on  the 
2d  day  of  September  1889,  locating  a  new  schoolhouse  site. 

There  is  no  claim  that  the  action  of  the  meeting  was  not  regularly  taken 
in  conformity  with  the  recjuirements  of  the  statutes  relating  to  the  subject. 

There  is  no  claim  that  the  new  site  chosen  is  not  suitable  for  school  purposes. 

It  is  said  that  it  is  inconvenient  for  some  patrons  of  the  school.  That  is 
ordinarily  the  case  in  all  districts.  If  some  other  site  was  chosen,  someone  else 
would  be  inconvenienced. 

In  short,  no  sufficient  reason  is  shown  for  overruling  the  action  of  the  dis- 
trict meeting. 

The  appeal  is  dismissed. 


STATE  SCHOLARSHIPS 

3887 

'In  the  matter  of  the  appeal  of  Francis  J.  McBarron  v.  John  Jasper,  superin- 
tendent of  schools  of  the  city  of  New  York 
Students  of  the  College  of  the  City  of  New  York  are  not  eligible  for  State  scholarships 

in  Cornell  University. 
Decided  July  18,  1890 

Theodore  Baumeister,  attorney  for  appellant 

Draper,  Superintendent 

The  appellant  was  during  the  last  year  a  student  in  the  College  of  the  City 
of  New  York,  and  attempted  to  enter  the  last  annual  examination  of  candidates 
for  State  scholarships  at  Cornell  University,  but  was  not  permitted  to  do  so 
by  Superintendent  Jasper,  on  the  ground  that  students  in  the  College  of  the  City 
of  New  York  are  ineligible  to  such  scholarships.  This  appeal  is  brought  to  de- 
termine the  question. 

The  statute  provides  that  "  none  but  pupils  of  at  least  sixteen  years  of 
age  and  of  six  months'  standing  in  the  common  schools  or  academies  of  the  State 
during  the  year  immediately  preceding  the  examination,  shall  be  eligible  "  to  the 
State  scholarships.  The  only  question  here  is  whether  the  College  of  the  City 
of  New  York  is  a  common  school  or  academy  within  the  meaning  of  this  statute. 
It  certainly  is  not  a  common  school,  and  I  am  confident  that  it  is  not  an  academy. 
It  is  not  classified  as  such  by  the  Board  of  Regents  of  the  University.  It  does 
not  participate  in  the  distribution  of  the  income  of  the  "  literature  fund."  Sec- 
tion 105S  of  the  New  York  City  consolidation  act  provides  that  it  shall  be  entitled 
to  do  so,  but  as  a  matter  of  fact,  it  does  not.  It  has  the  authority  to  confer 
degrees.  Indeed,  it  seems  to  have  the  plan  of  organization,  the  extended  course 
and  the  general  authority  of  a  college.  I  can  not  believe  that  it  was  the  purpose 
or  intent  of  the  Legislature  to  open  the  State  scholarships  at  Cornell  University 
to  the  students  of  such  an  institution  as  the  one  under  consideration,  and  am  of 
the  opinion  that  the  superintendent  of  schools  in  the  city  of  New  York,  who  was 
charged  with  the  duty  of  conducting  the  Cornell  examination,  acted  within  the 
meaning  of  the  statute  in  declining  to' permit  the  appellant  to  enter  the  same. 

The  appeal  is  dismissed. 

3879 

In  the  matter  of  the  appeal  of  Frank  G.  Snyder,  Walter  W.  Hyde,  by  his  father 
and  guardian.  Orange  P.  Hyde,  and  Walter  W.  Edwards,  by  his  father  and 
guardian,  David  Edwards  v.  Cornell  University. 
Students  holding  a  State  scholarship  at  Cornell  University,  who  fail  in  term  examinations 
and  consequently  have  to  leave  the  institution,  must  be  deemed  to  have  abandoned  their 
rights  to  the  scholarship. 
Decided  May  15,  1890 

[984] 


JUDICIAL  decisions:     state  scholarships  985 

Draper,  Superintendent 

Frank  G.  Snyder,  Walter  W.  Hyde  and  Walter  W.  Edwards,  were  candi- 
dates at  the  examination  held  on  the  first  Saturday  of  June  1889,  for  State 
scholarships  at  Cornell  University.  Their  standing  in  such  examination  was  not 
sufficiently  high  to  make  either  one  of  them  first  entitled  to  scholarships;  but 
candidates  who  fail  to  gain  scholarships  are,  under  the  law,  entitled  in  the  order 
of  merit,  to  vacancies  which  may  arise  in  the  State  scholarships  in  case  students 
who  have  become  entitled  thereto,  either  abandon  or  vacate  the  same.  The 
names  of  the  three  young  men  appear  in  the  list  of  persons,  who  in  the  order 
of  merit,  are  entitled  to  such  vacancies.  Although  these  young  men  failed  to 
secure  scholarships,  they  entered  the  freshmen  class  in  the  university  in  Septem- 
ber 1889  as  pay  students.  They  now  allege  that,  at  the  term  examination  held 
in  December  1889,  more  than  three  State  scholars  forfeited  their  rights  to 
scholarships,  by  reason  of  failure  to  pass  the  examination,  and  that,  under  the 
law,  it  thereupon  became  the  duty  of  the  president  of  the  university  to  certify 
the  fact  that  vacancies  existed  in  State  scholarships,  and  the  duty  of  the  State 
Superintendent  to  fill  such  vacancies  from  the  list  of  persons  eligible  thereto. 

The  university  in  its  answer  admits  substantially  all  the  facts  alleged  by  the 
appellants,  except  that  it  denies  that  students  who  failed  to  pass  the  term  exam- 
ination in  December  1889,  forfeited  their  scholarships  in.  consequence  thereof. 
It  is  said  by  the  university  that  students  failing  to  pass  such  an  examination 
are  not  thereby  permanently  excluded  from  their  scholarships,  but  are  only 
temporarily  suspended  therefrom,  and  afforded  an  opportunity  to  make  up 
their  deficiencies  and  reenter  upon  their  scholarships. 

Section  9  of  the  charter  of  Cornell  University,  which  relates  to  the  State 
scholarships,  was  amended  by  chapter  291  of  the  Laws  of  1887.  Subdivision 
5  of  said  section  relates  to  the  filling  of  vacancies  in  such  scholarships,  and  reads 
as  follows : 

In  case  any  candidate  who  may  become  entitled  to  a  scholarship  shall  fail 
to  claim  the  same,  or  shall  fail  to  pass  the  entrance  examination  at  such  uni- 
versity, or  shall  die,  resign,  absent  himself  without  leave,  be  expelledor,  for  any 
other  reason,  shall  abandon  his  right  to  or  vacate  such  scholarship,  either  before 
or  after  entering  thereupon,  then  the  candidate  certified  to  be  next  entitled  in 
the  same  county  shall  become  entitled  to  the  same.  In  case  any  scholarship 
belonging  to  any  county  shall  not  be  claimed  by  any  candidate  resident  in  that 
county  the  State  Superintendent  may  fill  the  same  by  appointing  thereto  some 
candidate  first  entitled  to  a  vacancy  in  some  other  county,  after  notice  has  been 
served  on  the  Superintendent  or  commissioners  of  schools  of  said  county.  In 
any  such  case,  the  president  of  the  university  shall  at  once  notify  the  Superin- 
tendent of  Public  Instruction,  and  that  ofticer  shall  immediately  notify  the  candi- 
date next  entitled  to  the  vacant  scholarship  of  his  right  to  the  same. 

From  this   it  appears  that  when  a  candidate  "  shall  abandon  his  right  to 
or  vacate  such  scholarship,"  the  candidate  certified  to  be  next  entitled  thereto, 
~  ^lall  become  entitled  to  the  same.    The  terms  abandon  and  vacate  seem  to  have 
been  used  to  cover  either  a  voluntary  relinquishment  of  the  right  to  the  scholar- 
ships, or  an  involuntary  forfeiture  of  such  rights.     The  plain  meaning  of  this 


986  THE  UNIVERSITY    OF  THE   STATE   OF   NEW  YORK 

paragraph  of  the  statute  is  that,  when  a  State  scholarship  shall  for  any  reason 
become  unoccupied,  the  persons  who  entered  the  annual  examination  in  competi- 
tion therefor  shall,  in  the  order  of  their  acquired  standing  in  such  examination, 
become  entitled  to  enter  thereupon  and  receive  the  benefits  and  advantages 
thereof.  I  know  of  no  principles  of  legal  construction  that  would  change  this 
manifest  intent  of  the  law. 

But  the  university  says  that  the  scholarship  is  not  vacant  or  unoccupied 
when  the  holder  fails  to  meet  the  requirements  of  a  term  examination,  in  conse- 
quence of  which  he  must  necessarily  leave  the  institution,  because  he  may  make 
up  his  work  and  be  reinstated. 

It  seems  to  me  that  this  view  is  repugnant  to  the  evident  purpose  of  the 
Legislature  in  enacting  the  recent  amendment  to  the  charter  of  the  university. 
(Chapter  291,  Laws  of  188;.)  In  consideration  of  the  advantages  accruing  to 
the  institution  from  the  fact  that  it  was  given  the  share  of  the  State  of  New 
York  in  certain  public  lands  distributed  to  the  States  by  act  of  Congress  for 
specific  educational  purposes.  The  State  reserved  to  itself  the  right  to  send 
to  the  university  each  year,  students  to  the  number  of  one  for  each  Assembly 
district,  who  should  be  entitled  to  the  privileges  thereof  without  the  payment 
of  tuition  fees.  The  university  accepted  these  terms.  The  scholarships  thus 
created  had  never  been  fully  occupied.  It  had  never  been  possible  to  fill  a 
vacancy  in  one  district  by  appointment  from  another  district,  no  matter  how 
many  deserving  candidates  the  other  districts  might  have.  When  a  scholarship 
had  once  been  filled  by  appointment  from  one  district  and  should  become  vacant, 
there  was  no  way  of  filling  it,  even  though  there  were  deserving  and  willing 
candidates  in  the  same  district.  In  this  way  the  scholarships  were  not  more 
than  half  filled.  Chapter  291  of  the  Laws  of  1887,  was  intended  to  correct  this, 
and  provide  a  way  for  extending  the  privileges  of  these  State  scholarships  to  any 
students  in  the  State  who  might  desire  them  and  be  able  to  comply  with  the 
necessary  requirements.  In  short,  the  State  undertook,  by  this  amendment  to 
the  charter  of  the  university,  not  only  to  fill  the  scholarships,  but  to  keep  them 
full  so  long  as  there  were  students  in  the  State  who  desired  and  deserved  the 
privileges  thereby  afforded,  in  the  evident  belief  that,  in  thus  carrying  the  advan- 
tages of  the  great  institution  to  the  greater  number  of  its  brightest  and  most 
deserving  children,  it  would  be  helping  them  and  promoting  its  own  substantial 
development  as  well. 

The  length  of  time  with  which  the  university  claims  that  it  may  permit  delin- 
quents to  make  up  deficiencies  and  regain  position  is  indefinite,  and  if  we  adopt 
the  principle  for  which  it  contends  —  that  a  student  who  is  obliged  to  drop  out 
and  leave  the  institution  because  he  can  not  sustain  himself  in  examinations, 
does  not  vacate  his  scholarship  because  he  may  make  up  his  work  and  be  rein- 
stated at  any  indefinite  time  in  the  future  —  we  practically  hold  that  a  scholarship 
once  occupied,  and  then  vacated,  can  not  be  again  filled  at  all.  It  stands  to 
reason  that  the  greater  number  of  the  students  who  fail  to  pass  the  term  exami- 
nation will  not  be  disposed,  or  will  be  unable  to  regain  their  forfeited  places. 


JUDICIAL  decisions:     state  scholarships  987 

It  stands  to  reason  also  that  the  greater  number  of  failures  to  maintain  posi- 
tions, will  occur  in  the  freshman  year,  thus  leaving  a  vacancy  in  each  case 
extending  over  a  period  of  more  than  three  years.  This  is  a  denial  of  the  rights 
which  the  statute  gives  to  waiting  candidates,  and  overthrows  and  thwarts  the 
manifest  intent  and  purpose  of  the  Legislature  in  enacting  the  amendment  to 
the  charter  of  the  university,  with  a  view  to  keeping  the  scholarships  full. 

The  university  exacts  certain  evidences  of  proficiency,  either  the  certificates 
of  other  institutions  as  to  work  previously  performed  by  the  candidate,  or  that 
he  shall  show  his  scholarship  in  an  entrance  examination,  before  the  holder  of 
a  scholarship  can  be  admitted  to  the  course  at  all.  After  being  thus  scrutinized 
upon  admission,  it  would  seem  quite  possible  for  the  authorities  to  determine 
whether  a  student  is  so  deficient  as  to  make  it  impossible  for  him  to  sustain 
himself  and  complete  the  work  of  the  course,  before  actually  depriving  him  of 
the  privileges  of  the  institution  and  barring  the  door  against  him. 

It  must  be  admitted  I  think,  that  the  student  who  can  not  sustain  himself 
beyond  a  reasonable  question,  should  give  way  to  one  who  can,  but  that  after 
admission,  one  should  not  be  obliged  to  go  out  until  it  is  clear  that  he  can  not 
go  on  with  fair  prospect  of  creditable  graduation,  and  when  that  time  has 
arrived,  another  who  is  waiting  should  be  allowed  to  come  in.  And  when  a  State 
student  has  for  any  reason  been  debarred  the  privileges  of  the  university  and 
prevented  from  attending  upon  its  instruction,  he  must  be  deemed  to  vacate  his 
scholarship  within  the  meaning  of  that  term  as  used  in  subdivision  5,  section  9 
of  the  charter. 

From  these  considerations,  it  follows  that  the  appeal  must  be  sustained. 
It  would  seem  reasonable,  however,  that  a  little  time  should  be  afforded  for  the 
correction  of  any  misunderstanding  which  may  have  arisen  through  conflicting 
interpretations  of  the  meaning  of  the  statute.  The  authorities  of  the  university 
will  at  once  notify  all  holders  of  State  scholarships  who  have  been  debarred  the 
privileges  of  the  institution,  that  they  may  at  once  return,  and  must  do  so  or 
forfeit  their  scholarship  rights,  except  in  cases  where  such  authorities  determine 
that  students  are  so  deficient  that  their  scholarship  privileges  should  be  taken 
away.  All  who  are  thus  allowed  to  return  and  do  not  do  so  within  twenty 
days,  will  be  deemed  to  have  abandoned  or  vacated  their  scholarships.  And  the 
president  of  the  university  will  at  the  end  of  that  time  notify  the  Superintend- 
ent of  Public  Instruction  of  all  State  students  who  have  voluntarily  abandoned 
their  scholarships,  or  have  vacated  them,  as  the  term  is  herein  construed. 


TAX  LISTS 

3531 

Summit  Afountain  House  Company  v.  Samuel  Decker,  sole  trustee  of  school  dis- 
trict no.  21  of  the  town  of  Middletown,  Delaware  county. 

(  ii.ijucr  .-■).  Laws  of  1886,  authorizing  certain  taxpayers  to  elect  and  give  notice  in  which 

of  two  towns  they  will  pay  taxes  held  to  apply  to  school  taxes. 
Held,  further,  that  the  act  applies  to  cases  which  arise  subsequent  to  the  passage  of  the 

act  as  well  as  to  the  then  existing  cases. 
Decided  November  12,  1886 

Draper,  Superintendent 

This  is  an  apjieal  from  the  action  of  Samuel  Decker,  sole  trustee  of  school 
district  no.  21  of  the  town  of  Middletown,  Delaware  county,  N.  Y.,  in  levying 
a  tax  for  the  sum  of  $198.87  by  a  tax  bill  dated  July  5,  188C,  and  renewed 
August  5,  1886.  The  appellant  insists  that  such  tax  list  is  incorrect  and  invalid 
as  to  it,  and  that  it  should  not  be  taxed  in  district  no.  21  at  all.  The  property 
of  the  appellant  consists  of  a  hotel  and  accompanying  buildings,  and  about  one 
hundred  acres  of  land.  The  line  between  Delaware  and  Ulster  counties,  and 
between  the  towns  of  Middletown  and  Shandakcn,  runs  through  said  property 
and  through  said  hotel  building,  leaving  a  portion  in  each  town. 

The  appellant  claims  that  school  district  no.  3  of  the  town  of  Shandaken 
includes  the  entire  property,  and  the  description  of  said  district  as  recorded  in 
the  town  clerk's  office  of  said  town  seems  to  support  this  view.  The  respondent 
insists,  upon  the  other  hand,  that  the  boundary  line  between  district  no.  21, 
Middletown,  Delaware  county,  and  district  no.  3  of  the  town  of  Shandaken, 
Ulster  county,  is  identical  with  the  boundary  line  between  the  two  counties,  so 
far  as  the  same  runs  through  this  property,  and  supports  its  claim  by  numerous 
affidavits  of  former  trustees  and  other  residents  who  profess  to  have  been 
familiar  with  all  the  circumstances  for  more  than  thirty  years.  It  is  impossible 
for  me  to  determine  the  disputed  question  and  the  location  of  the  district  line 
from  the  papers  in  the  case.  It  probably  can  only  be  determined  by  a  survey, 
which  should  be  made.  If  I  could  feel  justified  in  sustaining  the  appellant's 
claim  m  this  regard,  that  would  settle  the  controversy;  but  I  can  not.  The 
appellant  says,  however,  that  even  if  the  respondent's  claim  as  to  the  location  of 
the  boundary  line  be  assumed  to  be  correct,  even  then  it  ought  to  succeed  in 
this  appeal,  for  the  reason  that  it  has  elected  to  pay  taxes  in  the  town  of  Shan- 
daken pursuant  to  the  provisions  of  chapter  59  of  the  Laws  of  1886  Proof  is 
made  that  the  appellant,  in  the  month  of  March  1886,  caused  to  be  served  upon 
the  assessors  of  each  of  the  towns  of  Middletown  and  Shandaken,  a  notice 
signed  by  the  appellant,  together  with  a  copy  of  the  act  (chapter  59  of  the 
J.aws    of    1886),    and    stated    that,    pursuant    to    such    chapter,    the    appellant 

[988] 


JUDICIAL  decisions:     tax  lists  989 

would  elect  to  pay  taxes  thereafter  in  the  town  of  Shandaken.  It  is  insisted  by 
the  respondent  that  chapter  59  of  the  Laws  of  1886  applies  only  to  taxes  levied 
and  unpaid  at  the  time  of  the  passage  of  the  act,  and  in  any  event  it  does  not 
apply  to  taxes  for  school  purposes.  The  language  of  this  act  is,  perhaps, 
unfortunate  and  difficult  of  construction;  it  must  be  read  in  its  entirety,  and  its 
different  provisions  must  be  construed  in  line  with  its  general  purpose,  and, 
so  far  as  possible,  held  to  carry  out  that  purpose.  Its  general  purpose  is  to 
relieve  the  owners  of  dwelling  houses,  or  otter  buildings  through  which  town 
boundary  lines  run,  from  the  embarrassment  and  annoyance  of  being  subjected 
to  taxation  in  the  two  towns,  and  to  avoid  controversies  between  the  same  in 
relation  to  their  respective  claims.  It  does  speak  of  "  taxes  levied  thereon,  which 
shall  remain  unpaid  by  the  owner  ...  at  the  time  of  the  passage  of  this 
act  " ;  but  section  2  provides  that  "  the  occupant  shall  cause  to  be  served  upon 
the  assessors,  or  one  of  them  in  both  said  town  and  city,  or  in  both  of  said  towns 
in  the  same  or  different  counties,  at  least  thirty  days  prior  to  the  date  fixed  by 
law  for  the  date  of  assessment,  a  written  notice  of  his  said  election,  together  with 
a  copy  of  this  act,"  etc.  This  provision  that  the  notice  of  election  shall  be 
served  at  least  thirty  days  prior  to  the  date  of  assessment  would  be  meaningless, 
if  we  were  to  hold  that  the  act  applied  only  to  taxes  levied  at  the  time  of  its 
passage.  On  the  contrary,  it  plainly  indicates  the  intent  of  the  Legislature  to 
make  a  general  provision  not  only  for  the  benefit  of  existing  cases,  but  of  such 
as  might  arise  after  the  passage  of  the  act.  Furthermore,  the  act  refers  to  taxes 
in  general,  and  I  think  must  be  held  to  include  school  taxes. 

For  the  foregoing  considerations,  the  appeal  must  be  sustained,  and  the 
tax  levied  against  the  appellant  in  the  town  of  Middletown  must  be  held  to  be 
null  and  void,  and  the  trustee  of  school  district  no.  21  of  said  town  is  hereby 
directed  to  withdraw  the  tax  list  in  question  from  the  hands  of  the  collector, 
and  to  correct  the  same  by  striking  therefrom  the  name  of  the  Summit  Moun- 
tain House  Company. 


3625 

In  the  matter  of  the  appeal  of  E.  M.  Davis  and  James  H.  Riker  v.  John  H. 
Albright,  as  trustee  of  school  district  no.  3,  town  of  Ontario,  county  of 
Wayne. 
The  acceptance  and  adoption  of  a  trustee's  report  containing  reference  to  an  item  of  ex- 
pense does  not  authorize  its  insertion  in  a  tax  list.     A  tax  must  be  specifically  voted. 
Teachers'  wages  already  earned  and  due  may  be  included  in  a  tax  list  without  a  vote  of 

a  district  meeting,  but  not  so  as  to  wages  not  yet  due. 
There  is  no  law  to  authorize  a  tax  for  "  incidentals." 
Decided  July  21,  1887 

Draper,  Superintendent 

'   This  appeal  is  taken  by  residents  of  school  district  no.  3,  town  of  Ontario, 
county  of  Wayne,  from  the  action  of  the  trustee  of  said  district  in  including 


990  THE  UNIVERSITY   OF  THE  STATE   OF   NEW   YORK 

in  a  certain  tax  list  certain  items  for  which,  it  is  claimed  by  the  appellant,  he 
had  no  authority  to  do.    The  items  objected  to  are  as  follows : 

Remainder  of  teachers'  wages,  $1448;  teachers"  wages  for  fall  term  (8 
weeks),  $40;  wood  for  ensuing  year,  $20;  costs  incurred  by  former  trustee  in 
bringing  and  defending  suits,  $47.53;  cleaning  up  and  improving  school  yard, 
$5 :  incidentals  for  ensuing  year,  $10. 

The  appellants  allege  that  none  of  these  items  were  authorized  to  be  raised 
by  tax  at  a  district  meeting,  and  that  the  item  of  costs  has  not  been  allowed  by 
the  county  judge,  as  provided  by  law. 

The  respondent  answers  the  appeal,  and  alleges: 

1  That  the  appeal  was  not  taken  within  the  time  allowed  by  law;  that 
property  had  been  advertised  for  sale  before  the  date  of  the  service  of  the  appeal. 

2  That  the  item  of  $5  for  cleaning  up  and  improving  the  school  yard  was 
a  necessary  and  reasonable  charge. 

3  That  the  sum  of  $10  for  incidentals  was  reasonable. 

4  The  items  for  costs  ($47.53)  was  reported  to  a  district  meeting,  and  the 
report  accepted  and  adopted. 

There  is  no  serious  dispute  about  the  facts,  and  in  deciding  this  appeal  I 
must  look  only  for  the  trustee's  authority  to  include  these  items  in  a  tax  list. 

1  Was  he  authorized  to  do  so  by  a  vote  of  the  district  meeting?  The  trus- 
tee's claim  that  he  was  so  authorized  to  include  the  item  of  $47.53  for  costs, 
can  not  be  sustained  on  the  ground  that  a  report  of  a  former  trustee,  contain- 
ing the  item  was  accepted  and  adopted.  It  does  not  appear  that  the  meeting 
voted  to  direct  the  trustee  to  levy  a  tax  for  this  item.  It  has  been  held  by  a 
former  superintendent  "  that  the  acceptance  and  adoption  of  a  report  containing 
an  item  of  expense,  does  not  authorize  the  levy  of  a  tax  agreeable  to  the  recom- 
mendations contained  therein.  A  tax  must  be  specifically  voted  before  it  can 
be  lawfully  levied." 

This  item  of  tax,  therefore,  can  not  be  sustained. 

2  The  item  for  the  balance  due  the  teacher  for  wages  is  sustained.  A  trus- 
tee is  expressly  authorized  by  statute  to  levy  a  tax  for  this  purpose,  when  no 
provision  therefor  has  been  made  by  the  district  meeting. 

3  The  item  for  teachers'  wages,  fall  term,  being  in  anticipation  of  wages  to 
be  earned,  and  not  authorized  by  a  vote  of  a  district  meeting,  can  not  be  sustained. 

4  The  item  for  incidentals  is  not  sustained.  There  is  no  authority  for  its 
collection. 

5  I  sustain  the  item  for  fuel  and  for  cleaning  up  the  school  yard,  it  appear- 
ing to  my  satisfaction  that  the  amounts  proposed  are  not  exorbitant.  A  trustee 
IS  authorized  to  provide  fuel  and  remove  nuisances  and  clean  up  the  school- 
house  and  yard. 

The  appeal  is  therefore  sustained  as  to  the  items  mentioned  above,  and  the 
trustee  is  hereby  authorized  and  directed  to  withdraw  his  tax  list  and  warrant, 
dated  October  12,  1&S6,  from  the  collector,  and  amend  the  same  accordingly, 
striking  out  the  items  for  any  anticipated  teachers'  wages,  the  items  for  costs 
and  for  incidentals,  and  then  deliver  the  same  to  the  collector  as  amended. 


JUDICIAL  decisions:     tax  lists  991 

37B7 

In  the  matter  of  the  appeal  of  Fred  Mussen  v.  official  acts  of  James  Mussen, 
trustee  of  school  district  no.   13,  town  of  Chesterfield,  Essex  county. 

Collector.  A  collector  who  refuses  to  furnish  a  bond  within  ten  days  after  proper  notice 
from  the  trustee,  vacates  his  office  and  the  trustee  may  fill  such  vacancy. 

The  fact  that  a  warrant  is  not  attached  to  a  tax  list  but  is  handed  to  a  collector  folded 
within  the  tax  list  and  the  collector  is  instructed  to  attach  the  warrant  to  the  tax  list 
with  some  adhesive  substance,  is  held  to  be  a  substantial  compliance  with  the  statutes. 

Decided  April  17,  1889 

Draper,  Superintendent 

This  appeal  is  taken  by  the  appellant,  who  alleges  that  he  is  a  taxpayer  and 
voter  in  school  district  no.  13  in  the  town  of  Chesterfield,  county  of  Essex, 
from  official  acts  of  the  trustee  of  said  district,  enumerated  as  follows: 

1  In  appointing  a  district  collector  in  place  of  the  appellant,  who  was  duly 
elected  collector  of  said  district  at  the  annual  meeting  held  in  August  last. 

2  In  preparing  and  issuing  a  tax  list  which  contained  items  which  were 
not  voted  at  a  district  meeting,  and  which  were  not  authorized  by  law  to  be 
raised  without  the  vote  of  a  district  meeting. 

3  In  withdrawing  a  tax  list  and  amending  the  same  without  the  consent 
of  this  Department. 

4  In  including  in  the  tax  list  property  which  was  not  assessed  on  the  pre- 
vious assessment  roll  of  the  town,  and  in  reducing  the  valuation  of  a  certain 
piece  therein  from  its  previously  assessed  value,  and  in  increasing  the  valuation 
of  another  piece. 

The  appellant  alleges  that  after  his  election  as  district  collector,  and  on  or 
about  the  7th  day  of  December  1888,  the  trustees  delivered  to  him  a  tax  list  to 
which  no  warrant  was  attached,  but  that  the  warrant  was  delivered  to  him  at 
the  same  time;  that  the  tax  list  was  detached  therefrom;  that  the  appellant 
returned  the  said  tax  list,  informing  the  respondent  that  the  same  was  illegal, 
and  that  he  could  not  collect  the  same;  that  on  the  17th  day  of  December  last, 
said  respondent  delivered  to  the  appellant  a  new  tax  list,  which  the  appellant 
alleges  was  defective  in  several  minor  particulars,  one  of  which  was  that  an 
item  for  repairs  was  stated  at  $115  instead  of  $114.50;  that  an  item  for  blinds, 
windows  and  paint  was  included  at  the  sum  of  $19.50  instead  of  $18.98;  that 
an  item  for  other  expenses  was  stated  at  $1.50  instead  of  $2.50,  and  that  an 
item  for  teachers'  wages  was  stated  therein  at  $30  instead  of  $30.24.  This  tax 
list  the  appellant  also  returned  to  the  trustee  and  informed  him  that  he  could 
not  collect  the  same.  He  alleges  that  he  has  not  refused  at  any  other  time  to 
execute  any  tax  list  and  to  perform  any  lawful  duty  pertaining  to  his  office; 
that  subsequently  the  respondent  appointed  one  Frank  Pelkey  as  collector  for 
the  district  and  issued  to  him  a  tax  list  and  warrant  directing  the  collection  of 
certain  items  which  the  appellant  alleges  were  not  legal  charges  against  the  dis- 
trict; that  at  the  annual  school  meeting  held  in  said  district,  it  was  proposed  to 
repair  the  schoolhouse,  but  that  no  vote  was  taken  thereon;  that  the  meeting 


992  THE  UNIVERSITY  OF  THE  STATE   OF   NEW    YORK 

was  duly  adjourned  to  September  4,  1888,  to  further  consider  the  subject  of 
repairs  and  to  receive  proposals  for  making  the  same ;  that  no  meeting  was  held 
on  the  4th  day  of  September,  but  that  on  the  ist  day  of  September  preceding, 
after  a  notice  had  been  informally  circulated  that  said  adjourned  meeting  would 
be  held  on  that  evening,  a  meeting  was  held,  at  which  meeting  it  was  voted  to 
nuikc  repairs  and  proposals  were  received  and  the  work  let  to  one  Frank  P. 
Mussen,  for  which  he  was  to  be  paid  the  sum  of  $114.50-  Subsequently  the 
work  was  done  and  comi)leted  prior  to  November  5,  1888;  that  at  a  special 
meeting,  held  on  November  5th,  which  was  regularly  called,  the  meeting  voted  to 
pay  said  Frank  P.  Mussen  $114.50  for  all  repairs  made  by  him,  and  directed  the 
trustee  to  assess  that  amount  upon  the  district;  that  the  trustee  seeks  to  raise 
the  further  sum  of  $18.98  to  pay  to  the  said  Frank  P.  Mussen  for  repairs  made 
by  him;  that  the  tax  list  delivered  to  said  Frank  Pelkey,  as  collector,  was  not 
the  same  as  the  tax  list  delivered  to  the  appellant  previously  thereto;  that  the 
respondent  reduced  the  valuation  of  the  taxable  property  of  one  James  McCarty 
from  $450  to  $300,  without  any  claim  being  made  by  said  McCarty  for  such 
reduction  and  without  notice  to  any  taxpayer  in  the  district;  that  one  Joseph 
Tromblee  was  assessed  for  $50  upon  real  estate,  when  the  said  Tromblee  was 
not  assessed  ui)on  the  town  assessment  roll,  and  that  the  said  assessment  was 
made  without  notice  to  said  Tromblee;  that  the  valuation  of  real  estate  of 
Antoine  Fortune  was  increased  from  the  sum  of  $400  to  the  sum  of  $700,  with- 
out notice  to  said  Fortune. 

The  respondent,  the  trustee  of  said  district,  answers  the  appeal  in  detail. 
He  denies  that  the  appellant  is  in  any  way  aggrieved,  or  that  he  has  sustained 
any  injury  by  any  of  the  acts  complained  of ;  that  the  appeal  was  actuated  by 
spite,  solely  "Decause  of  the  failure  of  the  appellant  to  secure  the  contract  to  make 
repairs  to  the  schoolhouse,  for  which  he  was  a  bidder,  but  not  the  lowest;  that 
the  appellant  refused  to  furnish  a  bond  as  collector,  and  refused  to  collect  a 
tax  when  the  warrant  and  list  were  lawfully  placed  in  his  hands;  that  by  such 
refusal  to  furnish  a  bond  and  perform  his  duty,  he  vacated  his  office,  and  that 
the  trustee  was  then  authorized  to  appoint  his  successor;  that  no  change  or 
amendment  of  any  tax  list  has  been  made  by  the  trustee,  excepting  the  adding 
of  fifty  dollars  to  the  assessment  of  one  McCarty,  and  the  including  of  an  assess- 
ment against  a  corporation  which  had  been  omitted,  the  effect  of  which  was 
to  decrease  the  tax  of  the  appellant  and  other  taxpayers;  that  the  tax  against 
the  property  of  Joseph  Tromblee  is  as  it  has  been  for  years,  and  that  said  Trom- 
blee is  in  possession  of  the  land  assessed  to  him  and  claims  to  be  the  owner 
thereof;  that  the  assessment  of  Antoine  Fortune  has  not  been  changed  and  is 
the  same  as  it  appears  on  the  town  assessment  roll ;  that  the  contract  for  repairs 
was  in  writing,  and  each  item  required  of  the  contractor  specifically  stated,  and  the 
appellant,  who  bid  upon  the  work,  had  full  knowledge  of  the  same  at  the  time 
his  bid  was  made,  and  at  the  time  the  contract  was  let  (a  copy  of  the  contract 
appears  in  the  respondent's  papers)  ;  that  the  collector's  notices  were  duly  posted ; 
that  the  item  of  $18.98.  tn  which  the  appellant  objects,  was  for  repairs  ordered 


JUDICIAL  decisions:     tax  lists  993 

by  the  trustee,  and  was  for  work  not  included  in  the  contract,  but  which  the 
trustee  deemed  necessary  to  be  done;  that  the  item  of  $4  for  cleaning  the  school- 
house  and  building  fires  for  the  year  then  passed,  and  for  cleaning  work  for  the 
then  coming  year,  were  voted  at  the  annual  meeting;  that  the  item  for  teachers' 
wages  was  for  services  actually  due;  that  the  respondent  admits  that  the  annual 
meeting  was  duly  adjourned  to  the  4th  day  of  September,  but  alleges  that  prior 
thereto,  and  at  the  request  of  the  appellant  who  desired  to  offer  a  bid  for  the  prcn 
posed  repairs  to  the  schoolhouse,  and  who  would  not  be  able  to  attend  the  meet- 
ing if  held  on  the  4th  day  of  September,  the  meeting  was  held,  with  the  consent 
of  all  the  taxpayers  and  voters  of  the  district,  on  the  ist  day  of  September 
instead  of  the  4th;  that  at  a  special  meeting  held  November  5,  1888,  the  sum  of 
$114.50  was  voted  to  pay  for  the  repairs  specified  in  the  said  contract,  and  for 
no  other  work,  and  that  the  meeting  was  then  and  there  informed  that  other 
repairs,  not  included  in  the  contract,  had  been  made,  the  expense  of  which 
amounted  to  $18.98,  and  that  the  appellant  and  his  friends  thereupon  left  the 
meeting,  and  no  other  business  was  transacted  thereat ;  that  at  the  time  the  tax 
list  and  warrant  were  first  delivered  to  the  appellant,  the  respondent  did  not 
have  at  hand  the  means  for  attaching  them  together,  and  he  requested  the  appel- 
lant to  do  so,  both  being  delivered  to  him  at  the  same  time ;  that  the  usual  notices 
of  the  completion  of  the  tax  list  were  duly  made  and  posted  as  the  statute 
requires  ;  that  a  large  proportion  of  the  taxes  have  already  been  collected  by  the 
said  Pelkey  as  collector. 

Many  affidavits,  in  corroboration  of  the  allegations  of  both  the  appellant  and 
the  respondent,  are  presented.  I  have  examined  them  all  with  care,  and  I  am 
forced  to  the  conclusion  that  there  is  but  little  merit  in  the  appeal,  and  that  the 
appellant  was,  to  a  great  degree,  actuated  by  spite  and  disappointment.  I  can  not 
conceive  how  the  appellant  can  consider  himself  aggrieved  except  in  his  removal 
from  the  position  of  collector.  By  his  own  act  in  neglecting  to  give  a  proper 
bond  and  in  refusing  to  execute  the  warrant  delivered  to  him  by  the  trustee,  he 
vacated  his  office,  and  the  trustee  was  authorized  by  statute  to  appoint  a  collector 
to  fill  the  vacancy.  The  contract  for  repairs  was  in  writing  and  specific,  and  I 
am  satisfied  the  appellant  knew  just  what  the  terms  of  the  proposal  were  when 
he  ofifered  his  bid  to  do  the  work,  which  was  several  dollars  in  excess  of  the 
amount  at  which  the  contract  was  let.  A  trustee  has  authority  under  the  school 
law  to  make  repairs,  the  expense  of  which  in  any  one  year  shall  not  exceed  $20, 
without  the  vote  of  a  district  meeting.  The  additional  item,  therefore,  of  $18.98 
was  not  without  authority  of  law.  It  appears  that  the  items  for  cleaning  were 
authorized  by  a  vote  at  the  annual  meeting,  and  the  item  for  teachers'  wages  the 
trustee  was  authorized  to  levy  without  the  vote  of  a  district  meeting  for  the 
reason  that  the  service  had  been  rendered  and  the  wages  were  due.  If  it  were 
a  fact  that  some  person,  other  than  the  appellant,  was  included  within  the  tax  list, 
or  that  the  valuation  of  some  other  person's  land  was  increased,  that  fact  would 
"rlDt  result  in  any  loss  to  the  appellant.  An  increase  in  that  respect  would  cause  a 
reduction  in  the  tax  he  would  be  required  to  pay. 
32 


994  THE  UNIVERSITY   OF  THE  STATE   OF   NEW   YORK 

Many  of  the  allegations  of  the  appellant  as  to  the  irregularity  of  the  tax  list, 
arc  indefinite  antl  based  upon  information  and  belief,  while  the  trustee  positively 
avers  that  no  change  was  made  in  the  tax  list  from  the  time  it  was  first  pre- 
sented to  the  appellant  until  its  final  delivery  to  his  successor.  The  fact  that  the 
warrant  was  not  attached  securely  to  the  tax  list,  but  was  handed  to  the  collector 
at  the  same  time,  with  instruction  to  attach  the  same  with  some  adhesive  sub- 
stance, sufficiently  explains  that  objection.  This  I  would  hold  to  be  a  substantial 
compliance  with  the  statute. 

The  slight  discrepancies  in  the  amount  included  in  the  first  tax  list,  and  the 
amount  which  the  appellant  claims  should  have  been  inserted,  are  almost  too 
trivial  to  be  taken  advantage  of  by  a  proceeding  of  this  nature. 

In  view  of  these  considerations,  I  have  concluded  to  dismiss  the  appeal,  and 
hereby  vacate  and  set  aside  the  stay  of  proceedings  granted  herein  on  the  8th 
day  of  January  1889,  and  direct  the  trustee  to  forthwith  renew  the  warrant  as 
to  any  delinquent  taxpayers,  and  redehver  the  same  to  the  collector. 


3761 

In  the  matter  of  the  appeal  of  Abijah  J.  Wellman  and  another  v.  union  free 
school  district  no.  i,  of  the  town  of  Friendship,  in  the  county  of  Allegany. 

Where,  at  a  special  school  meeting,  a  vote  to  appropriate  money  for  building  a  new  school- 
house,  was  made  after  a  site  had  been  selected,  and  subsequently  thereto  another  site 
was  selected,  about  which  there  was  much  controversy  in  the  district,  and  the  state- 
ment made  that  the  money  would  not  have  been  appropriated  had  it  not  been  supposed 
that  the  site  first  selected  would  be  built  upon ;  and  where  it  was  further  claimed  that 
the  notice  of  the  meeting  at  which  the  second  site  was  selected  was  not  as  clear  as  it 
should  have  been,  owing  to  the  importance  of  the  matter  to  be  considered  thereat,  the 
action  of  the  meeting  was  set  aside  and  another  district  meeting  ordered,  so  that  all 
the  electors  of  the  district  might  have  an  opportunity  to  be  heard  upon  the  question 
of  the  location  of  a  site. 

Although  a  site  may  have  been  changed  since  a  tax  for  building  a  schoolhouse  was  voted; 
held,  not  to  prevent  the  enforcement  of  the  tax. 

Decided  February  3,  1889 


D.  P.  Richardson,  attorney  for  appellants 
S.  M.  Norton,  attorney  for  respondents 


Draper,  Superintendent 

A  special  school  meeting  was  held  in  the  above-named  district  on  the  6th  day 
of  July  1888,  at  which  a  motion  was  made  to  appropriate  $15,000  for  a  new 
schoolhouse.  Pending  the  determination  of  this  motion,  it  was  voted  that  the 
meeting  should  proceed  to  select  a  new  site.  Several  sites  were  proposed.  The 
meeting  proceeded  to  ballot  for  a  site,  and  property  known  as  the  "  Old  Acad- 
emy "  or  "  Miller  "  site  was  selected.  It  was  agreed  that  the  purchase  of  this. 
property  should  be  conditioned  upon  the  ability  of  the  board  to  secure  a  good  and 


JUDICIAL  decisions:     tax  lists  995 

sufficient  title  thereto.  The  meeting  then  proceeded  to  ballot  upon  the  proposition 
that  there  be  raised  $15,000  to  pay  for  new  schoolhouse  and  site  in  instalments 
of  $3000  and  interest  annually.  The  result  of  the  ballot  showed  that  131  were 
in  favor  of  the  proposition,  and  95  opposed  it. 

Another  special  meeting  was  held  in  the  district  on  the  15th  day  of  January 
1889,  at  which  the  board  reported  that  it  was  impossible  to  procure  a  good  title  to 
the  site  previously  chosen.  After  discussion  and  the  consideration  of  various 
propositions,  it  was  voted  to  proceed  to  an  informal  ballot  for  a  new  site. 
This  ballot  and  a  subsequent  formal  ballot  resulted  in  the  selection  of  property 
known  as  the  "  Church  "  site. 

This  appeal  is  brought  against  the  proceedings  of  the  last  special  meeting, 
but  the  board  of  education  has  not  yet  raised  the  money  appropriated  at  the  July 
meeting,  and  the  appellants  claim  that  they  should  be  enjoined  from  doing  so, 
as  the  authority  to  raise  the  money  was  given  upon  the  supposition  that  the 
"  academy  "  site  would  be  taken.  They  claim  that  there  was  no  legal  notice  of 
the  January  meeting  given  by  the  board,  and  that,  in  consequence,  the  action  of 
the  meeting  selecting  the  "  Church  "  site  can  not  be  sustained. 

I  have  heard  argument  of  able  counsel,  carefully  read  the  papers,  considered 
the  facts  and  the  law,  and  arrived  at  the  conclusion  that  the  notice  of  the  special 
meeting  in  January  was  not  in  full  compliance  with  the  provisions  of  the  statutes, 
and  that,  consequently  the  proceedings  of  that  meeting  can  not  be  sustained ;  I 
am  not  satisfied  that  there  was  a  sufficient  number  of  voters  misled  to  have 
changed  the  result,  but  observe  that  there  were  wide  differences  of  opinion  in 
the  matter,  and  also  that  the  vote  was  not  taken  and  recorded  by  a  call  of  the 
ayes  and  noes,  and  recall  also  that  even  under  the  call,  there  was  some  ground 
for  voters  failing  to  understand  that  the  meeting  would  select  a  new  site  at  that 
meeting.  In  view  of  these  facts,  and  the  great  importance  of  the  matter,  I  con- 
clude that  the  voters  had  better  be  given  another  opportunity  to  express  their 
opinions  concerning  it.  When  the  opportunity  is  afforded  it  is  to  be  hoped  that 
all  will  avail  themselves  of  it,  and  cheerfully  abide  the  determination  of  the 
majority. 

I  see  no  reason  to  stop  the  board  from  raising  the  money  authorized  by  the 
July  meeting,  by  selling  bonds,  as  provided  by  statute.  The  board  has  agreed 
with  the  owner  of  the  "  Church  "  site  for  his  property,  has  caused  plans  to  be 
prepared,  and  purchased  some  materials  for  building.  Whatever  obligations  the 
board  has  entered  into  on  the  faith  of  the  acts  of  the  district  meetings  which 
are  not  contrary  to  law,  must  be  carried  out  by  the  district.  The  proofs  seem 
to  show  that  the  business  of  the  district  will  be  embarrassed  and  thrown  into 
confusion,  unless  some  money  is  raised  at  an  early  day.  I  see  nothing  to  invali- 
date the  proceedings  of  the  meeting  making  the  appropriation.  Those  proceed- 
ings were  not  called  in  question  until  long  after  the  expiration  of  the  time  for 
doing  so.  All  agree  that  a  new  school  building  is  a  necessity.  No  good  reason 
"why  the  board  should  not  proceed  with  the  sale  of  the  bonds  is  made  to  appear 
to  me. 


996  T!IK    INIVKKSITY    OF   THE    STATK    OF    NF.W    YORK 

I  therefore  determine  that  the  appeal  must  be  sustained,  so  far  as  it  concerns 
the  proceedings  of  the  meeting  of  January  15,  1889,  and  that  the  action  of  that 
meeting  in  selecting  a  school  site,  be  declared  null  and  void.  The  board  will, 
upon  due  notice,  convene  another  district  meeting  for  the  purpose  of  taking  action 
in  the  premises. 


3932 

In  the  matter  of  the  appeal  of  Aaron  R.  Clark  v.  Reuben  Rose  and  Samuel 
DeGray.  as  trustees  of  school  district  no.  i.  Highland,  Orange  county. 

Two  members  of  a  board  of  three  trustees,  without  notice  to  their  associate  trustee,  ac- 
cepted and  approved  of  the  district  collector's  bond,  and  issued  to  him  a  tax  list  and 
warrant.    Held,  irregular  and  illegal  and  their  action  void. 

Tax  list  and  warrant  may  be  delivered  to  collector  at  any  reasonable  time  after  the  lapse 
of  thirty  days  after  the  meeting  at  which  the  tax  was  voted. 

Decided  December  3.  1890 

Draper,  Superintendent 

Appeal  by  a  resident  taxpayer  of  school  district  no.  i.  town  of  Highland, 
county  of  Orange,  from  the  proceedings  of  two  of  the  three  trustees  of  said 
district.  In  approving  of  the  district  collector's  bond  and  issuing  a  warrant  and 
tax  list  about  September  10,  1890,  without  consulting  Charles  H.  Brooks,  the 
other  trustee,  or  giving  him  any  notice  of  a  meeting  therefor ;  and  also  for  plac- 
ing a  tax  list  in  the  collector's  hands  more  than  thirty  days  after  the  annual 
meeting. 

No  answer  has  been  interposed.  The  appellant  sustains  his  first  allegation 
by  the  evidence  of  the  third  trustee,  Mr  Brooks. 

The  second  allegation  furnishes  no  ground  for  an  appeal.  A  warrant  and 
tax  list  may  be  delivered  to  the  collector  at  any  reasonable  time  after  the  lapse 
of  thirty  days  after  a  meeting  at  which  a  tax  is  voted. 

The  action  of  two  of  the  trustees  in  transacting  business  without  giving,  the 
third  notice,  to  which  he  was  entitled,  is  irregular  and  their  action  is  illegal. 
Two  of  three  trustees  may  legally  act  when  all  three  have  been  duly  notified 
of  a  meeting. 

The  appeal  is  therefore  sustained,  as  to  the  first  allegation,  and  dismissed  as 
to  the  second.  The  approval  of  the  collector's  bond  and  the  issuance  of  a  tax  list 
and  warrant  about  Septciuber  10,  1890,  is  void  and  ineflfectual. 


3948 

In  the  matter  of  the  appeal  of  Chauncey  R.  Cornell  v.  Leonard  A.  Denison.  sole 

trustee  of  school  district  no.  12,  town  of  Middleburgh,  county  of  Schoharie. 
District  tax  lists  must  contain  a  proper  heading,  enumerating  the  several  items  for  which 

the  tax  is  to  be  levied,  and  specify  the  amount  of  each  item. 
Decided  December  30,  1890 


JUDICIAL  decisions:     tax  lists  997 

Draper,  Superintendent 

This  is  an  appeal  against  a  tax  list  issued  by  respondent  in  November  last. 

While  I  have  no  reason  for  doubting  the  entire  good  faith  of  the  trustee  in 
the  matter,  I  am  still  of  the  opinion  that  his  tax  list  does  not  meet  the  require- 
ments of  the  statute.  The  heading  ought  to  enumerate  the  items  for  which  the 
tax  is  laid,  and  the  several  items  for  which  the  tax  is  laid  should  be  specifically 
set  forth.  The  trustee  has  included  two  items  in  this  tax  list.  The  first  is  for 
"  teachers'  wages,  fuel  and  incidental  expenses."  These  items  should  have  been 
separated.  The  statute  authorizes  the  trustee  to  levy  a  tax  for  teachers'  wages 
in  advance,  without  the  vote  of  a  district  meeting,  but  not  so  as  to  incidental 
expenses.  The  items  included  in  this  list  must  be  separately  specified,  and  there 
must  be  specific  authority  for  them,  either  in  the  statute  or  pursuant  to  the  vote 
of  the  district  meeting. 

The  appeal  is  therefore  sustained,  and  the  trustee  is  directed  to  withdraw 
his  tax  list  from  the  hands  of  the  collector,  and  correct  it  as  hereinbefore 
indicated. 


4035 

In  the  matter  of  the  appeal  of  John  O'Donnell  v.  Frank  Henry,  as  trustee  of 

school  district  no.  8,  of  the  town  of  Lowville.  county  of  Lewis. 
The  items  included  in  the  tax  budget  should  be  separately  stated  in  the  heading  of  the  tax 

Hst. 
A  tax  list  is  illegal  if  given  to  a  collector  before  that  officer  gives  the  required  bond. 
Trustees  may  without  vote  of  the  district  levy  a  tax  for  the  wages  of  the  teachers  for  a 

sum,   which  with   the   public   and   district   funds   on  hand  will  be  sufficient   to  pay  the 

salary  of  teachers  for  a  period  of  four  months. 
Decided  December  18,  1891 

Draper,  Superintendent 

The  appellant  complains  of  the  action  of  the  trustee  of  .school  district  no.  S. 
town  of  Lowville,  county  of  Lewis,  and  alleges : 

I  That  he  has  levied  a  tax  for  $100.78  for  the  following  purposes,  without 
the  vote  of  a  district  meeting  authorizing  it,  namely : 

For  teachers'  wages $°"  00 

For  fuel  and  repairs ^4  7° 


2  That  the  dift'erent  items  have  not  been  set  forth  in  the  heading  of  the 
tax  list. 

3  That  the  trustee  has  delivered  the  tax  list  and  warrant  to  the  collector 
without  requiring  a  bond  of  the  collector. 

- .  The  trustee  admits  each  charge.  To  deliver  the  tax  list  without  receiving  a 
proper  bond  is  clearly  illegal,  and  the  custom  in  the  district  can  not  excuse  the 
neglect. 

The  item  for  fuel  and  for  repairs  should  have  been  separately  stated. 


i^  THE  UNIVERSITY    OF  THE  STATE   OF   NEW   YORK 

I  can  not.  from  the  evidence  before  me,  determine  whether  the  vote  of  a  dis- 
trict meeting  was  necessary  to  authorize  the  lax  proposed  or  not.  A  trustee 
may,  without  such  a  vote,  levy  a  tax  for  teachers'  wages,  for  a  sum  which,  with 
the  pubhc  and  district  moneys  on  hand,  would  meet  the  wages  of  teachers  for 
four  months.  He  may  also  include  an  item  for  repairs  not  exceeding  in  amount 
twenty  dollars,  and  for  the  cost  of  necessary  fuel. 

The  appeal  is  sustained,  and  the  trustee  is  directed  to  withdraw  the  tax  list 
and  conform  it  to  law,  and  before  it  is  redelivered  to  the  collector,  to  require  a 
satisfactory  bond  of  the  collector,  which  nuist  be  filed  in  the  town  clerk's  office. 


3950 

In  the  matter  of  the  appeal  of  Horatio  Gardner  v.  T.yman  S.  White,  as  sole 
trustee  of  school  district  no.  8,  towns  of  Big  Flats  and  Elmira,  county  of 
Chemung. 

.\n  appeal  from  a  district  tax  list  which  contains  items  not  authorized  by  statute,  and  from 
the  action  of  a  trustee  in  delivering  to  a  collector  a  tax  list  and  warrant  some  time 
before  a  bond  was  given  by  the  collector  and  filed.  Overruled,  for  the  reason  that 
the  appeal  was  not  promptly  taken,  and  not  until  after  a  collector's  bond  had  been  filed. 
A  levy  and  sale  had  taken  place  under  the  warrant,  and  the  amount  of  the  tax  had  been 
collected  and  fully  realized. 

Decided  December  30,  1890 

Daily  &  Bentley,  attorneys  for  respondent 

Draper,  Superintendent 

The  appellant,  a  taxable  inhabitant  of  school  district  no.  8,  towns  of  Big 
Flats  and  Elmira,  county  of  Chemung,  appeals  from  certain  acts  of  the  trustee 
of  that  district,  and  alleges  that  he  is  aggrieved  thereby.  He  alleges  that  the 
trustee  has  illegally  appointed  a  district  collector;  that  he  has  prepared  and  deliv- 
ered to  such  appointed  collector  a  tax  list  and  warrant,  upon  which  tax  list  cer- 
tain lands  which  should  have  been  assessed  as  nonresident  lands  were  assessed 
to  certain  individuals ;  that  the  items  for  which  the  tax  was  levied  were  not  prop- 
erly itemized,  and  an  item  for  teachers'  wages  was  for  an  amount  in  excess  of 
the  sum  actually  due;  that  the  collector's  bond  was  not  approved  nor  filed  until 
two  days  after  the  tax  list  and  warrant  were  delivered  to  the  collector. 

Other  charges  are  made  by  the  appellant  against  the  trustee  by  an  additional 
pleading,  which  I  shall  not  consider  upon  this  appeal,  as  they  were  not  included 
in  the  original  pleading  to  which  the  trustee  has  made  answer. 

The  answer  of  the  trustee  controverts  some  of  the  appellant's  allegations,  but 
not  all,  and  I  am  satisfied  that  the  tax  to  be  collected  was  not  properly  itemized. 
The  item  for  teachers'  wages,  $20,  should  have  been  $19.44,  a  difference  too 
trivial  to  be  considered  upon  an  appeal,  as  the  surplus  could  not  legally  be  diverted 
to  other  than  district  purposes. 


JUDICIAL  decisions:     tax  lists  999 

The  item  of  $8  for  fuel,  fires  and  repairs,  and  $7.03  for  miscellaneous  and 
other  expenses,  are  both  too  indefinite  to  comply  with  the  statute. 

The  appellant  places  great  stress  upon  the  fact  that  one  John  Kneale  was 
declared  by  the  trustee  to  have  vacated  his  oftice  of  district  collector,  and  that 
one  Seeley  P.  Chapman  was  appointed  thereto ;  that  certain  real  estate,  not  the 
.appellant's,  was  not  assessed  to  the  proper  owners.  As  the  tax  was  paid  to  the 
collector  upon  such  property  before  appellant's  appeal  was  taken,  I  am  at  a  loss 
to  discover  how  he  was  afi^ected  thereby,  or  by  the  change  in  collectors,  unless  it 
be  that  the  newly  appointed  collector  was  less  susceptible  to  appellant's  influence, 
and  levied  upon  and  sold  appellant's  property  for  his  school  tax. 

The  charge  that  the  bond  was  not  delivered  and  filed  until  after  the  tax  list 
and  warrant  were  delivered,  but  before  the  appeal  was  taken,  or  properly  levied 
upon,  is  not  a  ground  for  an  appeal.  This  the  courts  have  repeatedly  held  as 
well  as  this  Department. 

The  grounds  are  not  sufficient  to  sustain  the  appeal.  If  the  appellant  had 
brought  his  appeal  before  the  list  was  collected,  the  trustee  would  have  been 
ordered  to  withdraw  his  tax  list  and  correct  the  same,  where  errors  were  noted, 
but  it  is  too  late  to  ask  the  Department  to  interfere  after  levy  and  sale,  and  the 
amounts  called  for  are  fully  realized. 

But  the  fact  that  this  appeal  is  not  sustained,  must  not  be  taken  to  authorize 
any  illegal  expenditure  of  moneys  raised.  The  trustee  will  be  personally  liable, 
if  he  gives  orders  upon  the  collector,  for  items  which  are  unauthorized  either  by 
a  district  meeting  or  by  statute. 

He  can  insure  a  school  building  only  by  the  authority  of  a  district  meeting. 

For  the  reasons  given,  the  appeal  is  dismissed. 


3962 

In  the  matter  of  the  appeal  of  James  B.  Haynes  and  Edwin  H.  Taylor  v.  A.  B. 
Davis,  as  trustee  of  school  district  no.  11,  town  of  Rushford,  county  of 
Allegany. 

An  appeal  to  stay  the  collection  of  an  illegal  tax  must  be  promptly  taken,  and  before  the 
tax  has  been  collected  and  the  money  disbursed,  or  it  is  too  late  for  a  decision  of  the 
State  Superintendent  to  change  the  condition  of  affairs. 

Plan  for  a  schoolhouse  should  be  determined  upon  by  a  district  meeting,  and  a  building 
erected  in  accordance  therewith. 

Decided  February  9,  1891 

E.  E.  &  G.  W.  Harding,  attorneys  for  appellants 

Draper,  Superintendent 

Appellants  are  electors  of  school  district  no.  ii,  town  of  Rushford,  county 
of  Allegany.  The  relief  asked  for  is  the  setting  aside  of  a  warrant  and  tax  list 
issued  by  the  respondents,  bearing  date  July  7,  1890,  and  an  order  enjoining  its 


ICXX)  THE    UNIVCKSITY    OK    THK    SIATE    Ol'    NEW     VuKK 

collection  pending  ihc  delcrmination  of  the  appeal.  On  July  23,  1890.  the  enjoin- 
ine  order  was  granted  and  promptly  sent  by  mail  tu  the  appellants.  The  appeal 
was  duly  served  upon  respondent  July  28th,  and  on  August  2d,  filed  in  this 
Department.  It  is  based  upon  the  following  allegations:  That  on  May  2,  1890, 
a  special  meeting  voted  not  to  build  a  new  schoolhouse ;  that  a  special  meeting 
held  May  13th.  voted  to  build  a  new  schoolhouse,  appointed  a  building  committee. 
of  three,  and  authurized  them  to  determine  size,  price  and  quality  of  the  pro- 
posed building;  that  thereupon,  the  trustee,  acting  in  conjunction  with  such  com- 
mittee proceeded  to  erect  a  schoolhouse,  and  on  July  7,  1890,  the  trustee  issued 
the  tax  list  objected  to,  to  raise  moneys  for  the  district. 

( )n  .\ugust  20,  1890,  the  matter  was  referred  to  School  Commissioner  D.  D. 
Dickson,  to  take  and  return  the  evidence.  From  the  evidence  returned,  I  find 
the  facts  to  be  as  follows,  namely :  the  school  commissioner  had  frequently  called 
the  trustee's  attention  to  the  necessity  of  erecting  a  new  school  building  in  conse- 
i|uence  of  which  the  first  special  meeting  was  held.  When  the  refusal  of  the  meet- 
ing to  vote  to  build  was  communicated  to  the  school  commissioner,  he  informed 
the  trustee  that  he  would  condemn  the  building  unless  the  district  agreed  to  build. 
The  trustee  thereupon  called  a  second  meeting  which  the  commissioner  attended, 
and  a  new  school  building  was  ordered. 

Both  special  meetings  were  slimly  attended,  and  the  vote  at  each  was  nearly 
evenly  divided.  The  building  committee  and  trustee  thereupon  met,  and  after 
visiting  a  neighboring  district  and  examining  the  schoolhouse  thereof,  decided 
to  build  a  similar  house. 

Un  May  17th  a  tax  of  $400  was  levied  for  the  purpose  of  building  a  new 
schoolhouse.  and  paid  to  the  collector.  About  June  25th,  the  work  of  erecting 
a  new  schoolhouse  was  begun,  mainly  by  days'  work.  On  July  17th,  a  second  tax 
list  was  prepared,  $144.85  of  which  tax  was  for  the  building  and  furnishing,  and 
S74.08  for  other  purposes. 

The  trustee  having  failed  to  itemize  the  tax,  applied  for  and  on  July  22d, 
(jbtainetl  leave  to  withdraw  and  amend  this  list,  which  was  done  and  on  the  26th 
of  July,  all  taxable  inhabitants,  including  appellants,  had  paid  their  tax,  except 
one  taxpayer  who  is  not  a  party  to  this  api)eal,  and  who  had  paid  a  part  of 
his  tax  and  is  willing  to  pay  the  remainder.  It  seems  that  the  appellants 
naid  before  the  stay  granted  by  me  July  22d  was  received  by  them.  The 
money  raised  by  these  two  tax  lists,  has  all  been  expended  but  $26.80  on  hand  at 
the  annual  meeting  held  August  6th,  last.  The  schoolhouse  is  nearly  completed, 
and  there  is  some  evidence  that  the  moneys  remaining  on  hand  will  complete 
it.  This  would  make  the  cost  of  the  house,  including  $50  for  furniture, 
about  $550. 

It  is  charged  by  the  appellants  that  the  tax  list  is  illegal:  the  building 
erected  without  authority:  the  old  building  worth  repairing;  the  trustee  has 
charged  for  his  personal  services,  and  has  boarded  the  workmen  at  his  residence. 

It  is  shown  that  the  house  after  which  this  was  patterned,  cost  $700. 
S.-..'-:,1  uun..<.-:   for  appdlants  swear  that  ?5<;o  would  be  a  sufficient  sum  to 


juDiciAi,  decisions:     tax   lists  lOOl 

I)uild  the  house  complete.  The  respondent's  witnesses  sweur  thai  the  work  was 
well  and  economically  done,  and  the  price  paid  for  labor  and  materials  market 
rates. 

It  seems  that  the  trustee  did,  at  the  annual  meeting,  present  a  personal  bill 
for  audit  for  use  of  horses,  which  was  rejected  and  on  the  hearing  the  claim 
was  expressly  waived  and  withdrawn. 

The  trustee  did  board  some  of  the  workmen  for  50  cents  per  day,  because 
after  consultation  with  the  committee,  it  was  decided  to  be  the  wisest  arrange- 
ment for  all,  the  trustee  being  in  a  position  to  board  them  and  living  conveniently 
near  the  work.  I  consider  this  explanation  satisfactory,  and  the  charge  he  made 
not  at  all  unreasonable,  if  at  all  profitable  to  the  trustee. 

The  appellants  would  have  been  entitled  to  relief  had  they  been  timely 
with  their  appeal.  They  allowed  the  first  tax  of  $400  to  be  levied  and  collected, 
and  the  schoolhouse  to  be  built  without  dissent.  The  second  tax  was  levied  and 
paid  before  the  appeal  was  filed.  The  money  raised  has  been  disbursed.  The 
district  has  a  new  schoolhouse,  the  cost  of  which  I  do  not  deem  exorbitant,  and 
paid  for  by  the  people's  money. 

The  proceedings  have  been  irregular.  A  district  meeting  should  have  been 
called  and  plans  adopted,  and  a  building  erected  according  thereto;  but  a  con- 
dition of  affairs  is  presented  which  no  decision  of  this  Department  can  change. 

The  respondent  is  now  out  of  office.  There  has  been  no  misappropriation, 
of  money  on  his  part.  He  seems  to  have  given  much  of  his  time  and  the  use 
of  his  teams  to  the  district,  for  which  he  can  receive  no  remuneration. 

In  view  of  these  circumstances,  I  must  dismiss  the  appeal,  and  vacate  the 
stay  heretofore  granted. 


3964 

In  the  matter  of  the  appeal  of  Ralph  Wolford  v.  school  district  no.  7,  of  the 
town  of  Knox,  county  of  Albany. 

An  appeal  to  have  determined  a  mooted  question  as  to  the  place  of  taxation  of  certam 
lands.     No  map  worthy  the  name  is  submitted  as  the  rules  required. 

The  land  in  question  has  been  taxed  for  school  purposes  in  a  particular  district  for  many 
years. 

Held,  that  the  burden  is  upon  the  appellant  to  show  by  clear  and  preponderating  evidence 
that  it  is  not  properly  so  taxed,  and  in  this  he  fails. 

Decided  February  21,  1891 

Krum  &  Grant,  attorneys  for  appellant 

Draper,  Superintendent 

The  appellant  owns  a  farm  in  the  school  district  above  named,  consisting 
of  130  acres,  and  also  a  second  farm  in  the  same  district  consisting  of  26  acres, 
^he  appellant  also  owns  a  farm  of  84  acres,  situated  in  the  town  of  Wright  in 
the  county  of  Schoharie.  For  many  years  the  last  mentioned  property  has  been 
taxed  for  school  purposes  in  school  district  no.  7  of  the  town  of  Knox.     About 


10O2  THE    UNIVERSITY    Ol"    THE    STATE    OF    NEW    YORK 

the  1st  of  January  last,  the  trustee  in  said  district  issued  a  tax  list  to  raise  money 
for  school  purposes  and  included  therein  the  three  farms  aforesaid.  The  appel- 
lant insists  that  tiie  farm  of  eighty-four  acres  should  not  be  taxed  in  the  said 
district,  and  brings  this  appeal  to  have  the  matter  so  determined. 

The  parties  have  filed  several  pleadings  upon  each  side.  After  reading 
them  all  with  as  much  care  as  I  am  capable  of  bestowing  upon  the  matter,  I  find 
myself  uncertain  as  to  how  it  should  be  disposed  of.  No  map  worthy  the  name, 
is  submitted  for  my  assistance,  as  is  required  by  the  rules.  The  property  in 
controversy  has  been  taxed  for  school  purposes  in  the  present  district  for  many 
years,  and  the  burden  is  upon  the  appellant  to  show  by  clear  and  preponderating 
proof,  that  it  is  not  properly  so  taxed.    This  he  fails  to  do. 

The  appeal  is  dismissed,  but  without  prejudice  to  the  right  of  the  appellant 
to  bring  the  matter  before  the  Department  again  at  some  time,  after  proper 
surveys  and  a  creditable  map  of  the  territory  have  been  made. 


3986 

In  the  matter  of  the  appeal  of  Isaac  W.  Durfee  v.  George  G.  Rich,  as  trustee  of 
school  district  no.  13,  town  of  Cambridge,  county  of  Washington. 

The  preparation  of  a  district  tax  list  from  a  town  assessment  roll  which  was  not  at  the 
lime  of  such  preparation  the  last  revised  assessment  roll  of  the  town.    Held,  irregular. 
Decided  July  3,  1891 

Draper,  Superintendent 

Appeal  from  the  action  of  the  trustee  of  school  district  no.  13,  town  of 
Cambridge,  county  of  Washington,  in  preparing  a  school  tax  list  from  a  town 
assessment  roll  which  was  not  the  last  corrected  assessment  roll  of  the  town  on 
file  at  the  time  of  such  preparation,  which  tax  list  was  delivered  to  the  district 
collector  January  7,  1891.  It  is  claimed  that,  in  consequence  of  the  trustee's 
action,  erroneous  assessments  have  been  made. 

No  answer  has  been  interposed.  The  action  appealed  from  is  irregular  and 
can  not  be  upheld. 

The  appeal  is  sustained,  and  the  trustee  is  ordered  to  withdraw  and  correct 
the  tax  list  so  as  to  conform  to  the  valuations  appearing  upon  the  last  town 
assessment  roll,  if  it  has  not  already  been  done  in  accordance  with  an  order 
heretofore  issued  to  the  trustee. 


3553 

In  the  matter  of  the  appeal  of  John  Wiegner  for  the  removal  of  Theron  P. 
King  and  Eugene  Shaw  from  the  offices  of  trustees  of  school  district  no.  11, 
town  of  Brunswick,  Rensselaer  county. 

A  majority  of  a  board  of  trustees  will  not  be  required  to  sign  a  tax  list  and  warrant  for 
the  collection  of  taxes  when  the  tax  list  contains  an  item  not  authorized  by  law.     But 


JUDICIAL  decisions:     tax  lists  1003 

the  majority  13  ordered  and  directed  to  prepare  a  tax  list  and  warrant  for  the  legal  items 
voted  by  a  distnci  ineeling. 
Decided  January  5,  if" 


G.  H.  Mallory,  Esq.,  attorney  for  appellant 
Hon.  A.   C.  Comstock,  attorney   for  respondent 


Draper,  Superintendent 

This  appeal  is  taken  by  John  Wiegner,  a  trustee  of  school  district  no.  11, 
from  the  refusal  of  the  respondents  to  sign  the  tax  list  and  warrant  for  the 
collection  of  school  taxes  voted  at  the  last  annual  meeting  in  said  district. 

The  respondents,  answering  the  complaint  made  by  the  appellant,  admit 
that  they  refused  to  sign  the  Hst  and  warrant  as  charged,  but  allege  as  a  reason 
that  the  amount  of  tax  proposed  to  be  raised  included  an  item  of  two  dollars 
for  extra  compensation  to  the  collector  of  the  district,  which  would  be  an 
illegal  tax. 

The  respondents  are  not  justified  in  the  position  they  have  taken,  except 
as  to  the  item  of  two  dollars  voted  for  additional  compensation  to  the  collector. 

The  law  regulates  the  collector's  fees,  and  only  the  Legislature  can  change 
it.  But  because  of  this  item  of  two  dollars  a  majority  of  the  trustees  can  not 
be  sustained  or  justified  in  refusing  to  carry  out  the  directions  of  the  annual 
meeting,  as  to  legal  items,  and  embarrass  the  school  interests  of  the  district. 
Why  have  not  the  respondents  provided  a  tax  list  and  warrant  to  raise  the 
amounts  provided  for  teachers'  wages  and  other  legitimate  expenses? 

I  am  at  a  loss  to  understand  their  position  except  upon  the  theory  that  there 
is  an  intention  to  break  up  the  school  in  the  district. 

I  have  concluded  to  dispose  of  this  appeal  for  the  present  as  follows : 

The  respondents  are  hereby  directed  to  prepare,  according  to  law,  a  tax 
list  and  warrant  for  the  items  voted  at  the  annual  school  district  meeting,  except- 
ing the  item  of  two  dollars  for  extra  compensation  to  the  collector  of  the  dis- 
trict, and  to  join  with  the  appellant  in  signing  the  same  and  in  delivering  them 
to  the  collector  of  the  district. 

The  final  decision  of  this  appeal  will  be  suspended  for  ten  days  and  if  the 
direction  above  given  is  complied  with  during  such  period  of  suspension,  the 
appeal  will  be  dismissed. 


3608 

In  the  matter  of  the  appeal  of  Adam  Frederick  v.  Eugene  Frederick,  as  trustee 
of  school  district  no.  11,  of  the  town  of  Johnstown,  Fulton  county. 

A  general  allegation  that  a  tax  list  is  erroneous  without  specifying  the  error ;  that  a  trustee 
has  neglected  his  duties,  does  not  manage  the  affairs  of  the  district  for  the  benefit  of 
the  patrons  of  the  school,  but  for  his  own  personal  gain:  held  to  be  too  indefinite  for 
intelligent  determination. 

Decided  June  20,  18S7 


IC)04  THE    UNIVi:USITY    OF    THE    STATK    OK    NKW    YORK 

Draper,  Superintend oit 

This  is  an  appeal  by  Adam  Frederick,  a  resident  of  school  district  no.  ii, 
town  of  Johnstown.  Fuhon  county,  N.  Y.,  against  Eugene  Frederick,  sole  trus- 
tee thereof.  The  appellant  alleges  that  the  tax  roll  caused  to  be  collected  is 
erroneous;  that  the  trustee  is  ineligible  to  the  office  he  holds;  that  he  has  neglected 
the  duties  of  his  office  and  does  not  manage  the  affairs  of  the  district  for  the 
benefit  of  the  patrons  of  the  school,  but  for  his  own  personal  gain ;  that  he  stated 
to  several  persons  that  he  would  not  hire  any  teacher  who  would  not  board  with 
him,  and  had  refused  to  hire  several  applicants  for  such  reason ;  that  he  conducted 
school  at  a  time  when  most  of  the  scholars  could  not  get  there,  and  that  he  has 
misapplied  the  money  of  the  district. 

The  trustee,  answering  said  allegations,  denies  positively  and  specifically 
each  allegation  of  the  appellant. 

This  appeal  is  too  indefinite  for  intelligent  determination.  Facts  must  be 
stated.  If  the  roll  is  erroneous,  it  should  be  shown  in  what  respect  it  is  so.  It 
does  not  appear,  from  appellant's  papers,  what  tax  list  is  referred  to.  It  is  not 
shown  in  what  respect  he  has  neglected  his  duties  as  trustee.  It  is  alleged  gen- 
erally that  he  has  misapplied  money,  but  when  and  how  does  not  appear. 

No  specific  act  of  the  trustee  seems  to  be  appealed  from.  The  appellant 
seems  to  desire  to  remove  the  trustee  from  office,  and  seems  to  think  that  the  way 
to  accomplish  it  is  to  appeal  from  his  acts.  In  this  he  is  mistaken.  If  the  trus- 
tee is  disqualified  or  unqualified  for  the  office,  or  is  abusing  his  trust,  charges 
should  be  preferred  against  him,  and  the  facts  which  are  cause  for  removal 
should  be  clearly  set  forth  and  proved. 

The  ajjpeai  is  dismissed. 


3634 

In  the  matter  of  th;  appeal  of  Edward  T.  Lovatt,  James  O.  Jones  and  John 
Webber  V.   Patrick  Quinn,  George  Sinnott  and  John  Massett. 

Certain  trustees  in  a  union  free  school  district  refused  to  sign  a  tax  list  and  warrant  to 
raise  moneys  lawfully  voted  by  the  district  meeting  more  than  thirty  days  since,  upon 
the  ground  that  the  office  of  collector  was  vacant. 

Held,  no  sufficient  reason.  Trustees  directed  to  siyn,  or  show  cause  why  they  should  not 
be  removed  from  their  offices. 

Decided  September  17,  1887 

Draper,  Superintendent 

The  board  of  education  of  union  free  school  district  no.  i,  of  the  town  of 
Mount  Pleasant,  Westchester  county,  consists  of  six  members,  of  which  number 
the  appellants  above  named  constitute  three  of  the  members  and  the  respondents 
the  other  three. 

The  appellants  allege  that  the  taxes  for  school  purposes  for  the  year  1887 
were  heretofore  estimated  by  the  board  of  education  and  afterward  granted  and 


JUDICIAL    DECISION^:  :       TAX    LISTS  IOO5 

voted  at  a  district  meeting  more  than  thirty  days  since,  and  that  the  appellants 
have  prepared  the  tax  list  and  warrant  for  the  collection  of  the  said  taxes,  and 
have  signed  the  same,  but  that  the  respondents  refuse  to  sign  said  tax  list  and 
warrant,  although  requested  so  to  do.  It  is  shown  that  the  district  is  in  need  of 
moneys  for  current  expenses.  The  appellants  say  that  the  reason  given  by  the 
respondents  for  such  refusal  is  that  the  office  of  collector  is  vacant.  It  is  shown 
that  Morgan  Purdy  was  appointed  collector  upon  the  23d  day  of  February  1886, 
and  that  he  subsequently  gave  the  required  bond,  which  was  approved  by  the 
board,  and  that  he  entered  upon  the  office  and  has  since  co-^inued  to  occupy  the 
same.     The  respondents  question  his  right  to  do  so. 

Proof  is  made  of  the  service  of  the  petition  setting  up  this  state  of  facts  upon 
Trustees  Quinn  and  Sinnott  on  the  ist  day  of  June  1887,  and  on  Trustee  Massett 
on  the  7th  day  of  June  1887.  No  answer  has  been  made  and  affidavits  are  pre- 
sented showing  that  Trustee  Quinn  has  repeatedly  stated  that  no  answer  would 
be  made,  and  that  the  facts  are  correctly  stated  in  the  petition  of  the  appellants. 
Upon  this  state  of  facts,  the  appellants  ask  for  an  order  directing  the 
respondents  to  join  them  in  making  the  tax  list  necessary  to  collect  the  said  taxes. 
Title  7,  article  7,  section  65  of  the  Consolidated  School  Act  provides  "  that 
within  thirty  days  after  a  tax  shall  have  been  voted  by  a  district  meeting  the  trus- 
tee shall  assess  it  and  make  out  a  tax  list  therefor  and  annex  thereto  the  warrant 
for  its  collection." 

This  provision  of  the  statute  is  imperative.  It  imposes  upon  the  members 
of  the  board  a  duty  with  which  enough  of  the  members  to  prevent  any  action 
have  failed  to  comply.  The  direction  to  '*  assess  it  and  make  out  a  tax  list,"  of 
course  imposes  the  duty  of  preparing,  signing  and  executing  such  tax  list. 

The  reason  which  is  given  for  the  refusal  to  execute  the  tax  list  is  not  suffi- 
cient. Title  9,  section  7  of  the  Consolidated  School  Act  contains  this  provision, 
namely :  "  In  districts  other  than  those  whose  limits  correspond  with  those  of 
any  city  or  incorporated  village,  said  board  shall  have  power  to  appoint  one  of 
the  taxable  inhabitants  treasurer  and  another  collector  of  the  moneys  to  be  raised 
within  the  same  for  school  purposes,  who  shall  severally  hold  such  appointments 
during  the  pleasure  of  the  board."  Under  this  provision  a  collector  once 
appointed  and  qualified  would  continue  to  hold  the  office  until  removed  by  the 
action  of  a  majority  of  the  members  of  the  board.  Mr  Purdy  is,  therefore,  still 
the  collector  of  the  district  in  question. 

In  view  of  the  foregoing,  the  respondents  are  hereby  ordered  to  forthwith 
join  with  their  associates  in  signing  and  executing  the  tax  list  and  warrant 
referred  to,  or  to  show  cause  before  me  at  the  Department  of  Public  Instruction 
in  the  city  of  Albany,  on  Monday,  the  26th  day  of  September  1887,  at  three 
o'clock  in  the  afternoon  of  said  day,  why  they  should  not  severally  be  removed 
from  their  offices  as  trustees  of  said  district  because  of  their  refusal  to  do  so. 

Let  serA'ice  of  this  order  be  made  upon  the  several  respondents  by  delivering 
-^  copy  to  each  of  them,  and  by  exhibiting  to  them  the  original  thereof,  on  or 
before  Wednesday,  September  21,  1887. 


1006  THE    UNiVERSlTV    OF    THE    STATE    OF    NEW    YORK 

41635^ 

In  the  matter  of  the  appeal  of  Deville  W.  Corbin,  Chester  W.  Corbin  and  Ralph 
Corbin  v.  George  VV.  Vanderworker,  trustee  school  district  no.  3,  town  of 
Bainbridge,  Chenango  county. 

It  is  the  policy  of  the  school  laws  to  require  trustees  of  school  districts,  in  making  out  a 
tax  list  to  follow  the  last  revised  town  assessment  roll.  The  law  gives  trustees  no  power 
to  revise  the  work  of  the  town  assessors.  It  is  only  in  special  cases  that  trustees  have 
authority  to  make  original  assessments,  that  is,  where  there  is  change  in  the  value  of 
property  since  the  completion  and  revision  of  the  last  assessment  roll  of  the  town. 
When  the  town's  assessors  have  settled  the  question  of  valuation  it  must  not  be  re- 
opened by  trustees,  because  such  officers  are  of  the  opinion  that  it  is  wrongly  determined. 

Decided  libruary  J5,  itSyj 

Crooker,  Superintendent 

This  is  an  appeal  from  the  action  of  the  respondent,  as  trustee  of  school  dis- 
trict no.  3,  town  of  Bainbridge,  Chenango  county,  in  making,  or  attempting  to 
make,  an  original  assessment  of  the  William  Corbin  estate. 

The  material  facts  established  are  as  follows : 

The  appellants  are  the  owners,  under  the  will  of  William  Corbin,  deceased, 
of  a  certain  tract  of  land,  lying  in  one  body,  known  as  the  William  Corbin  estate. 
That  the  buildings  on  said  land  are  situate  in  the  town  of  Afton.  That  said  lands 
were  assessed  by  the  assessors  of  said  town  of  Afton,  on  the  last  revised  assess- 
ment roll  of  said  town  in  one  body,  as  follows:  The  William  Corbin  estate,  321 
acres,  valuation  $7200.  No  buildings  have  been  erected  on  said  lands  or  improve- 
ments made  thereon  since  such  assessment  by  said  town  assessors.  That  the 
appellants  have  not  purchased  or  in  any  manner  acquired  title  to  or  control  of 
any  lands  since  such  assessment;  and  all  the  lands  owned,  occupied  or  in  any 
wise  controlled  by  said  appellants  were  included  in  such  assessment  by  said  town 
assessors.  That  said  lands  are  partly  wild  lands  and  the  quantity  of  land  can 
not  be  definitely  ascertained ;  that  the  boundaries  thereof  are  uncertain,  and  in 
some  parts  unknown,  and  that  it  would  require  a  competent  civil  engineer  and 
surveyor,  with  proper  instruments,  aided  by  records,  to  correctly  ascertain  such 
boundaries  and  monuments  and  the  precise  acreage  of  the  land  comprising  said 
estate.  That  the  assessors  of  said  town  of  Afton  at  different  times  have  been 
required  to  review  the  assessment  of  said  estate  and  increase  the  valuation 
thereof,  but  after  examination  and  review,  have  declined  to  change  such  assessed 
valuation.  That  the  respondent,  as  such  trustee,  as  aforesaid,  made,  in  November 
1892,  a  tax  list  and  assessment  for  said  district,  in  which  he  made  or  attempted 
to  make  relative  to  the  William  Corbin  estate,  an  original  assessment,  placing 
upon  said  tax  list  and  assessment  as  the  same  was  assessed  upon  the  last  assess- 
ment roll  of  the  town  of  Afton,  after  revision  by  the  assessors,  the  following: 
•'  Corbin  estate,  321  acres,  $7200  valuation,  nine  dollars  and  forty-three  cents," 
and  as  an  original  assessment  the  following:  "  Corbin  estate,  144  acres,  $1000 
valuation,  one  dollar  and  thirty-one  cents."  He  also  placed  upon  said  tax  list  and 
assessment,  as  an  original  assessment,  the  following :    "  Ralph  Corbin,  ten  acres. 


JUDICIAL  decisions:     tax  lists  1007 

valuation  $350."  That  on  November  28  or  29,  1892,  said  respondent  served  upon 
the  appellants  a  notice  that  he  had  completed  the  assessment  and  tax  roll  of  said 
district,  and  a  copy  thereof  was  at  his  shop,  where  the  same  might  be  seen  and 
examined  by  any  person  interested  until  the  20th  of  December  1892,  and  that 
on  that  day  he  would  review  the  said  roll.  That  no  other  notice,  public  or  other- 
wise, of  the  completion  of  the  said  assessment  and  the  appointment  of  a  day  for 
the  hearing  of  grievances  was  given  by  said  respondent  as  such  trustee,  either  by 
posting  the  same  or  in  any  other  manner.  That  on  said  December  20,  1892,  the 
appellant  appeared  before  said  respondent  as  such  trustee,  and  objected  to  the 
aforesaid  original  assessments  made  relative  to  the  Corbin  estate  and  Ralph  Cor- 
bin ;  that  testimony  was  presented  before  said  respondent,  and  afterwards,  and 
on  December  23,  1892,  the  respondent  delivered  said  tax  list  and  assessment,  con- 
taining said  original  assessment,  with  his  warrant,  to  the  collector  of  said  district. 

By  section  68  of  title  7  of  the  Consolidated  School  Laws  of  1864  it  is  pro- 
vided that,  when  such  reductions  shall  be  duly  claimed,  and  where  the  valuation 
of  taxable  property  can  not  be  ascertained  from  the  last  assessment  roll  of  the 
town,  the  trustees  shall  ascertain  the  true  value  of  the  property  to  be  taxed  from 
the  best  evidence  in  their  power,  giving  notice  to  the  persons  interested,  and  pro- 
ceeding in  the  same  manner  as  the  town  assessors  are  required  by  law  to  proceed 
in  the  valuation  of  taxable  property. 

By  the  laws  of  this  State,  town  assessors  are  required  to  put  up,  at  three  or 
more  public  places  in  their  town,  notices  that  they  have  completed  their  assess- 
ment roll,  and  that  a  copy  thereof  is  left  with  one  of  their  number  where  the  same 
may  be  seen  and  examined  by  any  person  interested,  and  that  said  assessors  will 
meet  at  a  time  and  place  specified  in  said  notice  to  review  their  assessments. 

Section  68  relates  to  cases  where  the  trustee  does  not  follow  the  town  assess- 
ment. Where  the  valuations  are  increased  or  new  property  is  added,  in  such 
cases  the  section  requires  the  trustee  to  give  notice  to  the  parties  interested,  and 
to  proceed  in  the  same  manner  as  town  assessors  are  required  by  law  to  proceed 
in  the  valuation  of  taxable  property.  The  courts  have  held  an  omission  to  give 
such  notice  is  a  jurisdictional  defect,  invalidating  the  tax. 

In  the  appeal  of  Bryant  and  others,  no.  3342,  where  the  trustee  had  made 
an  original  assessment  and  served  a  personal  notification  upon  the  person 
assessed,  but  failed  to  give  the  notice  required  by  law  for  town  assessors,  Super- 
intendent Ruggles  decided  that  the  trustee,  having  failed  to  give  the  notice  pre- 
scribed by  the  statute,  the  original  assessment  is  void  for  want  of  jurisdiction. 
I  concur  in  the  decision  of  Superintendent  Ruggles,  and  decide  and  determine 
that  the  original  assessment  made  by  the  respondent  herein  is  void  for  want  of 
jurisdiction,  and  that  the  said  tax  list  and  warrant  issued  by  the  respondent,  as 
such  trustee,  to  the  collector  of  said  school  district,  on  December  23,  1892,  must 
be  therefore  set  aside  as  invalid  and  void. 

Assuming,  however,  for  the  purposes  of  the  argument,  that  the  respondent 
~  bas  given  all  the  notices  required  by  law,  his  original  assessments  were  without 
authority  of  law. 


I0o8  THE    INIVERSITY    OF    THE    STATE    OF    NEW    YORK 

By  section  66  of  title  7  of  the  school  laws,  it  is  provided  that  land  lying 
in  one  body  and  occupied  by  the  >aine  person,  either  as  owner  or  agent  for  the 
same  principal,  or  as  tenant  under  the  same  landlord,  if  assessed  as  one  lot  on 
the  last  assessment  roll  of  the  town,  after  revision  by  the  assessors,  shall,  though 
situate  partly  in  two  or  more  school  districts,  be  taxable  in  that  one  of  them  in 
which  the  occupant  resides.  Chapter  315  of  the  Laws  of  18S6  provides  that 
when  the  line  between  two  towns,  wards  or  counties  divides  a  farm  or  lot,  the 
same  shall  be  taxed,  if  occupied,  in  the  town,  ward  or  county  where  the  occu- 
pant resides.  Hy  .section  ()/  of  title  7  of  the  school  laws,  the  valuations  of  tax 
able  property  shall  be  ascertained,  so  far  as  possible,  from  the  last  assessment 
roll  of  the  town  after  revision  by  the  assessors. 

It  is  altinnatively  established  that  the  land  known  as  the  "  Corbin  estate  " 
lies  in  one  body  and  owned  by  the  appellants  as  devisees  under  the  will  of 
William  Corbin.  who  reside  in  the  town  of  Afton,  and  was  assessed  as  one  lot 
on  the  la.st  assessment  roll  of  the  town,  after  revision  by  the  assessors,  and 
valued  at  $7200.  It  is  also  alVirmatively  established  that  all  the  land  owned  by 
the  appellant.  Ralph  Corbin.  in  said  school  district  no.  3,  of  Bainbridge.  is 
included  in  the  land  lying  in  one  body,  known  as  the  Corbin  estate,  as  aforesaid. 
if  the  ten  acres  attempted  to  be  assessed  to  Ralph  Corbin  by  the  respondent, 
is  divided  from  the  rest  of  the  land  of  the  Corbin  estate  by  the  town  line 
between  the  towns  of  Afton  and  Bainbridge,  it  is  properly  assessed,  under  said 
chapter  315,  of  the  Laws  of  18S6,  as  part  of  said  estate  in  the  town  of  Afton, 
where  said  Ralph  Corbin  resides,  and  the  assessors  of  the  town  of  Bainbridge, 
when  requested,  very  properly  declined  to  assess  said  ten  acres  to  said  Ralph 
Corbin  in  the  town  of  Bainbridge.  It  is  also  affirmatively  established  that  there 
has  been  no  change  in  the  value  of  the  property  known  as  the  "  Corbin  estate." 
nor  any  increase  in  the  quantity  of  land  of  said  estate,  since  the  last  assessment 
roll  of  the  town  of  Afton,  after  revision  by  the  assessors.  It  is  not  shown  by 
competent  proof  that  the  said  assessors  have  unquestionably  made  an  error  in 
assessing  said  estate  at  321  acres,  nor  that  they  erred  in  judgment  in  their  valu- 
ation of  said  land  at  the  sum  of  $7200;  but  on  the  contrary  it  is  shown  that  the 
acreage  of  said  estate  has  been  examined,  investigated  and  considered  by  said 
assessors,  and  that  the  valuation  put  thereon  is  higher  than  that  of  other  farm 
lands  in  the  vicinity. 

It  is  the  policy  of  the  school  laws  to  require  trustees,  in  making  out  a  tax 
list,  to  follow  the  last  revised  town  assessment  rolls.  The  law  gives  trustees  no 
power  to  revise  the  work  of  the  town  assessors.  It  is  always  to  be  borne  in 
mind  that  town  assessment  rolls  are  prepared  by  officers  who  are  chosen  with 
special  reference  to  such  service,  and  who  must  be  presumed  to  be  better 
informed  as  to  subjects  of  taxation  than  school  trustees  are  likely  to  be.  It 
is  only  in  special  cases  that  trustees  have  authority  to  make  original  assess- 
ments, that  is.  where  there  is  a  change  in  the  value  of  property  since  the  com- 
pletion and  revision  of  the  last  assessment  roll  of  the  town;  as  for  example, 
where  improvements  have  been  made  by  the  erection  of  buildings  not  completed 


JUDICIAL  decisions:     tax  lists  1009 

when  the  town  assessment  was  made  or  where  buildings  have  been  destroyed, 
or  where  the  property  of  a  party  is  clearly  known  or  acknowledged  to  have 
been  increased,  as  by  a  bequest  or  otherwise,  or  where  the  town  assessors  have 
unquestionably  made  an  error,  as  in  assessing  one  for  100  acres  of  land  when 
he  is  known  to  own  but  fifty  acres,  or  vice  versa.  These  cases,  however,  are  not 
frequent,  and.  upon  the  facts  presented,  none  of  them  are  shown  to  exist  in 
the  matter  under  review.  Trustees  must  not  assume  to  pass  upon  the  judgment 
of  the  town  assessors.  When  the  town  assessors  have  settled  the  question  of 
valuation  it  must  not  be  reopened  by  trustees  because  these  officers  are  of  the 
opinion  that  it  is  wrongly  determined. 

The  appeal  herein  is  sustained. 

It  is  ordered,  that  the  tax  list  and  warrant  issued  by  the  trustee  of  school 
district  no.  3,  town  of  Bainbridge,  Chenango  county,  to  the  collector  of  said 
district,  on  December  23,  1892,  be.  and  the  same  hereby  is,  declared 
invalid  and  void;  that  all  sums  collected  upon  or  by  virtue  of  said  tax  list  and 
warrant  be  refunded  to  the  person  or  persons  respectively,  from  whom  the 
same  w^ere  so  collected.  That  said  trustee  forthwith  made  a  new  tax  list  and 
assessment  for  said  district  in  which  the  said  "  Corbin  estate  ''  shall  be  taxed 
and  assessed  as  the  same  is  taxed  and  assessed  in  the  last  assessment  roll  of 
the  town  of  Afton,  after  revision  by  the  assessors;  and  said  tax  list  shall  not 
contain  any  tax  or  assessment  against  Ralph  Corbin  for  ten  acres  of  land  form- 
ing a  part  of  and  included  within  the  assessment  of  said  Corbin  estate  on 
said  assessment  roll  of  the  town  of  Afton. 


4408 

In  the  matter  of  the  appeal  of  T.  W.  Mannigan  v.  Edwin  Wicks,  trustee,  school 
district  no.   15,  town  of  Diana,  Lewis  county. 

Trustees  under  the  school  law  arc  required  to  prefix  to  their  tax  list  a  heading,  showing  for 
what  purpose  the  different  items  of  the  tax  are  levied.  Such  heading  is  necessary  to  give 
validity  to  such  tax  list,  and  a  tax  list  which  does  not  show  such  items  will  be  set  aside 
upon  appeal.  Every  taxpayer  is  entitled  to  see  the  tax  list,  which  would  show  him  the 
purposes  for  which  the  tax  is  levied,  the  items  on  the  tax  list  which  are  ordered  or 
authorized  by  a  district  meeting  should  be  so  designated,  giving  the  date  of  the  meeting 
which  authorized  the  levy.  Items  which  the  trustees  are  authorized  by  law  to  insert 
without  any  vote  of  the  district  can  be  included  in  the  same  heading  and  inserted  in 
the  same  tax  list. 

A  trustee  of  a  school  district  can  not  legally  receive  pay  for  services  done  and  performed  by 
him  as  trustee  and  required  to  be  performed  by  him  under  the  school  law. 

When  a  tax  list  and  warrant  has  been  delivered  by  the  trustees  of  a  school  district  to  the 
collector,  such  trustees  have  no  legal  authority  to  recall  such  tax  list  and  warrant  from 
the  collector,  and  make  any  alterations  or  changes  therein  without  the  permission  of  the 

*"  \    State  Superintendent  of  Public  Instruction. 

Decided  December  3.  1895 


lOIO  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

Skinner,  Superintendent 

This  appeal  is  taken  from  a  tax  list  and  assessment  made  by  Edwin  Wicks 
as  trustee  of  school  district  no.  15,  town  of  Diana,  Lewis  county,  and  delivered, 
with  the  warrant  of  the  trustee,  to  the  collector  of  the  district  on  or  about  Sep- 
tember 30,  1S95 ;  and  from  certain  acts  done  by  said  trustee. 

A  copy  of  the  appeal  was  personally  served  upon  said  trustee  on  October 
J4,  1895.  No  answer  has  been  made  by  said  trustee  to  said  appeal.  A  copy  of 
said  ta.\  list  and  assessment  as  it  was  on  October  14,  1895,  is  annexed  to  said 
appeal. 

The  appellant  alleges  that  the  annual  meeting  in  said  district  voted  that  but 
one  tax  list  be  made  for  the  present  school  year  and  that  the  expenses  for 
school  purposes  for  said  school  year  to  be  raised  by  tax  be  included  in  said  tax 
list;  that  on  or  about  September  30,  1895,  the  said  trustee,  Edwin  Wicks, 
delivered  to  the  collector  of  the  district,  a  tax  list  and  warrant,  and  that  in  the 
heading  prefixed  to  said  tax  list  it  was  stated  that  the  aggregate  sum  of  $148.87 
was  to  be  raised,  whereas  the  aggregate  amount  assessed  in  the  tax  list  was  the 
sum  of  $131.57;  that  said  heading  contained  the  following  items:  "Copying 
assessment  roll  and  making  teacher's  wages,  $127,"  and  "  rate  bill,  $1.50";  that 
on  or  about  October  16,  1895,  the  said  trustee,  without  permission  from  the 
State  Superintendent  of  Public  Instruction,  recalled  said  tax  list  and  warrant 
from  the  collector  and  altered  the  items  in  said  heading,  namely,  "  Copying 
assessment  roll  and  making  teacher's  wages,  $127,"  by  altering  said  amount  to 
$109.70;  that  the  land  owned  by  nonresidents  of  the  district,  and  which  is  not 
occupied  by  an  agent,  servant  or  tenant  residing  in  the  district,  is  not  described 
in  said  tax  list  and  assessed  as  required  by  law;  that  on  or  about  October  2, 
1895.  ^liss  Foley,  the  teacher  in  said  district,  received  from  the  supervisor  of 
the  town  of  Diana,  the  sum  of  $14  or  more,  upon  an  order  drawn  by  said  trustee 
for  wages  due  Miss  Foley,  at  which  time  Miss  Foley  had  not  verified  the  entries 
made  by  her  in  the  school  register,  and  that  on  October  18,  1895,  such  entries 
still  remained  unverified. 

No  answer  having  been  made  by  said  Trustee  Wicks  to  the  appeal  herein, 
the  alle.r^ations  contained  in  the  appeal  are  deemed  admitted  by  him. 

Section  62,  article  7,  title  7,  of  the  Consolidated  School  Law  of  1894 
requires  the  trustees  of  school  districts  to  prefix  to  their  tax  list  a  heading  show- 
ing for  what  purpose  the  different  items  of  the  tax  are  levied.  Such  heading  is 
necessary  to  give  validity  to  such  tax  list,  and  a  tax  list  which  does  not  show 
such  items  will  be  set  aside  upon  appeal  to  the  State  Superintendent.  Every 
taxpayer  is  entitled  to  see  the  tax  list,  which  should  show  him  for  what  purposes 
the  tax  is  levied.  The  items  on  the  tax  list  which  are  ordered  or  authorized  by 
a  district  meeting  should  be  so  designated,  giving  the  date  of  the  meeting  which 
authorized  the  levy.  Items  which  the  trustees  are  authorized  by  law  to  insert 
without  any  vote  of  the  district  can  be  included  in  the  same  heading  and  assessed 
in  the  same  tax  list. 

In  the  copy  of  the  tax  list  and  heading  annexed  to  the  appeal  is  as  follows : 


JUDICIAL  decisions:     tax  lists  ioii 

"  Copying  assessment  and  making  teacher's  wages,  $127."  This  item  is  not 
properly  stated.  There  should  be  an  item  showing  the  amount  assessed  for 
teacher's  wages,  and  the  trustee  has  no  legal  authority  to  assess  any  sura  for 
copying  the  assessment. 

A  trustee  of  a  school  district  can  not  legally  receive  pay  or  be  paid  for 
services  done  and  performed  by  him  as  trustee,  required  to  be  performed  by 
him  under  the  school  law.  The  office  of  trustee  of  a  school  district  is  an 
honorary  one.  It  is  clear  that  some  part  of  the  item  of  $127  is  for  copying  the 
assessment  roll  and  he  can  not  legally  receive  pay  for  making  such  copy.  The 
heading  also  contains  the  following  item:  "  Rate  bill,  $1.50."  Rate  bills  in  com- 
mon school  districts  were  abolished  by  law  many  years  ago.  If  the  trustee  by 
this  item  intends  the  item  for  his  services  relating  to  said  tax  list  it  can  not 
legally  be  assessed  against  the  district. 

It  appears  that  after  said  Trustee  Wicks  made  out  the  tax  list  and  warrant 
and  delivered  the  same  to  the  collector,  he  recalled  the  same  from  the  collector 
and  made  alterations  in  the  heading  to  the  tax  list.  This  he  had  no  legal 
authority  to  do  without  permission  from  the  State  Superintendent  of  Public 
Instruction,  under  the  provisions  of  section  84,  article  7,  title  7,  of  the  Con- 
solidated School  Law.  When  a  tax  list  and  warrant  has  been  delivered  by  a 
trustee  or  trustees,  of  a  school  district  to  the  collector,  such  trustee  or  trustees 
has  or  have  no  legal  authority  to  recall  such  tax  list  and  warrant  from  such 
collector,  or  make  any  alteration  or  changes  in  such  tax  list  without  the  permis- 
sion of  the  State  Superintendent  of  Public  Instruction. 

Land  situate  in  a  school  district,  owned  by  nonresidents  of  the  district,  and 
which  shall  not  be  occupied  by  an  agent,  servant  or  tenant  residing  in  said  dis- 
trict, shall  be  assessed  as  nonresident,  unoccupied  and  unimproved  land  in  like 
manner  as  by  law  town  assessors  assess  nonresident  land,  and  a  description  of 
said  land  shall  be  entered  in  the  tax  list,  but  in  a  part  separate  from  other  assess- 
ments. It  is  clear  that  said  Trustee  Wicks  has  failed  to  legally  assess  the  non- 
resident lands  situated  in  said  school  district  no.  15,  town  of  Diana. 

Section  53,  article  6,  title  7,  of  the  Consolidated  School  Law  of  1894, 
requires  the  teachers  in  each  school  district  to  enter  upon  the  school  register  the 
attendance  of  pupils  at  the  school  taught  by  them  respectively  as  stated  in  said 
section,  and  to  verify  such  entries  by  his  or  her  oath  or  affirmation.  Said  section 
forbids  a  trustee  to  draw  any  order  upon  the  supervisor,  collector  or  trustee  in 
favor  of  any  such  teacher  for  any  portion  of  his  or  her  wages  until  such  teacher 
shall  so  make  and  verify  such  entries  in  such  school  register. 

It  appears  that  said  Trustee  Wicks  has  been  guilty  of  a  violation  of  the  said 
provisions  contained  in  said  section  53,  above  cited. 

The  appeal  herein  is  sustained. 

It  is  ordered,  That  the  tax  list  and  assessment  made  by  said  Edwin  Wicks 

as  trustee  of  school  district  no.  15,  town  of  Diana,  Lewis  county,  and  delivered 

"by  him  on  or  about  September  30,  1895,  with  his  warrant,  to  the  collector  of  said 

district,  and  on  or  about  October  16,   1895,  recalled  by  said  trustee   from  the 


IOI2  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

hands  of  said  collector,  and  said  tax  list  or  the  heading  prefixed  thereto,  altered 
and  chan<jcd  by  said  trustee  without  the  permission  of  the  State  Superintendent 
of  Public  Instruction,  be,  and  the  same  is,  hereby  vacated  and  set  aside  as  illegal 
and  void. 

It  is  further  ordered.  That  the  said  Edwin  Wicks,  without  delay,  make  out 
a  new  tax  list  with  a  proper  heading  prefixed  thereto,  in  accordance  with  the 
provisions  of  law  and  the  foregoing  decision ;  that  in  making  such  tax  list  he  omit 
therefrom  any  sum  or  sums  for  his  services  in  copying  such  tax  list  or  for  rate 
bill. 


3786 

In  the  matter  of  the  appeal  of  Charles  Chandler  v.  Thomas  Quinn,  trustee  of 
school  district  no.  <S.  of  the  town  of  Sempronius,  county  of  Cayuga. 

An  appeal  from  the  action  of  a  trustee  in  preparing  a  tax  list,  without  specifying  in  the 
heading  thereof  each  item  of  tax  dismissed  when  the  appellant  and  all  other  taxpayers 
have  paid  their  tax  and  the  money  has  been  disbursed  without  an  appeal  having  been 
promptly  taken. 

Decided  April  16,  1889 

Draper.  Supciintciidoit 

This  appeal  is  taken  by  a  taxpayer,  of  school  district  no.  8,  of  the  town  of 
Sempronius,  county  of  Cayuga,  from  the  action  of  the  trustee  of  said  district  in 
preparing  a  tax  list  for  the  purpose  of  raising  money  for  teachers'  wages,  wood, 
;ind  other  school  expenditures,  without,  in  the  heading  of  such  tax  list,  specifying 
in  detail  each  item  of  tax. 

From  the  answer  of  the  respondent,  it  appears  that  each  taxpayer  has  paid 
the  tax,  and  that  the  amount  raised  thereby  has  been  disbursed.  The  appellant 
himself  admits  he  has  paid  his  tax.  In  view  of  these  facts,  I  am  at  loss  to  know 
how  a  decision  in  favor  of  the  appellant  would  remedy  the  inatter.  The  trustee 
was  clearly  wrong  in  not  specifying  each  particular  item  of  the  tax  in  the  head- 
ing of  the  tax  list,  but  the  money  having  been  raised  and  disbursed  without  the 
appeal  having  been  promptly  taken,  I  must  dismiss  the  same. 


3826 

In  the  matter  of  the  appeal  of  Sherman  P.  Tracy,  as  collector  of  school  district 
no.  12,  of  the  town  of  Triangle,  in  the  county  of  Brooine  v.  Josephine  Adams, 
sole  trustee  of  said  district. 

A  trustee  refused  to  further  renew  a  warrant  to  collect  district  taxes,  the  warrant  having 
already  been  once  renewed  by  a  former  trustee ;  held,  that  the  law  is  not  mandatory 
upon  trustees  to  extend  an  unexecuted  warrant.  The  trustee  is  authorized  to  extend 
the  warrant,  but  the  law  contemplates  that  the  authority   shall  be  exercised  only  in 


JUDICIAL  decisions:     tax  lists  1013 

exceptional   cases.      When   the   district   collector    is   unable    to    enforce   a   warrant,   the 
statute  provides  the  course  of  procedure  which  he  is  to  follow  and  which  will  relieve 
him  from  further  responsibility. 
Decided  November  13,  1889 

Lewis  &  Paige,  attorneys  for  appellant 
John  P.  Wheeler,  attorney  for  respondent 

Draper,  Superintendent 

It  appears  that,  on  the  nth  day  of  July  1889,  Mr  G.  H.  Greaves,  then  sole 
trustee  of  the  above-named  district,  issued  and  placed  in  the  hands  of  the  appel- 
lant, as  collector,  a  tax  list  and  warrant  for  the  collection  of  the  sum  of  $34.04. 
In  executing  the  warrant  the  collector  was  able  to  collect  from  all  persons  on  the 
tax  list  except  two,  who  refused  to  pay.  He  thereupon  levied  upon  the  personal 
property  of  such  persons  and  sold  the  same.  The  result  of  this  proceeding  was 
a  litigation  in  each  case,  which  is  yet  pending.  The  collector  applied  to  and 
received  from  the  then  trustee  a  renewal  and  extension  of  the  life  of  the  warrant 
for  thirty  days  from  the  5th  day  of  August  1889.  At  the  annual  school  meeting 
held  upon  the  6th  day  of  August  1889,  the  respondent,  Josephine  Adams,  was 
elected  trustee,  and  one  Mary  Smith  was  elected  collector.  On  the  23d  day 
of  September  1889,  the  appellant  presented  to  the  respondent  the  tax  list  and 
warrant,  and  asked  for  the  renewal  thereof,  which  was  refused.  From  such 
refusal  this  appeal  is  brought,  and  the  Superintendent  is  asked  to  direct  the 
present  trustee  to  renew  the  warrant. 

There  are  many  other  matters  set  up  in  the  papers  of  the  respective  parties, 
but  the  foregoing  are  all  that  are  essential  to  the  determination  of  the  issue  here. 
I  am  of  the  opinion  that  the  appellant  is  not  entitled  to  the  relief  he  seeks.  It 
is  unnecessary  to  consider  all  the  minute  and  technical  considerations  which  are 
presented  by  ingenious  counsel  upon  the  one  side,  or  all  the  innumerable  techni- 
cal objections  which  are  interposed  by  no  less  ingenious  counsel  upon  the  other. 
The  statute  does  not  contemplate  that  tax  warrants  shall  be  indefinitely  extended. 
The  law  is  by  no  means  mandatory  upon  the  trustee  to  extend  an  unexecuted 
warrant.  It  only  authorizes  the  trustee  to  extend  a  warrant,  and  contemplates 
that  the  authority  shall  be  exercised  only  in  exceptional  cases.  It  provides  the 
course  which  the  collector  is  to  follow  in  case  he  is  unable  to  execute  the  war- 
rant in  any  particular  instance.  Section  75  of  title  7  of  the  Consolidated  School 
Act,  provides  "  if  any  tax  upon  real  estate  placed  upon  the  tax  list  and  duly 
delivered  to  the  collector  .  .  .  shall  be  unpaid  at  the  time  the  collector  is 
required  by  law  to  return  his  warrant,  he  shall  deliver  to  the  trustees  of  the. 
district,  an  account  of  the  taxes  remaining  due,  containing  a  description  of  the 
lands  upon  which  such  taxes  were  unpaid  as  the  same  were  placed  upon  the  tax 
list,  together  with  the  amount  of  the  tax  so  assessed,  and  upon  making  oath 
before  any  justice  of  the  peace  or  judge  of  court  of  record  that  the  taxes  men- 
iioned  in  any  such  account  remain  unpaid,  and  that,  after  diligent  efforts,  he  has 
be'en  unable  to  collect  the  same,  he  shall  be  credited  by  said  trustees  with  the 


10I4  THE    L'NIVERSITY    OF   THE    STATE    OF    NEW    VORK 

amount  ihcrcof."  The  statute  then  provides  that  the  trustee  shall  certify  the 
facts  and  transmit  the  matter  to  the  county  treasurer,  and  it  makes  it  the  duty 
of  the  county  treasurer  to  pay  the  taxes  and  lay  the  matter  before  the  board  of 
supervisors ;  and  it  then  becomes  the  duty  of  the  board  of  supervisors  to  cause 
the  amount  of  such  unpaid  taxes  to  be  levied  upon  the  lands  upon  which  they 
were  imposed.  It  appears  in  this  case  that  the  unpaid  taxes  were  upon  real 
estate.  The  law  provides  all  the  facilities  for  enforcing  the  collection  of  the 
taxes  remaining  unpaid.  It  therefore  seems  clear  to  me  that  the  present  trustee 
was  under  no  statutory  direction  or  obligation  to  renew  the  warrant;  and  the 
fact  that  the  warrant  had  expired  nineteen  days  before  application  for  renewal 
was  made,  together  with  the  fact,  which  seems  to  be  undisputed,  that  there  had 
never  been  any  written  appointment  of  the  collector  to  whom  such  warrant  was 
issued,  made  by  the  trustee  then  in  office,  coupled  with  the  farther  fact  there 
was  litigation  pending  touching  the  validity  of  the  proceedings  to  enforce  the 
tax  list,  and  that  the  district  was  abundantly  protected  in  another  and  better 
way,  was  sufficient  to  justify  the  present  trustee  in  declining  to  renew  the  war- 
rant. 

The  appeal  is  dismissed. 


3818 

In  the  matter  of  the  application  of  John  Halstead  and  others  for  an  order  set- 
ting aside  a  tax  list  and  warrant  issued  by  L.  R.  Needham,  sole  trustee 
of  district  no.  3,  towns  of  Johnstown  and  Caroga,  county  of  Fulton. 

A  tax  list,  based  upon  the  last  town  assessment  rolls,  issued  in  good  faith  by  trustees  of 
a  school  district  composed  of  parts  of  more  than  one  town,  prior  to  the  action  of 
supervisors  of  the  towns  determining  a  basis  of  equalization  for  levj'ing  taxes,  upheld. 

Decided  October  21,  1889 


Philip  Keck,  attorney  for  petitioners 
R.   P.  Anibal,  attorney   for  respondents 


Draper,  Superintendent 

District  no.  3,  of  the  towns  of  Johnstown  and  Caroga,  county  of  Fulton,  lies 
partly  in  each  of  the  towns  named.  It  is  alleged  that  the  valuations  fixed  by  the 
assessors  in  the  towns  are  not  equitable  as  related  to  each  other ;  and  the  super- 
visors of  the  respective  towns  iiave  met  and  undertaken  to  equalize  the  same. 
Oemg  unable  to  agree,  they  have  called  in  a  third  supervisor,  and  two  of  the 
three  have  agreed  upon  a  basis  of  equalization.  It  is  alleged  that  there  are  irreg- 
ularities in  the  proceedings  of  the  supervisors  sufficient  to  invalidate  the  same. 
but  that  IS  not  material  to  the  determination  of  the  question  here  presented. 
Prior  to  the  action  of  the  supervisors,  the  trustees  of  the  district  issued  a  tax 
list,  using  as  the  basis  thereof  the  revised  assessment  rolls  of  the  respective 
towns.  The  appellants  claim  that  such  tax  list  ought  not  to  be  upheld,  being 
unjust  to  the  residents  of  one  of  the  towns. 


JUDICIAL  decisions:     tax  lists  1015 

In  decision  no.  3451,  rendered  November  13,  1885,  Superintendent  Ruggles 
held  that  trustees  were  justified  in  following  the  revised  assessment  rolls  of 
the  town  up  to  the  time  when  the  order  of  the  supervisors  equalizing  assess- 
ments was  actually  made,  unless  they  were  guilty  of  fraud  or  bad  faith  after 
knowledge  that  an  application  had  been  made  to  the  supervisors  for  equaliza- 
tion. I  think  we  must  follow  that  decision.  There  is  no  evidence  of  fraud  or 
bad  faith  on  the  part  of  the  trustees.  Indeed,  it  appears  in  the  evidence  that 
they  were  being  pressed  by  creditors  of  the  district,  and  needed  the  avails  of 
the  tax  list. 

The  appeal  is  dismissed.  

3737 

In  the  matter  of  the  appeal  of  Henry  H.  Holden  and  others  v.  Albert  H.  Palmer 
and  James  S.  Carpenter,  two  of  the  trustees  of  school  district  no.  3,  town 
of  Marlborough,  Ulster  county. 

A  tax  list  prepared  by  one  of  three  trustees  without  consultation  with  the  others,  signed 
by  two  of  three  trustees,  the  third  trustee  not  having  been  in  any  manner  consulted 
in  reference  thereto.    Held,  void. 

Decided  November  28,  1888. 

Draper,  Superintendent 

This  appeal  is  taken  by  residents  and  taxpayers  of  district  no.  3  of  the 
town  of  Marlborough,  Ulster  county,  from  the  action  of  two  of  three  trustees, 
composing  the  board  of  trustees  of  said  district,  in  preparing  a  tax  list  to 
raise  money  for  school  purposes  for  the  year  1888,  from  which  a  large  amount 
of  personal  property  was  omitted,  besides  some  real  estate,  and  upon  the  ground 
that  the  tax  list  was  prepared  by  one  trustee  without  consultation  with  the 
others,  and  the  list  signed  by  two  of  the  trustees,  the  third  not  having  been 
consulted  in  relation  thereto. 

No  answer  has  been  interposed  by  the  respondents,  but  the  third  trustee, 
who  was  not  consulted,  has  made  an  affidavit  of  the  facts  above  stated. 

The  statute  expressly  requires  trustees  to  meet  and  act  together  in  deter- 
mining the  assessment,  and  as  this  has  not  been  done,  I  have  no  alternative  but 
to  sustain  the  appeal  and  declare  the  tax  list  appealed  from  invalid,  and  to 
order  the  trustees  to  meet  as  a  board  for  the  purpose  of  making  out  a  new  one. 


3702 

In  the  matter  of  the  appeal  of  Phoebe  A.  Rider  v.  school  district  no.  11,  town 

of  Hempstead. 

In  preparing  a  tax  list,  trustees  are  required  to   follow  the  statutory  provisions   strictly, 

otherwise  the  warrant  can  not  be  enforced,  and,  upon  appeal,  will  be  set  aside. 
Decided  July  26,  1888 

John  Lyon,  attorney  for  the  appellant 
"  George  Wallace,  attorney  for  the  respondent 


IOl6  THE    rNlVERSlTY    OF    THE    STATE    OF    NEW    YORK 

Draper,  Supcrintcuiicnt 

This  is  an  appeal  by  Pli(Tl)e  A.  Rider,  brought  against  school  district  no. 
II  of  the  town  of  Hempstead,  in  the  county  of  (Jucens,  for  the  purpose  of 
setting  aside  a  tax  levied  by  the  trustees  of  said  district  between  the  ist  day 
of  February  and  the  ist  day  of  May  1888,  for  the  sum  of  $536.40.  It  is 
alleged  by  the  appellant  that  the  levying  of  this  tax  was  never  authorized  by 
a  district  meeting:  that  the  trustees  did  not  follow  the  last  revised  assessment 
roll  of  the  town,  having  omitted  from  their  tax  list  certain  property  to  be  found 
upon  said  assessment  roll ;  that  the  tax  list  was  altered  by  the  trustees  after 
being  delivered  to  the  collector;  that  the  tax  rate  was  not  arrived  at  by  the 
trustees  in  the  proper  manner,  and  that  their  proceedings  were  otherwise  irregu- 
lar. 

The  trustees  answer  that  they  did  follow  tlie  assessment  roll  to  the  best 
of  their  knowledge.  They  admit  that  there  were  some  errors  in  copying  it, 
caused  principally,  as  they  allege,  by  reason  of  the  fact  that  it  was  impossible 
for  them  to  determine  from  the  roll  what  property  of  the  town  was  within 
school  district  no.  11,  in  consequence  of  the  indetiniteness  of  district  boundaries. 
They  insist  also  that  a  portion  of  th.e  same,  for  which  they  issued  the  tax  list 
appealed  from,  was  authorized  at  the  last  annual  school  meeting,  and  that  the 
balance  is  for  an  indebtedness  incurred  for  repairs  to  the  school  property  under 
the  order  of  the  school  commissioner.  It  is  stated  on  behalf  of  the  appellant. 
however,  that  search  has  been  made  for  such  order,  and  that  it  can  not  be 
found,  and  the  trustees  fail  to  produce  it. 

I  do  not  see  how  the  tax  list  appealed  from  can  be  sustained.  The  collec- 
tion of  school  taxes  is  a  statutory  proceeding,  and  all  of  the  provisions  of  the 
statute  must  be  strictly  followed.  It  is  apparent  that  they  have  not  been  in 
this  case.  It  is  not  sutticient  for  the  trustees  to  say  that  they  have  proceeded 
according  to  their  best  knowledge.  They  must  proceed  according  to  the  statute. 
It  is  of  no  consequence  that  a  portion  of  the  tax  has  been  paid.  I  see  no  way 
but  to  set  aside  the  tax  list  and  to  direct  the  trustees  to  begin  over  again,  issue 
a  tax  list  for  such  amount  as  may  have  been  authorized  according  to  law,  and 
proceed  with  greater  caution. 

The  appeal  is  sustained. 


3836 

In  the  matter  of  the  appeal  of  Fannie  A.  Karker  v.  George  C.  Knowles,  trustee 
of  school  district  no.  4,  of  the  town  of  Westerlo,  county  of  Albany. 

Appeal  from  the  action  of  a  school  district  trustee  in  issuing  a  tax  list  to  raise  money  to 
pay  counsel  fees  and  the  expenses  of  the  prosecution  of  a  criminal  action.  It  appearing 
that  the  prosecution  of  the  action,  and  the  employment  of  counsel  by  the  trustee,  was 
directed  by  a  district  meeting,  held,  that  the  tax  therefor  was  legal 

Decided  December  6,  1889  ' 

Barlow  &  Greene,  attorney  for  respondent 


JUDICIAL  decisions:     tax  lists  1017 

Draper,  Superintendent 

Appellant,  a  resident  of  the  county  of  Schoharie,  but  the  owner  of  real 
estate  in  school  district  no.  4,  of  the  town  of  Westerlo,  county  of  Albany, 
appeals  from  the  action  of  the  trustees  of  said  district  in  issuing  a  tax  list  to 
raise  money  to  pay  counsel  fees  and  expenses  of  prosecution  of  a  criminal 
action  for  destroying  certain  property  of  the  school  district. 

Before  the  appeal  was  taken,  the  tax  had  been  paid  by  nearly  every  person 
assessed,  including  the  tax  upon  appellant's  property,  and  the  amount  claimed 
for  counsel  fees  and  expenses  had  been  paid  out. 

The  appellant  objects  to  the  tax  upon  the  ground  that  the  prosecution  was 
an  individual  and  not  a  district  matter. 

The  proofs  show  that  a  district  meeting  authorized  the  prosecution  and  tiie 
employment  of  counsel,  and  the  compensation  to  be  paid  was  agreed  upon.  Sub- 
sequently, a  district  meeting  ordered  the  payment  of  the  bill  of  counsel,  and 
authorized  the  levying  of  the  tax  referred  to  for  the  purpose. 

I  am  not  called  upon  to  pass  upon  the  propriety  of  the  district  in  engaging 
in  the  prosecution  of  the  action  in  which  the  expenses  were  incurred.  The  evi- 
dence before  me  satisfies  me  that  the  district  directed  it,  and  that  counsel  were 
regularly  employed  and  performed  the  duties  which  devolved  upon  them.  By  the 
provisions  of  section  7  of  title  13.  the  cost  and  expenses  became  a  district 
charge,  and  was  properly  collected  by  district  tax  and  liquidated. 

It  is  nowhere  claimed  by  the  appellant  that  the  charge  is  unreasonable  or 
excessive.  It  appears  the  district  was  represented  by  a  firm  consisting  of  two 
lawyers,  while  the  defense  availed  themselves  of  the  services  of  at  least  four 
lawyers. 

It  follows  that  the  appeal  must  be  dismissed. 


38S2 

In  the  matter  of  the  apj^eal  of  George  Allen  and  William  Smith  v.  Jacob  Closser, 
trustee  of  school  district  no.  9,  town  of  Allen,  county  of  Allegany. 

A  trustee  will  not  be  required  to  include  in  a  tax  list  a  tax  upon  personal  property  against 
himself,  although  he  is  assessed  therefor  upon  the  town  assessment  roll,  when  it  is 
clearly  shown  that  he  is  not  the  owner  of  personal  property  liable  to  taxation. 

Decided  July  10,  1890 

Draper,  Superintendent 

This  appeal  is  brought  by  residents  of  school  district  no.  9,  of  the  town  of 
Allen,  Allegany  county,  from  the  neglect  of  the  trustee  to  include  in  the  tax  list 
an  item  of  tax  for  personal  property  against  himself,  which  it  is  alleged  he  is 
•assessed  for  upon  the  last  town  assessment  roll,  and  of  which  it  is  alleged  he  is 
the  owner. 


lOliS  THE    UNIVERSITY    01-    THE    STATE    OF    NEW    YORK 

It  appears  from  tlic  answer  of  the  trustee  that  the  assessment  by  the  town 
assessors  was  erroneous,  and  grew  out  of  the  fact  that  at  one  time  he  had  the 
contract  for  the  sale  of  some  real  estate,  which  contract  was  some  years  ago 
cancelled  and  annulled,  so  that  the  respondent  became  and  still  is  the  sole  owner 
of  the  real  estate  referred  to ;  that  respondent  shows  clearly  that  all  of  the  per- 
sonal i)ropcrty  he  is  possessed  of,  including  live  stock,  debts  due  to  him  and  a 
small  bond  and  mortgage  which  he  holds,  does  not  exceed  in  value  $900,  and 
that  he  owes  debts  to  a  larger  extent.  A  good  portion  of  the  indebtedness  he 
owes  grew  out  of  a  loan  which  is  invested. 

In  view  of  the  positive  nature  of  the  respondent's  proofs  that  he  has  no 
personal  property  which,  under  the  law,  is  subject  to  taxation,  and  the  clearness 
with  which  he  has  stated  his  position,  I  must  overrule  the  appeal  and  sustain  the 
tax  list  now  in  the  hands  of  the  collector  of  said  district. 


3860 

In  the  matter  of  the  appeal  of  James  D.  Lawrence  v.  Abram  J-  Corbin,  sole 
trustee  of  school  district  no.  i,  of  the  town  of  Kortright,  county  of  Delaware. 

.\ppeal  from  the  action  of  a  trustee  who,  in  preparing  a  tax  list,  it  is  alleged  omitted  to 
tax  certain  residents  for  personal  property.  The  trustee  was  guided  in  preparing  the 
list  by  the  town  assessment  rolls,  and  the  items  omitted  do  not  appear  thereon.  Held, 
not  to  be  irregular.  It  is  the  policy  of  the  law  to  require  trustees  to  follow  the  assess- 
ment roll  of  the  town,  and  only  in  special  cases  make  original  assessments. 

The  Department  has  no  authority  to  levy  taxes  nor  prepare  tax  lists.  Trustees  act  judicially 
in  preparing  tax  lists.  This  Department  does  not  possess  greater  powers  than  the 
courts  in  the  matter  of  correcting  assessments. 

Decided  February  26,  1890 

Draper,  Superintendent 

This  appeal  is  from  the  neglect  of  the  trustee  of  school  district  no.  i,  of  the 
town  of  Kortright,  Delaware  county,  to  include  in  a  certain  tax  list  assessments 
agamst  several  residents  of  the  district  for  personal  property  and  also  one  upon 
real  estate.  The  answer  of  the  respondent  shows  that  in  preparing  the  tax  list, 
the  trustee  followed  the  last  assessment  roll  after  revision  by  the  assessors ;  that 
the  item  of  real  estate  referred  to  is  included  in  the  tax  list,  and  that  the  persons 
whom  the  appellant  alleges  should  be  assessed  for  personal  are  not  so  assessed 
on  the  last  town  assessment  roll.  It  is  the  policy  of  the  school  laws  to  require 
trustees,  m  making  out  a  tax  list,  to  follow  the  last  revised  assessment  rolls  of 
the  town.  It  is  only  in  special  cases  that  they  have  authority  to  make  original 
assessments.  It  is  always  to  be  borne  in  mind  that  town  assessment  rolls  are 
prepared  by  officers  who  are  chosen  with  special  reference  to  such  service,  and 
who  must  be  presumed  to  be  better  informed  as  to  subjects  of  taxation  than 


JUDICIAL  decisions:     tax  lists  1019 

school  trustees  are  likely  to  be.  This  Department  has  no  authority  to  levy  taxes 
or  prepare  tax  lists.  Trustees,  in  assessing  property,  act  judicially  and  the  courts 
have  refused  to  interfere  to  correct  assessments,  even  where  it  is  proven  that 
property  has  been  erroneously  omitted.  This  Department  does  not  possess 
greater  powers  in  such  cases  than  the  Supreme  Court.  The  Department  will  not 
set  up  its  judgment  in  opposition  to  that  of  the  trustees  as  to  the  correctness  of 
the  trustees'  judgment.  Under  the  present  system  of  taxation,  it  would  be  a  rare 
case  indeed  if  some  item  of  personal  property  did  not  escape  taxation  in  the  prep- 
aration of  a  tax  list.  In  this  particular  case,  although  the  appellant  set  out 
several  instances  in  which  he  claims  persons  in  the  district,  liable  to  taxation 
are  possessed  of  personal  property  upon  which  no  assessment  has  been  made, 
it  may  yet  be  possible  that  an  assessment  in  those  cases  would  not  be  proper. 

There  may  be  offsets  in  the  way  of  debts  due  by  the  owners  of  personal 
property,  which  would  make  an  assessment  upon  the  same  unjust  and  ineffectual. 
The  appellant  is  assessed  for  but  a  trivial  amount,  and  his  assessment  at  this 
particular  time  is,  I  believe,  but  fifty  cents.  If  some  item  of  personal  property 
has  escaped  taxation,  which  should  have  been  taxed,  the  loss  occasioned  thereby 
to  the  appellant,  could  be  but  little. 

From  the  foregoing  conclusions,  the  appeal  is  dismissed. 


3742 

In  the  matter  of  the  appeal  of  Minard  Proper  and  Caleb  B.  Fancher  v.  Henry 
W.  Ploss,  sole  trustee  of  district  no.  18,  towns  of  Summit,  Blenheim,  Jeffer- 
son and  Fulton,  Schoharie  county. 

An  appeal  from  the  manner  of  election  of  a  trustee  will  not  be  sustained  unless  promptly 
taken. 

The  action  of  a  trustee,  who  has  in  good  faith  followed  the  town  assessment  roll,  in  pre- 
paring a  tax  list,  but  it  seems  omitted,  as  the  town  assessors  did,  a  small  piece  of 
property  of  little  value,  the  including  of  which  would  have  made  but  a  trivial  reduction 
in  the  tax  rate,  and  the  appellant  neglected  to  move  promptly,  will  not  be  disturbed. 

Decided  December  28,  1888 

P.  B.  Sweet,  attorney  for  respondent 

Draper,  Superintendent 

This  is  an  appeal  by  legal  electors  of  district  no.  18,  towns  of  Summit,  Blen- 
heim, Jefferson  and  Fulton,  in  Schoharie  county,  from  a  certain  tax  list  and  war- 
rant issued  by  the  trustee,  which  warrant  bears  date  September  29,  1888.  The 
appeal  was  taken  on  or  about  November  19,  1888.  The  grounds  of  the  appeal 
are: 
'"  \      I  That  the  respondent  was  not  legally  elected  as  trustee. 


I020  THE    L'NIVERSITV    OF    THE    STATE    OF    NEW    YORK 

2  That  certain  property,  known  as  the  "  parsonage  ''  lot,  was  omitted  from 
the  tax  hst. 

3  That  a  certain  other  i)iece  of  property,  known  as  the  "  Reformed  Church  " 
lot,  was  also  omitted  from  said  tax  list,  which  should  have  been  included  and 
assessed  to  one  Stanton  P.  Harder,  who  claims  to  own  the  property.  The 
objection  to  the  manner  of  the  election  of  the  respondent  has  not  been  taken  in 
time,  and  to  the  other  grounds  of  appeal,  the  respondent  answers  and  alleges  that 
he  followed  tlie  town  assessment  roll  and  did  not  include  the  items  of  property 
above  referred  to,  believing  that  the  same  were  exempt  from  taxation. 

The  respondent  further  shows  that  he  did  not  include  a  certain  other  lot 
which  should  have  been  assessed,  and  that  when  his  attention  was  called  to  the 
last  mentioned  omission,  he  applied  for  and  received  permission  October  2'], 
i888,  from  the  Department  to  withdraw  the  tax  list  from  the  collector,  in  whose 
hands  it  had  been  placed,  and  by  whom  notice  thereof  had  been  duly  given,  and 
corrected  all  errors  he  knew  of  therein,  and  all  to  which  the  appellants  had  then 
directed  his  attention  and  redelivered  the  same  as  amended  to  the  collector,  who 
proceeded  to  enforce  the  collection  of  the  same  according  to  law ;  that  the 
respondent  was  not  aware  that  the  appellants  objected  to  the  tax  list  because  of 
the  omission  of  the  "  parsonage  "  lot  and  the  "  Reformed  Church  "  lot,  until  the 
appeal  was  taken,  at  which  time  nearly  all  taxed  inhabitants  had  paid  their 
-Iiare  of  the  tax. 

It  is  claimed  by  the  appellants  that  the  value  of  the  "  parsonage  "  lot  is  $500. 
but  they  do  not  deny  that  the  same  was  not  assessed  on  the  town  assessment  roll 
and  had  not  heretofore  been  assessed  for  town  or  district  taxes. 

The  "  parsonage  "  lot  belongs  to  the  Methodist  society,  and  had  been  occu- 
pied by  a  minister  of  that  denomination. 

I  am  of  the  opinion  that  this  lot  is  not  exempt  from  taxation,  but  that  the 
"  Reformed  Church  "  lot,  to  whomsoever  it  belongs,  is  exempt,  for  the  reason 
that  the  same  is  occupied  as  a  building  used  for  public  worship. 

Ihe  facts  brought  before  me  constrain  me  to  dismiss  the  appeal,  for  the 
following  reasons,  namely: 

1  The  reduction  of  the  rate  of  tax  which  the  assessment  of  the  "  parsonage  " 
lot  would  cause,  would  be  too  trivial  to  be  considered. 

2  The  fact  that  the  trustee  has  acted  in  good  faith  and  based  his  list  upon 
the  town  assessment  roll. 

3  That  appellants  had  ample  opportunity  to  have  secured  an  amendment 
mcluduig  the  "  parsonage  "  lot  by  promptlv  appealing  when  the  list  was  first 
opened  for  mspection,  and  in  time  to  have  had  the  property  included  when  the 
origmal  list  was  amended. 

_   4  That  the  entire  tax  had  been  collected,  and  all  but  three  have  voluntarily 
paid  the  same. 


JUDICIAL    decisions:       tax    lists  102 1 

4391 

In  the  matter  of  the  appeal  of  Warren  H.  Bacon  from  proceedings  of  annual 
school  meeting  held  August  6,  1895,  in  union  free  school  district  no.  2,  towns 
of  Oppenheim  and  Manheim,  counties  of  Fulton  and  Herkimer,  in  voting 
to  raise  by  tax  the  sum  of  $8158. 

Where,  in  a  union  free  school  district,  at  an  annual  or  special  meeting  held  therein,  all 
propositions  arising  at  said  meeting  involving  the  expenditure  of  money  or  authorizing 
the  levy  of  a  tax  or  taxes,  either  in  one  sum  or  by  instalments,  the  vote  thereon  must 
be  taken  by  ballot,  or  ascertained  by  taking  and  recording  the  ayes  and  noes  of  such 
qualified  voters  attending  and  voting  at  such  meeting.  A  tax  list  issued  by  a  board 
of  education  of  a  union  free  school  district  to  collect  any  sum  of  money,  where  the 
authorization  to  levy  the  tax  was  by  viva  voce  vote  or  taken  by  acclamation,  will  be 
set  aside  upon  appeal. 

Decided   October   12,    1895 


Jones  &  Townsend,  attorneys  for  appellant 
Edward  A.  Brown,  attorney  for  respondent 


Skinner,  Superintendent 

This  appeal  is  brought  from  the  proceedings  had  and  taken  at  the  annual 
school  meeting  held  on  August  6,  1895,  ^^  tmion  free  school  district  no.  2,  towns 
of  Oppenheim  and  Manheim,  counties  of  Fulton  and  Herkimer,  in  voting  to  levy 
by  tax  the  sum  of  $8158,  the  appellant  alleging  in  his  appeal  that  the  vote  upon 
the  propositions  involving  the  expenditure  of  said  sum  of  $8158,  or  authorizing 
the  levy  of  a  tax  or  taxes  for  said  sum,  was  not  taken  in  accordance  with  the 
provisions  contained  in  section  10,  article  2,  title  8  of  the  Consolidated  School 
Law  of  1894,  chapter  556  of  the  Laws  of  1894. 

The  board  of  education  of  said  district  has  made  answer  to  said  appeal. 

From  the  papers  presented  herein  it  appears :  That  at  said  annual  school 
ineeting  held  in  said  union  free  school  district  no.  2,  Oppenheim  and  Manheim, 
after  the  organization  of  said  meeting,  the  board  of  education  presented  to  said 
meeting  a  detailed  statement  in  writing  of  the  amount  of  money  that  would 
be  required  for  the  ensuing  school  year  for  school  purposes  in  said  district 
(exclusive  of  public  moneys),  pursuant  to  the  provisions  contained  in  section 
18,  article  4,  title  8  of  chapter  556  of  the  Laws  of  1894;  that  in  said  statement 
the  sum  required  for  teachers'  wages  was  $7500,  of  which  $850  was  for  a  kin- 
dergarten school,  $708  was  for  a  bond  of  $600  becoming  due.  and  interest  $108. 
and  that  $2100  was  for  janitor  and  other  contingent  expenses,  making  a  total  of 
$10,308,  from  which  was  deducted  public  money  estimated  at  $1300,  and  $1000 
to  be  received  from  the  Dolgeville  School  Society,  a  total  of  $2300,  leaving  the 
amount  to  be  raised  by  tax  $8008;  that  after  the  presentation  of  said  statement 
to  said  meeting  the  appellant  herein  claimed  and  stated  that  said  school  district 
had  no  legal  authority  to  maintain  a  free  kindergarten  school  therein,  and 
""demanded  that  the  items  in  said  statement  for  the  maintenance  of  said  school, 
amounting  to  $850.  should  be  voted  upon  separately  from  the  other  items  con- 


I022  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

tained  in  said  statement;  that  thereupon,  with  the  consent  of  the  voters  attend- 
ing at  said  meeting,  said  board  of  education  withdivew  said  statement  and 
amended  the  same  by  striking  out  said  items  amounting  to  $850  for  the  main- 
tenance of  said  free  kindergarten  school,  and  then  presented  to  said  meeting 
haid  statement  so  amended,  by  which  the  gross  sum  of  $7158  was  necessary  to 
be  raised  by  tax,  instead  of  said  sum  of  $8008;  that  thereupon  a  resolution  in 
writing  was  offered  that  said  sum  of  $7158  be  raised  for  the  purposes  men- 
tioned in  said  statement  and  authorizing  the  levy  of  a  tax  for  said  sum  and 
declared  adopted;  that  the  vote  upon  said  resolution  and  authorizing  said  tax 
was  taken  by  acclamation  or  viva  voce  and  not  by  ballot,  or  ascertained  by  tak- 
ing and  recording  the  ayes  and  noes  of  the  qualified  voters  attending  and  voting 
at  said  meeting;  that  prior  to  said  annual  school  meeting,  a  society  incorporated 
under  the  name  of  the  Dolgeville  School  Society  had  promised  to  contribute 
the  sum  of  $1000  to  said  board  of  education  to  be  used  toward  the  expenses  in 
maintaining  the  school  in  said  district,  and  after  the  sum  of  $850  for  the  support 
of  a  free  kindergarten  school  was  stricken  out,  the  president  of  said  society 
stated  to  said  meeting  that  said  society  would  not  contribute  said  sum  of  $1000 
for  the  support  of  said  school  as  proposed,  but  would  use  the  same  in  maintain- 
ing a  free  kindergarten  school ;  that  thereupon  said  board  of  education  stated 
to  said  meeting  that  it  would,  by  reason  of  the  announcement  of  the  president 
of  said  society,  be  necessary  to  raise  by  tax  the  sum  of  $1000  for  teachers' 
wages  and  contingent  expenses  in  addition  to  the  aforesaid  sum  of  $7158,  and 
a  resolution  was  offered  in  writing  that  said  sum  of  $1000  be  raised  for  the 
purposes  aforesaid  and  authorizing  the  levy  of  a  tax  for  said  sum  of  $1000  and 
declared  adopted,  but  the  vote  upon  such  resolution  and  authorizing  said  tax 
.vas  taken  by  acclamation  or  viva  voce,  and  not  by  ballot,  or  ascertained  by  taking 
md  recording  the  ayes  and  noes  of  the  qualified  voters  attending  and  voting 
It  said  meeting. 

On  September  21,  1895,  "Pon  the  petition  of  the  appellant  herein  showing 
that  said  board  of  education  were  preparing  a  tax  list  for  the  collection  of  said 
sum  of  $8158,  I  made  an  order  staying  all  further  proceedings  on  the  part  of 
said  board  of  education,  its  officers,  etc.,  in  preparing  or  making  or  completing 
a  tax  list  or  assessment  for  the  collection  of  said  sum  of  $8158  or  any  part 
thereof  and  delivering  any  tax  list  and  assessment  and  warrant  to  the  collector 
of  said  district  until  the  hearing  and  decision  by  me  of  the  appeal  herein. 

In  the  answer  herein,  verified  on  September  28,  1895,  it  is  alleged  that  said 
nims  so  voted  at  said  annual  meeting  have  been  duly  assessed  and  the  tax  list  and 
warrant  delivered  to  the  collector  of  said  school  district. 

The  appellant  and  respondent  herein  agree  that  the  vote  upon  the  resolu- 
tions authorizing  the  levy  of  a  tax  for  $7158  and  $1000  respectively  was  by 
acclamation  or  viva  voce.  There  is  a  contention  as  to  whether  or  not  the  appel- 
lant herein  after  the  elimination  of  the  sum  of  $850  from  the  statement. 
demanded  that  a  vote  be  taken  separately  upon  each  of  the  items  in  the  amended 
statement,  and  such  vote  be  by  ballot  or  ascertained  by  taking  and  recording  the 


JUDICIAL  decisions:     tax  lists  1023 

ayes  and  noes  of  the  qualified  voters  attending  and  voting  at  said  meeting ;  but  in 
my  view  of  the  disposition  that  should  be  made  of  the  appeal  herein  it  is  not 
material  whether  or  not  the  appellant  did  make  such  demand. 

In  section  10,  article  2,  title  8  of  chapter  556  of  the  Laws  of  1894,  it  is 
enacted:  "  On  all  propositions  arising  at  said  meetings  involving  the  expendi- 
ture of  money.,  or  authorizing  the  levy  of  a  tax  or  taxes  in  one  sum  or  by 
instalments,  the  vote  thereon  shall  be  by  ballot,  or  ascertained  by  taking  and 
recording  the  ayes  and  noes  of  such  qualified  voters  attending  and  voting  at  such 
meetings." 

In  section  11,  article  2,  title  8  of  chapter  556  of  the  Laws  of  1894,  it  is 
enacted,  "Any  moneys  required  to  pay  teachers'  wages  in  a  union  free  school 
or  in  the  academic  department  thereof,  after  the  due  application  of  the  school 
moneys  thereto,  shall  be  raised  by  tax." 

Under  the  school  law  it  is  the  duty  of  boards  of  education  of  union  free 
school  districts,  at  the  annual  meeting,  to  present  a  detailed  statement  in  writing 
of  the  amount  of  money  which  will  be  required  for  the  ensuing  year  for  school 
purposes,  exclusive  of  the  public  moneys,  specifying  the  several  purposes  for 
which  it  will  be  required,  and  the  amount  for  each;  that  after  the  presentation 
of  such  statement  the  question  shall  be  taken  upon  voting  the  necessary  taxes  to 
meet  the  estimated  expenditures,  and  when  demanded  by  any  voter  present,  the 
question  shall  be  taken  upon  each  item  separately  and  the  inhabitants  may 
increase  the  amount  of  any  estimated  expenditures  or  reduce  the  same,  except 
for  teachers'  wages,  and  the  ordinary  contingent  expenses  of  the  school  or 
schools  (see  section  18  and  section  19,  article  4,  title  8,  chapter  556  of  the 
Laws  of   1894). 

It  appears  the  respondent  herein  fully  complied  with  the  school  law  in 
making  to  said  annual  school  meeting  the  statement  required  by  section  18, 
article  4,  title  8  of  the  Consolidated  School  Law.  It  does  not  clearly  appear 
whether  a  demand  was  made  by  the  appellant  or  any  other  qualified  voter  at 
said  meeting,  that  the  question  should  be  taken  upon  each  item  in  said  statement 
separately,  or  upon  one  or  more  specific  items  therein,  and  that  such  demand 
was  refused  by  the  chairman  of  said  meeting.  It  is  clearly  established  thai 
said  meeting  in  voting  to  authorize  the  levy  of  a  tax  for  $7158  and  $1000 
respectively  did  not  comply  with  the  provisions  contained  in  section  10,  article  2, 
title  8  of  the  Consolidated  School  Law  of  1894,  above  quoted,  and  hence  such 
action  of  the  meeting  was  illegal  and  void,  and  no  authorization  to  levy  such  tax 
was  legally  made,  and  the  respondent,  said  board  of  education,  had  no  legal 
authority  to  assess  such  tax,  or  to  deliver  any  such  tax  list  and  assessment  to 
the  collector  of  said  district  with  its  warrant  for  the  collection  of  said  tax,  and 
said  tax  list  or  assessment  and  warrant  are,  and  each  of  them  is,  illegal  and 
void.  As  to  the  items  in  said  statement  of  said  board  presented  to  said  meeting, 
namely:  bonds  due  October  i,  1895,  $600;  interest  on  $1800,  $108,  they  were 
properly  inserted  in  said  statement  for  the  information  of  the  voters  of  said 
district ;  that  it  was  necessary  to  raise  by  tax  said  sum  of  $708  for  the  purposes 


I024  THE    LNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

Stated.  The  said  board  could  legally  insert  said  sum  in  the  tax  list  made  and 
issued  by  it  without  authorization  of  said  meeting.  1  assume  that  the  school 
district  had  heretofore  voted  to  levy  by  tax  a  certain  sum  named,  and  that  said 
sum  be  levied  by  instalments ;  that  the  board  had  issued  bonds  for  such  sum, 
and  that  one  of  said  bonds  for  $600  would  become  due  on  October  i,  1895,  with 
interest  ui)un  that  bond  and  the  bonds  outstanding.  The  district  having  voted 
the  tax  and  that  it  be  levied  by  instalments  the  board  had  the  legal  authority,  and 
it  is  its  duty,  to  include  the  sum  necessary  to  pay  the  bonds  becoming  due  and 
interest  growing  due,  in  their  tax  list  and  assessment  and  no  vote  of  the  district 
to  do  so  is  required,  as  such  authority  was  given  when  the  tax  was  first  voted. 

The  appeal  herein  is  sustained. 

It  is  ordered.  That  all  proceedings  had  and  taken  at  the  annual  school 
meeting,  held  on  August  6,  1895,  in  union  free  school  district  no.  2,  towns  of 
Oppenheim  and  Manheim.  counties  of  Fulton  and  Herkimer,  in  voting  to  author- 
ize the  levy  of  a  tax  for  $7158  and  $iO(X)  respectively,  are,  and  each  of  them  is, 
hereby  vacated  and  set  aside  as  illegal  and  void. 

It  is  further  ordered,  That  the  tax  list  and  assessment  and  warrant  issued 
by  the  board  of  education  of  said  union  free  school  district  no.  2,  to  the  col- 
lector of  said  district,  assessing  said  sum  of  $8158,  and  directing  its  collection. 
be,  and  the  same  are,  and  each  of  them  is,  vacated  and  set  aside  as  illegal  and 
void. 


3719 

In  the  matter  of  the  appeal  of  Thomas  I..  Randall  v.  union  free  school  district 
no.  I,  towns  of  Sidney,  Delaware  county,  and  Unadilla,  Otsego  county. 

A  child  of  appellant  was  suspended  from  the  privileges  of  the  school  for  cause. 
Appellant  now  resists  the  payment  of  a  school  tax  upon  that  ground. 
Held,  not  to  be  a  valid  ground  of  objection. 
Decided  October  22,  1888 

Draper,  Superintendent 

It  seems  that,  at  the  annual  meeting  held  in  the  above-named  district  on 
the  28th  day  of  August  1888,  the  sum  of  $2000  was  voted  to  be  raised  for  school 
purposes.  Pursuant  to  this  vote,  a  tax  list  was  made  out  by  the  board  of  trus- 
tees, and  a  warrant  for  the  collection  of  the  same  was  placed  in  the  hands  of 
the  collector.  By  this  tax  list  the  collector  was  directed  to  collect  the  sum  of 
$5.60  from  the  appellant.  This  appeal  is  brought  to  set  aside  such  tax  list  and 
warrant.  The  only  ground  alleged  by  the  appellant  in  opposition  to  the  tax 
list  is  that  a  child  of  his  has  been  debarred  the  privileges  of  the  school. 

It  is  well  known  to  me,  by  reason  of  another  appeal  which  has  been  before 
the  Department,  that  the  board  of  education  in  the  district  referred  to  has  here- 
tofore suspended  a  son  of  the  appellant  from  the  privileges  of  the  school.     It  is 


JUDICIAL  decisions:     tax  lists  1025 

unnecessary  here  to  inquire  into  the  merits  of  such  action.  Entirely  regardless 
of  the  question  whether  the  board  was  justified  in  the  proceeding  referred  to, 
it  must  be  held  that  the  appellant  can  not,  upon  that  ground,  successfully  resist 
the  collection  of  this  tax.  Taxes  for  school  purposes  are  levied  without  refer- 
ence to  the  children  sent  to  school  by  the  persons  against  whom  they  are  levied. 
If  the  appellant  had  no  child  to  send  to  school,  he  would  be  obliged  to  pay  his 
ratable  portion  of  school  taxes.  If  he  had  a  dozen  children  to  send,  he  would 
be  called  upon  to  pay  no  more.  The  board  was  empowered  to  take  such  action 
regarding  the  attendance  of  pupils  as  might  be  necessary  for  the  good  of  the 
school  under  their  charge,  and  whatever  action  was  taken  affords  no  grounds  for 
setting  aside  a  tax  list  duly  authorized  and  properly  executed. 
The  appeal  must  be  dismissed. 


TEACHERS 

5251 

In  the  matter  of  the  appeal  of  Martin  H.  Walrath  v.  the  board  of  education  of 

the  city  of  Troy. 

The  principal  of  a  high  school  in  a  city  of  the  second  class  can  be  removed  only  for 
cause,  on  charges,  and  after  trial. 

The  cause  must  be  substantial  and  the  trial  fair. 

What  is  reasonable  cause  depends  upon  all  the  circumstances. 

Causes  justifying  removal  in  vacation  might  not  warrant  it  when  the  schools  are  in  session. 

The  Commissioner  of  Education  will  not  substitute  his  discretion  for  that  of  a  board  of 
education  where  there  is  nothing  to  raise  doubts  of  the  genuine  purpose  of  the  board 
and  where  the  proceedings  do  not  violate  the  rights  of  the  accused,  but  he  will  set 
aside  the  determination  when  it  appears  that  the  members  of  the  board  had  prejudged 
the  case  and  were  predetermined  to  find  the  accused  guilty. 

A  teacher's  tenure  is  not  to  depend  on  politics,  or  partisanship  in  any  other  form. 

Decided  April  9,  1906 

Ransom  H.  Gillet  &  James  Farrell,  attorneys  for  appellant 
George  B.  Wellington,  corporation  counsel  of  the  city  of  Troy,  attorney 
for  respondent 

Draper,  Commissioner 

This  is  an  appeal  from  the  action  of  the  board  of  education  of  the  city  of 
Troy  in  removing  appellant  from  the  position  of  principal  of  the  high  school. 
The  action  of  the  board  was  based  Upon  charges  made  by  the  superintendent  of 
schools.  The  charges  were  served  upon  the  appellant  November  23,  1905,  when 
he  was  notified  that  his  trial  would  be  held  before  the  board  November  27,  1905. 
At  that  time  the  investigation  proceeded;  the  corporation  counsel  attended  and 
prosecuted  the  charges  and  the  appellant  was  attended  by  counsel;  adjourn- 
ments were  had  from  day  to  day,  and  the  testimony  was  taken  at  much  length. 
On  December  4,  1905,  the  board  voted  that  the  appellant  had  been  found  guilty, 
without  specifying  the  particular  offenses  of  which  he  was  found  guilty,  and 
that  he  should  be  dismissed  from  his  position  forthwith. 

Section  245  of  the  charter  of  cities  of  the  second  class,  of  which  Troy  is 
one,  provides  among  other  things  as  follows:  "All  principals  shall  hold  their 
positions  during  good  behavior  and  shall  be  removable  only  for  cause,  after  a 
hearing  by  the  aftirmative  votes  of  at  least  a  majority  of  the  board." 

I  he  appellant  is  a  graduate  of  Syracuse  University  in  the  class  of  1889, 
and  had  been  principal  of  the  Troy  High  School  since  March  i,  1897. 

The  charges  were  made  by  Mr  Edwin  S.  Harris,  the  superintendent  of  the 
Troy  schools  since  September  1904.  They  were  made  at  the  instance  of  the 
board,  although  the  proceedings  clearly  show  that  the  superintendent  himself 

[1026] 


JUDICIAL  decisions:     teachers  1027 

was  an  active  agent  in  preparing  and  proving  them.  They  were  drawn  by  the 
corporation  counsel  upon  information  supplied  by  the  superintendent,  and  they 
were  signed  and  verified  by  the  superintendent.  They  alleged  incompetency ; 
neglect  of  duty;  disobedience  of  the  rules,  requirements  and  directions  of  the 
board  of  education  and  of  the  superintendent  of  schools;  maladministration 
and  misconduct  in  office;  conduct  unbecoming  a  teacher  and  principal  of  a  high 
school ;  and  asserted  that  the  things  complained  of  were  done  or  omitted  inten- 
tionally, wilfully  and  maliciously. 

The  specifications  set  forth  twelve  (12)  instances  of  alleged  misdeeds  or 
failure  to  perform  the  duties  of  appellant's  position.  Stripped  of  legal  verbiage, 
these  were  as  follows : 

1  Failure  to  assign  a  teacher  to  the  head  of  the  modern  language  depart- 
ment, after  she  had  been  appointed  thereto  by  the  board. 

2  Refusal,  for  some  days,  to  assign  another  teacher  to  work  in  mathematics 
after  her  appointment  thereto  by  the  board. 

3  Criticism  of  the  board  for  the  foregoing  appointments. 

4  Hindering  the  employees  of  the  department  of  public  works  from  making 
certain  changes  at  the  high  school,  directed  by  the  board  of  education. 

5  Failure  to  report  a  list  of  the  students  of  the  high  school  and  the  number 
of  school  credits  granted  to  each,  as  well  as  the  number  claimed  by  each,  not- 
withstanding the  directions  of  the  board. 

6,  7,  8  Failure  to  maintain  discipline  of  pupils  on  several  named  occasions, 
and  to  report  thereupon  although  directed  to  do  so. 

9  Failure  to  keep  accurate  records  of  work  and  credits  of  students. 

10  Untrue  and  inaccurate  reports  of  work  and  credits  of  students. 

11  Failure  to  make  true  and  accurate  reports  of  the  attendance  of  nonresi- 
dent students. 

12  Unjust,  improper  and  malicious  criticism  of  the  board  and  the  superin- 
tendent. 

The  answer  of  the  appellant  denied,  severally  and  specifically,  the  charges 
of  the  superintendent,  adding  what  the  principal  claimed  were  explanations  of 
certain  facts  brought  out  by  the  allegations  made  against  him. 

At  the  hearing  before  the  board  the  main  witnesses  were  the  superintendent 
and  the  principal.  Of  the  429  pages  of  the  record,  their  testimony  fills  299 
pages.  The  proof  of  the  charges  rests  almost  exclusively  upon  the  testimony 
of  Mr  Harris,  the  superintendent.  But  one  other  witness  was  called  to  sustain 
the  allegations,  and  he  upon  but  one  unimportant  matter.  The  contentions  of 
the  principal  are  corroborated  here  and  there  by  the  testimony  of  several  teachers 
in  the  high  school,  and  by  others. 

The  Commissioner  of  Education  has  read,  and  heard  able  counsel  upon, 
and  reflected  upon  this  testimony.  Though  probably  not  bound  to  be  limited 
by  the  record,  he  has  been.  There  has  been  no  desire  to  take  over  the  functions 
of  the  board  of  education  or  to  substitute  the  discretion  of  the  Commissioner 
for  that  of  the  board.     If  the  weight  of  evidence  seemed  nearly  balanced,  and 


ioj8  the  university  of  the  state  of  new  york 

the  judges  appeared  free  from  bias,  and  the  judgment  inflicted  a  penalty  fairly 
adjusted  to  a  real  offense  reasonably  established,  the  Commissioner  would  sustain 
the  board  even  though  it  might  seem  to  him  that  they  had  fallen  into  some  inci- 
dental errors  and  his  conclusions  upon  the  facts  were  not  fully  in  accord  with 
theirs.  But  he  can  come  to  no  other  conclusion  than  that  the  board  was  of  one 
mind  in  prejudging  the  case  and  intent  upon  coming  to  but  one  end;  was  biased 
against  the  appellant;  magnified  the  small  incidents- of  administration  beyond 
reason;  denied  him  the  fair  opportunities  of  defense;  inflicted  a  penalty  wholly 
out  of  proportion  to  any  apparent  delinquency;  and  so  violated  the  law  which 
they  were  bound  to  regard. 

No  immoral  act  is  charged  against  the  appellant.  No  hasty  or  uncontroll- 
able temper  is  intimated.  Nothing  to  show  that  he  brought  dishonor  upon  his 
position  is  established.  No  doubt  about  his  scholarship  is  brought  forward.  It 
nowhere  appears  that  he  did  not  enjoy  the  common  respect  of  the  community, 
of  associate  teachers,  and  of  his  pupils.  He  certainly  carried  himself  with  much 
steadiness  under  trying  circumstances.  The  most  that  is  alleged  and  attempted 
to  be  proved  is  that  he  failed  to  do  something  that  he  should  have  done,  or 
talked  too  freely,  and,  under  the  light  of  all  that  was  brought  out  before  the 
board,  even  so  much  fades  pretty  nearly  to  the  vanishing  point. 

The  superintendent  had  a  professional  as  well  as  a  legal  and  moral  obliga- 
tion to  the  principal  and  whatever  difficulties  there  were  should  have  been  settled 
between  the  superintendent  and  principal,  and  would  have  been  if  the  members 
of  the  board  and  the  superintendent  had  been  moved  by  nothing  but  the  good 
of  the  schools  and  regard  for  a  teacher  in  a  responsible  place.  Indeed,  the  pro- 
ceedings unmistakably  declare  the  fact  that  the  difficulties  which  have  set  the 
schools  and  the  people  of  a  city  in  most  regrettable  turmoil  have  arisen  out  of 
the  solicitude  of  this  principal  for  the  character  and  the  quality  of  the  faculty 
over  which  he  was  to  preside,  and  out  of  the  integrity  that  could  not  always  bend 
to  even  official  authority  which  had  some  other  aims  than  the  exclusive  good  of 
the  schools. 

The  teachers  who  were  appointed  to  the  high  school  faculty  without  con- 
ference with  the  principal  were  assigned  to  work  by  him  with  little  delay  and  no 
more  than  was  inevitably  incident  to  his  surprise  and  to  their  lack  of  adaptation 
to  new  and  responsible  duties.  The  criticisms  against  the  members  of  the  board 
sound  very  differently  when  repeated  by  one  side  from  what  they  do  when  ex- 
plained by  the  other,  and,  in  any  event,  were  not  to  the  public  and  not  beyond  what 
any  public  officer  must  expect,  widiout  exercising  his  official  power  to  turn  people 
out  of  permanent  positions.  The  allegation  about  interfering  with  changes  in  the 
building  grew  out  of  an  insignificant  and  passing  episode.  Those  concerning 
reports  upon  the  standings  of  pupils  and  the  number  of  failures  are  clearly  the 
result  of  measuring  things  by  different  standards,  and  of  differing  estimates  of 
personal  and  official  prerogatives.  That  in  relation  to  the  discipline  of  pupils  is 
not  serious  in  school  administration  and  is  no  graver  than  may  be  frequently 
made  against  principals  who  have  live  boys  to  manage.     The  one  about  not  re- 


JUDICIAL  decisions:     teachers  1029 

porting  nonresident  pupils  which  looks  bad  upon  its  face  because  it  would  seem 
to  indicate  that  the  principal  permitted  the  city  to  be  defrauded,  is  shown  to 
refer  to  a  student  whose  father  was  a  resident  and  a  taxpayer  at  the  time  re- 
ferred to,  and  who  was  therefore  in  the  school  of  right.  No  wrongful  intent 
or  malicious  pui-pose  appears  anywhere. 

But  this  is  not  all :  The  trial  was  not  judicially  fair.  If  any  inquiry  is 
unfair  it  is  one  in  which  the  tribunal  pretends  to  be  governed  by  legal  rules  and 
yet  has  no  real  knowledge  of  them,  and  so  exercises  the  power  to  use  them, 
either  wilfully  or  ignorantly,  in  favor  of  one  side  and  against  the  other.  It 
can  not  be  expected  that  a  board  of  education  will  be  familiar  with  the  legal 
rules  governing  the  taking  of  evidence,  but  it  is  not  too  much  to  insist  that  a 
board  of  education  shall  either  show  such  disposition,  even  anxiety,  to  protect  the 
rights  of  the  accused  as  will  lead  it  to  receive  and  exclude  the  testimony  offered 
by  both  sides  according  to  true  rules  of  evidence,  or  else  make  no  such  pretense 
and  get  at  the  facts  through  whatever  both  sides  can  offer.  There  need  be  no 
hesitation  in  saying  that  the  record  plainly  discloses  that  testimony  material  to 
the  accused  was  excluded  repeatedly  when  it  tended  to  show  that  members  had 
prejudged  the  case  or  when  it  would  weigh  against  the  preconceived  plans  of 
the  board.  An  able  young  lawyer,  favorable  to  the  attitude  of  the  superintendent 
and  the  board,  was  allowed  to  determine  what  evidence  should  be  taken,  and  to 
badger  the  principal  to  counsel's  content,  while  another  was  kept  from  analyzing 
the  contents  of  the  superintendent's  mind  beyond  what  seemed  to  the  board  to  be 
safely  consistent  with  its  point  of  view.  It  is  not  said,  as  the  superintendent  and 
board  allege  of  the  principal,  that  the  board  was  intentionally,  wilfully  and 
maliciously  wrong  about  this.  It  was  wrong,  but  it  may  have  become  infatuated 
with  theories  which  impelled  its  course,  and  it  may  have  been  under  political 
pressure  which  really  forced  it  to  think  that  the  exigencies  of  the  situation  de- 
manded it.  The  matter  is  given  place  here  for  the  enlightenment  and  guidance 
of  other  boards  in  similar  or  analogous  situations,  and  in  eager  anticipation  of 
the  time  when  partisanship  shall  not  dare  to  obtrude  upon  the  management  of 
the  schools. 

It  must  be  understood  that  a  teacher  is  entitled  to  a  fair  chance  for  his 
life,  and  that  a  teacher's  place  is  not  to  be  the  football  of  politics,  or  partisan- 
ship in  other  form.  If  a  teacher  to  whom  the  law  gives  a  permanent  tenure 
through  good  behavior,  and  declares  that  he  can  only  be  removed  for  cause,  is 
to  be  removed,  the  cause  must  be  a  reasonable  one  and  the  proceedings  leading 
up  to  the  determination  must  be  so  conducted  as  to  establish  the  cause  and 
yet  protect  the  teacher's  rights. 

The  Commissioner  of  Education  takes  no  flabby  or  indifferent  view  of  the 
need  of  organization,  of  respect  for  official  directions,  of  obedience  to  consti- 
tuted authority.  But  the  organization  must  rest  upon  sound  fundamental  prin- 
ciples, the  directions  must  square  with  reason  and  right,  and  the  authority  must 
"^be  exclusively  actuated  by  the  high  aims  of  the  educational  system  and  be  safely 
within  the  law  which  regulates  the  schools.     When  it  is  so,  authority  is  entitled 


I030  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

to  honor  for  any  aggressiveness  it  may  show ;  and  when  it  is  not,  he  who  resists 
it  is  also  entitled  to  honor. 

It  is  hard  for  anyone  to  lose  employment.  It  is  still  harder  for  one  to  lose 
employment  as  a  teacher  at  a  time  of  the  year  which  practically  makes  reem- 
ployment impossible  for  nine  or  ten  months.  It  comes  pretty  close  to  annihila- 
tion when  a  teacher  is  peremptorily  dismissed  in  the  presence  of  all  the  people 
of  a  considerable  city,  and  with  the  full  knowledge  of  all  teachers  in  the  Stare 
and  country,  from  so  conspicuous  a  position  as  the  principalship  of  the  Troy 
High  School,  when  it  is  proclaimed  that  it  is  done  for  incompetence,  neglect 
of  duty,  intentional  maladministration,  wilful  misconduct  in  office,  malicious  con- 
duct unbecoming  a  teacher,  and  all  the  other  things  that  come  to  the  mind  of  a 
keen  young  corporation  counsel  assigned  the  duty  of  drawing  charges  and  mak- 
ing a  case. 

The  teacher  in  this  case  was  in  a  conspicuous  and  responsible  position.  He 
was  bound  to  endeavor  to  work  quietly  and  harmoniously  with  all  others  who 
had  the  good  of  the  schools  in  view,  and  particularly  with  those  in  official  au- 
thority over  him.  He  was  bound  to  be  patient,  to  carry  himself  with  steadiness 
and  dignity,  and  even  to  suffer  much  in  the  interest  of  the  common  good.  But 
he  was  a  man  of  character  and  education.  He  had  had  considerable  experi- 
ence in  the  place  he  held.  He  was  not  an  old  man,  incapable  of  further  prog- 
ress and  yet  better  accomplishments.  The  school  over  which  he  presided  was 
upon  his  heart.  He  was  entitled  to  be  treated  like  a  man,  to  be  regarded  for  the 
public  service  he  had  rendered.  He  was  not  a  mere  hired  man ;  he  was  entitled 
to  be  conferred  with  about  the  interests  of  his  school.  When  the  board  was 
honest  and  sane  and  deliberate  he  was  bound  to  act  upon  their  conclusions  with- 
out cavil,  or  vacate  his  place  for  one  who  could.  If  he  could  not  do  that,  then 
he  was  incompetent  for  such  a  trust,  and  if  under  such  circumstances  he  would 
not  vacate  his  place,  then  the  board  could  remove  him  at  a  time  and  in  a  way 
which  would  inflict  no  more  upon  him  than  the  circumstances  made  reasonable 
and  the  needs  of  the  school  made  imperative.  An  offense  against  good  judg- 
ment or  disagreements  with  the  board  which  need  not  force  an  open  rupture  if 
managed  by  men  of  sense,  which  might  be  sufficient  to  warrant  a  request  for 
his  resignation  or  even  a  removal  from  position  in  the  vacation  time,  might  come 
short  of  supporting  such  decisive  action  at  a  time  when  the  schools  were  open 
and  the  situation  called  for  toleration  and  no  unnecessary  commotion.  When 
the  board  became  possessed  of  a  purpose  to  oust  him  in  the  middle  of  the  school 
year  without  substantial  cause,  he  was  not  bound  to  acquiesce ;  the  law  is  against 
that  and  it  protected  him.  It  was  precisely  for  this  purpose  that  the  provisions 
concerning  the  tenure  of  teachers  in  the  uniform  charter  of  cities  of  the  second 
class  was  inserted. 

The  appeal  is  sustained,  and  the  action  of  the  respondent  removing  the  ap- 
pellant from  the  principalship  of  the  Troy  High  School  is  declared  to  be  of  no 
effect. 


JUDICIAL  decisions:     teachers  103 1 

It  is  ordered,  That  the  board  of  education  of  the  city  of  Troy  forthwith  rec- 
ognize said  Martin  H.  Walrath  as  principal  of  the  Troy  High  School,  charged 
with  all  the  responsibilities  and  authority,  and  entitled  to  all  of  the  prerogatives 
and  emoluments  of  said  position  the  same  as  he  would  have  been  if  the  action 
of  said  board  of  education  taken  December  4,  1905,  removing  him  from  said 
position  had  not  been  taken. 


5366 

In  the  matter  of  the  appeal  of  William  E.  Paterson  from  the  action  of  Charles 
C.  A/forgan,  trustee  of  school  district  no.  5,  town  of  Bellmont,  Franklin 
county. 

A  teacher  who  resigns  because  of  ill  health  and  upon  the  advice  of  his  physician,  is  within 
his  legal  rights.  When  it  appears  that  a  teacher  has  resigned  for  such  reasons  and  has 
not  taught  elsewhere  and  the  district  is  indebted  to  him  for  salary  for  a  portion  of  the 
time  which  he  taught,  it  is  the  duty  of  the  trustee  to  pay  such  salary  due. 

Decided  December  16,  1907 

Draper,  Commissioner 

The  moving  papers  in  this  proceeding  show  that  appellent  contracted  to 
teach  for  sixteen  consecutive  weeks  beginning  September  10,  1906,  in  school 
district  no.  5,  town  of  Bellmont,  Franklin  county,  at  a  weekly  compensation  of 
$8.50.  He  taught  ten  weeks  and  filed  his  resignation  with  the  trustee.  He  re- 
signed upon  the  ground  that  his  health  would  not  permit  him  to  complete  the 
term  for  which  he  had  contracted.  He  had  been  paid  for  only  eight  weeks  and 
the  trustee  refused  to  pay  him  for  the  additional  two  weeks  which  he  had 
taught.  It  also  appears  that  appellant  did  not  teach  elsewhere  after  he  resigned 
and  he  also  presents  the  certificate  of  the  physician  who  attended  him  to  the 
efifect  that  he  was  not  in  physicial  condition  to  teach  and  that  such  physician 
advised  him  to  stop  teaching.  His  resignation  was  therefore  based  upon  valid 
ground.  The  trustee  should  have  paid  him  the  salary  due.  The  present  trustee 
has  not  felt  justified  in  paying  the  claim  because  the  trustee  serving  when  the 
controversy  arose  has  refused  to  honor  it. 

No  answer  has  been  filed  to  this  appeal  and  the  allegations  contained  herein 
must  be  regarded  as  admitted. 

The  appeal  herein  is  sustained. 

It  is  ordered,  That  the  trustee  of  school  district  no.  5,  town  of  Bellmont, 
Franklin  county,  shall  immediately  pay  William  E.  Paterson,  appellant  herein, 
the  sum  of  $17  and  interest  thereon  at  the  rate  of  6  per  centum  from  the  first 
day  of  December  1906. 


1032  THE    UNIVERSITY   OF    THE    STATE    OF    NEW    YORK 

5335 

III  the  matter  of  the  appeal  of  Jonathan  M.  Barker  from  the  action  of  the 
hoard  of  education  of  school  district  no.  7,  West  Turin,  Lewis  county. 

The  duty  of  a  principal  in  his  relations  to  Regents  examinations  is  a  vital  one.  He  is  the 
proper  person  under  the  Regents  rules  to  conduct  such  examinations.  It  is  his  duty 
to  be  familiar  with  such  rules  and  to  enforce  a  strict  observance  thereof.  A  principal 
is  not  entitled  to  extra  compensation  for  conducting  Regents  examinations  as  such  work 
is  part  of  liis  regular  duties  as  principal. 

Decided  September  ly,  1907 

James  E.  Bixby,  attorney  for  appellant 

Draper,  Commissioner 

In  May  1906,  Appellant  Barker  contracted  with  the  board  of  education  of 
union  free  school  district  no.  7,  town  of  West  Turin,  Lewis  county,  to  teach 
in  said  district  for  a  period  of  thirty-eight  weeks.  This  district  includes  the  vil- 
lage of  Constableville  and  appellant  was  to  be  the  principal  of  the  school.  A 
written  contract  was  executed  in  duplicate  and  one  copy  is  submitted  in  the 
pleadings  of  appellant.  This  written  contract  provides  that  appellant  should 
begin  to  teach  October  10,  1906.  Appellant  claims  that  while  the  contract  did 
specify  that  he  should  begin  to  teach  October  loth,  the  insertion  of  such  date 
was  a  clerical  error  and  that  the  date  specified  in  the  contract  for  the  commence- 
ment of  his  term  of  service  should  have  been  September  10,  1906.  It  appears 
that  appellant  did  begin  to  teach  September  loth. 

It  appears  that  appellant  prepared  the  annual  catalog  of  the  school  and  in 
this  catalog  he  inserted  a  calendar  of  the  principal  school  dat£s  for  the  year  in- 
cluding the  dates  for  Regents  examinations.  The  principal  inserted  June  10  to 
M.  19<^7.  as  the  dates  for  the  June  1907  Regents  examinations.  This  was  an 
error.  The  dates  set  for  such  examinations  by  the  Education  Department  were 
June  17  to  21,  or  one  week  later  than  the  dates  given  by  the  appellant  in  the 
calendar  which  he  prepared. 

The  date  of  this  examination  is  an  important  element  to  be  considered  by 
a  board  of  education  in  setting  a  date  for  opening  schools  and  in  determining 
the  term  for  which  school  shall  be  maintained.  The  school  in  this  district  con- 
tains an  academic  department  and  holds  Regents  examinations.  The  term  of 
school  maintained  in  such  district  always  includes  the  week  of  the  June  Regents 
examinations.  It  is  also  the  general  custom  in  such  districts  to  hold  the  com- 
mencement exercises  the  week  after  the  Regents  examinations.  By  opening 
school  on  September  loth  the  thirty-eight  weeks  called  for  under  appellant's  con- 
tract would  not  expire  until  June  14th  or  after  the  erroneous  date  set  for  Re- 
gents examinations. 

^  The  principal  of  a  school  bears  a  very  intimate  relation  to  the  Regents  ex- 
aminations. He  is  the  proper  person  under  the  Regents  rules  to  conduct  such 
examinations.  He  is  expected  to  be  familiar  with  such  rules  and  to  enforce  a 
strict  obserA-ance  thereof.     He  must  determine  the  proficiency  of  students  to 


JUDICIAL    DECISIONS  :       TEACHERS  IO33 

take  such  examinations  and  bar  those  therefrom  who  have  not  pursued  the  study 
of  a  subject  an  adequate  period  of  time.  The  duty  of  a  principal  therefore  in 
his  relation  to  Regents  examinations  is  a  vital  one. 

It  is  only  reasonable  to  assume  that  this  board  of  education  intended  that 
its  contract  with  appellant  should  cover  the  week  of  the  June  examinations.  It 
is  also  reasonable  to  assume  that  appellant  believed  his  contract  did  cover  the 
week  in  question. 

It  appears  that  the  board  of  education  decided  during  the  school  year  to 
change  its  principal  and  so  far  as  shown  by  these  pleadings  in  a  proper  manner 
contracted  with  another  principal  for  the  ensuing  school  year.  This  action  of 
the  board  displeased  appellant.  He  then  discovered  that  his  term  of  thirty-eight 
weeks  would  expire  the  week  previous  to  the  dates  set  for  Regents  examinations 
reckoned  from  September  loth.  Appellant  decided  not  to  remain  to  conduct 
these  examinations.  He  swears  that  he  made  arrangements  for  other  affairs 
for  that  week.  It  does  not  appear  that  he  notified  any  member  of  the  board  of 
education  that  he  had  made  an  error  in  this  calendar  in  giving  the  dates  of  these 
examinations  and  that  his  term  would  expire  the  week  previous  to  the  proper 
dates  set  for  such  examinations.  He  knew  that  failure  to  hold  these  examina- 
tions in  strict  accordance  with  the  rules  might  result  in  serious  embarrassment 
to  the  board  of  education  and  might  operate  as  a  great  hardship  and  loss  of  time 
in  school  work  to  the  pupils  he  had  instructed  during  the  year.  He  gave  no  word 
of  warning  to  the  board  of  education  of  this  situation.  He  took  no  action  what- 
ever to  see  that  arrangements  should  be  made  to  protect  the  rights  and  interests 
of  his  pupils  in  this  respect. 

It  appears  that  information  reached  the  president  of  the  board  of  educa- 
tion on  June  12th  that  there  was  some  misunderstanding  in  relation  to  the  date 
of  closing  schools  and  that  an  error  had  been  made  in  publishing  the  dates  of 
the  June  examinations.  It  also  appears  that  on  June  13th  one  of  the  teachers  in 
the  school  communicated  to  the  president  of  the  board  the  attitude  of  the  principal 
in  relation  to  the  termination  of  his  services.  The  president  of  the  board  at  once 
consulted  the  school  commissioner  and  on  the  following  morning  served  a  written 
request  upon  each  teacher  to  remain  the  following  week,  advising  them  that 
compensation  at  the  regular  weekly  salary  would  be  paid  them.  This  letter  re- 
questing the  principal  to  remain  the  following  week  is  submitted  in  appellant's 
moving  papers.  It  is  dated  June  14th,  the  date  on  which  appellant  claims  his 
contract  terminated.  No  answer  was  received  from  the  principal  until  the  fol- 
lowing Monday  morning.  He  then  informed  the  board  that  he  would  not  re- 
main that  week  and  conduct  the  examinations  unless  the  board  gave  him  a  writ- 
ten contract  agreeing  to  pay  him  $10  in  addition  to  the  regular  weekly  salary  of 
$20.  An  informal  meeting  of  the  members  of  the  board  of  education  who  were 
in  town  was  held  on  Monday  morning  and  it  appears  that  School  Commissioner 
O'Brien  was  authorized  to  state  to  the  principal  that  his  demands  would  be  ac- 
-oepted  if  he  would  remain  and  conduct  the  examinations.  Thereupon  appellant 
remained  and  conducted  such  examinations. 


1034  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

Appellant's  conduct  in  this  matter  by  his  failure  to  give  notice  to  the  board 
of  the  error  he  had  made  in  publishing  the  date  of  the  examinations  and  of 
his  intention  not  to  conduct  sucli  examination  and  by  failure  to  reply  until  Mon- 
day morning  to  the  request  of  the  president  of  the  board  that  he  remain  the  fol- 
lowing week  clearly  indicates  that  ho  desired  to  keep  such  information  from  the 
board  and  to  delay  any  action  which  the  board  might  take  in  such  premises 
until  it  was  too  late  to  make  proper  arrangements  for  such  emergency  and 
thereby  be  coerced  into  accepting  his  demands. 

As  a  matter  of  just  dealing  the  principal  was  not  entitled  to  extra  compensa- 
tion for  his  services  in  conducting  the  June  examinations.  It  was  his  duty  to 
conduct  this  examination  by  virtue  of  being  the  principal  of  the  school.  He  ex- 
pected to  do  this  work  at  his  regular  weekly  salary  when  he  made  the  contract. 
His  claim  that  he  was  not  legally  obligated  to  do  such  work  is  based  upon  a 
technical  construction  as  to  when  his  contract  terminated  and  in  the  final  analyses 
of  the  whole  question  rests  upon  the  error  which  he  made  m  setting  the  dates 
for  the  June  examination. 

His  claim  that  he  made  other  arrangements  for  the  week  of  the  examina- 
tions can  not  be  accepted  as  being  made  in  good  faith.  He  remained  in  the  dis- 
trict after  the  date  when  he  claimed  his  contract  terminated  and  held  himself 
in  readiness  to  do  this  work  if  the  board  agreed  to  pay  him  $io  extra.  He 
offers  no  proof  to  show  that  he  made  such  arrr.ngemcnts  or  that  he  suffered 
any  loss  by  remaining  another  week. 

It  should  be  clearly  stated  that  appellant  has  not  shown  a  proper  apprecia- 
tion of  the  professional  relation  which  should  exist  between  a  principal  and  his 
.«:chool  and  his  official  board. 

The  rights  of  appellant  in  this  proceeding  must  be  determined  under  a 
literal  construction  of  his  contract.  This  instrument  is  written  and  leaves  no 
doubt  as  to  what  the  agreement  was.  Appellant  was  to  teach  thirty-eight  weeks 
from  October  jo,  igo6.  There  is  no  evidence  to  show  that  any  action,  official 
or  otherwise,  was  ever  taken  by  appellant  or  by  the  board  of  education  to  amend 
the  contract.  It  was  undoubtedly  intended  that  the  school  should  open  Septem- 
ber loth  instead  of  October  loth.  Appellant  opened  it  on  the  former  date.  He 
rendered  service  for  one  month  previous  to  the  time  agreed  upon  in  this  con- 
tract when  he  should  begin  such  service.  For  this  service  he  was  entitled  to 
compensation.  Such  compensation  was  agreed  upon.  The  board  issued  him  an 
.order  upon  the  treasurer  in  payment  of  such  service.  He  accepted  the  order  and 
received  payment  therefor.  That  transaction  was  therefore  terminated.  Had 
appellant  desired  he  could  have  insisted  upon  teaching  for  thirty-eight  weeks 
from  October  loth  as  his  contract  provided.  The  board  would  have  been  com- 
pelled to  employ  him  for  that  period.  If  such  contract  was  binding  upon  the 
board  it  was  binding  upon  appellant.  It  must  be  held  therefore  that  the  week 
for  which  appellant  claims  $30  compensation  was  within  the  thirty-eight  weeks 
covered  by  his  contract  and  he  was  therefore  only  entitled  to  $20.  the  regular 
weekly  salary  provided  by  his  contract. 


JUDICIAL  decisions:     teachers  1035 

It  should  be  stated  that  the  appellant  has  not  established  that  the  meeting 
of  the  board  of  education  on  the  morning  of  June  17th  was  a  regular  meeting. 
It  appears  to  have  been  only  an  informal  meeting.  Due  notice  of  such  meeting 
does  not  appear  to  have  been  given.  All  members  were  not  present.  The  agree- 
ment reached  by  a  majority  of  the  members  of  the  board  at  a  meeting  not 
regularly  called  was  not  the  action  of  the  board  and  not  legally  binding  upon 
the  board.  At  a  regular  meeting  of  the  board  duly  convened  the  agreement 
reached  by  a  majority  of  the  members  of  such  board  at  an  informal  meeting 
was  not  confirmed  and  therefore  failed  to  become  the  action  of  the  board. 

The  board  of  education  should  immediately  pay  appellant  the  $20  due  him 
for  one  week's  service  if  he  has  not  already  been  paid  for  such  service. 

The  appeal  herein  is  dismissed. 


4003 

In  the  matter  of  the  appeal  of  Louise  V.  DeBevoise  v.  the  board  of  trustees  of 
school  district  no.  9,  of  the  town  of  Newtown,  county  of  Queens. 

In  the  case  of  a  teacher's  inability  to  discharge  her  duties  for  several  days  of  a  term  of 

school,  the  district  trustees,  not  the  teacher,  possess  the  power  to  select  a  substitute 

teacher. 
The  compensation  paid  to  a  substitute  teacher  so  selected,   would  have  no  legal  bearing 

upon  the  compensation  to  which  the  teacher  would  be  entitled  for  the  remainder  of 

the  term  so  taught. 
Decided  September  15,  1891 

H.  A.  Montfort,  attorney  for  appellant 

Draper,  Superintendent 

Appeal  by  a  duly  licensed  teacher  employed  by  the  board  of  trustees  of 
school  district  no.  9  of  the  town  of  Newtown,  county  of  Queens,  from  the 
refusal  of  the  board  to  allow  the  sum  of  $32.15  for  her  services  as  teacher  for 
the  month  of  January  1891. 

The  facts  as  alleged  by  appellant,  are  that  she  was  in  the  employ  of  the  board 
for  the  term  of  one  year,  at  a  salary  of  $41.65  per  month;  that  during  January 
1891,  she  was  taken  ill,  and  was  unable  to  teach  from  January  5th  to  January 
26th,  upon  which  latter  date  she  resumed  her  duties.  During  the  time  of  the 
appellant's  illness,  a  teachers  institute  was  held  in  the  commissioner's  district 
and  the  board  closed  the  school,  but  the  appellant  was  excused  from  attendance 
at  the  institute.  The  appellant  contends  that  conformably  to  a  custom  in  the 
district,  teachers,  in  cases  of  illness,  are  entitled  td  provide  a  substitute  at  a 
rate  of  wages  of  one  dollar  per  day,  and  on  January  5th,  the  first  day  of  appel- 
lant's indisposition,  her  sister  taught  in  her  place  the  forenoon  session.  In  the 
^^fternoon  the  board  provided  another  to  teach  in  appellant's  stead,  and  such 
substitute  continued  to  teach  until  appellant  resumed  her  position. 


1036  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

Appellant  claims  that  but  one  dollar  per  day  should  have  been  allowed  the 
substitute  from  her  salary,  and  that  the  remainder  should  have  been  paid  her. 

No  answer  has  been  received,  and  the  appeal  will,  therefore,  be  decided 
upon  appellant's  proofs. 

The  board  has  allowed  the  appellant  and  offered  to  pay  her  for  twelve  days' 
time  —  five  days  actually  taught  and  for  the  week  of  the  institute  —  a  sum  pro- 
rated upon  her  monthly  salary. 

I  know  of  no  rule  of  law  which  (lei)rives  trustees  of  the  power  to  select  their 
own  teachers,  either  regular  or  as  substitutes.  Nor  does  the  question  of  the  wages 
allowed  by  the  board  to  the  substitute  teacher,  have  any  legal  bearing  upon  the 
determination  of  appellant's  claim. 

As  I  view  this  case  from  the  evidence  before  me,  the  board  has  acted  gen- 
erously toward  the  appellant.  She  is  clearly  entitled  to  no  greater  sum  than  that 
allowed  by  the  trustees. 

The  appeal  is  overruled,  but  without  prejudice  to  the  right  of  the  appellant 
to  receive  the  sum  tendered  by  the  trustees,  to  wit:  $21.53. 


Application  of  the  inspectors  of  common  schools  of  the  town  of  Monroe  for  in- 
struction relative  to  certain  rights 

A  teacher  should  not  be  questioned  by  the  inspectors  as  to  his  religious  opinions :  but  a 

person  who  openly  derides  all  religion  should  not  be  employed  as  a  teacher. 
Decided  February  i,  1830 

Flagg,  Superintendent 

This  was  an  application  to  the  Superintendent  from  the  inspectors  of  com- 
mon schools,  of  the  town  of  Monroe,  for  instructions  as  to  their  right  to  question 
a  teacher  with  respect  to  his  religious  opinions,  in  order  to  determine  whether  his 
moral  character  was  such  as  to  entitle  him  to  a  certificate  of  qualification. 

In  relation  to  the  moral  character  of  the  teacher,  much  is  left  to  the  dis- 
cretion of  the  inspectors.  They  must  be  satisfied  that  it  is  good,  because  they 
have  to  certify  to  its  correctness.  On  this  point,  what  would  be  satisfactory  to 
one  man  might  be  unsatisfactory  to  another.  Every  person  has  a  right  to  the 
enjoyment  of  his  own  religious  behef  without  molestation;  and  the  inspectors 
should  content  themselves  with  inquiries  as  to  the  moral  character  of  the  teacher; 
leaving  him  to  the  same  liberal  enjoyment  of  his  religious  belief  that  they  ask  for 
themselves. 

If  a  person  openly  derides  all  religion,  he  ought  not  to  be  a  teacher  of 
youth.  The  employment  of  such  a  person  would  be  considered  a  grievance  by 
a  great  portion  of  the  inhabitants  of  all  the  districts. 


JUDICIAL  decisions:     teachers  1037 

The  inhabitants  of  school  district  no.  i  in  the  town  of  Hunter  v.  the  trustees 

of   said  district. 

Colored  persons  ought  not  to  be  employed  to  teach  white  children. 
Decided  November  25,  1833 

Dix,  Superintendent 

This  was  an  appeal  by  some  of  the  inhabitants  of  school  district  no.  i  in 
the  town  of  Hunter,  from  the  proceedings  of  the  trustees  of  said  district,  in 
employing  a  colored  man  to  teach  the  district  school,  which  was  attended  almost 
exclusively  by  white  children. 

The  law  is  silent  as  to  the  description  of  persons  to  be  employed  as  teachers, 
and  it  is,  therefore,  a  matter  wholly  in  the  discretion  of  the  trustees.  At  the 
same  time  I  consider  the  employment  of  a  colored  person  to  teach  a  school  of 
white  children  as  an  unjustifiable  exercise  of  authority,  unless  the  parties  con- 
cerned waive  their  objections  to  it.  It  is  unnecessary  to  inquire  whether  public 
opinion,  with  regard  to  the  admission  of  these  persons  to  the  enjoyment  of  all 
the  social  privileges  of  the  whites,  is  well  grounded  or  not.  It  is  enough  that  a 
distinction  exists ;  that  they  are  disqualified  by  the  laws  of  the  United  States 
for  the  performance  of  services  in  the  militia,  and  by  the  Constitution  of  this 
State  for  the  exercise  of  the  right  of  suffrage,  without  a  qualification  of  property. 

Under  these  circumstances  the  trustees  of  school  districts,  whose  duty  it 
is  to  cultivate  a  spirit  of  harmony  and  good  feeling,  by  carr>'ing  into  effect  as 
far  as  is  proper  the  wishes  of  the  inhabitants,  should  abstain  from  employing 
them  in  the  capacity  of  teachers.  If  the  trustees  persist,  however,  notwithstand- 
ing the  objections  on  the  part  of  the  inhabitants,  I  see  no  remedy  for  it,  until 
the  annual  election  of  district  officers  occurs,  when  others  may  be  elected  in  their 
place.  They  may  pay  the  teacher  the  public  money  for  his  wages  as  far  as  it 
goes,  and  the  residue  must  be  collected  from  those  who  send  to  school.  No 
inhabitant  can  of  course  be  compelled  to  send  his  children. 


The  trustees  of  school  district  no.   10  in  the  town  of  Shawangunk,  ex  parte. 

If  a  teacher  inflicts  unnecessarily  severe  punishment  on  a  pupil  he  is  answerable  in  damages. 

His  government  should  be  mild  and  parental;  but  he  is  responsible  for  the  maintenance 

of  discipline  in  his  school. 
Quere. —  Whether  inspectors  can  annul  a  certificate  except  on  the  grounds  on  which  their 

authority  to  examine  teachers  is  given? 
Corporal  punishment  has  no  sanction  but  usage. 
Teachers  can  not  demand  payment  of  their  wages  until  the  collector  has  had  thirty  days 

to  collect  them. 
Dtjcided  March  i,  1833 


1038  TUn    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

Dix,  Superintendent 

This  was  an  application  for  the  opinion  of  the  Superintendent  on  several 
questions  submitted  to  him,  the  nature  of  which  is  explained  by  his  answer. 

Teachers  are  responsible  to  their  employers  for  any  abuse  of  their  authority 
over  the  children  committed  to  their  charge.  Their  government  should  be  mild 
and  parental,  but  at  the  same  time  steady  and  firm.  If  a  teacher  inflicts  unneces- 
sarily severe  punishment  upon  a  scholar,  he  is  answerable  in  damages  to  the  party 
injured.  It  has  been  doubted  by  some  whether  the  inspectors  have  a  right  to 
annul  a  certificate,  except  upon  the  ground  on  which  their  authority  to  examine 
is  given  to  them,  namely,  to  ascertain  the  qualifications  of  teachers  in  respect 
to  moral  character,  learning  and  ability.  The  section  of  the  law  which  gives 
them  authority  to  annul  a  certificate,  is  general  in  its  terms,  but  the  question  has 
been  raised,  whether  that  power  is  not  to  be  construed  as  limited  by  the  pro- 
visions of  the  other  sections  defining  their  powers.  Whether  inspectorsi  may 
annul  a  certificate  because  a  teacher  has  punished  a  scholar  with  too  much 
severity,  depends  on  the  manner  in  which  this  question  is  settled.  The  question 
has  never  been  presented  distinctly  to  the  Superintendent  in  such  a  manner  as  to 
obtain  his  decision  upon  it,  and  I  merely  suggest  it  as  a  matter  which  has  given 
rise  to  doubt.  With  regard  to  the  right  to  punish,  no  general  rules  have  been 
laid  down,- and  it  would  be  difficult,  if  not  impossible,  to  make  any  which  would 
be  applicable  to  every  case.  The  practice  of  inflicting  corporal  punishment  upon 
scholars  in  any  case  whatever,  has  no  sanction  but  usage.  The  teacher  is 
responsible  for  maintaining  good  order,  and  he  must  be  the  judge  of  the  degree 
and  nature  of  the  punishment  required,  where  his  authority  is  set  at  defiance; 
at  the  same  time  he  is  liable  to  the  party  injured  for  any  abuse  of  a  prerogative 
which  is  wholly  derived  from  custom. 

The  trustees  must  pay  to  the  teacher  the  wages  which  they  have  contracted 
to  give  him;  he  can  not  be  put,  against  his  consent,  to  the  inconvenience  of  col- 
lecting his  dues  himself,  and  if  the  trustees,  who  made  the  contract  with  him, 
do  not  pay  him  any  portion  of  his  wages,  he  can  prosecute  them  or  their  succes- 
sors in  office  for  the  whole  amount.  But  unless  they  have  made  some  specific 
agreement  with  him  to  the  contrary,  he  can  not  demand  payment  until  after 
the  expiration  of  the  time  allowed  the  collector  for  making  his  return  to  the 
warrant  annexed  to  the  rate  bill.  He  must  be  presumed  to  have  made  his  con- 
tract with  full  knowledge  of  the  requirements  of  the  law.  The  trustees  are  to 
be  regarded  as  acting  in  a  public  capacity,  and  they  can  not  be  required  to  do 
more  than  the  law  enjoins  upon  them,  unless  they  have  made  themselves  respon- 
sible nidividually  by  a  specific  agreement  to  do  more.  The  statute  gives  the 
collector  thirty  days  to  execute  the  warrant,  and  the  money  by  which  the  teacher 
IS  to  be  paid  will  not  be  presumed  to  be  in  their  hands  until  that  time  has  expired. 
He  can  not  before  the  expiration  of  that  time  demand  his  wages,  without  showing 
moneys  in  their  hands  for  the  purpose  of  paying  him. 


JUDICIAL    DECISIONS  :       TEACHERS  IO39 

4048  and  4049 

In  the  matter  of  the  appeal  of  E.  A.  Frink  v.  Oscar  Haswell,  as  trustee  of 
school  district  no.  8  of  the  town  of  Bethlehem,  Albany  county. 

In  the  matter  of  the  appeal  of  David  Van  Allen  v.  Oscar  Haswell,  as  trustee 
of   school   district  no.   8  of   the  town  of   Bethlehem,   Albany  county. 

School  discipline.  The  Department  can  not  interfere  in  small  matters  of  school  discipline 
where  no  charges  are  made  against  the  character  or  competency  of  teachers  and  where 
children  have  not  been  punished  or  deprived  of  the  privileges  of  the  school. 

When  a  child  has  always  used  his  left  hand  and  has  come  to  be  12  or  14  years  of  age, 
it  seems  very  doubtful  whether  it  is  practicable  to  change  the  habit  and  therefore 
whether  the  teacher  should  insist  upon  it. 

Decided  January  11,  1892 

Draper,  Superintendent 

These  are  two  appeals  arising  in  the  same  school,  and  involving  the  right  of 
the  teacher  to  require  left-handed  children  to  write  with  their  right  hand. 

It  is  not  possible  for  me  to  lay  down  any  general  rule  upon  this  subject, 
and  I  do  not  feel  bound  to  determine  the  matter.  There  is  no  allegation  of 
cruelty  on  the  part  of  the  teacher.  The  teacher  simply  seems  to  have  desired 
to  do  her  duty  by  the  children  referred  to.  It  may  be  that  she  has  miscon- 
ceived what  her  duty  is  in  the  particular  cases  which  are  presented.  If  a  left- 
handed  child  can  be  taught  to  use  its  right  hand  in  writing,  that  should  be  done. 
If  the  habit  can  be  acquired,  it  ought  to  be  acquired,  and  the  teacher  ought  to 
insist  upon  it.  At  the  same  time,  when  a  child  has  always  used  his  left  hand, 
and  has  come  to  be  12  or  14  years  of  age,  it  seems  very  doubtful  whether  it  is 
practicable  to  change  the  habit,  and  therefore  doubtful  whether  the  teacher  should 
insist  upon  it. 

The  Department  can  not  interfere  in  all  small  matters  of  school  discipline, 
particularly  where  no  charges  are  made  against  the  character  or  competency  of 
teachers,  and  where  children  have  not  been  punished  or  deprived  the  privileges  of 
the  school. 

The  appeals  are  dismissed,  but  with  the  injunction  that  the  teacher  shall 
attempt  to  carry  out  her  laudable  purpose  only  in  cases  where  circumstances  are 
such  as  to  make  it  practicable. 


TEACHERS  CERTIFICATES 

5406 

In  the  matter  of  the  application  of  Truman  Daniels  for  the  annulment  of  the 
certificate   of   Percy   C.   Lance. 

Revocation  of  teacher's  certificate  on  ground  of  cruelty.  A  teacher's  certificate  will 
not  be  revoked  on  tlie  ground  of  brutal  punishment  of  a  pupil  unless  it  clearly  appears 
by  a  preponderance  of  evidence  that  the  teacher  has  been  brutal  in  his  treatment  of 
pupils.  A  single  case  of  undue  severity  in  the  treatment  of  a  pupil  who  was  dis- 
obedient and  resisting  the  teacher  in  the  exercise  of  his  proper  authority  is  not 
sufficient  to  justify  revocation. 

Decided  May  6,  1909 

Herbert  C.  Teepell,  attorney  for  the  petitioner 
Floyd  L.  Carlisle,  attorney  for  the  respondent 

Draper,  Commissioner 

The  petitioner,  Truman  Daniels,  presents  charges  against  Percy  C.  Lance  a 
teacher  in  the  public  school  at  Glen  Park,  county  of  Jefferson,  and  asks  that  the 
certificate  of  the  said  Lance  be  annulled.  He  alleges  that  Lance  was  guilty  of 
brutally  treating  his  son  Pearl  Daniels;  that  the  said  Lance  choked,  kicked  and 
struck  his  son  without  just  cause.  It  appears  that  the  son  had  been  operated 
upon  for  appendicitis  some  time  before,  and  that  the  punishment  he  received 
at  the  hands  of  the  respondent  aggravated  this  difficulty.  It  does  not  appear 
anywhere  that  the  respondent  knew  of  the  pupil's  condition  when  he  punished 
him.  The  respondent  denies  specifically  the  alleged  brutality  and  explains  how 
it  became  necessary  to  use  force  in  disciplining  the  petitioner's  son.  It  is 
apparently  agreed  that  the  pupil  resisted  the  respondent  when  he  attempted  to 
take  him  from  his  seat.  The  evidence  adduced  clearly  shows  that  the  pupil  hung 
to  his  seat  and  that  the  force  used  by  the  respondent  was  for  the  purpose  of 
compelling  the  pupil  to  leave  his  seat  as  directed  by  the  respondent. 

It  does  not  clearly  appear  that  the  respondent  has  been  guilty  of  unreason- 
able force  in  punishing  other  pupils.  One  of  the  pupils  makes  two  affidavits 
m  one  of  which  he  states  that  he  was  punished  by  the  respondent  very  severely, 
while  in  another  he  states  that  he  never  saw  any  brutal  treatment  by  the 
respondent.  These  affidavits  are  not  worthy  of  consideration.  The  respondent's 
associates  in  the  school  say  that  in  their  belief  the  respondent  has  not  been  brutal 
m  his  treatment  of  the  pupils  under  him.  The  president  of  the  board  of  educa- 
tion expresses  his  satisfaction  with  the  work  of  the  respondent  as  principal  of  the 
school ;  the  matter  was  evidently  brought  before  the  board  but  no  indication  of 
any  adverse  criticism  of  the  respondent  for  his  treatment  of  the  petitioner's  son 
IS  shown. 

There  is  nothing  in  this  case  to  show  that  the  respondent  has  been  habitu- 
ally brutal  m  his  treatment  of  pupils.  The  petitioner  has  not  been  able  to  estab- 
lish by  a  preponderance  of  evidence,  the  fact  that  the  respondent  has  been  brutal 

[1040] 


JUDICIAL   DECISIONS  :     TEACHERS    CERTIFICATES  IO4I 

in  his  treatment  of  pupils  in  the  Glen  Park  school.  The  respondent  may  have 
been  unduly  severe  in  his  treatment  of  the  petitioner's  son.  But  the  son  was 
disobedient  and  resisting  the  teacher  in  the  exercise  of  his  proper  authority. 
The  discipline  of  the  school  would  have  suffered  had  such  resistance  been  suc- 
cessful. The  respondent  may  have  unnecessarily  injured  the  respondent's  son 
in  overcoming  such  resistance ;  but  it  can  not  properly  be  said  that  such  conduct 
was  so  brutal  as  to  justify  the  annulment  of  the  respondent's  certificate  to  teach. 

Undue  force  in  the  punishment  of  a  pupil  will  not  be  upheld  by  me.  But 
it  is  not  every  case  of  such  force  by  a  teacher  which  will  result  in  an  annulment 
of  his  certificate.  It  has  not  been  shown  to  my  satisfaction  that  the  power  con- 
ferred upon  me  by  section  336  of  the  Education  Law,  to  annul  a  teacher's  cer- 
tificate, should  be  exercised  in  this  case,  and  I  therefore  dismiss  the  petition. 

Petition  dismissed. 


5451 

In  the  matter  of  the  application  for  the  revocation  of  the  teacher's  certificate 

of  Aida  A.  Austin. 

Revocation  of  teacher's  license;  excessive  punishment  of  pupils.  Where  a  petitioner 
seeks  the  revocation  of  a  teacher's  license  on  the  ground  of  excessive  punishment 
alleged  to  have  been  inflicted  upon  a  pupil,  the  charge  must  be  proven  by  a  pre- 
ponderance of  evidence. 

Decided  May  2S,  1910 

George  Smith,  attorney  for  appellant 
J.  M.  Maybee,  attorney  for  respondent 

Draper,  Commissioner 

This  proceediiig  is  brought  by  the  petitioner,  Herbert  L.  Eldred,  to  secure 
the  revocation  of  the  certificate  of  qualification  to  teach  granted  to  Aida  A. 
Austin,  a  teacher  in  school  district  no.  4,  town  of  Highland,  county  of  Sulli- 
van. The  petitioner  submits  affidavits  tending  to  show  tliat  the  respondent 
was  excessively  violent  in  punishing  the  petitioner's  daughter  and  another  girl 
attending  the  school.  It  is  alleged  that  the  respondent  "  seized  Bertha  F.  Eldred 
by  the  collar,  and  shook  her  and  choked  her  and  threw  her  on  the  fioor,  bruis- 
ing her  and  making  her  stiff"  and  sore  from  the  effects  of  such  fall. 
That  said  teacher  seized  Ethel  Daley  by  the  throat  and  shook  her  and  choked 
her,  tearing  her  waist."  The  respondent  denies  that  she  so  treated  these  pupils 
and  states  that  she  "  did  take  both  girls  by  the  dress  at  the  back,  when  they 
refused  to  obey  her,  and  put  them  in  the  cloakroom  " ;  and  also  that  she  "  did 
not  strike  or  choke  either  of  said  girls,  or  inflict  any  personal  injury  upon  them 
whatever."  It  is  also  alleged  by  the  respondent  in  her  answer,  and  the  petitioner 
does  not  deny,  that  both  of  the  girls  are  over  16  and  are  large,  well  grown  girls, 
ai;d  that  one  of  them  is  larger  than  the  respondent.  Supporting  afffdavits  are 
submitted  by  both  parties.  The  two  girls  have  sworn  that  they  were  punished 
as  described  in  the  petition,  and  three  of  the  pupils  who  witnessed  the  affair 


I042  Till-:    INIVKKSITY    OF    THE    STATE    OF    NEW    YORK 

partly  corroborate  llic  petitioner's  statement.  On  the  other  hand,  nine  pupils 
have  sworn  that  the  respondent's  statement  of  the  afifair  is  true.  Some  question 
has  arisen  as  to  whether  these  pupils  fully  understood  the  nature  and  contents 
of  their  affidavits.  The  notary  who  took  their  oaths  has  submitted  an  affidavit 
in  which  he  states  that  the  whole  matter  was  carefully  explained  to  them,  and 
that  Miss  Austin's  description  of  the  affair  was  read  to  each  of  them  and  after 
the  nature  and  effect  of  an  oath  were  explained  to  them,  they  were  asked  to 
swear  to  their  aftidavits.  It  thus  appears  that  the  essential  facts  to  establish 
the  charge  of  brutality  on  the  part  of  the  respondent  are  in  dispute.  It  is  im- 
possible to  arrive  at  a  conclusion  as  to  the  truth  of  the  charge  from  the  at^fidavits 
of  the  several  parties.  The  burden  is  upon  the  petitioner  to  prove  the  charge 
which  he  has  made.  He  has  failed  in  this  respect,  and  it  must  be  held  that 
respondent  has  not  been  proven  guilty  of  such  brutality  as  to  justify  the  annul- 
ment of  her  certificate. 

Reference  was  made  in  the  papers  to  the  respondent's  refusal  to  excuse  the 
two  pupils  for  the  purpose  of  attending  a  drawing  class  conducted  as  a  part  of 
the  work  of  a  free  library  and  reading  room.  It  is  apparent  that  the  punish- 
ment was  infiicted  because  the  pupils  insisted  that  they  be  permitted  to  attend 
such  class.  The  petitioner  contends  that  the  teacher  erred  in  not  permitting 
these  and  other  pupils  to  attend  such  class.  It  is  not  necessary  to  decide  on  this 
appeal  whether  it  is  proper  to  excuse  pupils  to  attend  drawing  lessons  elsewhere. 
In  any  event,  the  teacher  was  not  bound  to  excuse  for  such  purpose,  unless 
the  trustees,  acting  as  a  board,  had  formally  resolved  that  pupils  be  so  excused. 
There  is  nothing  in  the  papers  to  indicate  that  such  action  was  taken  by  the 
trustees  of  the  district. 

The  petition   is   dismissed. 

The  infliction  upon  a  pupil  of  unnecessary  and  cruel  punishment  is  good  cause  for  annulling 

a  teacher's  certificate. 
Decided  March  29,  1843 

Young,  Superintendent 

A  teacher,  for  an  act  of  disobedience,  ordered  a  boy,  15  years  of  age  to  hold 
out  a  book,  of  the  ordinary  size  used  in  schools,  at  arm's  length,  level  with  his 
shoulder.  The  'uoy,  after  holding  it  in  that  position  from  five  to  eight  or  ten 
minutes,  let  it  fall  and  said  he  could  not  hold  it  any  longer.  On  being  ordered 
to  hold  it  out  again,  he  peremptorily  refused.  The  teacher,  then,  with  a  curled 
maple  rule,  over  twenty  inches  long,  one  and  three-quarters  wide,  and  half  an 
mch  thick,  struck  him  from  fifteen  to  twenty  blows  on  his  back  and  thighs,  and 
m  so  severe  a  manner  as  to  disable  him  from  leaving  school  without  assistance. 
A  physician  was  called  and  found  his  back  and  limbs  badly  bruised  and  swollen. 
The  teacher  on  the  succeeding  day  sent  to  him  a  physician,  who  pronounced 
him  '•  very  badly  bruised."  It  was  ten  or  twelve  days  before  he  so  far  recovered 
as  to  be  able  to  attend  school. 

The  Superintendent  expresses  his  unqualified  disapprobation  of  a  punish- 
ment so  severe  and  unreasonable.     If  the  disobedience  of  the  boy  had  been  the 


JUDICIAL  decisions:     teachers  certificates  1043 

result  of  sheer  obstinancy  and  wilfulness,  it  could  not  justify  the  infliction  of 
fifteen  or  twenty  blows  with  such  a  bludgeon,  upon  the  back  and  limbs  of  the 
boy  disabling^  him  for  a  fortnight.  Such  a  measure  of  punishment  for  such  an 
offense  would  be  sufhcient  ground  for  annulling  a  certificate. 


A  teacher's  certihcate  should  not  be  annulled  for  moral  delinquencies  known  to  the  com- 
missioner at  the  time  of  issuing  the  same,  and  where  no  departure  from  moral  rectitude 
is  shown  to  have  occurred  since. 

Decided  January  28,  1876 

Gilmour,  Superintendent 

A  certificate  of  qualification  was  granted  to  one  Parks  by  the  school  com- 
missioner, notwithstanding  it  had  been  charged,  and  admitted  by  the  teacher, 
that  twice  prior  to  the  time  of  his  examination  for  said  license,  he  had  played 
cards  for  money.  The  commissioner,  in  view  of  this  moral  delinquency,  required 
Parks  to  bring  testimonials  as  to  character,  wdiich  he  did,  signed  by  reputable 
citizens,  and  in  view  of  which  the  previous  lapse  of  the  teacher  from  morality  in 
the  respect  noted,  was  condoned  and  the  certificate  issued. 

Subsequently,  formal  complaint  was  made  to  the  commissioner  against 
the  teacher  upon  the  ground  of  this  previous  delinquency,  and  the  commis- 
sioner went  through  the  formality  of  a  hearing,  upon  which,  however,  nothing, 
not  previously  known  to  the  commissioner,  was  elicited.  The  certificate,  how- 
ever, was  annulled. 

It  does  not  appear  that  Parks  had  violated  the  dignity  of  his  profession, 
by  gambling,  subsequent  to  holding  said  certificate,  or  that  he  had  the  reputation 
of  being  a  gambler,  which  would  of  course  unfit  him  for  the  business  of  teacher, 
but  that  his  reputation  for  morality  is  good,  and  he  produces  strong  testimony  to 
that  effect. 

Under,  these  circumstances,  I  think  the  commissioner  should  have  over- 
looked these  two  acts  of  indulgence  prior  to  the  granting  of  the  certificate. 

The  Superintendent  would  not  for  a  moment  countenance  the  licensing  as 
teachers,  of  persons  of  immoral  character;  on  the  other  hand,  it  is  very  hard  to 
annul  the  certificate  of  a  successful  teacher,  and  one  whose  moral  character  is 
shown  to  be  now  good,  for  acts  committed  some  time  ago.  In  all  such  cases 
there  should  be  charity,  and  a  disposition  to  help  rather  than  hinder  anyone  who 
is  trying  to  reform  and  lead  a  better  life,  especially  in  a  case  of  this  kind,  where 
the  commissioner,  with  full  knowledge  of  all  the  facts,  issued  the  certificate. 
Order  of  cominissioner  annulling  certificate  vacated. 


3496 

2"he  cause  assigned  for  the  annulment  of  the  teacher's  certificate  is  "  incompetency."    This 

•  is  a  very  grave  and  serious   finding,  and   should  not  be   reached,   as   it  embraces   not 

merely  the  ability  to  teach,  but  may  also  look  to  the  moral  character  of  the  teacher 

-     and  his  learning,  without  a  full  and  fair  investigation  on  the  part  of  the  commissioner, 


I044  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 


aftiT  notice  to  the  teacher  that  such  investigation  would  be  had,  giving  him  an  opportu- 
nity in  the  presence  of  the  commissioner  to  show  his  ability  to  teach,  if  that  is  called 
in  auestion,  and  to  refute  any  charges  made  by  others  and  upon  which  the  commissioner 
proposes  to  act. 
Dccidec  April  2.  18S6 

Morrison,  Actuuj  Supcrititcndent 

The  school  coniniissioncr  annulled  the  teacher's  certificate  on  the  ground  of 
incompetency  on  the  14th  day  of  December  1885.  This  annulment  was  made  by 
the  commissioner  after  a  brief  visit  to  the  school  on  the  9th  day  of  December, 
just  before  the  close  of  the  schoolhouse,  and  without  previous  notice  to,  or  op- 
portunity for  a  hearing  on  the  part  of  the  appellant.  The  commissioner  admits 
that  his  action  was  taken  under  the  provisions  of  subdivision  6,  section  13,  title 
2  of  the  Code  of  Public  Instruction,  which  provides  that  every  commissioner 
shall  have  power,  and  it  shall  be  his  duty  "  to  reexamine  any  teacher  holding  his 
or  his  predecessor's  certificate,  and,  if  he  find  him  deficient  in  learning  or  ability, 
to  annul  his  certificate."  In  his  answer  the  commissioner  sets  up  the  inability  of 
the  teacher  to  conduct  the  school;  but  it  would  not  seem  that  the  commissioner 
had  sufficient  opportunity,  from  his  observation,  to  determine  the  ability  or  in- 
ability of  the  teacher,  to  whom  he  had  previously  granted  a  certificate  of  quali- 
fication. If  the  commissioner  depended  upon  his  advice  and  information  derived 
from  others,  it  is  only  fair  that  the  teacher  should  have  an  opportunity  to  be 
heard  in  his  own  behalf  in  writing,  and  if  possible,  refuting  the  charges  touching 
his  ability  to  conduct  the  school.  The  commissioner,  after  disclaiming  any  desire 
or  intention  to  entertain  or  pass  upon  any  charge  afifecting  the  moral  character 
of  the  teacher,  introduces  a  series  of  affidavits,  directed  to  the  proof  of  bad 
temper  and  inability  to  rule  his  own  passions,  want  of  self-control  and  partiality 
in  the  conduct  of  the  school  on  the  part  of  the  teacher,  and  I  must  assume  that 
it  was  upon  testimony  of  this  character  that  the  commissioner  proceeded  to 
aninil  the  teacher's  certificate  for  incompetency.  It  has  been  frequently  held  by 
this  Department  that  where  complaints  against  a  teacher  of  this  kind  are  made, 
the  teacher  should  have  an  opportunity  to  refute  or  answer  the  charges.  The 
cause  assigned  for  the  annulment  of  the  certificate  is  "  incompetency."  This  is 
a  very  grave  and  serious  finding,  and  should  not  be  reached,  as  it  embraces  not 
merely  the  ability  to  teach,  but  may  also  look  to  the  moral  character  of  the 
teacher  and  his  learning,  without  a  full  and  fair  investigation  on  the  part  of 
the  commissioner's  order  revoking  the  teacher's  certificate  vacated  and  set  aside, 
had,  giving  him  an  opportunity  in  the  presence  of  the  commissioner  to  show  his 
ability  to  teach,  if  that  is  called  in  question,  and  to  refute  any  charges  made 
by  others  and  upon  which  the  commissioner  proposes  to  act.  I  look  upon  the 
action  of  the  commissioner  as  a  violation  of  subdivision  6,  section  13,  title  2,  under 
which  he  assumed  to  act,  as  he  can  not  be  said,  within  the  language  and  spirit  of 
the  statute,  to  have  aflforded  a  reexamination  to  the  teacher.  Appeal  sustained  and 
the  commissioner,  after  notice  to  the  teacher  that  such  investigation  would  be 


JUDICIAL    DECISIONS  :       TEACHERS    CERTIFICATES  IO45 

3510 

No  general  charge  of  immoral  character  will  be  sufficient  to  put  a  person  upon  the  defensive. 

The  charges  should  state  the  immoral  acts  of  the  teacher  and  should  be  drawn  with 

care  and  distinctness. 
The  respondent  must  be  given  an  opportunity  to  defend;  to  confront  and  cross-examine 

witnesses  produced  by  the  appellant. 
The  Department  can  not  revoke  a  license  upon  charges  affecting  character,  except  upon 

clear  and  unquestioned  proofs. 
Trustees  must  not  rely  upon  the  Department  to  relieve  them  from  their  unwise  contracts. 
Decided  June  11,  1886 

Draper,  Superintendent 

The  board  of  education  preferred  charges  before  the  school  commissjoner 
of  the  district,  against  the  teacher,  and  asked  him  to  revoke  her  certificate  on  the 
ground  of  immoral  character.  The  teacher  was  properly  notified  of  such  charges 
and  given  opportunity  to  defend.  A  hearing  was  set  and  three  days  occupied  by 
the  commissioner  in  receiving  testimony  offered  by  the  board  to  sustain  the 
charges,  at  the  end  of  which  time  the  proceedings  were  withdrawn  by  the  parties 
instituting  them.  The  principal  reason  given  for  such  withdrawal  is  that  the 
commissioner  refused  to  receive  as  evidence  affidavits  of  persons  not  present- 
The  commissioner  was  instructed  by  the  Department  that  affidavits  should  not 
be  received  as  evidence  in  an  oral  examination.  Counsel  for  the  teacher  asked 
the  commissioner  to  render  a  decision  in  the  matter  to  the  effect  that  the  charges 
had  not  been  sustained.  This  the  commissioner  refused  to  do,  and  the  board 
was  allowed  to  discontinue  without  any  judgment  or  decision  being  rendered 
by  the  commissioner. 

On  the  28th  day  of  May  1886,  the  proceedings  now  before  me  were  com- 
menced. A  copy  of  the  charges  and  affidavits  submitted  in  support  thereof 
was  served  upon  the  respondent.  The  respondent  has  filed  no  answer  and  the 
case  must  be  examined  upon  the  evidence  of  the  moving  parties. 

In  proceedings  of  this  kind,  two  rules  must  be  complied  with:  (i)  The 
charges  must  be  definite  and  specific.  No  general  charge  of  immoral  character 
will  be  sufficient  to  put  a  person  upon  the  defensive.  The  charges  should  state 
the  immoral  act  of  the  teacher  and  should  be  drawn  with  as  much  care  and 
distinctness  as  an  indictment.  (2)  The  respondent  must  be  given  an  opportunity 
to  defend,  to  confront  and  cross-examine  the  witnesses  produced  by  the  appellant. 

In  the  examination  of  the  charges  and  the  affidavits  filed  therewith,  it  ap- 
pears that  the  principal  charges  are  those  of  lying,  perjury  and  disrespect  toward 
the  board  of  education  on  the  part  of  the  respondent.  The  charges  are,  in  the 
main,  general,  although  some  statements  of  the  teacher  are  set  out  and  char- 
acterized as  false. 

A  large  number  of  affidavits  are  filed  and  similar  ones  were  upon  the  former 
appeal.  The  board  of  education  entered  into  a  written  contract  with  the  teacher 
witjiout  first  having  a  personal  interview  with  her.  During  her  term  of  service 
as  teacher,  the  exact  time  does  not  appear,  misunderstandings  and  contentions 
arose  between  the  respondent  and  the  board.  The  papers  are  very  voluminous, 
covering  a  mass  of  irrelevant  matter.     The  controversy  is  a  highly  unfortunate 


[O46  THE    UNIVERSITY    OK    THE    STATE    OF    NEW    YORK 

one,  ami  it  would  undoubtedly  have  been  far  better  if  the  respondent  had 
never  been  enipioyei!  to  teach  in  this  school,  but  with  tliat  the  Department  has 
nothing  to  do.  The  only  question  left  for  me  is,  whether  the  papers  in  the  case 
show  the  respondent  to  be  a  person  of  sucli  immoral  character  as  to  render  it 
Improper  for  her  to  hold  a  certificate  to  teach  in  the  common  schools  of  this 
State.  It  is  not  whether  she  lacks  judgment;  it  is  not  whether  she  is  a  successful 
teacher;  but  whether  she  is  of  immoral  character.  The  Department  can  not 
revoke  a  license  upon  charges  affecting  character,  except  upon  clear  and  unques- 
tioned i)roofs.  The  fact  unquestionably  is,  that  there  has  been  a  heated  con- 
troversy, and  that  disagreeable  things  have  been  said  on  both  sides.  Undoubt- 
edly some  things  have  been  said  which  are  not  altogether  true,  as  is  the  case  in 
all  such  controversies,  but  I  find  no  evidence  sufficient  to  justify  me  in  holding 
that  the  respondent  is  a  woman  of  immoral  character.  The  allegations  against 
her  are,  in  the  main,  general  and  indefinite  and  such  specific  allegations  of  fact 
as  are  contained  in  the  charges  are  not  supported  by  the  proofs. 

If  trustees  will  employ  teachers  without  sufficient  caution,  without  previous 
acquaintance  or  inquiry,  they  must  not  rely  upon  the  Department  to  relieve 
them  from  their  unwise  contracts,  and  particularly  so  when  the  most  that  can 
be  said  against  a  teacher  so  employed  is  that  she  lacks  tact  and  management, 
or  talks  offensively  under  opposition  and  criticism. 

The  charges  are  dismissed. 


3501 

A  state  certificate  while  unrevoked  "  shall  be  conclusive  evidence  that  the  person  to  whom 
it  was  granted  was  qualified  by  moral  character,  learning  and  ability  to  teach  any 
common  school  in  the  State."  For  this  reason  a  board  of  education  can  not  discharge, 
upon  the  ground  of  incompetency,  a  teacher  who  was  hired  for  a  stated  time  and  who 
holds  a  state  certificate. 

Decided  April  5,  18S6 

Morrison,  Actifig  Superintendent 

The  teacher  was  employed  in  pursuance  of  a  certain  contract  dated  June 
16,  1885,  for  the  school  year  beginning  September  7,  1885,  at  a  salary  of  $500 
a  year.  The  teacher  continued  in  her  engagement  as  principal  of  the  school, 
until  the  2d  day  of  February  1886,  when  she  was  dismissed  by  order  of  the 
trustees  A  tender  of  $5  was  then  offered  to  her  which  at  first  she  refused  to 
accept,  but  afterward  did  accept;  she  gave  the  board  credit  for  that  amount,  but 
claimed  that  they  owed  her  the  balance  of  the  $500,  the  contract  price,  which 
hey  had  not  paid,  and  held  herself  in  readiness  to  teach  the  school.  It  appears 
hat  the  amount  which  will  be  due  her  at  the  expiration  of  her  term,  and  for 
the  unexpired  term,  is  $257.  She  asks  that  the  action  of  tlie  board  in  dis- 
charging her  be  set  aside,  or  that  she  be  paid  the  amount  of  the  salary  due  and 
to  become  due  to  her  on  the  contract.  In  answer,  the  board  of  education  urge 
as  .reasons  for  the  dismissal  of  the  teacher,  her  deceit  in  misstating  her  age;  her 
unjustifiable  interference  with,  and  the  annoyance  to  which  she  subjected  an 


JUDICIAL    DECISIONS  :       TEACHERS    CERTIFICATES  IO47 

assistant  teacher  in  the  school;  conduct  on  her  part  tending  to  destroy  the  dis- 
cipHne  of  the  school;  interference  with  the  comfort  and  convenience  of  the 
pupils,  according  to  whim  or  caprice;  inability  to  perform  or  conduct  the  affairs 
of  the  school,  and  a  want  of  moral  rectitude. 

I  find  that  the  appellant  holds  a  state  certificate,  granted  to  her  in  1867, 
at  which  time,  as  at  present,  the  provision  of  section  15,  title  i  of  the  Code  of 
Public  Instruction,  was  operative  and  controlling.  This  section  distinctly 
provides  that  the  Superintendent's  certificate  while  unrevoked  "  shall  be 
conclusive  evidence  that  the  person  to  whom  it  was  granted  was  qualified  by 
moral  character,  learning  and  ability  to  teach  any  common  school  in  the  State." 
The  case  cited  by  the  respondents,  therefore,  decided  by  Superintendent  \'an 
Dyck  in  1858,  which  holds  that  the  teacher's  license  from  the  proper  officer  is 
prima  facie  evidence  only,  that  the  applicant  possesses  the  requisites  of  moral 
character,  learning  and  ability  to  teach,  but  it  is  not  conclusive  —  does  not 
apply  to  the  holder  of  a  certificate  granted  by  the  State  Superintendent.  I  am 
debarred,  therefore,  by  the  statute  from  considering  the  allegations  of  the  re- 
spondents touching  the  moral  character,  learning  and  ability  of  the  appellant, 
and  the  respondents  are  concluded  from  offering  any  testimony  on  this  point. 
It  must  be  shown  that  there  was  an  express  violation  of  the  terms  of  the  con- 
tract made  with  the  teacher,  in  order  to  justify  her  dismissal  during  the  term  for 
which  she  was  engaged.  An  attempt  is  made  to  do  this  by  showing  that  she  was 
negligent  in  the  matter  of  keeping  the  register,  but  this  seems  to  have  been  an 
afterthought  of  the  board  of  education,  and  the  register,  it  appears,  was  properly 
completed  before  the  time  of  the  answer  to  the  appeal.  I  am,  therefore,  con- 
strained to  sustain  the  appeal,  and  to  set  aside  the  action  of  the  board  of  edu- 
cation in  dismissing  the  appellant.  The  respondents  are,  therefore,  ordered 
forthwith  to  restore  the  teacher  to  her  position  and  to  permit  her  to  continue 
her  contract  until  the  expiration  thereof;  or,  if  they  deem  continuance  in  the 
school  will  not  be  for  the  best  interests  of  the  district,  they  are  ordered,  from 
time  to  time,  and  at  such  times  as  payments  are  usually  made  by  the  board,  to 
pay  her  the  amount  of  her  salary,  named  in  the  contract  as  the  same  would  be 
due,  had  she  been  permitted  to  continue  her  services  as  teacher,  subject  to  the 
deduction  of  any  amounts  of  money  which  the  said  appellant  may  have  received 
for  services  elsewhere  during  said  unexpired  term  and  up  to  the  time  of  any 
such  payment  as  herein  ordered. 


Holders    of    state   certificates    are    not    exempted    from    examinations,   by    scliool    commis- 
sioners  or  city  superintendents,   in   the  places  where  they   seek  situations  as   teachers. 
Decided  April   13,   1864 

Rice,  Superintendent 

A  state  certificate  does  not  of  course  authorize  the  holder  to  demand  employ- 
ment of  right,  from  any  school  officer,  or  board  of  ofticers.  These  have  the  right 
to -demand  just  such  evidence  of  qualification  as  they  deem  proper.  Hence  they 
may  say  to  any  applicant  for  a  position  who  holds  a  state  certificate,  "  we  will 
employ  you  if  you  can  procure  a  certificate  from  the  local  commissioner  or  from 


IO4S  THE    UNIVICKSITY    OF    THE    STATE    OF    NEW    YORK 

the  city  superintendent."  If  he  refuses  to  comply,  of  course  they  may  refuse  to 
employ  him.  Hence  it  follows  that  the  board  of  education  in  the  city  of  New 
York  may  prescribe  such  conditions  of  qualification  as  they  see  fit,  as  a  precedent 
condition  to  employment.  If  they  require  examination  by  the  city  superintendent, 
the  teacher  has  no  alternative  but  to  comply.  The  holder  of  a  state  certificate  is 
supposed  to  be  so  thoroughly  qualified  in  all  respects,  that  he  is  ready  to  pass  an 
examination  at  any  time.  He  should  seek,  rather  than  avoid,  the  application  of 
the  several  tests  that  can  be  applied  to  his  character  and  scholarship. 


3686 

In  the  matter  of  the  appeal  of  William  W.  Durfee  v.  Joseph  B.  Thyiie,  school 
commissioner  of  Fulton  county. 

The  annulment  of  a  teacher's  certificate  will  not  be  upheld  when  the  commissioner's  action 
was  based  solely  on  the  ground  that  the  teacher  was  impecunious  and  had  failed  to 
liquidate  certain  debts  at  the  time  he  had  promised  to  do  so. 

Decided  May  19,  1888 

Draper,  Superintendent 

This  is  an  appeal  from  an  order  made  by  the  respondent  upon  the  3d  day 
of  February  1888,  annulling  a  teacher's  certificate  issued  to  the  appellant  by  the 
respondent  on  the  10th  day  of  September  1887.  The  action  of  the  commissioner 
was  the  result  of  an  investigation  into  certain  charges  made  against  the  teacher 
in  which  it  was  alleged  that  he  was  indebted  to  different  persons  for  small  sums 
of  money  which  he  had  promised  to  pay  from  time  to  time,  but  had  failed  to 
keep  his  promises.  The  appellant  admits  the  debts  and  the  promises  to  pay  them, 
but  alleges  that  the  failure  to  make  his  word  good  was  because  of  his  inability  to 
do  so.  The  annulment  of  a  license  is  a  step  which  should  only  be  taken  for  the 
protection  of  the  schools.  It  is  no  part  of  the  duty  of  school  officials  to  aid  in 
the  collection  of  debts  or  to  punish  for  misconduct.  The  only  ground  upon 
which  the  act  of  the  commissioner  in  the  present  case  could  be  upheld  would 
be  that  the  teacher  was  shown  to  be  so  untruthful  as  to  render  it  improper  for 
him  to  continue  as  an  instructor  of  youth. 

This  is  not  shown  to  my  satisfaction.  It  appears  that  Durfee  has  been  a 
teacher  in  Fulton  county  for  nineteen  years.  Many  of  the  most  prominent  and 
reputable  citizens  of  that  county,  including  the  district  attorney,  the  superintend- 
ent of  the  poor,  two  ex-members  of  the  Legislature,  and  several  ex-school  com- 
missioners, furnish  affidavits  in  which  they  swear  that  the  appellant  is  a  man  of 
good  moral  character,  with  good  general  repute  as  to  truth  and  veracity. 

Takmg  these  facts  in  connection  with  the  nature  of  the  charges  against 
him,  and  also  remembering  that  the  certificate  which  it  is  undertaken  to  annul 
IS  one  which  was  issued  less  than  a  year  ago  by  the  present  commissioner,  I 
come  to  the  conclusion  that  there  is  not  sufficient  reason  to  justify  me  in  uphold- 
ing the  order  of  annulment. 

The  appeal  is  sustained  and  the  order  of  the  commissioner  declared  to  be 
of  no  effect. 


JUDICIAL  decisions:     teachers  certificates  1049 

3572 

In  the  matter  of  the  appeal  of  Jessica  Wells  from  the  order  of  Perrin  A.  Strough, 

school  commissioner  of  the  third  district  of  Jefferson  county,  annulling  the 

appellant's  certificate  to  teach. 

A  school  commissioner's  order  annulling  a  teacher's  license  will  not  be  sustained,   unless 

for  some  cause  sufficiently  grave  to  justify  a  public  and  permanent  revocation  of  the 

right  to  teach. 

This  proceeding  is  not  to  be  resorted  to  in  order  to  get  rid  of  si  teacher,  because  people 

in  a  district  are  dissatisfied  with  her. 
Decided  March  2,  18S7 

H.  E.  &  G.  E.  Maise,  attorneys  for  appellant 

Draper,  Superintendent 

This  is  an  appeal  by  Jessica  Wells,  a  teacher,  from  the  order  of  the  school 
commissioner,  dated  December  28,  1886,  annulling  a  certificate  to  teach,  issued 
to  her  by  said  commissioner.  The  teacher  was  engaged  in  teaching  the  district 
school  in  district  no.  6,  town  of  Cape  Vincent,  in  the  third  commissioner  district 
of  Jefterson  county. 

The  order  of  annulment  was  made  upon  charges  against  the  teacher  after 
an  examination  by  the  commissioner,  upon  which  examination  the  appellant  and 
her  counsel  were  present,  and  witnesses  were  examined. 

All  the  proceedings  had  upon  such  examination  are  before  me,  the  exhibits 
showing  the  same  forming  part  of  the  papers  submitted  upon  the  appeal. 

There  is  no  charge  made  against  the  appellant,  affecting  her  character. 
The  charge  seems  to  be  that  she  neglected  classes  and  scholars,  and  that  her 
methods  of  teaching  were  faulty.  I  am  unable  to  find  that  she  was  not  intelli- 
gent, active,  and  did  not  give  all  her  time  during  school  hours  to  the  instruc- 
tion of  the  pupils  under  her  charge. 

As  bearing  upon  the  allegation  that  her  methods  were  faulty,  I  find  that  the 
commissioner,  as  late  as  the  13th  day  of  December  last,  just  two  weeks  prior  to 
the  order  of  annulment,  visited  the  school  taught  by  appellant,  and  made  the 
following  entry  upon  the  teacher's  register: 

Visited  this  school  December  13,  1886.  I  am  well  pleased  with  all  the  school 
work,  and  believe  that  if  the  teacher  had  the  full  and  hearty  cooperation  and 
support  of  the  parents,  this  would  be  a  term  of  school  marked  with  more  progress 
than  any  school  I  ever  visited  here. 

l^Signed"]         Perrin  A.  Strough 

School  Commissioner 

After  this  visit  it  appears  that  the  commissioner  did  not  visit  the  school, 
but  upon  the  examination  relied  mainly  upon  the  testimony  of  several  pupils 
of  the  school,  who  had  not  attended  school  very  regularly. 

^  ^  It  may  be  that  the  teacher  has  not  managed  the  school  as  well  as  some 
other  might  have  done,  but.  assuming  that  to  be  the  case,  is  it  just  to  subject  her 
to  the  public  humiliation  of  an  annulment  of  her  certificate,  in  the  middle  of  a 


1050  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

term,  without  any  charge  against  her  character,  and  within  a  few  days  of  the 
time  when  the  commissioner  had  made  an  official  record  indicating  his  satis- 
faction with  her  work,  and  his  belief  that  the  cooperation  of  parents  was  the 
only  thing  necessary  to  make  the  school  a  better  one  than  any  he  had  ever 
before  visited  there?  If  her  school  is  not  as  well  classified  and  arranged  as  it 
might  be,  why  not  aid  her  to  do  it  better?  If  her  methods  are  faulty,  why  not 
help  her  to  improve  them?  There  is  nothing  to  indicate  any  eflFort  to  do  so, 
either  by  the  trustee  or  commissioner,  and  nothing  to  show  her  unwillingness  to 
be  guided  bv  the  suggestions  of  these  officers,  or  to  do  the  best  she  can. 

The  annulment  of  a  license  is  a  severe  penalty  to  inflict  upon  a  teacher. 
It  ought  not  to  be  imposed  except  for  a  cause  sufficiently  grave  to  justify  a 
public  and  permanent  revocation  of  the  right  to  teach.  It  is  not  to  be  resorted 
to  for  the  purpose  of  removing  a  teacher  from  the  school  because  people  in  the 
district  are  dissatisfied  with  her.  Moral  delinquency,  or  a  deliberate  infraction 
of  school  laws,  or  the  wilful  defiance  of  the  proper  suggestions  or  directions  of 
supervisor}'  officers,  or  utter  inability  to  follow  them,  may  be  sufficient  ground 
for  annulling  licenses,  but  nothing  less  grave  than  this  is. 

The  case  of  the  appellant  does  not  come  within  this  rule,  and  her  appeal 
must,  therefore,  be  sustained. 

The  order  of  annulment  of  the  commissioner  is  vacated  and  set  aside. 


3959 

In  the  matter  of  the  appeal  of  Frank  F.  Gray  v.  Arthur  P.  Nichols,  school 
commissioner  of   Chemung  county. 

Order  of  a  school  commissioner  annulling  a  teacher's  certificate  in  the  middle  of  his 
term  of  employment,  uccause  of  the  "  want  of  sufficient  ability  to  teach,"  set  aside 
when  it  appears  that  the  teacher  is  a  man  of  sufficient  general  ability  to  teach  school 
successfully,  and  is  able  to  do  so,  provided  he  receives  the  support  of  the  community. 

Decided  February  4,  1SS7 

Draper,  Superintendent 

The  appellant  is  principal  of  the  school  in  district  no.  i  in  the  town  of  Ash- 
land, Chemung  county,  having  been  licensed  to  teach  by  the  respondent.  On 
or  about  the  7th  day  of  December  1886,  the  appellant  received  a  written  notice 
from  the  respondent,  announcing  the  intention  of  the  commissioner  to  annul 
the  certificate  of  the  appellant  on  or  before  the  i8th  day  of  December,  because 
of  the  *'  want  of  sufficient  ability  to  teach."  On  the  25th  day  of  December, 
the  teacher  received,  by  mail,  an  order  annulling  his  certificate,  dated  the  i8th 
day  of  December,  signed  by  the  commissioner.  From  this  action  this  appeal  is 
taken. 

The  school  commissioner  resided  at  the  time  in  the  village  of  Wellsburg, 
where  the  school  is  located,  and  had  previously  taught  in  this  school.  There 
have  been  dissensions  in  this  district  for  some  time,  in  which  the  commissioner 


JUDICIAL  decisions:     teachers  certificates  105 1 

has  had  some  part.  It  is  alleged  by  the  appellant  that  the  act  of  the  commis- 
sioner was  the  outgrowth  of  these  dissensions  in  the  district,  and  because  of 
personal  prejudices  on  the  part  of  the  commissioner  against  him.  This  is  denied 
by  the  respondent.  He  says  that  he  visited  Mr.  Gray's  school  and  severely  criti- 
cised his  methods  of  teaching,  and  insists  that  the  discipUne  was  very  lax  and 
inefficient.  Many  of  the  most  prominent  residents  of  the  district,  including  the 
president  and  trustees  of  the  village  of  Wellsburg,  certify  that  they  are  familiar 
with  the  condition  of  affairs  at  the  school,  and  that  Mr  Gray's  administration  of 
the  school  is  in  every  way  creditable  to  him  and  satisfactory  to  them.  It  is  very 
possible  that  there  may  be  some  errors  on  both  sides  of  the  controversy.  There 
usually  are  in  heated  controversies  of  the  character  of  this  one.  But  weighing 
all  that  has  been  said  upon  both  sides  in  the  voluminous  papers  which  are  pre- 
sented, I  have  come  to  the  conclusion  that  there  has  not  been  sufficient  cause 
shown  for  the  annulment  of  the  teacher's  license,  in  the  middle  of  his  term  of 
employment,  by  the  commissioner  who  granted  the  same.  To  uphold  the  act 
of  the  commissioner  would  be  to  inflict  a  humiliation  upon  the  teacher,  which, 
I  am  inclined  to  think,  would  be  unjust,  and  it  would  be  demoralizing  to  the 
district.  The  papers  which  Mr  Gray  has  presented  here  and  the  assurances  of 
prominent  citizens  of  the  locality  whose  credibility  is  undoubted,  go  to  show 
that  he  is  a  man  of  sufficient  general  ability  to  teach  school  successfully,  and,  I 
have  no  doubt,  will  do  so  if  he  can  have  the  general  support  and  good  will  of 
the  community.  No  one  can  succeed  without  this.  There  is  little  reason  to 
believe  that  the  work  of  a  teacher  who  might  succeed  him  would  have  more 
cordial  or  general  support  than  his  work  has. 

The  appeal  is  sustained,  and  the  order  of  the  commissioner  annulling  the 
certificate  of  the  appellant  is  hereby  set  aside  and  declared  void. 


3928 

In  the  matter  of  the  charges  against  W.  L.  Utter. 
Teacher's  license  revoked  for  using  scurrilous  and  obscene  language  in  a  letter  addressed 

to  a  school  commissioner. 
Decided  December  1890 

Draper,  Superintendent 

On  the  15th  day  of  November  1890,  information  reached  the  Superintendent 
by  letter,  that  W.  L.  Utter  had  addressed  a  letter  to  E.  R.  Harkness,  school 
commissioner  of  the  second  district  of  Delaware  county,  which  contained  scur- 
rilous and  obscene  language,  such  as  no  gentleman,  and  particularly  no  school 
teacher,  should  use.  This  letter  was  forwarded  to  the  Superintendent  by  said 
School  Commissioner  Harkness.  An  inquiry  addressed  to  said  W.  L. 
Utter,  elicited  an  admission  from  him  that  he  was  the  author  of  such 
language,  and  had  addressed  such  letter  to  said  School  Commissioner  Harkness. 
Further  investigation  showed  that  Utter  holds  a  second  grade  certificate  granted 


1052  THE    UNIVERSITY    OF   THE    STATE    OF    NEW    VORK 

by  E.  C.  Douglass,  school  commissioner  of  the  third  commissioner  district  of 
Ulster  county,  and  dated  May  4,  1889.  The  language  used  by  said  Utter  in  his 
letter  addressed  to  said  School  Commissioner  Harkncss  is  abundant  reason  why 
he  (Utter)  should  not  be  allowed  to  teach  in  the  public  schools  of  this  State, 
and  his  said  certiHcate  is  hereby  revoked;  such  revocation  to  take  effect  Satur- 
day, December  6,  1890. 


3853  >^ 

In  the  matter  of  the  charges  against  H.  L.  Bundy. 
Falsification  by  a  teacher  of  the  register  of  attendance  at  his  school;  held,  sufficient  ground 

for  the  annulment  and  cancelation  of  his  lieense. 
Decided  December  24,  1889 

Draper,  Superintendent 

The  respondent  holds  a  commissioner's  uniform  certificate  of  the  first  grade, 
issued  to  him  by  E.  R.  Gregory,  school  commissioner  of  the  second  district  of 
Otsego  county,  on  the  13th  day  of  March  1889.  He  has  taught  several  terms 
prior  to  the  close  of  the  last  school  year  in  district  no.  14,  of  the  town  of  Unadilla. 
It  is  charged  that,  during  the  spring  term  in  said  district,  he  falsified  his  school 
register  by  recording  several  pupils  as  present  for  many  weeks  when  they  were 
not  in  attendance  at  all.  The  register  and  the  affidavits  of  these  pupils  are 
presented,  and,  taken  together,  clearly  show  many  fraudulent  entries.  It  is 
stated  that  during  the  term  not  more  than  six  or  eight  pupils  attended,  although 
the  register  indicates  a  very  regular  attendance  of  twenty-eight.  The  respondent 
has  had  abundant  notice  of  the  allegations  against  him,  and  full  opportunity 
to  meet  the  same.  He  has  failed  to  do  so.  I  entertain  no  doubt  of  the  facts 
being  as  alleged.  When  it  is  remembered  that  the  register  is  sworn  to  by  the 
teacher,  and  becomes  the  basis  for  apportioning  public  moneys  to  the  district, 
the  gravity  of  the  offense  can  not  be  overlooked.  It  is  at  least  clear  that  a 
person  guilty  of  such  an  offense  ought  not  to  be  continued  as  a  teacher  and 
commended  as  a  suitable  person  to  instruct  children. 

Tt  follows  that  the  certificate  of  the  respondent  must  be  annulled  and  can- 
celed, and  it  is  so  ordered. 


3750 


In  the  matter  of  the  appeal  of  Casper  D.  Bellows  v.  E.  R.  Harkness,  school 
commissioner  of  the  second  commissioner  district  of  Delaware  county. 

The  action  of  a  school  commissioner,  in  refusing  to  indorse  a  certificate  to  teach,  issued 
to  a  teacher  by  another  commissioner,  upon  the  ground  that  the  holder  was  addicted 
to  the  use  of  intoxicating  drinks,  will  be  sustained,  unless  it  is  made  to  appear  that 
he  acted  from  malicious  or  unworthy  motives.    Where  it  appears  that  a  commissioner 


JUDICIAL  decisions:     teachers  certificates  1053 

acted  from  proper  motives,  and  with  the  purpose  of  discharging  the  duties  of  his  office 
fairly  and  justly  in  refusing  to  grant  a  certilicate,  it  is  unnecessary  to  inquire  into  the 
reasons  for  his  action. 
Decided  January  15,  1889 

Draper,  Superintendent 

This  is  an  appeal  from  the  refusal  of  the  school  commissioner  of  the 
second  commissioner  district  of  Delaware  county  to  indorse  a  certificate  issued 
to  the  appellant  by  another  commissioner.  The  ground  alleged  by  the  school 
commissioner  for  his  refusal  is  that  the  appellant  is  addicted  to  the  use  of 
intoxicating  drinks. 

I  do  not  feel  bound  to  inquire  into  the  truth  or  falsity  of  this  allegation 
against  the  appellant.  The  commissioner  had  the  right  to  refuse  to  indorse  such 
certificate,  assuming,  as  we  are  bound  to  assume,  that  he  acted  from  proper 
motives  and  with  a  purpose  of  discharging  the  duties  of  his  office  fairly  and 
justly.  Unless  it  is  claimed  that  he  acted  from  malicious  or  unworthy  moti\"es, 
it  is  unnecessary  to  inquire  into  the  reasons  for  his  action.  There  is  no  allega- 
tion that  he  was  influenced  by  any  unworthy  or  improper  motive. 

The  appeal  is  dismissed. 


3863 

In  the  matter  of  the  charges  against  Irving  W.  Craw. 

A  public  school  teacher  is  shown  to  be  intemperate,  a  frequenter  of  saloons  and  disreputable 
places  and  to  have  inflicted  cruel  and  unnecessarily  severe  punishment  upon  pupils. 
Held,  that  he  should  be  dismissed  and  that  his  certilicate  should  be  revoked. 

Decided  March  6,   1890 

Draper,  Superintendent 

Irving  W.  Craw  holds  a  certificate  issued  to  him  by  C.  G.  Richards,  school 
commissioner  of  the  first  school  commissioner  district  of  Niagara  county,  on 
the  26th  day  of  November  1889,  and  is  engaged  in  teaching  in  district  no.  6, 
of  the  town  of  Pendleton.  He  is  charged  with  visiting  saloons  and  a  house  of 
ill-fame,  with  being  intoxicated  at  different  times,  with  drinking  from  a  bottle 
in  the  schoolroom  and  with  inflicting  cruel  punishment  upon  pupils.  The  school 
commissioner  has  assumed  to  investigate  the  charges  and  has  come  to  the  con- 
clusion that  the  proofs  are  not  sufficient  to  justify  him  in  annulling  the  teacher's 
certificate.  With  this  determination,  residents  of  the  district  are  not  satisfied, 
and  have  asked  the  Superintendent  to  examine  the  testimony  taken  upon  the 
commissioner's  investigation.     This  has  been  done  with  considerable  care. 

Several  persons  testify  to  seeing  Craw  in  and  about  saloons,  and  in  a  state 
of  apparent  intoxication  at  different  times.  Several  pupils  swear  to  seeing  him 
drink  from  a  bottle  in  a  schoolroom.  The  trustee  of  the  district  and  his  wife 
swear  that  the  teacher  boards  with  them,  and  that  they  have  seen  him  under  the 


I054  THE    UNIVERSITY    OF   THE    STATE    OF    NEW    VOKK 

influence  of  liquor.  Another  witness  swears  that  on  the  8th  of  February  he 
followed  the  accused  and  saw  him  visit  three  different  saloons  and  a  house 
maintained  by  a  woman  shown  by  the  public  records  to  have  pleaded  guilty  to  an 
indictment  for  keeping  a  disorderly  house. 

The  accused  swears  that  some  of  this  evidence  is  not  true,  although  he 
does  not  deny  being  in  and  about  saloons,  or  that  he  is  addicted  to  the  use  of 
intoxicating  drinks,  or  has  within  a  comparatively  recent  period,  been  under  the 
mfluence  thereof.  His  negative  statements  stand  alone.  He  makes  no  attempt 
to  show  previous  good  character.  No  one  corroborates  his  testimony.  Nothing 
is  said  against  the  credibility  of  the  witnesses  opposed  to  him. 

There  is  considerable  other  testimony  concerning  the  infliction  of  cruel 
punishment  by  the  accused.  It  is  shown  that  he  has  beaten  several  pupils  on 
different  occasions  with  a  stick  three  or  four  feet  long,  until  he  has  drawn  blood 
upon  and  disfigured  their  hands  and  heads,  raised  ridges  upon  their  bodies,  and 
produced  lameness  which  continued  for  a  week  or  more.  No  denial  whatever 
of  this  is  made  by  the  teacher. 

In  view  of  all  this  evidence,  I  have  no  hesitation  in  disagreeing  with  the 
conclusion  of  the  school  commissioner.  It  is  needless  to  comment  upon  the 
necessity  of  good  character  and  a  blameless  life  on  the  part  of  teachers  in  the 
schools.  There  are  enough  who  are  anxious  to  teach  who  are  not  lacking  in 
these  attributes.  Such  a  person  as  the  accused  is  shown  to  be,  should  give  way 
to  another  who  will  set  an  ennobling  example  before  children.  Regardless  of 
the  question  of  character,  the  proofs  of  cruel  punishments  could  not  be  over- 
looked. The  time  has  gone  by  when  such  indignities  may  be  inflicted  upon 
children  or  such  scenes  as  this  testimony  depicts,  may  be  enacted  in  the  presence 
of  a  public  school.  A  teacher  who  has  not  the  character  and  self-possession,  and 
who  has  not  yet  learned  how  to  maintain  discipline,  in  a  better  way,  is  no  longer 
wanted. 

The  certificate  of  Irving  W.  Craw  is  hereby  annulled 


3886 

Newton  R.  Pcokham  v.  R.  C.  Francis,  school  commissioner  of  the  first  commis- 
sioner district  of  Madison  county. 

The  action  of  a  school  commissioner  revoking  a  teacher's  license  sustained,  when  the  holder 
while  teaching  had  engaged  in  other  pursuits,  and  in  consequence  neglected  his  work 
m  the  school,  and  where  it  l)ecame  apparent  that  the  teacher  had  lost  all  interest  in 
his  work,  had  become  lax  in  discipline  and  had  neglected  to  preserve  order  in  the  school. 

Decided  July  16,  1S90 

Draper,  Superintendent 

The  appellant  held  a  certificate  as  a  teacher  issued  in  due  form  by  D.  D.  N. 
Marvm,  school  commissioner  of  the  first  district  of  Onondaga  county,  on  the 
29th  day  of  August  1888,  and  duly  indorsed  by  the  respondent  on  the  30th  day 


JUDICIAL  decisions:     teachers  certificates  1055 

of  August  1888,  and  was  engaged  in  teaching  in  school  district  no.  i,  of  the  town 
of  Georgetown,  when,  on  the  24th  day  of  April  1890,  the  respondent  revoked 
and  canceled  such  certificate,  against  which  last  action  the  appellant  brings  this 
appeal. 

The  appellant  alleges  and  shows  that  the  school  commissioner  had  visited 
his  school  repeatedly,  and  at  the  close  of  the  first  year  of  his  employment  had 
strongly  commended  him  as  a  teacher.  The  respondent  admits  this,  but  alleges 
that  during  the  second  year  of  appellant's  employment  he  was  engaged  in  pur- 
suing the  study  of  law  in  Syracuse,  and  neglected  his  school  to  such  an  extent 
that  many  complaints  were  made  by  patrons  of  the  district.  The  respondent 
states,  also,  that  he  visited  the  appellant  in  his  school  at  four  different  times, 
and  admonished  him  that  he  was  neglecting  his  work  and  that  complaints  were 
frequent.  He  states,  also,  that,  at  such  visits,  it  was  manifest  that  appellant  had 
lost  all  interest  in  the  school;  that  discipline  was  lax,  and  that  much  disorder 
prevailed.  The  statements  of  the  commissioner  are  corroborated  by  the  trustee 
in  the  district,  and  by  other  reputable  and  substantial  residents  thereof. 

After  carefully  reading  all  the  papers  in  the  case,  I  have  come  to  the  con- 
clusion that  there  is  no  sufficient  reason  shown  for  my  setting  aside  the  order 
of  the  commissioner. 

The  appeal  is,  therefore,  dismissed. 

3866 

In  the  matter  of  the  charges  against  William  G.  Wilson. 

A  person  holding  a  teacher's  license  engages  in  a  dishonorable  vocation.     Held,  sufficient 

cause  for  annulling  his  license. 
Decided  March  29,  1890 

Draper,  Superintendent 

On  the  7ih  of  March  1890,  information  reached  the  Superintendent,  by 
letter,  to  the  eii'ect  that  William  G.  Wilson,  a  teacher  in  the  public  school  at 
Pike  Pond,  Sullivan  county,  was  engaged  in  selling  lewd  and  indecent  photo- 
graphs. A  copy  of  an  advertisement  by  said  Wilson  in .  a  paper  called  the 
"  National  Police  Gazette,"  was  forwarded  as  proof  of  the  fact.  A  copy  of 
said  paper  was  procured  and  the  advertisement  found  to  be  of  the  following 
words,  namely : 

[Note:  The  advertisement  is  of  such  character,  that  it  is  deemed  not  best 
to  insert  it  here.] 

The  Superintendent  also  procured  the  advertisement  to  be  answered,  and 
the  person  who  did  so  received  pictures  which  would  probably  not  be  held  to 
be  obscene  within  the  meaning  of  the  law ;  but  they  were  of  such  a  character  as 
ta  preclude  any  self-respecting  person,  and  particularly  a  teacher,  from  being 
engaged  in  the  business  of  selling  them. 


1056  THE    UNIVERSITY    Ol"    THE    STATE    OF    NEW    YORK 

Aside  from  the  questionable  character  of  the  articles  sold,  the  business  as 
carried  on  by  Wilson  is  hi^'hly  dishonorable,  if  not  legally  fraudulent.  Cheap 
prints  for  which  sixty  cents  are  charged,  did  not  cost  two  cents.  The  vender 
seeks  to  extort  money  from  simpletons  by  appealing  to  their  curiosity  and  baser 
passions.  With  his  cheap  pictures  he  .sends  advertising  cards  and  leaflets  of  a 
still  more  questionable  character  than  that  above  printed,  with  a  view  to  extort- 
ing still  more  money. 

Investigation  showed  that  Wilson  holds  a  second-grade  certificate  issued  by 
William  West  fall,  school  commissioner,  on  October  8,  1888. 

With  a  knowledge  of  these  facts  in  the  possession  of  the  Superintendent, 
Wilson  was  required  to  show  cause  before  him  at  10  o'clock  this  day,  why  his 
certificate  should  not  be  revoked.  He  has  failed  to  appear,  although  he  has 
written  a  letter  acknowledging  the  receipt  of  the  order  to  show  cause,  and 
admitting  that  he  is  the  same  person  named  in  the  advertisement.  He  claims 
that  the  business  is  not  obscene.  It  is  clear  that  he  is  engaged  in  a  scandalous 
business,  while  he  tries  carefully  not  to  infract  the  technical  provisions  of  the 
penal  statutes  relating  thereto.  Whether  he  has  been  guilty  of  a  crime  is  a 
question  for  the  district  attorney  of  his  county,  rather  than  the  Superintendent 
of  Public  Instruction.  It  is  not  necessary  to  wait  for  a  person  to  be  sent  to 
jail  before  stopping  him  from  teaching  school.  There  is  abundant  reason  why 
this  person  should  be  stopped  at  once.    His  certificate  is  hereby  revoked. 


5262 

In  the  matter  of  the  appeal  of  Roscoe  C.  Parker  from  the  action  of  the  trustee 
of  school  district  no.  9,  town  of  Leicester,  Livingston  county. 

A  school  commissioner  may  for  valid  reason  refuse  to  indorse  a  training  class  certificate. 
Until  such  certificate  is  indorsed  by  the  school  commissioner  having  jurisdiction  the 
holder  of  such  certificate  can  not  enforce  a  contract  against  a  trustee  within  such 
school  commissioner  district.  The  relief  in  such  case  is  an  appeal  to  the  Commissioner 
of  Education  from  tlie  action  of  the  school  commissioner  in  refusing  to  indorse  such 
certificate. 

Roscoe  C.  Parker,  attorney  in  person 
Charles  D.  Newton,  attorney  for  respondent 

Draper,  Commissioner 

The  appellant  herein  contracted  on  or  about  October  2,  1905,  to  teach  the 
school  m  district  no.  9,  town  of  Leicester,  for  a  period  of  32  weeks.  On  Sep- 
tember 5,  1905,  a  special  meeting  of  the  district  was  held  and  authorized  the 
trustee  to  provide  for  the  education  of  their  children  in  another  district  under 
the  contract  system  if  the  expense  thereof  should  be  less  than  the  expense  of 
maintaining  school  in  the  district.  It  was  after  this  meeting  that  the  trustee 
made  the  contract  with  appellant.  Appellant  taught  under  his  contract  until 
November  8.  1905,  when  the  trustee  ordered  the  school  closed.    Another  special 


JUDICIAL  decisions:     teachers  certificates  1057 

meeting  was  held  December  12th  and  the  district  again  authorized  the  trustee  to 
provide  for  the  education  of  the  children  of  the  district  under  the  contract 
system.  Thereafter  the  trustee  contracted  for  the  education  of  the  children  of 
the  district  at  the  school  in  the  village  of  Perry.    He  also  dismissed  appellant. 

The  first  special  meeting  authorizing  the  contract  system  was  held  September 
5,  1905.  The  instruction  to  the  trustee  was  upon  the  condition  that  it  would  cost 
less  to  contract  than  to  maintain  a  home  school.  On  October  2d  he  contracted 
with  appellant  to  teach  32  weeks.  He  had  the  right  to  make  such  contract.  The 
fact  that  the  district  again  voted  on  December  12th  that  the  trustee  should  con- 
tract if  that  plan  should  be  cheaper  did  not  release  the  district  from  its  liability 
under  the  contract  with  appellant. 

Respondent  claims,  however,  that  the  appellant  was  not  legally  qualified  to 
contract  to  teach  on  the  ground  that  his  teacher's  certificate  was  not  valid  in  the 
school  commissioner  district  in  which  district  no.  9,  Leicester,  is  located.  Appel- 
lant held  a  training  class  certificate  issued  August  i,  1900,  and  valid  m  the  first 
school  commissioner  district  of  Wyoming  county.  The  certificate  expired  July 
31,  1903.  It  was  indorsed  by  School  Commissioner  McNinch  in  1902  but  such 
indorsement  expired  with  the  expiration  of  the  certificate.  School  district  no.  9, 
Leicester,  is  under  the  jurisdiction  of  School  Commissioner  McNinch.  This 
certificate  of  appellant  was  renewable  under  the  regulations  of  this  Department 
for  a  period  of  five  years.  It  appears  the  certificate  was  renewed  by  Commis- 
sioner Lewis  of  the  first  commissioner  district  of  Wyoming  and  therefore  became 
valid  in  that  commissioner  district  until  July  31,  1908.  The  certificate  was  not 
indorsed  by  Commissioner  McNinch  after  its  renewal  and  was  not  therefore  a 
valid  certificate  in  that  commissioner  district  at  the  time  appellant  contracted 
with  or  was  teaching  in  district  no.  9,  Leicester.  The  fact  that  he  held  a  valid 
training  class  certificate  qualified  him  to  contract  in  any  school  commissioner 
district  in  the  State  before  his  certificate  was  indorsed  by  the  school  commis- 
sioner having  jurisdiction,  but  before  he  entered  upon  the  performance  of  his 
contract  it  was  necessary  that  his  certificate  should  be  properly  indorsed.  It 
appears  that  he  sent  his  certificate  to  Commissioner  McNinch  for  indorsement, 
but  the  commissioner  refused  to  indorse  it.  The  commissioner  was  required  to 
indorse  it  or  give  good  reasons  for  refusing  to  do  so.  On  refusing  to  indorse 
it  the  relief  of  appellant  was  an  appeal  to  the  Commissioner  of  Education  for  an 
order  directing  the  school  commissioner  to  indorse  his  certificate.  Appellant 
took  no  action  to  compel  Commissioner  McNinch  to  indorse  the  certificate  and 
he  was  not  therefore  legally  qualified  to  teach  in  district  no.  9,  Leicester.  Not 
being  legally  qualified  to  teach  in  the  district  the  trustee  had  no  authority  to 
continue  him  as  teacher  or  to  pay  him  from  the  funds  of  the  district.  It  follows 
therefore  that  the  appeal  can  not  be  sustained.  However,  the  Commissioner  of 
Education  may  excuse  the  default  of  a  trustee  in  employing  a  teacher  not  legally 
certified  if  good  reason  is  given  therefor  and  this  case  appears  to  be  one  in  which 
-tlje  school  commissioner  should  file  an  application  at  this  Department  for  the 
34 


1058  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

excuse  of  the  default  of  the  trustee  in  employing  appellant  while  not  legally 
qualified  and  the  legalization  of  the  time  thus  taught.     He  may  then  receive  full 
compensation  for  the  time  he  actually  taught. 
Tlie  appeal  herein  is  dismissed. 


3885 

In  the  matter  of  the  appeal  of  George  Steinson  v.  John  Jasper,  superintendent 
of  schools  of  the  city  of  New  York. 

A  state  certificate  is  ample  authority  to  the  holder  to  teach  in  the  city  of   New  York, 

although  the  board  of  education  of  that  city  may  exact  a  further  examination  as  a 

condition  precedent  to  employment. 
A  teacher  in  New  York  City  holding  a  state  certificate  can  be  removed  from  his  position 

only  by  a  revocation  of  his  certificate  by  competent  authority,  or  by  the  action  of  the 

board  of  education. 
Decided  July  15,  1890 

Draper,  Superintendent 

The  appellant  had  been  a  teacher  in  grammar  school  no.  29,  in  the  city  of 
New  York  for  some  three  years  when,  on  March  11,  1890,  he  received  a  notice 
from  the  city  superintendent  of  schools  stating  that  his  certificate  would  expire 
on  the  next  day,  March  12,  1890.  The  city  superintendent,  in  his  answer,  states 
that  on  the  9th  day  of  October  1886,  he  issued  to  the  appellant  a  license  to  teach 
as  an  assistant  teacher  of  the  third  grade  in  the  grammar  schools  of  said  city. 
This  license  was  extended  on  the  12th  day  of  September  1887,  for  the  further 
term  of  six  months,  and  was  afterwards  renewed  or  extended  as  follows :  March 
12,  1888.  for  six  months  from  that  date;  September  12,  1888,  for  six  months 
from  that  date;  March  12,  1889,  for  six  months  from  that  date;  September  12, 
1889,  for  six  months  from  that  date.  The  superintendent,  therefore,  claims  that, 
as  his  license  was  not  further  extended,  the  appellant  had  no  authority  to  teach 
beyond  the  12th  day  of  March  1890,  and,  following  this  view  to  its  conclusion, 
the  appellant  was  prevented  from  continuing  in  his  position. 

Various  questions  are  raised  by  the  appellant  as  to  the  authority  of  the  city 
superintendent  to  issue  to  him  a  certificate  which  is  only  provisional  and  tem- 
porary in  its  operations,  and  to  keep  him  in  suspense  by  repeated  renewals  of 
such  certificate,  and  also  to  cut  oflf  his  employment  by  declining  to  further  extend 
the  same.  The  appellant  shows  that,  under  the  statute  relating  to  the  manage- 
ment of  the  schools  in  the  cit}'  of  New  York,  and  the  regulations  of  the  board 
of  education,  he  could  be  licensed  only  by  the  city  superintendent  with  the  con- 
currence of  two  inspectors,  and  that  he  was  so  licensed.  He  denies  that  what 
he  claims  amounts  to  a  revocation  of  such  license  can  be  declared  or  enforced 
by  the  city  superintendent  alone.  I  find  it  unnecessary  to  consider  or  determine 
these  questions,  for  it  appears  in  the  papers  submitted,  and  is  corroborated  by 
the   records   of   this   Department,   that   the   appellant   received    from   the   State 


JUDICIAL  decisions:     teachers  certificates  1059 

Superintendent  of  Public  Instruction,  on  July  16,  1883,  after  having  passed  the 
regular  State  examination,  a  state  certificate  authorizing  him  to  teach  in  any 
common  school  in  the  State  during  life,  or  until  such  certificate  should  be 
revoked.     Such  state  certificate  is  still  in  force. 

Before  a  person  can  teach  in  any  public  school  in  the  State,  he  must  receive 
from  an  officer  authorized  to  grant  it,  a  certificate  that  he  is,  by  reason  of  moral 
character,  intellectual  qualifications  and  general  fitness,  qualified  for  doing  so. 
This  certificate  authorizes  him  to  teach  only  when  he  has  been  employed  by  an 
officer  authorized  to  contract  with  him  for  employment.  In  the  present  case,  the 
appellant  had  ample  authority,  regardless  of  the  certificates  issued  to  him  by  the 
respondent,  to  teach  in  any  grade  in  the  city  of  New  York,  provided  he  was 
duly  employed  by  the  board  of  education  of  such  city.  No  question  is  raised 
about  the  regularity  of  his  employment.  Having  such  authority  and  being  so 
employed,  he  could  be  removed  from  his  position  only  pursuant  to  the  provisions 
of  section  1042  of  the  New  York  City  consolidation  act.  This  section  provides 
that  he  might  be  removed  by  the  board  of  education,  upon  the  recommendation 
of  the  city  superintendent,  or  of  a  majority  of  the  trustees  for  the  ward,  or  of 
a  majority  of  the  inspectors  for  the  district,  but  only  by  a  vote  of  three-fourths 
of  the  members  of  the  board  of  education. 

There  may  have  been  sufficient  ground  for  removing  Mr  Steinson  from  his 
position.  Whether  there  was  or  not,  the  papers  in  the  case  do  not  disclose,  and 
it  does  not  devolve  on  me  to  determine.  In  any  event,  it  seems  clear  to  me  that 
he  could  be  removed  only  in  one  of  two  ways :  first,  by  revocation  of  his  cer- 
tificate as  a  teacher;  and,  second,  by  the  action  of  the  board  of  education.  His 
certificate  in  the  present  case  could  be  revoked  only  by  the  State  Superintendent, 
as  he  had  successfully  passed  the  most  severe  examination  to  which  teachers  in 
the  State  are  subjected,  and  held  the  highest  grade  of  certificate  ever  issued  to 
a  teacher  in  New  York.  There  was  no  action  of  the  board  of  education  in  the 
premises. 

I  therefore  come  to  the  conclusion  that  he  has  been  unlawfully  deprived 
of  his  position  as  a  teacher  in  grammar  school  no.  29,  and  that  he  now  stands 
entitled  to  exercise  the  functions  and  receive  the  emoluments  of  such  position, 
until  such  time  as  his  certificate  as  a  teacher  shall  be  revoked  by  competent 
authority,  or  he  shall  be  removed  from  his  position  in  the  manner  provided  by  the 
local  statute  relating  to  the  matter. 

The  appeal  is  sustained. 


3775 

In  the  matter  of  the  appeal  of  Francis  S.  Williston  v.  George  E.  Knapp,  school 
commissioner  for  the  county  of  Rockland. 

The  regulations   governing  uniform   examinations   specifically  empower   a  commissioner  to 
*" ".  withhold  a  certificate  from  any  person  when,  in  his  judgment,  such  person  lacks  either 


I060  THE    UNIVERSITY    OF   THE    STATE    OF    NEW    YORK 

moral  character  or  die  qualities  essential  to  success  in  a  teacher.    The  only  purpose  of 
the  uniform  examination  is  to  prevent  the  issuance  of  a  certificate  to  any  candidate  who 
can  not  show  the  essential  intellectual  qualifications. 
Decided  March  jg,  i88y 

Draper,  Sul'erintendcnt 

This  is  an  appeal  from  the  refusal  of  the  school  commissioner  to  grant  a 
first-grade  certificate  to  the  appellant. 

The  appellant  alleges  that  the  school  commissioner  refuses  him  a  certificate 
of  the  first  grade  through  personal  feeling  against  him. 

The  respondent  denies  any  personal  antagonism  to  the  teacher,  but  alleges 
that,  in  his  judgment,  the  teacher  lacks  tact  in  the  management  of  a  school.  He 
says  he  has  visited  a  school  in  charge  of  the  appellant  and  found  the  discipline 
very  defective.  He  says  that  the  teacher  undoubtedly  has  the  intellectual  qualifi- 
cations for  passing  the  uniform  examination,  and  that  he  has  stood  v^illing  upon 
his  doing  so,  to  issue  a  certificate  to  him  of  the  second  grade. 

The  uniform  examination  regulations  specifically  empower  a  commissioner 
to  withhold  a  certificate  from  any  person  when,  in  his  judgment,  such  person 
lacks  either  moral  character  or  the  qualities  essential  to  success  in  a  teacher.  It 
is  not  the  purpose  of  the  uniform  examination  system  to  take  this  prerogative 
from  school  commissioners.  The  only  purpose  of  such  examination  is  to  prevent 
the  issuance  of  a  certificate  to  any  candidate  who  can  not  show  the  essential 
intellectual  qualifications.  The  question  of  character  and  tact  as  a  teacher  is  to 
be  decided  by  the  commissioner,  and  the  determination  of  the  commissioner  will 
be  upheld  unless  it  is  shown  that  he  acts  from  unworthy  or  improper  motives. 
While  this  is  alleged  in  the  present  case,  the  appellant  produces  no  proof  of  it, 
and  I  see  nothing  in  the  papers  to  justify  me  in  overturning  the  action  of  the 
commissioner. 

The  appeal  is,  therefore,  dismissed. 


4268 

In  the  matter  of  the  appeal  of  Lucy  V.  Hunter  v.  Julia  K.  West,  school  commis- 
sioner, Richmond  county,  and  the  board  of  education  of  union  free  school 
district  no.  2,  of  the  towns  of  Middletown  and  Southfield,  Richmond  county. 

Since  June  30,  1894,  the  school  commissioners  in  the  State  have  no  power  under  the  school 
law  to  reexamine  any  teacher  holding  his  or  her  predecessor's  certificate,  and  if  he 
find  him  or  her  deficient  in  ability  or  learning,  to  annul  the  certificate.  Where,  in 
August  1894,  a  school  commissioner  revoked  or  annulled  a  teacher's  certificate  issued 
by  a  predecessor  in  office,  an  appeal  having  been  taken  from  such  action  by  the  com- 
missioner, the  act  or  decision  of  the  commissioner  must  be  vacated  and  set  aside. 

Decided  October  3,  1894 

William  M.  Mullen,  attorney  for  appellant 
Howard  R.  Bayne,  attorney  for  respondent  West 
John  Widdecombe,  attomev  for  board  of  education 


JUDICIAL  decisions:     teachers  certificates  io6i 

Crooker,  Superintendent 

The  appellant  herein  appeals  from  the  act,  decision  or  order  of  the  respond- 
ent West,  in  revoking  or  annulling  a  teacher's  certificate  of  the  second  grade 
issued  to  the  appellant  on  March  14,  1894,  by  Hubbard  R.  Yetman,  school  com- 
missioner of  Richmond  county ;  and  from  the  action  of  the  respondent,  the  board 
of  education,  in  declining  to  contract  with  the  appellant  to  teach  in  the  schools 
under  their  control  in  consequence  of  such  annulment  of  her  certificate,  and  the 
refusal  of  said  board  to  pay  appellant  for  the  entire  month  of  August  1894. 

The  material  facts  established  by  the  papers  filed  in  this  appeal  are  as 
follows : 

That  in  the  year  1893  John  J.  Kenney  was  the  school  commissioner  of  the 
county  of  Richmond,  and  on  September  2,  1893,  duly  issued  to  the  appellant 
herein  a  teacher's  certificate  of  the  third  grade,  which  certificate  licensed  said 
appellant  to  teach  the  school  in  district  no.  2,  in  the  town  of  Middletown,  for  the 
term  of  six  months  from  the  date  of  the  said  certificate ;  that  the  appellant,  after 
receiving  said  certificate,  under  a  contract  made  by  her  with  the  trustees  of  said 
union  free  school  district  no.  2,  taught  in  the  school  of  said  district  for  the  term 
of  six  months ;  that  the  term  of  office  of  said  Kenney  as  school  commissioner  of 
the  county  of  Richmond  terminated  on  December  31,  1893,  and  that  on  January 

1,  1894,  and  until  the  latter  part  of  March  1894,  Hubbard  R.  Yetman  was  de 
facto  school  commissioner  of  said  county  of  Richmond,  said  Yetman  being  suc- 
ceeded in  said  office  by  the  respondent  Julia  K.  West;  that  on  March  14,  1894, 
said  Yetman,  as  such  school  commissioner  as  aforesaid,  after  an  examination  of 
the  appellant  herein,  issued  to  her  a  teacher's  certificate  of  the  second  grade  in 
the  form  prescribed  by  the  Superintendent  of  Public  Instruction,  whereby  and 
wherein  the  said  appellant  was  duly  licensed  to  teach  in  any  common  school  within 
the  county  of  Richmond  for  the  term  of  two  years  from  said  March  14,  1894;  that 
under  said  certificate  and  license  and  her  contract  with  said  trustees  of  district  no. 

2,  of  Middletown,  the  said  appellant  taught  in  the  school  in  said  district  from 
March  14,  1894,  until  such  school  was  closed  for  the  school  year  of  1893-94,  to 
wit,  June  29,  1894;  that  the  respondent  West,  under  date  of  July  16,  1894,  wrote 
to  appellant,  stating  that  she  (respondent  West),  having  found  discrepancies  in 
the  papers  of  appellant,  marked  by  Yetman,  she  (said  West)  had  been  advised  by 
the  Department  at  Albany  to  request  appellant  to  come  to  the  next  examination, 
on  August  i6th  and  17th,  at  the  New  Brighton  schoolhouse,  and  be  reexamined 
in  those  subjects  in  which  the  appellant  failed  to  receive  the  required  percentage, 
and  also  those  subjects  taken  over  six  months  ago ;  that  said  letter  was  not  received 
by  appellant  until  July  28,  1894,  by  reason  of  her  absence  from  the  county  of 
Richmond  from  July  12  until  July  28,  1894;  that  the  appellant,  relying  upon  her 
said  certificate  of  the  second  grade,  issued  by  said  Yetman,  did  not  attend  said 
examination  of  August  i6th  and  17th  for  a  certificate  of  the  second  grade,  but 
did  attend  such  examination,  and  took  the  examination  and  apphed  for  a 
teacher's  certificate  of  the  first  grade;  that,  on  or  about  August  24,  1894,  said 


Io62  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

appellant  received  a  letter  fruin  the  respondent  West,  of  which  the  following  is 
a  copy:  "  Xew  Brighton,  S.  I.,  Auj^nist  20,  1894.  Miss  Lucy  V.  Hunter:  On 
account  of  discrepancies  in  the  marking  of  the  papers,  the  certificate  issued  to 
you  by  Mr  Vetman  is  revoked.  Julia  K.  West,  school  commissioner  for  the 
county  of  Richmond."  That  on  or  about  said  August  20,  1894,  the  respondent 
West  notified  the  trustees  of  said  school  district  no.  2,  Middletown,  of  such  revo- 
cation by  her  of  said  certificate  of  appellant. 

The  question  presented  fur  my  decision  by  the  papers  in  this  appeal  is, 
whether  the  act.  decision  or  order  of  said  respondent  West  on  August  20,  1894, 
revoking  or  annulling  the  teacher's  certificate  for  the  second  grade,  issued  by 
said  Vetman  to  the  appellant  herein  on  March  14,  1894,  was  legal. 

Prior  to  June  jo,  1894,  under  the  provisions  of  subdivision  6  of  section  13 
of  title  2  of  the  Consolidated  School  Act  of  1864,  every  school  commissioner  of 
the  State  had  the  power,  and  it  was  his  or  her  duty,  to  reexamine  any  teacher 
holding  his  or  her  predecessor's  certificate,  and  if  he  or  she  find  him  or  her 
deficient  in  learning  or  ability,  to  annul  the  certificate.  Under  the  foregoing  pro- 
vision a  school  commissioner  did  not  have  the  power  to  annul  a  certificate  except 
upon  a  reexamination  of  the  teacher,  and  by  such  reexamination  finding  such 
teacher  deficient  in  learning  or  ability.  A  school  commissioner  had  no  authority 
of  law  to  examine  the  marking  of  the  papers  upon  examination  of  a  person  pro- 
posing to  teach  by  his  or  her  predecessor,  and  then  on  account  of  discrepancies 
in  the  marking  of  such  papers,  in  his  or  her  opinion  or  judgment,  to  annul  or 
revoke  the  certificate  issued  by  such  predecessor. 

On  June  30,  1894,  said  subdivision  6  of  section  13,  title  2,  above  cited,  ceased 
to  be,  and  all  of  said  title  2  ceased  to  be  operative,  or  a  part  of  the  school  law 
of  the  State,  the  Legislature  of  the  State  having  passed,  and  the  Governor  hav- 
ing approved,  chapter  556  of  the  Laws  of  1894,  entitled  "An  act  to  revise,  amend 
and  consolidate  the  general  acts  relating  to  public  instruction,"  which  chapter  is 
known  as  the  "  Consolidated  School  Law,"  and  which  said  chapter  went  into 
.  peration  on  June  30,  1894,  and  by  which  chapter  the  Consolidated  School  Law 
of  1864  and  all  amendments  thereof  were  repealed.  On  and  since  June  30,  1894, 
title  5  of  the  Consolidated  School  Law  relating  to  school  commissioners,  their 
c>lection,  powers  and  duties,  is  the  law  in  that  regard,  in  place  of  title  2  of  the 
Consolidated  School  Law  of  1864  and  the  amendments  thereof.  The  provisions 
of  subdivision  6  of  section  13  of  title  2  of  the  School  Act  of  1864.  hereinbefore 
referred  to,  was  not  enacted  in  title  5  of  the  Consolidated  School  Law  of  1894, 
Init  was  omitted  therefrom.  The  only  power,  on  and  since  June  30,  1894,  given 
to  a  school  commissioner  to  annul  a  teacher's  certificate  is  contained  in  subdivision 
6  of  section  13  of  title  5  of  the  Consolidated  School  Law,  to  wit,  to  examine  any 
charge  atTecting  the  moral  character  of  any  teacher  within  the  district,  first  giving 
such  teacher  reasonable  notice  of  the  charge,  etc.,  etc.,  and  if  he  find  the  charge 
sustained,  to  annul  the  certificate  of  the  teacher,  etc.,  etc. 

It  IS  clear  that  School  Commissioner  West  on  August  20,  1894,  had  no  power 
or  authority,  under  the  school  law  of  the  State,  to  revoke  or  annul  the  teacher's 
certificate  of  the  second  grade,  issued  by  her  predecessor  in  the  office  of  school 


JUDICIAL  decisions:     teachers  certificates  1063 

commissioner  on  March  14,  1894,  to  the  appellant  herein,  except  where  a  charge 
affecting  the  moral  character  of  the  appellant  had  been  made  and  sustained  under 
the  provisions  of  subdivision  6  of  section  13,  title  5  of  the  Consolidated  School 
Law  of  1894. 

The  respondent  West,  in  her  answer  to  the  appeal,  states  that  as  she  is 
informed  and  believes,  she  was  acting  strictly  within  and  according  to  the  instruc- 
tions received  by  her  from  me  under  date  of  June  28,  1894,  and  the  other  under 
date  of  July  3,  1894.  The  letter  of  June  28,  1894,  was  written  when  subdivision 
6  of  section  13  of  title  2  of  the  act  of  1864,  permitting  reexaminations  by  school 
commissioners  of  teachers  holding  certificates,  etc.,  was  in  force,  and  said  letter 
in  substance  states  that  if  School  Commissioner  West,  for  reasons  satisfactory 
to  her,  found  that  Yetman  had  marked  candidates  higher  than  they  merited,  and 
certificates  were  issued  to  persons  who  had  not  earned  them,  she  could  reexamine 
such  persons  under  the  law  then  in  force.  The  letter  of  July  3,  1894,  was  written 
when  the  Consolidated  School  Law  of  1894  was  in  force.  It  states,  if  the  cer- 
tificates were  issued  (by  Kenney  and  Yetman)  irregularly  you  have  the  right  to 
revoke  them,  etc.,  etc.  The  word  "  irregularly  "  was  used  as  meaning  "  not  con- 
forming to  a  law,  method  or  usage  recognized  as  the  general  law,"  that  is,  a  cer- 
tificate issued  without  any  examination,  or  to  a  person  under  sixteen  years  of  age, 
etc.,  etc.  It  may  be,  however,  that  the  person  who  dictated  the  letter  had  for- 
gotten the  then  recent  change  in  the  school  law  relating  to  the  reexamination  of 
teachers  by  school  commissioners. 

In  the  view  I  entertain  of  the  action  of  School  Commissioner  West,  it  does 
not  appear  necessary  for  me  to  decide  anything  relative  to  the  action  of  the  trus- 
tees of  union  free  school  district  no.  2  of  Middletown  in  refusing  to  pay  the 
appellant  for  the  latter  part  of  August  1894,  or  to  enter  into  a  contract  with  her 
for  the  new  school  year,  except  to  state  that  as  I  understand  the  contract  made 
by  her  with  said  trustees  her  compensation  was  to  be  paid  to  her  in  twelve  equal 
monthly  payments,  and  that  such  payments  were  to  be  made  for  services  rendered 
while  she  held  a  certificate  that  was  valid,  and  not  for  services  performed  after 
said  certificate  was  revoked;  that  even  if  the  revocation  of  the  certificate  should 
be  sustained  said  trustees  were  required  to  pay  her  the  instalment  due  her  for 
the  full  month  of  August  1894. 

The  appeal  herein  is  sustained. 

It  is  ordered.  That  the  act,  decision  or  order  of  Julia  K.  West,  as  school 
commissioner  of  Richmond  county,  on  or  about  August  20,  1894,  revoking  or 
annulling  the  teacher's  certificate  of  the  second  grade  issued  to  the  appellant 
herein,  Lucy  V.  Hunter,  on  I\Iarch  14,  1894,  by  Hubbard  R.  Yetman,  then  school 
commissioner  of  Richmond  county,  be,  and  the  same  hereby  is,  vacated  and 
set  aside. 


Hj04  the    university    of   the    state    of    new    YORK 

3614 

Jn  the  matter  of  the  appeal  of  Alton  H.  Cowles  and  Cliarles  T.  Hurlbut  v.  Gus- 
tavus  A.  Crofoot,  school  commissioner  of  the  second  commissioner  district 
of  Cortland  county. 

A  school  commissioner  examined  an  applicant,  and  issued  to  such  applicant  a  teacher's 
license  for  six  months,  and  at  the  end  of  six  months  reexamined  the  teacher,  found 
that  he  passed  a  satisfactory  examination,  and  then  refused  to  issue  a  license,  upon 
the  ground  that  while  teaching,  the  teacher  had  used  immoral  language  in  the  school 
under  his  charge. 

Held,  That  there  was  not  sufficient  reason  for  refusing  the  license  under  the  circum- 
stances. The  teacher  was  at  least  entitled  to  a  hearing  upon  the  allegations  against 
him. 

Decided  July   i,   1887 

Draper,  Sxiperintcndcut 

This  is  an  appeal  by  Alton  H.  Cowles,  an  applicant  for  a  license  to  teach, 
and  Charles  T.  Hurlbut,  trustee  of  school  district  no.  8,  of  the  town  of  Homer, 
Cortland  county,  from  the  refusal  or  neglect  of  the  respondent  herein  to 
issue  to  said  appellant  Cowles  a  license  to  teach  in  school  district  no.  8,  town  of 
Homer,  aforesaid. 

The  appellants  allege  that  after  an  examination  of  applicants  for  teachers' 
licenses,  held  September  30,  1886,  by  the  respondent,  the  appellant  was  duly 
licensed  to  teach  in  any  district  school  in  the  school  commissioner  district  for  the 
term  of  six  months,  and  that  at  the  time  such  license  was  granted,  the  respondent 
stated  he  would  renew  said  license  upon  application  at  the  expiration  of  six 
months  if  the  same  was  applied  for.  The  appellant  Cowles  alleges  that  at  the 
end  of  said  terin  he  desired  to  continue  teaching,  and  was  offered  further 
employment  in  the  school  then  taught  by  him,  and  that  he  made  several  applica- 
tions to  the  respondent  by  mail  and  otherwise,  for  a  further  license,  and  finally 
did  so  personally,  and  was  examined;  yet  the  respondent  failed  or  neglected  to 
issue  the  same. 

The  respondent,  in  justification  of  his  refusal  to  further  license  appellant 
Cowles  to  teach,  alleges  that  he  became  advised  that  the  appellant  Cowles  had 
used  rash  and  immoral  language  before  the  pupils  in  the  school  under  his  charge; 
that  at  one  time  having  made  the  remarks:  "If  you  do  not  stop  iTionkeying,  I 
will  heat  a  poker  red  hot  and  put  it  down  your  back,"  and  "  I  will  nail  you  to 
the  cross." 

Xo  allegation  is  made  that  the  appellant  Cowles  did  not  pass  a  creditable 
examination,  and  the  refusal  to  grant  a  license  was  based  upon  the  charges  above 
stated.  The  appellant  replies  that  at  one  time  he  did  make  the  remarks  attributed 
to  him  by  the  respondent,  but  as  the  remarks  of  another,  and  that  at  the  most 
they  were  only  imprudent  and  thoughtless.  He  submits  the  evidence  of- good 
citizens  of  the  district,  and  officers  of  an  academy  and  college  he  has  attended, 
to  his  uniform  good  character  and  ability  to  teach;  also  the  entry  of  the  respond- 
ent in  the  school  register  to  the  eflfect  that  the  pupils  were  all  doing  well.  From 
the  evidence  presented,  touching  the  general  workings  of  the  school  taught  by 


JUDICIAL    DECISIONS  :       TEACHERS    CERTIFICATES  IO65 

the  appellant  Cowles,  it  appears  clear  to  me  that  a  successful  school  has  been 
conducted.  The  certificate  issued  by  the  respondent  to  the  teacher  after  his  first 
examination  is  evidence  of  his  possession  of  sufficient  learning  and  practical 
ability  to  teach.  His  reexamination  is  further  evidence,  and  the  entry  of  the 
commissioner  in  his  register,  upon  the  officer's  last  visit  to  the  school,  is  a  strong 
circumstance  in  his  favor. 

The  respondent  would  break  the  force  of  this  indorsement  by  the  statement 
that  he  made  it  supposing  the  teacher  was  about  to  give  up  the  school.  This  I 
can  not  hold  without  finding  the  commissioner  guilty  of  making  misleading  entry 
upon  the  record  —  certainly  not  justified  by  the  excuse  offered  therefor. 

I  hold  the  charges  of  immoral  remarks  not  sustained,  although  possibly  they 
were  thoughtless  and  had  better  have  been  omitted.  I  do  not  consider  them  of 
so  serious  a  character  as  to  deprive  a  teacher,  otherwise  qualified,  of  a  license  to 
teach,  at  least  without  a  hearing  and  an  opportunity  to  explain  them  and  present 
his  defense  thereto. 

I  sustain  the  appeal.  The  respondent  is  hereby  ordered  and  directed  to  issue 
a  license  to  the  appellant  Cowles,  which  his  qualifications,  as  shown  upon  the 
examination  held  by  the  respondent,  entitle  him  to,  within  ten  days  after  service 
of  a  copy  of  this  decision  upon  him. 


3597 

In  the  matter  of  the  appeal  of  Florence  Snath  v.  R.  A.  Kneeland,  school  com- 
missioner of  the  first  commissioner  district  of  Livingston  county. 

School  commissioner  refusing  to  grant  a  certificate  to  teach  a  large  school  to  an  applicant 
whom  he  considers  competent  to  teach  and  govern  a  smaller  school,  will  be  sustained 
unless  it  clearly  appears  that  he  so  decided  from  improper  motives. 

Decided  May  9,  1887 

Draper,  Superintendent 

This  is  an  appeal  against  the  action  of  the  school  commissioner  of  the  first 
commissioner  district  of  Livingston  county,  in  refusing  to  grant  a  teacher's  cer- 
tificate to  the  appellant,  which  would  authorize  her  to  accept  employment  as  a 
teacher  in  the  first  school  district  of  the  town  of  Groveland. 

It  is  alleged  by  the  appellant  that  the  school  commissioner  refused  to  grant 
a  certificate  which  would  permit  her  to  teach  in  this  particular  district  and  that 
such  refusal  was  caused  by  political  influences  and  was  unjust  to  the  appellant. 
The  school  commissioner,  on  the  other  hand,  says  that  the  school  in  the  first  dis- 
trict of  the  town  of  Groveland,  is  a  large  one,  with  an  average  attendance  much 
in  excess  of  any  school  which  the  appellant  has  ever  taught,  and  that  he  does  not 
deem  her  a  suitable  teacher  for  a  school  of  that  size.  He  denies  that  his  decision 
in  the  premises  has  been  influenced  by  anyone,  or  that  he  entertained  any  preju- 
dices against  the  appellant,  and  he  submits  the  examination  papers  furnished  by 
Miss  Snath  upon  a  written  examination  held  by  him  in  which  she  was  one  of  the 
candidates  examined. 


I066  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

The  school  commissioner  had  a  right  to  issue  a  third  grade  certificate  to  the 
apptUant  which  would  authorize  her  to  teach  in  any  particular  locality,  but  would 
prevent  her  from  doing  so  in  any  other,  and  he  had  abundant  authority  of  law 
for  withholding  a  certificate  which  would  con.\.r  upon  her  authority  to  teach  in 
the  first  district  of  Groveland,  while  at  the  same  time  offering  one  which  would 
authorize  her  to  take  a  school  in  a  smaller  district.  No  competent  proof  is  offered 
to  sustain  the  allegation  that  the  commissioner  acted  otherwise  than  conscien- 
tiously. I  have  examined  all  the  papers  in  the  case  with  care,  and  have  no  hesi- 
tancy in  coming  to  the  conclusion  that  the  respondent  took  the  course  he  did  in 
this  case  through  a  desire  to  discharge  his  duty  properly,  and  should  be  sustained 
in  so  doing. 

The  appeal  must,  therefore,  be  dismissed. 


4728 

In  the  matter  of  the  appeal  of  Xina  L.  Barr  v.  George  A.  Cooper  as  school  com- 
missioner, first  commissioner  district,  Cayuga  county. 

The  appellant,  being  a  resident  within  the  first  commissioner  district  of  Cayuga  county, 
attended  the  uniform  examination  for  teacher's  certificate  in  the  first  commissioner 
district  of  Wayne  county,  without  having  first  obtained  the  permission  of  the  school 
commissioner  of  the  commissioner  district  in  which  she  resided,  to  attend  such  ex- 
amination in  the  first  district  of  Wayne  county,  and  having  obtained  a  second  grade 
certificate  from  such  commissioner  in  Wayne  county,  and  the  commissioner  of  the 
first  commissioner  district  of  Cayuga  county  having  refused  to  indorse  such  certificate; 
held,  that  suflicicnt  reason  existed  for  the  refusal  of  the  commissioner  of  the  first 
commissioner  district  of  Cayuga  county  to  make  such  indorsement. 

Decided  December  30,  1898 

Skinner,  Superintendent 

This  is  an  appeal  from  the  refusal  of  George  A.  Cooper  as  school  commis- 
sioner of  the  first  commissioner  district  of  Cayuga  county,  to  indorse  a  second 
grade  certificate  to  teach,  issued  to  Nina  L.  Barr  in  August  1898,  by  Samuel 
Cosad,  school  commissioner  of  the  first  commissioner  district  of  Wayne  county. 

The  appellant  states  in  her  appeal  that  she  is  a  resident  of  the  town  of  Vic- 
tory, Cayuga  county,  and  in  January  and  May  1898,  she  attended  the  uniform 
examination  for  a  teacher's  certificate  at  Wolcott,  Wayne  county;  that  at  the 
time  she  attended  such  examination  she  was  attending  school  in  the  village  of 
Red  Creek,  Wayne  county ;  that  at  the  time  she  attended  such  examination  she 
was  Ignorant  of  rule  26  of  the  regulations  governing  uniform  examinations 
that  candidates  must  attend  such  examinations  in  the  school  commissioner  district 
in  which  they  reside  or  in  which  they  are  teaching,  unless  they  first  obtain  per- 
mission of  the  school  commissioner  of  the  commissioner  district  in  which  they 
reside  or  have  been  teaching. 

The  appellant  also  claims  that  to  attend  such  examinations  in  Cato,  Cayuga 
county,  she  would  have  been  compelled  to  travel  a  greater  distance  from  Red 
Creek,  where  she  was  attending  school,  than  to  go  to  Wolcott. 


JUDICIAL  decisions:     teachers  certificates  1067 

School  Commissioner  Cooper  has  answered  the  appeal  and  alleges,  in  sub- 
stance, that  it  was  more  convenient  for  the  appellant  to  attend  the  examinations 
in  Cayuga  county  than  in  Wayne  county;  that  at  each  examination  a  copy  of  the 
regulations  governing  such  examinations  is  placed  upon  the  desk  of  each  appli- 
cant and  each  applicant  is  urged  to  read  them;  that  upon  his  information  and 
belief  he  alleges  that  the  appellant  received  special  privileges  by  attending  the 
examinations  in  Wayne  county. 

The  appellant  herein  is  presumed  to  have  had  knowledge  of  rule  26  of  the 
regulations  governing  uniform  examinations  and  she  should  have  obtained  the 
permission  of  Commissioner  Cooper  to  take  the  examinations  in  Wayne  county. 
Sufficient  reason  existed  for  the  refusal  of  Commissioner  Cooper  to  indorse  the 
second  grade  certificate  received  by  her. 

The  appeal  herein  should  be  dismissed. 

The  appellant  in  her  appeal  asks  that  if  I  do  not  direct  Commissioner  Cooper 
to  indorse  her  certificate,  a  temporary  license  be  issued  to  her  permitting  her  to 
teach  in  the  first  commissioner  district  of  Cayuga  county  until  she  be  able  to  take 
examinations  in  such  district. 

A  proper  application  to  me,  on  the  part  of  the  appellant  herein,  for  a  tem- 
porary license,  permitting  her  to  teach  in  the  first  commissioner  district  of 
Cayuga  county,  will  receive  consideration. 

The  appeal  herein  is  dismissed. 


4743 

In  the  matter  of  the  appeal  of  Angelo  O.  Tucker  v.  Orin  Q.  Flint  as  school 
commissioner,  first  commissioner  district,  Greene  county. 

A  school  commissioner,  in  determining  whether  or  not  he  or  she  will  indorse  the  cer- 
tificate of  a  teacher,  issued  by  the  school  commissioner  of  another  district,  must  be 
guided  by  the  best  information  attainable.  Before  indorsing  a  certificate  issued  by 
another  commissioner,  the  commissioner  must  be  satisfied  that  the  employment  of 
that  teacher  in  his  district  is  for  the  best  interests  of  the  schools  under  his  charge, 
The  decision  in  this  appeal  must  not  be  construed  as  a  precedent  to  guide  the  action 
of  other  commissioners  under  like  circumstances.  Each  commissioner  must  determme 
each  case  from  the  facts  before  him  or  her. 

Decided    February    17,    1899 

Skinner,  Superintendent 

This  is  an  appeal  from  the  refusal  of  Orin  Q.  Flint  as  school  commissioner 
of  the  first  commissioner  district  of  Greene  county,  to  indorse  the  first  grade 
certificate  to  teach,  dated  April  i,  1889,  issued  to  the  appellant  Angelo  O.  Tuckc, 
by  A.  W.  Fenton  as  school  commissioner  of  the  first  commissioner  district  of 
Steuben  county;  that  on  June  27,  1898,  he  entered  into  a  contract  with  the  board 
of  trustees  of  school  district  i,  Athens,  Greene  county,  to  teach  the  public  school 
therein  for  the  term  of  40  consecutive  weeks  commencing  September  6,  1898,  at  a 
weekly  compensation  of  $18.75,  payable  at  the  end  of  each  30  days  during  the 
term  of  such  c  nployment;  that  said  board  of  trustees  contracted  to  employ  said 


1068  THE    UNIVERSITY    OF   THE    STATE    OF    NEW    YORK 

appellant  as  such  teacher  for  the  aforesaid  period  and  at  the  aforesaid  com- 
pensation, such  compensation  to  be  paid  as  hereinbefore  stated;  that  on  August 
27,  1898,  the  appellant  at  Athens,  Greene  county,  showed  his  said  certificate  to 
teach  to  Coniniissioncr  Flint  and  requested  him  to  indorse  the  same,  and  said 
I'lint,  after  examining  such  certificate  returned  it  to  the  appellant,  saying,  "  I  will 
have  to  refuse  to  indorse  your  license,  from  an  official  standpoint ;  "  that  appel- 
lant asked  said  Flint  the  reason  why  he  so  refused,  but  Flint  refused 
to  give  any;  that  again,  on  August  30,  1898,  the  appellant  appealed 
to  Commissioner  Flint  to  indorse  said  certificate,  exhibiting  to  said  Flint  a  large 
number  of  testimonials,  signed  by  reliable  and  creditable  men,  but  that  said  Flint 
refused  to  indorse  said  certificate  of  the  appellant.  September  i,  1898,  the  appel- 
lant verified  his  appeal  herein  from  the  refusal  of  Commissioner  Flint  to  indorse 
said  certificate,  and  on  the  same  day  a  copy  of  such  appeal  was  served  personally 
upon  said  Flint,  and  on  September  15,  1898,  said  appeal  was  filed  in  this 
Department. 

Commissioner  Flint  has  answered  the  appeal. 

He  alleges  in  his  answer  that  en  or  about  July  i,  1898,  having  previously 
learned  that  the  appellant  had  contracted  to  teach  the  school  in  district  i,  Athens, 
Greene  county,  in  the  village  in  which  he,  Flint,  resides,  he  made  inquiries  of 
the  teachers  present  attending  the  Regents  Convocation,  held  in  the  city 
of  Albany,  on  or  about  July  i,  1898,  who  were  personally  acquainted 
with  appellant,  relative  to  the  appellant,  and  as  a  result  of  such 
inquiries  he  deemed  it  his  duty  to  investigate  the  character  and  his- 
tory of  the  appellant  as  a  teacher  in  the  public  schools  of  the  State;  that  he  visited 
Alexandria  Bay,  where  the  appellant  had  last  taught  school,  and  made  inquiries 
of  a  large  number  of  persons  in  all  conditions  of  life,  relative  to  the  manner  in 
which  tlie  appellant  had  performed  his  duties  as  a  teacher,  and  his  standing  in 
that  community  as  a  man ;  that  from  the  information  so  obtained  by  him,  on  July 
23,  1898,  he  became  convinced  that  the  appellant  was  not  a  proper  person  to 
teach  school  and  he  so  advised  the  president  and  clerk  of  the  board  of  education 
of  union  school  district  i,  Athens;  that  he  (Flint)  continued  his  investigations 
relative  to  the  appellant,  the  result  of  which  was  to  confirm  him  in  the  conclu- 
sions arrived  at  as  announced  to  said  president  and  clerk,  as  aforesaid,  and  on 
August  9,  1898,  he  met  the  said  board  of  education  and  reaffirmed  his  decision 
not  to  indorse  the  certificate  of  the  appellant;  that  on  August  27,  1898,  the  appel- 
lant had  a  personal  interview  with  him  (Flint)  and  presented  his  certificate  to 
teach,  held  by  him,  and  required  said  Flint  to  indorse  the  same,  and  that  Flint 
informed  the  appellant  that  from  information  he  had  received  from  sources  that 
he  considered  reliable,  he  could  not  conscientiously  indorse  such  certificate  with- 
out an  order  from  the  State  Superintendent  of  Public  Instruction ;  that  on  August 
30,  1898,  and  at  other  times,  the  appellant  requested  said  Flint  to  indorse  such 
certificate,  but  said  Flint  for  reasons  he  considered  valid,  based  upon  information 
he  had  received  and  which  he  believed,  has  refused  to  indorse  such  certificate. 


JUDICIAL  decisions:     teachers  certificates  1069 

The  respondent  Flint  alleges,  as  his  conclusions,  upon  the  information 
received  by  him  regarding  the  appellant  as  a  teacher  in  the  public  schools  in  which 
he  has  taught,  that  the  character  of  instruction  as  imparted  by  the  appellant  is 
superficial;  that  his  conduct  to  teachers  employed  with  him  has  been  improper 
and  unjust;  that  he  has  not  that  regard  for  truth  which  a  teacher  should  have, 
and  is  untruthful;  that  he  is  lax  in  discipline  and  government;  that  his  conduct 
before  his  scholars  is  not  exemplary,  and  in  certain  instances  has  been 
demoralizing. 

The  pleadings  herein,  in  addition  to  the  appeal  and  answer,  consist  of  a 
reply,  rejoinder,  surrejoinder,  rebutter  and  surrebutter.  Such  pleadings  contain 
a  mass  of  letters,  copies  of  letters,  affidavits,  certificates,  questions  and  answers, 
covering  a  period  from  1870  down  to  November  1898,  favorable  and  unfavor- 
able to  the  appellant  as  such  teacher.  All  the  papers  filed  herein  by  the  appellant 
and  respondent  have  been  carefully  examined  and  considered. 

The  statements  upon  which  the  respondent  Flint  relied  in  refusing  to  indorse 
such  certificate,  were  those  made  by  persons  residing  in  the  school  districts  in 
which  the  appellant  has  been  employed  as  teacher  within  the  last  two  or  three 
years,  and  not  of  those  residing  in  districts  in  which  the  appellant  was  employed 
prior  to  1890. 

It  appears  from  the  papers  filed  herein  that  in  almost  every  school  district 
in  which  the  appellant  has  been  so  employed  there  is  a  difference  of  opinion 
among  the  residents  as  to  his  qualifications  as  a  teacher,  and  as  to  the  manner 
in  which  his  duties  as  such  teacher  have  been  performed. 

Number  9  of  the  general  regulations  of  this  Department  governing  uniform 
examination  for  teachers  certificates  and  the  issuing  of  such  certificates  by 
school  commissioners,  and  the  indorsement  of  such  certificates,  provides  that  a 
school  commissioner  shall  indorse  for  the  full  period  for  which  they  are  valid 
when  presented  for  indorsement,  first  and  second  grade  certificates,  training  class 
certificates,  and  drawing,  music  and  kindergarten  certificates  issued  by  any  other 
school  commissioner  in  the  State,  or  issued  by  the  authorities  of  any  city  which 
has  adopted  and  is  working  under  the  uniform  system  of  examinations,  unless  a 
valid  reason  exists  for  withholding  such  indorsement  etc.  etc. 

A  "  valid  reason  "  means  a  "  good  reason,"  "  sound  reason,"  existing  in  the 
mind  of  the  school  commissioner,  based  upon  information  obtained  by  him  from 
trustworthy  sources  and  which  he  believes  to  be  true,  relative  to  the  abilities  of 
the  holder  of  the  certificate  to  properly  impart  instruction  to,  and  govern,  the 
pupils  attending  the  school  which  he  is  employed  to  teach,  and  that  his  moral 
character  has  not  been  questioned ;  as  distinguished  from  mere  caprice,  prejudice, 
bias,  or  absence  of  good  faith,  or  proper  inquiry  on  the  part  of  such  commis- 
sioner. This  proceeding  is  not  one  to  annul  the  certificate  to  teach  held  by  the 
appellant,  but  is  for  a  review  by  me,  upon  the  proofs  presented,  whether  on 
August  27,  1898,  Commissioner  Flint  had  a  valid  reason,  upon  the  information 
obtained  by  him,  which  he  believed  to  be  true,  relative  to  the  manner  the  appel- 
lant had  performed  his  duties  as  teacher  in  the  schools  in  which  he  had  been 


lO/O  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

recently  employed,  and  his  standing  as  a  man  in  the  estimation  of  the  inhabitants 
of  such  districts,  for  refusing  to  indorse  such  certificate,  and  thereby  authorize 
the  appellant  to  teach  in  the  public  schools  in  the  first  commissioner  district  of 
Cirecne  county.  I  am  convinced  that  Commissioner  Flint,  in  such  refusal  on  his 
part,  acted  in  good  faith,  and  upon  information  given  him  which  he  believed  to 
be  true;  that  he  believed  he  had  a  valid  reason  for  refusing  to  indorse  such  cer- 
tificate and  that  I  ought  not  to  reverse  his  action  in  thus  refusing. 

In  determining  whether,  or  not,  he  will  indorse  the  certificate  of  a  teacher 
issued  by  the  commissioner  of  another  district,  a  school  commissioner  must  be 
guided  by  the  best  information  attainable-  His  refusal  in  this  case,  and  my 
approval  of  his  act  in  so  refusing,  must  not  be  construed  as  a  criticism  upon  the 
ability  or  character  of  the  appellant.  I  am  not  called  upon,  in  this  appeal,  to  pass 
upon  either.  I  decide  only  that  Commissioner  Flint  in  refusing  to  indorse  the 
certificate  of  the  appellant  acted  in  a  reasonable  manner  in  view  of  the  informa- 
tion presented  to,  and  then  before  him.  That  such  information  was  sufficient  to 
put  a  reasonable  and  prudent  man  upon  his  guard,  and  that  his  action  was  not 
vindictive  but  was  in  accord  with  his  line  of  duty  as  he  then  understood  it.  Nor 
must  this  decision  be  construed  as  a  precedent  to  guide  the  action  of  other  com- 
missioners under  like  circumstances.  Before  indorsing  a  certificate  issued  by 
another  commissioner,  the  commissioner  so  indorsing  must  be  satisfied  that  the 
employment  of  that  teacher  in  his  district  is  for  the  best  interests  of  the  schools 
under  his  charge.  Each  commissioner  must  determine  each  case  from  the  facts 
before  him. 

The  appeal  herein  is  dismissed. 


4202 

In  the  matter  of  the  appeal  of  Jerry  L.  Gardner  v.  Howard  B.  Harrison,  school 
commissioner,  second  commissioner  district  of  Steuben  county. ' 

I  he  basis  of  every  certificate  issued  by  a  school  commissioner  to  persons  applying  to  him 
for  examination  and  proposing  to  teach  common  schools  is  his  satisfaction  concerning 
the  quahhcations  of  the  applicant  in  respect  to  moral  fitness  and  capacity.  A  commis- 
sioner is  justified  in  withholding  a  certificate  from  an  applicant  where  he  is  satisfied 
m  his  mmd  and  judgment  that  upon  the  proofs  presented  to  him  evidence  of  the  good 
moral  character  of  the  applicant  does  not  affirmatively  appear. 

Decided  November  18,  1893 

Crooker,  Superintendent 

The  appellant  appeals  from  the  decision  of  Howard  B.  Harrison,  school 
commissioner,  second  commissioner  district  of  Steuben  county,  in  refusing  to 
grant  to  the  appellant  a  certificate  of  the  second  grade  of  teachers.  An  answer 
has  been  interposed. 

'^^^  ^^^'f;°»  of  the  respondent  was  based  upon  the  ground  that  he  did  not 
find  the  appellant  qualified  as  to  moral  fitness,  and,  therefore,  refused  to  grant 
the  appellant  a  certificate. 


JUDICIAL    decisions:       teachers    certificates  IO/I 

The  papers  submitted  upon  this  appeal  are  quite  voluminous  and  consist 
mainly  of  affidavits  upon  the  question  of  the  moral  fitness  of  the  appellant,  pre- 
sented to  the  respondent  at  or  before  the  application  of  the  appellant  for  examina- 
tion and  certificate,  and  those  furnished  by  the  appellant  to  the  respondent  in 
rebuttal ;  and  additional  affidavits  furnished  by  appellant  in  support  of  his  appeal ; 
and  said  papers  have  been  carefully  read  and  considered. 

Under  the  provisions  of  subdivision  5  of  section  2  of  the  Consolidated  School 
Law  of  1864,  and  the  amendments  thereof,  every  school  commissioner  shall  have 
power,  and  it  shall  be  his  duty,  to  examine  persons  proposing  to  teach  common 
schools  within  his  district,  and  not  possessing  the  Superintendent's  certficate  of 
qualifications,  or  diploma  of  the  State  normal  school,  and  to  inquire  into  their 
moral  fitness  and  capacity,  and,  if  he  finds  them  qualified,  to  grant  them  cer- 
tificates of  qualifications,  in  the  forms  which  are  or  may  be  prescribed  by  the 
Superintendent.  The  basis  of  every  certificate  issued  by  a  commissioner  is  his 
satisfaction  concerning  the  qualifications  of  the  appellant  in  respect  to  moral  fit- 
ness and  capacity.  A  commissioner  is  justified  in  withholding  a  certificate  from 
an  applicant  where  he  is  satisfied,  in  his  mind  and  judgment,  that  upon  the  proofs 
presented  to  him,  evidence  of  the  good  moral  character  of  the  applicant  does  not 
affirmatively  appear.  Deputy  Superintendent  Keyes,  in  a  decision  made  by  him 
on  May  20,  1859,  said:  "It  must  be  borne  in  mind  that  the  commissioner  is 
the  servant  of  the  people,  pledged  to  protect  their  interests  and  rights  in  matters 
relating  to  the  education  of  their  children,  and  he  has  no  right  to  imperil  those 
interests  by  legalizing  the  presence  and  labors  among  them  of  a  person  concern- 
ing whose  moral  reputation  there  is  a  doubt." 

It  does  not  appear,  from  the  papers  presented  in  this  appeal  that  the  respon- 
dent was  actuated  by  any  malice,  prejudice  or  ill  feeling  against  the  appellant 
in  his  decision-  I  can  not  say  that  the  respondent  has  exercised  unwisely  the 
power  and  duty  intrusted  to  him  by  the  school  laws,  or  that,  upon  the  proofs 
before  him,  he  was  not  justified  in  refusing  a  certificate  to  the  appellant. 

The  appeal  herein  is  dismissed. 


3952 

In  the  matter  of  the  appeal  of  D.  Eugene  Smith  v.  Ebenezer  R.  Harkness,  school 

commissioner  of  the  second  commissioner  district  of  Delaware  county. 

The   action   of   a   school   commissioner   in   withdrawing  his   indorsement    from   a   teacher's 

certificate  granted  by  another  commissioner,  for  the  reason  that  the  teacher,  who  was 

quite  a  young  person  teaching  his  first  school,  failed  in  government,  and  was  unable 

to   control  his   pupils,  sustained. 

The  annuhnent  of  the  original  license  by  the  same  commissioner  for  the  cause  assigned, 

overruled. 
_T)ecided  January  3,  1891 

O.  F.  Lane,  attorney  for  appellant 


I072  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

Draper,  Superintendent 

This  appeal  is  broujjht  from  the  action  of  the  school  commissioner  of  the 
second  commissioner  district  of  Delaware  county,  in  annulling  a  teacher's  certifi- 
cate which  had  been  granted  by  Commissioner  Theodore  L.  Grout,  of  the  first 
commissioner  district  of  Otsego  county,  on  the  4th  day  of  March  1890,  to  appel- 
lant, and  which  had  been  indorsed  by  the  respondent  on  the  29th  day  of  August 
1890,  making  it  a  valid  license  to  teach  in  his  commissioner  district. 

The  evidence  submitted,  which  is  given  in  detail,  reveals  the  fact  that  the 
appellant  is  quite  a  young  man  but  still  in  his  minority,  and  that  his  present 
engagement  was  his  first  attempt  at  teaching.  It  is  clear  to  me  that  in  this  his 
first  attempt,  the  teacher  failed  somewhat  in  government,  and  that  during  the 
time  he  taught  the  school,  there  was  disorder  and  confusion  therein  to  an  unusual 
degree.  It  is  probable  that  with  more  mature  years  and  greater  experience,  he 
will  overcome  this  ground  of  objection  to  his  work  as  a  teacher.  It  is  my  opinion 
that  the  commissioner  was  justified,  for  the  cause  assigned,  in  withdrawing  his 
indorsement  of  the  teacher's  certificate,  issued  by  another  commissioner.  The 
cause  assigned  is  not  a  ground  which  would  authorize  a  commissioner  to  revoke 
the  certificate  issued  by  a  commissioner  of  another  district. 

The  appeal  is  sustained,  so  far  as  the  commissioner  acted  in  revoking  the 
original  certificate,  but  is  overruled  so  far  as  it  relates  to  the  commissioner's 
action  in  withdrawing  his  indorsement  upon  the  certificate,  in  which  respect  the 
commissioner's  action  is  sustained. 


3817 

Noah  Leonard  v.  Henry  D.  Nottingham,  school  commissioner  of  the  third  district 

of  Onondaga  county. 
A   school   commissioner   who,   acting  with   good   purpose   and   intent,    refuses   to    grant   a 

teacher's  certificate  to  an  applicant,  will  be  sustained. 
The  commissioner  was  under  no  obligations  to  give  any  reason  for  his  refusal. 
Decided  October  9,  1889 

Draper,  Superintendent 

This  is  an  appeal  from  the  action  of  the  respondent  in  refusing  to  indorse  a 
teacher's  certificate  held  by  appellant  and  issued  to  him  by  another  commissioner, 
and  in  refusing  to  issue  a  certificate  to  appellant. 

The  commissioner  has  the  right,  assuming  that  he  acted  with  good  purpose 
and  intent,  to  do  precisely  what  the  appellant  complains  of.  Moreover,  he  was 
not  obliged  to  give  any  reasons  for  such  action.  There  is  scarcely  a  pretense  that 
he  acted  with  other  than  the  best  of  motives.  Facts  which  appear  in  the  case 
clearly  mdicate  that  he  only  intended  to  do  his  duty,  and  that  action  complained 
of  was  proper. 

The  appeal  is  dismissed. 


JUDICIAL    decisions:       teachers    certificates  10/3 

3510 

W.  L.  Rutherford  and  others,  as  the  board  of  education  of  union  free  school 
district  no.   i,  Waddington,   St  Lawrence  county,  v.  Emma  A.   Fish. 

To  annul  a  state  certificate,  charges  must  be  definite  and  specific. 

A  general  charge  of  immoral  character  not  sufficient  to  put  the  accused  upon  the  defensive. 

Decided  June  11,  18S6 

Draper,  Superintendent 

This  is  a  proceeding  by  the  board  of  education  of  union  free  school  dis- 
trict no.  I,  Waddington,  St  Lawrence  county,  N.  Y.,  preferring  charges  against 
Emma  A.  Fish,  a  teacher  in  the  public  school  of  said  district,  and  asking  that 
the  state  certificate  held  by  Miss  Fish  be  annulled,  on  the  ground  of  immoral 
character. 

I  think  the  circumstances  surrounding  this  case  demand  a  brief  review  of 
the  proceedings  that  have  been  taken  by  the  board  of  education. 

It  appears  from  the  records  of  this  Department  that  an  appeal  was  brought 
on  or  about  the  24th  day  of  February  1886,  by  Emma  A.  Fish  from  the  action 
of  the  Waddington  board  of  education  in  discharging  her  from  her  position  as 
principal  of  the  union  school.  The  appeal  was  decided  on  the  5th  day  of  April 
1886,  in  favor  of  the  appellant,  and  the  action  of  the  board  set  aside.  It  appeared 
therein  that  the  board  had  entered  into  a  contract,  in  writing,  with  Miss  Fish, 
to  teach  in  the  school  for  one  year,  at  a  salary  of  $500.  The  reason  urged  for  her 
discharge  was,  that  she  was  incompetent  to  teach  the  school.  The  Superin- 
tendent (James  E.  Morrison),  in  his  decision,  says:  "I  find  that  the  appellant 
holds  a  state  certificate  granted  to  her  in  1867,  at  which  time,  as  at  present, 
the  provisions  of  section  15,  title  i,  Code  of  Public  Instruction,  was  operative 
and  controlling.  This  section  distinctly  provides  that  the  Superintendent's  cer- 
tificate, while  unrevoked,  shall  be  conclusive  evidence  that  the  person  to  whom 
it  was  granted  was  qualified  by  moral  character,  learning  and  ability  to  teach 
any  common  school  in  the  State."  The  Superintendent  felt  himself,  by  this 
statute,  debarred  from  considering  the  allegations  against  the  moral  character, 
learning  and  ability  of  the  teacher,  upon  an  attempt  to  discharge  her  from  the 
employment  of  the  board,  and  held  that  the  proceeding  should  have  been  one  to 
revoke  her  state  certificate. 

Shortly  after  the  decision  of  this  appeal,  the  board  preferred  charges  before 
the  school .  commissioner  of  the  district,  against  Miss  Fish  and  asked  him  to 
revoke  her  certificate  on  the  ground  of  immoral  character.  Miss  Fish  was 
properly  notified  of  such  charges  and  given  opportunity  to  defend.  A  hearing 
was  set,  and  three  days  occupied  by  the  commissioner  in  reviewing  testimony 
offered  by  the  board  to  sustain  the  charges,  at  the  end  of  which  time  the  pro- 
ceedings were  withdrawn  by  the  parties  instituting  them.  The  principal  reason 
given  for  such  withdrawal  is  that  the  commissioner  refused  to  receive  as  evidence 
"affidavits  of  persons  not  present.  The  commissioner  was  instructed  by  the 
Department  that  affidavits  should  not  be  received  as  evidence  in  an  oral  examina- 


I074  THE    UNIVERSITY    OF   THE    STATE    OF    NEW    YORK 

tioii.  Counsel  for  Miss  Fish  asked  the  commissioner  to  render  a  decision  in  the 
matter  to  the  effect  that  the  charc^cs  had  not  been  sustained.  This  the  commis- 
sioner refused  to  do,  and  the  board  was  allowed  to  discontinue  without  any  judg- 
ment or  decision  being  rendered  by  the  commissioner. 

On  the  28th  day  of  May  1886,  the  proceedings  now  before  me  were  com- 
menced. A  copy  of  the  charges  and  affidavits  submitted  in  support  thereof 
was  served  upon  the  respondent.  The  respondent  has  filed  no  answer,  and  the 
case  must  be  examined  upon  the  evidence  of  the  moving  parties. 

In  proceedings  of  this  kind,  two  rules  must  be  complied  with: 

1  The  charges  must  be  definite  and  specific.  No  general  charge  of  immoral 
character  will  be  sufficient  to  put  a  person  upon  the  defensive.  The  charges 
should  specify  immoral  acts  of  the  teacher  and  should  be  drawn  with  as  much 
care  and  distinctness  as  an  indictment,  so  that  she  may  know  just  what  she 
must  meet. 

2  The  respondent  must  be  given  an  opportunity  to  defend,  to  confront  and 
cross-examine  the  witnesses  produced  by  the  appellant. 

In  the  examination  of  the  charges  and  the  affidavits  filed  therewith,  it 
appears  that  the  principal  charges  are  those  of  lying,  perjury  and  disrespect 
toward  the  board  of  education  on  the  part  of  the  respondent.  The  charges  are, 
in  the  main,  general,  although  some  statements  of  Miss  Fish  are  set  out  and 
characterized  as  false.  A  large  number  of  affidavits  are  filed  and  similar  ones 
were  upon  the  former  appeal.  The  board  of  education  entered  into  a  written 
contract  with  Miss  Fish  without  first  having  a  personal  interview  with  her. 
During  her  term  of  service  as  teacher,  the  exact  time  does  not  appear,  mis- 
understandings and  contentions  arose  between  the  respondent  and  the  board. 
The  papers  are  very  voluminous,  covering  a  mass  of  irrelevant  matter.  The 
controversy  is  a  highly  unfortunate  one,  and  it  would  undoubtedly  have  been 
far  better  if  the  respondent  had  never  been  employed  to  teach  in  this  school, 
but  with  that  the  Department  has  nothing  to  do.  The  only  question  left  before 
me  is.  whether  the  papers  in  the  case  show  Miss  Fish  to  be  a  person  of  such 
immoral  character  as  to  render  it  improper  for  her  to  hold  a  certificate  to  teach 
in  the  common  schools  of  the  State.  It  is  not  whether  she  lacks  judgment;  it 
is  not  whether  she  is  an  unsuccessful  teacher,  but  whether  she  is  of  immoral 
character.  The  Department  can  not  revoke  a  license  upon  charges  affecting 
character,  except  upon  clear  and  unquestioned  proofs.  The  fact  unquestionably 
is,  that  there  has  been  a  heated  controversy,  and  that  disagreeable  things  have 
been  said  on  both  sides.  Undoubtedy  some  things  have  been  said  which  are 
not  altogether  true,  as  is  the  case  in  all  such  controversies,  but  I  find  no  evidence 
sufficient  to  justify  me  in  holding  that  Miss  Fish  is  a  woman  of  immoral  char- 
acter. The  allegations  against  her  are,  in  the  main,  general  and  indefinite,  and 
such  specific  allegations  of  fact  as  are  contained  in  the  charges  are  not  sup- 
ported by  the  proofs. 


JUDICIAL  decisions:     teachers  certificates  1075 

If  trustees  will  employ  teachers  without  sufficient  caution,  without  previous 
acquaintance  or  inquiry,  they  must  not  rely  upon  the  Department  to  relieve  them 
from  their  unwise  contracts,  and  particularly  so  when  the  most  that  can  be 
said  against  a  teacher  so  employed  is,  that  she  lacks  tact  and  management,  or 
talks  offensively  under  opposition  and  criticism. 

The  charges  are  dismissed. 


5011 

In  the  matter  of  the  appeal  of  William  F.  Masten  from  the  action  of  the  board 
of  trustees  in  and  for  union  free  school  district  no.  3,  Orangetown,  Rock- 
land county. 
The  trustees  of  common  school  districts,  and  boards  of  education  of  union  free  school 
districts  in  the   absence  of   some   special   act  of  the   Legislature,   do   not  possess  the 
power  to  establish   requirements  of  persons   employed  as  teachers,  other  than,  and  in 
addition  to,  those  prescribed  by  the  Consolidated  School  Law. 
Decided  June  11,  1902 

Scherer  &  Downs,  attorneys  for  appellant 
Blatchford  &  Sherman,  attorneys  for  respondents 

Skinner,  Superintendent 

This  is  an  appeal  by  the  above-named  appellant,  one  of  the  members  of 
the  board  of  education  of  union  free  school  district  3,  Orangetown,  Rockland 
rounty,  from  the  action  of  the  board  of  education  of  said  district  in  the 
adoption  of  a  resolution  relating  to  the  employment  of  teachers  in  the  school  in 
said  district. 

The  issue  has  been  joined  by  ser\'ice  of  the  usual  pleadings. 

There  is  some  conflict  as  to  the  precise  wording  of  the  resolution  complained 
of  herein,  the  appellant  alleging  that  at  a  meeting  held  on  April  3,  1902,  said 
board  of  education  adopted  the  following  resolution : 

That  no  teacher  shall  be  employed  in  the  high  school  department,  in  and 
for  union  free  school  district,  who  is  not  a  college  graduate,  unless  the  school 
system  committee  reports  to  the  board  that  it  is  impossible  to  secure  a  college 
graduate  for  such  work  or  position. 

The  respondents  contend  that  the  exact  wording  of  such  resolution  was  as 
follows : 

That  in  future  only  teachers  having  college  certificates  be  employed 
in  the  high  school  department,  unless  the  school  system  committee  reports  to  the 
board  that  such  teachers  can  not  be  obtained. 

In  the  disposal  of  this  appeal  I  shall  accept  the  contention  of  the  respondents 

as  to  the  precise  wording  of  such  resolution.     In  view  of  the  provisions  of  the 

"Consolidated  School  Law  there  can  be  no  question  but  that  the  resolution,  in  the 

form  contended   for  by  the  appellant,  would  be  illegal,  inasmuch  as  it  would 

seem  to  imply  that  a  college  graduate,  whether  the  holder  of  a  "  college  gradu- 


10/6  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

ate  certificate  "  or  not,  would  be  eligible  to  appointment ;  while  the  resolution, 
in  the  form  contended  for  by  the  respondents,  only  raises  the  question  as  to  the 
rij;ht  of  a  local  board,  in  the  absence  of  some  special  statute,  to  establish  quali- 
fications differing  from  those  contained  in  the  general  law  of  the  State. 

The  Consolidated  School  Law,  chapter  556  of  the  Laws  of  1894,  has  pre- 
scribed .the  qualilication  of  teachers  in  the  common  schools  of  this  State,  Sec- 
tion 3S  of  title  7  of  said  chapter  provides  as  follows: 

No  teacher  is  qualified  within  the  meaning  of  this  act,  who  does  not  pos- 
sess an  unannulled  diploma  granted  by  a  State  normal  school,  or  an  unrevoked 
and  iinaimullcd  certificate  of  qualification  given  by  the  Superintendent  of  Public 
Instruction,  or  an  unexpired  certificate  of  qualification  given  by  the  school  com- 
missioner within  whose  district  such  teacher  is  employed. 

In  addition  to  the  qualifications  enumerated  in  this  section,  the  State  Super- 
intendent of  Public  Instruction  is  authorized  by  section  10  of  title  i  of  the 
Consolidated  School  Law  to  "  issue  temporary  licenses  to  teach,  limited  to  any 
school  commissioner  district  or  school  district,  and  for  a  period  not  exceeding 
six  months  whenever,  in  his  judgment,  it  may  be  necessary  or  expedient  for 
him  to  do  so." 

The  holder  of  such  temporary  license  is  a  qualified  teacher  and  is  qualified 
to  teach  in  any  common  school  named  therein,  unless  restricted  by  some  statute. 

In  addition  to  the  qualifications  thus  enumerated  the  State  Superintendent 
is  allowed  by  said  section  10  of  title  i  of  the  Consolidated  School  Law,  in  his 
discretion,  "  to  indorse  a  diploma  issued  by  a  State  normal  school  or  a  certificate 
issued  by  the  state  superintendent  or  state  board  of  education  in  any  other 
state,  which  indorsement  shall  confer  upon  the  holder  thereof  the  same  privi- 
leges conferred  by  law  upon  the  holders  of  diplomas  or  certificates  issued  by 
State  normal  schools  or  by  the  State  Superintendent  of  the  State."  The 
bolder  of  such  indorsed  diploma  or  other  state  certificate  is  also  qualified  to 
tench  in  any  common  school  in  this  State,  unless  restricted  by  some  statute. 

Title  II  of  the  Consolidated  School  Law  also  provides  for  the  establishment, 
maintenance  and  government  of  teachers  training  classes  and  section  7  of  said 
title  provides  that: 

It  shall  be  the  duty  of  school  commissioners  .  .  .  under  the  direction 
of  the  Supermtendent,  to  examine  the  students  in  such  classes  and  to  issue 
teachers  certificate  to  such  as  show  moral  character,  fitness  and  scholastic  and 
professional  qualifications  worthy  thereof. 

The  powers  of  the  commissioner,  in  the  issuing  of  such  certificates,  how- 
ever, as  restricted  by  subdivision  5  of  section  13  of  title  5  of  the  Consolidated 
School  Law,  which  provides  that: 

^n.e?n!Th'1u''^''''  i"  ""^  .^^^es  where  certificates  are  issued  by  them,  shall  be 
fhe  S  neHntin'l  17  ^^f  J,gu\^^,ons  "  that  have  been  or  may  be  prescribed  by 
c-^L  Tr^H^^^^^^^^^^  •      •      •     and  to  grant  them  certifi- 

Su^rinteSdem         "  ^"  ''''  ^"™^'  ^^^'^  ^'''  °^  "^^>^  ^''  prescribed  by  the 


JUDICIAL  decisions:     teachers  certificates  1077 

In  accordance  with  the  provisions  of  this  subdivision  of  section  13  of  title 
5  of  the  ConsoHdated  School  Law,  a  form  of  certificate  has  been  prescribed  by 
the  State  Superintendent  of  Public  Instruction,  which  certificate,  in  accordance 
with  rules  and  regulations  established  by  him,  qualifies  the  holder  to  teach  in 
any  common  school  in  this  State,  unless  restricted  by  some  statute. 

The  Consolidated  School  Law  and  chapter  103 1  of  the  Laws  of  1895  make 
provisions  for  special  forms  of  licenses  to  be  issued  to  teachers  in  kindergarten 
schools,  teachers  of  music  and  teachers  in  the  primary  and  grammar  grades  of 
any  city  or  village  authorized  by  law  to  employ  a  superintendent  of  schools. 
And  the  holders  of  these  certificates  are  thereby  qualified  to  teach  in  any  schools 
enumerated  in  such  special  forms  of  certificates,  unless  prevented  by  some  statu- 
tory enactment. 

Thus  the  law-making  power  of  the  State  has  solemnly  declared  that  the 
holders  of  these  various  certificates  are  qualified,  and  may  legally  be  employed 
in  any  common  school  in  this  State,  except  as  it  has  limited  and  restricted  the 
right  of  the  holders  thereof  to  be  employed  in  certain  specified  schools  by  the 
provisions  of  chapter.  103 1  of  the  Laws  of  1895,  applying  to  every  city  and 
village  authorized  by  law  to  employ  a  superintendent  of  schools,  which  limita- 
tion and  restriction  it  is  not  necessary  to  consider  in  the  decision  of  this  appeal. 

Therefore,  the  question  presented  by  this  appeal  is,  whether  local  author- 
ities, in  the  absence  of  special  powers  conferred  upon  them  by  the  Legislature, 
have  a  right  to  exclude  from  employment  in  the  schools  under  their  charge  any 
class  of  persons  whom  the  State  in  its  sovereign  power  has  declared  eligible 
to  employment  therein. 

Primarily  the  duty  imposed  upon  every  board  of  education,  in  the  employ- 
ment of  a  teacher,  is  to  exercise  their  best  judgment  and  employ  the  best 
teacher  available  with  the  funds  at  their  .  disposal.  They  have  the  right  to 
make  individual  selections,  always  bearing  in  mind  this  supreme  duty  and  obli- 
gation, from  among  those  whom  the  law  has  declared  eligible  to  appointment 
and  employment.  They  can  not,  however,  erect  artificial  barriers  to  exclude 
any  particular  class  or  classes  from  employment;  neither  can  they  by  resolu- 
tion confine  their  selection  to  any  class  or  division  of  those  eligible  to  appoint- 
ment. 

Local  school  authorities  have  the  right  to  employ,  as  a  teacher,  any  person 
of  the  requisite  age  and  possessed  of  the  qualifications  recognized  by  the  statute; 
but  they  have  no  right  to  limit  the  class  of  persons  who  have  reached  the  required 
standing  of  learning  and  ability  to  teach  from  whom  the  teachers  for  the  school 
may  be  selected.  (See  decision,  James  E.  Morrison,  Acting  State  Superin- 
tendent; decision  3493,  April  i,  1886.) 

If  it  be  conceded  that  a  local  board  of  education  may  restrict  their  selection, 
by  resolution,  to  any  particular  class  or  division  of  those  whom  the  State  has 
declared  eligible  to  appointment,  then  it  must  be  conceded  that  they  have  the 
right  to  limit,  by  resolution,  the  selection  of  teachers  to  be  employed  by  them 
to  the  graduates  of  any  particular  college  or  school  or  institution.     And  if  the 


JO/f*  THE    L-MVERSITY    OF    THE    STATE    OF    NEW    VORK 

respondents  herein  have  the  power  to  declare  no  one  ehgible  to  employment 
as  a  teacher  in  the  schools  under  their  charge  unless  he  holds  a  college  graduate 
certificate,  it  must  be  conceded  that  they  have  a  right,  by  resolution,  to  declare 
that  no  one  shall  be  eligible  to  employment,  as  a  teacher  in  their  schools  who 
has  graduated  from  Columbia  University,  or  Union  University,  or,  by  way  of 
illustration,  they  may  say,  by  resolution,  that  no  one  shall  be  eligible  to  appoint- 
ment as  a  teacher  in  their  schools  who  has  not  graduated  from  some  institution 
in  which  they  are  financially  interested,  or  from  some  denominated  school  in 
whose  success  they  have  a  vital  interest. 

They  may,  with  equal  propriety,  if  allowed  to  disregard  the  broad  obliga- 
tions resting  upon  them  to  obtain  the  very  best  teacher  with  the  means  avail- 
able to  them,  prescribe,  by  resolution,  that  no  one  who  is  not  the  holder  of  a 
third  grade  certificate  shall  be  employed  in  the  schools  under  their  charge,  sub- 
stituting for  this  broad  duty  to  employ  the  very  best  teacher  available  the 
economic  idea  of  selecting  the  cheapest  teacher  available. 

Conceding  for  the  purpose  of  the  argument  that  this  board  is  actuated  by 
a  desire  to  secure  the  best  teacher  available,  and  therefore  have  limited  the 
power  of  selection  to  teachers  holding  that  class  of  certification  which,  in  their 
judgment,  represents  the  best  scholarship,  it  can  be  clearly  demonstrated 
that  the  result  of  the  broad  resolution  adopted  by  them  would  have  directly  the 
contrary  eflfect  under  certain  conditions. 

Their  resolution,  in  substance,  is  that  no  teacher  shall  be  employed  who 
does  not  hold  a  college  graduate  certificate.  A  college  graduate  certificate,  under 
the  rules  and  regulations  governing  the  issuing  of  such  certificates,  can  be 
issued  only  to  the  graduate  of  a  college  who,  subsequent  to  such  graduation,  has 
had  three  years'  successful  experience  in  teaching. 

No  examination  is  required  to  ascertain  scholarship;  no  particular  college 
from  which  he  must  have  graduated  is  specified;  no  limit  of  time  within 
which  he  should  have  graduated  from  such  institution  is  specified ;  no  grade  of 
school  is  specified  in  which  such  experience  in  teaching  must  have  been  obtained. 
All  these  are  in  the  simple  discretion  of  the  licensing  power. 

A  college  graduate  may  have  had  ten  years'  experience  in  teaching  prior 
to  graduating  from  a  college  ;  subsequent  to  such  graduation  he  may  take  a  sup 
plemcntary  course  in  the  New  York  State  Normal  College  at  Albany,  making  a 
special  study  of  the  principals  of  education  and  methods  founded  thereon,  and 
at  the  close  of  this  experience  and  preparation  along  the  special  line  of  work 
he  desires  to  follow  he  will  find  hmiself  barred  by  this  resolution,  and  be  ineli- 
gible to  appointment  as  a  teacher  in  the  schools  under  the  charge  of  this  board; 
and  that  too,  notwithstanding  the  fact  that  his  experience,  training  in  college 
and  special  training  in  the  State  Normal  College  especially  fit  him  for  the  work 
of  a  teacher.  In  other  words,  this  resolution  would  exclude  the  men  with  special 
training  and  large  experience,  and  make  possible  the  selection  of  a  candidate 
without  professional  training,  and  with  but  three  years'  experience  in  any  school 
of  OMV  grade  in  the  State.  This  resolution  would,  therefore,  eflfectually  preclude 
this  board's  selecting  the  better  equipped  man  of  the  two. 


JUDICIAL  decisions:     teachers  certificates  1079 

It  is  universally  conceded  by  educational  experts  that  professional  train- 
ing in  the  science  of  teaching  is  essential  to  the  best  type  of  teachers.  Early 
in  the  history  of  the  State  this  was  recognized.  Since  1834  the  State  has  made 
annual  appropriations  for  the  maintenance  of  teachers  training  classes  devoted 
exclusively  to  the  professional  training  of  teachers ;  since  1843  the  State  has 
maintained  teachers  institutes  for  the  professional  training  of  teachers ;  since 
1844  it  has  maintained  State  normal  and  training  schools  for  a  like  purpose; 
since  1895  it  has  maintained  training  schools  for  the  professional  training  of 
teachers  for  schools  in  the  cities  and  villages  of  the  State. 

Last  year  the  State  expended  $497,500  exclusively  for  the  professional 
training  of  teachers  in  this  State,  exclusive  of  the  amount  expended  in  the  insti- 
tute vi^ork  of  the  State.  Notw^ithstanding  this  munificent  expenditure  annually 
for  the  professional  training  of  teachers,  not  a  single  teacher  thus  trained 
would  be  eligible  as  a  teacher  in  this  school,  unless  he  happened,  which  is 
rarely  the  case,  in  addition  to  this  to  have  been  a  graduate  of  some  college  or 
university. 

It  must  be  remembered  that  if  this  board  of  education  can  adopt  this 
resolution,  thus  nullifying  the  work  of  the  State  in  the  training  of  its  teaching 
force,  every  other  school  board  in  the  State  may  adopt  a  like  resolution. 

This  question,  namely,  the  right  of  the  holder  of  a  certificate  issued  by 
competent  authority  to  be  employed  in  any  common  school  of  this  State  was 
before  the  Court  of  Appeals  in  the  case  of  Steinson  against  the  board  of  edu- 
cation of  New  York,  reported  in  165  N.  Y.,  page  434.  The  court  there  held  that 
a  state  certificate  was  conclusive  evidence  of  the  qualifications  of  a  teacher  to 
teach,  and  hence  his  employment,  without  the  provisional  certificate  required 
by  local  authorities,  was  authorized- 

The  adoption  of  this  resolution  would  make  the  holder  of  a  state  certificate 
ineligible  to  appointment  in  this  school,  notwithstanding  the  provisions  of  section 
10  of  title  I  of  the  ConsoHdated  School  Law  which  provides  as  follows: 

Every  such  certificate  so  granted  shall  be  deemed  and  considered  a  legal 
license  and  authority  to  teach  in  any  of  the  public  schools  of  this  State,  without 
further  examination  of  the  person  to  whom  the  same  was  granted,  any  provision 
of  lazv  in  conflict  zvith  this  provision  to  the  contrary  notwithstanding. 

Should  the  holder  of  such  a  certificate  present  himself  as  a  candidate  for 
appointment  to  this  board  of  education,  he  would  be  met  by  the  statement 
that  in  accordance  with  the  resolution  adopted  by  this  board  the  holder  of  such 
a  certificate  was  not  eligible  and  could  not  be  considered  as  a  candidate.  This 
resolution  was  adopted  by  a  vote  of  four  in  favor  to  two  opposed.  The  two 
members  of  this  board  not  voting  for  such  resolution  are  prevented  from  exer- 
cising their  judgment  as  to  the  qualification  of  any  candidate  presenting  him- 
self, not  holding  the  particular  certificate  required  by  this  resolution,  notwith- 
standing they  may  be  of  the  opinion  that  such  candidate  is  the  most  available 
\and  the  best  teacher  available.  Many  of  the  graduates  of  the  State  normal 
and  training  schools  receive  their  preliminary  education  in  the  public  district 


I080  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

schools.  They  are  acquainted  with  the  characteristics  of  the  children  attending 
such  schools,  and  having  been  born  and  reared  in  the  country,  thoroughly  under- 
stand their  environment.  They  know  the  best  method  of  teaching  and  controll- 
ing them.  After  receiving  their  preliminary  education  at  these  dilTerent  schools 
and  the  union  free  schools,  and  after  attending  a  State  normal  and  training 
school,  obtaining  therein  the  careful  training  and  technical  professional  knowl- 
edge essential  to  their  calling,  and  the  diploma  of  such  institution  certifying 
that  they  are  qualified  teachers,  it  can  not  be  contended  that  a  local  board  of 
trustees,  acting  upon  their  own  peculiar  notions,  have  the  right  to  disregard 
all  these  facts  and  the  certificate  of  qualification  permitting  them  to  teach, 
nor  can  it  be  held  that,  no  matter  how  high  the  standing  and  character  and  ability 
of  the  candidate,  no  matter  what  may  have  been  his  professional  training,  he  is 
not  eligible  to  employment  in  the  common  schools  of  this  State  unless  he  holds  the 
diploma  of  some  college. 

As  I  have  already  said,  it  is  the  duty  of  the  board  of  education  to  exercise 
their  best  judgment,  and  from  all  of  the  qualified  teachers  presenting  them- 
selves as  candidates  they  must  make  the  very  best  selection,  considering  the 
means  at  their  disposal,  and  they  can  not,  by  any  arbitrary  standard,  such  as 
the  adoption  of  the  resolution  under  discussion,  deprive  themselves  of  the  power 
to  exercise  this  judgment. 

The  charters  of  some  cities  in  this  State  contain  special  provisions  author- 
izing local  boards  of  education  to  establish  requirements  other  than,  and  in 
addition  to,  those  prescribed  by  the  Consolidated  School  Law.  The  existence 
of  such  legislation  would  seem  to  imply  that  without  it  boards  did  not  possess 
this  power,  and  I  am  clearly  of  the  opinion  that  in  the  absence  of  some  special 
act  of  the  Legislature,  clothing  a  local  board  with  the  power  to  declare  who 
shall  be  eligible  to  appointment  in  the  schools  under  their  charge,  all  certificates 
issued  in  accordance  with  the  provisions  of  the  Consolidated  School  Law  entitle 
the  holders  thereof  to  appointment  in  any  of  the  common  schools  of  this  State. 

The  appeal  herein  is  sustained. 
I  decide  that  the  resolution  adopted  by  the  board  of  education  of  union  free 
school  district  3,  Orangetown,  Rockland  county,  N.  Y.,  at  its  meeting  held  on 
April  3,  1902,  restricting  the  right  of  employment  in  the  schools  under  their 
charge  to  the  holders  of  college  graduate  certificates,  is  illegal  and  void,  and 
said  resolution  is  hereby  vacated. 


TEACHERS'  CONTRACTS 

5369 

In  the  matter  of  the  petition  of  the  board  of  education  of  union  free  school 
district  no.  4,  of  the  town  of  Salamanca,  for  the  revocation  of  the  teachers 
•    certificate  held  by  W.  M.  Clark. 

A  contract  between  a  teacher  and  the  board  of  trustees  expresses  reciprocal  relations. 
If  teachers  are  to  hold  trustees  bound  by  the  terms  of  such  contracts  they  in  turn 
must  expect  trustees  to  hold  such  contracts  equally  binding  upon  teachers. 

A  board  of  education  that  seeks  to  avoid  the  provisions  of  the  statute  through  an  illegal 
contract  will  not  be  sustained  in  its  efforts  to  inflict  severe  punishment  upon  the 
other  party  to  such  contract  for  a  breach  thereof.  A  board  of  education  seeking 
to  impose  the  severe  punishment  of  a  revocation  of  a  teachers  certificate  must  present 
its  petition  therefor  with  clean  hands. 

Decided  January  14,  1908 

Ansley  &  A-nsley,  attorneys  for  appellants 
Charles  A,  Machenry,  attorney  for  respondent 

Draper,  Commissioner 

The  respondent  is  a  graduate  of  the  Cortland  State  Normal  school  and 
therefore  legally  qualified  to  teach  in  the  public  schools  of  the  State  for  life. 
On  October  2,  1907,  he  contracted  with  the  board  of  education  of  union  free 
school  district  no.  4,  Salamanca,  to  teach  in  the  schools  of  that  district  from 
October  15th  for  the  remainder  of  the  current  school  year.  About  November 
1st  Mr  Clark  entered  into  negotiations  with  the  board  of  education  at  Harri- 
son, N-  Y.,  for  the  principalship  of  the  school  in  that  district  for  the  remainder 
of  the  current  school  year.  About  November  ist  Mr  Clark  placed  his  resig- 
nation in  the  possession  of  the  board  of  education  at  Salamanca.  A  meeting 
of  the  board  was  held  on  that  evening  and  the  board  voted  to  increase  the  salary 
of  respondent  after  January  i,  1908,  if  he  would  remain  in  their  employ  or  if 
such  proposition  was  not  satisfactory  that  the  board  would  release  him  when 
Mr  Clark  or  when  the  board  were  able  to  obtain  a  permanent  teacher  to  take 
Mr  Clark's  place.  The  action  therefore  taken  by  the  board  was  that  if  Mr 
Clark  was  not  willing  to  remain  at  Salamanca  and  would  furnish  a  substitute 
the  board  would  release  him.  Mr  Clark  left  Salamanca  on  Thursday  evening 
of  November  7th  and  swears  that  he  devoted  Friday  and  Saturday  in  search 
of  a  suitable  substitute  and  that  he  applied  to  three  diflFerent  teachers  agencies 
for  such  substitute.  While  it  appears  that  Mr  Clark  made  an  honest  effort  to 
obtain  a  substitute  he  did  not  succeed  in  getting  one  and  he  was  not  therefore 
released  from  the  obligation  of  completing  his  contract  at  Salamanca. 

[1081] 


108>2  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

A  contract  between  a  teacher  and  a  board  of  trustees  expresses  reciprocal 
relations  and  if  teachers  are  to  hold  trustees  bound  by  the  terms  of  such  con- 
tracts they  in  turn  must  expect  trustees  to  hold  such  contracts  equally  binding 
upon  teachers.  A  teacher  should  not,  therefore,  except  for  cause,  vacate  a  posi- 
tion or  refuse  to  complete  a  term  covered  by  the  contract  unless  released  from 
that  obligation  by  the  board  of  trustees.  The  law  specifically  provides  that  failure 
to  complete  a  term  covered  by  contract  shall  be  sufficient  ground  for  revocation 
of  the  certificate  of  the  offending  teacher.  It  is  fortunate  for  respondent  that  this 
proceeding  is  not  to  be  determined  upon  his  conduct  in  vacating  the  position 
in  question.  There  is  another  element  which  must  be  regarded  as  the  controll- 
ing factor  in  the  determination  of  this  proceeding. 

The  moving  papers  of  appellant  establish  one  point  which  seems  to  me  to 
estop  the  board  of  education  from  invoking  the  power  of  this  Department  to 
impose  the  drastic  punishment  upon  respondent  of  revoking  his  diploma  and 
disqualifying  him  from  teaching  in  the  public  schools  of  the  State.  The  board 
of  education  inserted  in  its  written  contract  with  respondent  Clark  the  following 
provision :  "  It  is  also  agreed  for  value  received  that  it  shall  always  be  at  the 
option  of  the  board  of  education  to  remove  with  or  without  cause  stated,  the 
said  teacher  .  .  ."  The  Consolidated  School  Law  specifically  provides  that 
no  teacher  shall  be  employed  for  a  shorter  time  than  ten  weeks  except  to  com- 
plete an  unexpired  term  and  that  no  teacher  shall  be  removed  during  a  term 
of  employment  except  for  neglect  of  duty,  incapacity  to  teach,  immoral  con- 
duct, or  other  sufficient  cause.  The  statutes  provide  that  the  removal  of  a  teacher 
by  a  board  of  education  for  cause  is  always  reviewable  by  the  Commissioner  of 
Education. 

It  is  not  possible  for  a  board  of  education  to  override  the  specific  provi- 
sions of  the  statutes  by  special  contract.  The  board  seeks  by  inserting  this  pro- 
vision in  its  written  contracts  to  nullify  not  only  that  provision  of  law  providing 
that  contracts  shall  not  be  made  for  a  shorter  time  than  ten  weeks  but  also  that 
provision  of  law  providing  that  a  teacher  shall  be  dismissed  for  cause  only.  This 
feature  of  the  contract  in  question  is  therefore  clearly  illegal. 

This  case  presents  the  unusual  situation  of  a  party  who,  seeking  to  avoid 
the  provisions  of  the  statutes  through  an  illegal  contract,  is  now  petitioning  for 
the  mfliction  of  severe  punishment  upon  the  other  party  to  such  contract  for  a 
breach  thereof.  The  idea  is  repugnant  to  all  principles  of  equity  and  to  com- 
mon fairness.  A  board  of  education  seeking  to  impose  the  severe  punishment 
of  revocation  of  a  teachers  certificate  must  present  its  petition  therefor  with 
clean  hands. 

The  petition  herein  is  dismissed. 


JUDICIAL  decisions:    teachers'  contr.\cts  1083 

5150 

In  the  matter  of  the  appeal  of  Thomas  A.  Killips  v.  Patrick  Hendrick  as  sole 
trustee  of  school  district  no.  9,  town  of  Lima,  county  of  Livingston. 

The  law  requires  teachers'  contracts  to  be  in  writing  and  gives  its  favor  to  such  as  are. 
Evidence  to  change  this  construction  of  the  written  contract  might  be  considered 
but  the  burden  of  proof  is  upon  the  party  offering  such  evidence.  For  vaHd  reasons 
trustees  may  relieve  a  teacher  from  the  work  he  contracted  to  perform  but  in  extending 
such  relief  the  right  to  reduce  his  salary  does  not  follow.  Continuing  a  teacher  in 
the  school  without  his  consent  to  a  modification  of  the  contract,  renders  the  district 
liable  for  the  full  compensation  provided  in  such  contract.  Trustees  will  not  be 
permitted  to  resort  to  technicalities  for  the  purpose  of  withholding  from  a  teacher 
any  portion  of  the  salary  to  which  he  is  honestly  entitled. 

Decided  November  17,  1904 

Albert  H.  Stearns,  attorney  for  appellant 
George  W.  Atwell,  attorney  for  respondent 

Draper,  Commissioner 

This  is  an  appeal  brought  to  recover  $183.66  with  interest  thereon  from 
June  I,  1904,  for  balance  of  salary  due  appellant  for  teaching  in  school  district 
no.  9,  town  of  Lima,  county  of  Livingston,  during  the  school  year  1903-4. 

The  appellant  alleges  that  in  August  1903  he  made  a  contract  with  Patrick 
Hendrick,  sole  trustee  of  school  district  no.  9,  town  of  Lima,  county  of  Living- 
ston, to  teach  in  the  school  of  said  district  for  a  period  of  thirty-six  weeks. 
The  respondent  acknowledges  that  such  contract  was  made  for  the  said  thirty- 
six  weeks.  There  is  no  dispute,  therefore,  as  to  the  period  of  time  for  which 
said  appellant  is  entitled  to  receive  compensation. 

It  is  alleged  by  the  appellant  that  under  the  terms  of  his  contract  he  was 
to  receive  a  weekly  salary  of  $14.  The  respondent  claims  that  the  appellant 
was  to  receive  but  $11  per  week  for  his  services.  The  respondent  admits,  how- 
ever, that  the  contract  for  1903-4  provided  for  the  same  salary  which  was  paid 
the  appellant  for  teaching  in  such  district  during  the  school  year  1902-3.  The 
respondent  claims  that  under  the  provisions  of  the  contract  for  the  school  year 
1902-3  the  appellant  was  to  receive  a  salary  of  $11  per  week  for  teaching  and 
a  compensation  of  $3  per  week  for  taking  care  of  the  furnace.  The  appellant 
makes  the  contract  for  the  school  year  1902-3  a  part  of  his  pleadings  in  this 
appeal.  Such  contract  provides  that  Thomas  A.  Killips,  who  is  the  appellant 
in  this  appeal,  is 

"  To  teach  the  public  school  of  said  district  for  the  term  of  36  consecutive 
weeks,  commencing  September  8,  1902,  at  a  weekly  compensation  of  14  dollars 

and cents  payable  at  the  end  of  each  thirty  days  during  the  term  of 

such  employment.  And  the  board  of  trustees  of  said  district  hereby  contract 
to  employ  said  teacher  for  said  period  at  the  said  rate  of  compensation,  pay- 
able at  the  time  herein  stated." 

The  following  indorsement  was  made  upon  such  contract :  "  This  contract 
shall  call  for  $15  per  week  if  said  teacher  teaches  in  the  South  Street  school 
building.    It  also  provides  for  care  of  furnace  by  said  teacher." 


1084  THE    UNIVERSITY   OF   THE    STATE    OF    NEW    YORK 

The  said  Killips  taught  during  the  school  year  1902-3  in  the  building  in  said 
district  described  in  such  contract  as  the  "  South  Street  school  building  "  and 
was  paid  by  order  of  said  Hendrick  as  the  contract  provided  $15  per  week. 
Tliere  is  nothing  in  this  contract  which  could  possibly  be  construed  to  mean 
that  the  services  of  said  Killips  for  teaching  and  for  taking  care  of  the  furnace 
were  to  be  measured  separately  and  to  be  paid  for  accordingly.  The  fair,  honest 
interpretation  of  the  written  contract  is  that  Killips  was  hired  to  teach  the 
school  at  $14  per  week  and  if  employed  in  the  South  Street  building,  at  $15 
per  week,  and  that  he  was  also  to  take  care  of  the  furnace. 

The  law  requires  teachers'  contracts  to  be  in  writing  and  gives  its  favor 
to  such  as  are.  Evidence  to  change  this  construction  of  the  written  contract 
might  be  considered,  but  the  burden  of  proof  in  such  case  is  upon  the  respond- 
ent herein.  The  respondent  has  failed  to  present  such  proof  and  the  above 
interpretation  of  such  contract  must  be  accepted. 

The  respondent  admits  that  he  "  engaged  "  the  appellant  Killips  to  teach 
the  school  in  said  district  no.  9,  town  of  Lima,  but  claims  that  he  agreed  to 
pay  him  only  $11  per  week  and  that  he  positively  refused  to  make  any  contract 
with  him  in  relation  to  the  care  of  the  furnace.  The  said  respondent  acknowl- 
edges that  he  refused  to  give  to  said  Killips  a  written  contract  as  section  17, 
article  5,  title  15  of  the  Consolidated  School  Law  provides-  The  provisions  of 
this  law  are  mandatory  and  it  was  the  duty  of  Trustee  Hendrick  to  have  com- 
plied with  it.  His  refusal  to  perform  this  duty  is  the  cause  for  this  misunder- 
standing and  this  appeal. 

The  said  Trustee  Hendrick  directed  the  appellant  Killips  to  report  at  the 
schoolhouse  to  open  school  on  the  morning  of  September  8,  1903,  but  stated 
that  school  would  probably  not  open.  Killips  reported  but  the  school  was  not 
opened.  Trustee  Hendrick  persistently  refused  to  open  school  and  on  October 
13-  1903.  the  State  Superintendent  of  Public  Instruction  opened  such  school 
and  placed  said  Killips  in  charge  as  the  principal  teacher.  On  October  15,  1903, 
the  State  Department  of  Public  Instruction  issued  an  order  directing  said 
Kiilips  to  open  and  maintain  the  school  in  said  district  no.  9,  Lima,  and  fixed  his 
compensation  at  $14  per  week.  This  order  of  the  State  Department  also  pro- 
vided that  said  Killips  should  take  care  of  the  furnace.  A  copy  of  such  order 
was  served  on  Trustee  Hendrick.  For  two  months  Hendrick  as  trustee  paid 
Killips  $14  per  week.  He  thus  recognized  the  contract  of  Killips  as  calling  for 
a  compensation  of  $14  per  week.  If  he  had  not  contracted  with  Killips  at  that 
salar}-,  why  did  he  pay  it  for  two  months?  Taking  into  consideration  these 
facts :  The  contract  of  Killips  for  the  year  1902-3  which  was  unquestionably  at 
$14  per  week;  the  general  understanding  between  Hendrick  and  Killips  that 
the  latter  should  teach  during  1903-4  at  the  same  compensation  which  he  re- 
ceived during  the  previous  year;  the  fact  that  Killips  was  placed  in  such  school 
by  an  order  of  the  State  Superintendent  at  a  salary  of  $14  per  week;  and  the 
further  fact  that  Hendrick  accepted  the  services  of  Killips  for  two  months, 


JUDICIAL  decisions:     teachers'  contracts  1085 

.from  October  13,  1903.  to  December  13,  1903,  at  $14  per  week,  the  conclusion 
is  irresistible  that  Killips  was  employed  at,  and  is  entitled  to  receive,  a  salary 
of  $14  per  week. 

If  valid  reasons  existed  for  relieving  Killips  of  any  of  the  work  which  he 
had  contracted  to  perform,  the  trustee  or  district  could  undoubtedly  have  so 
relieved  him;  but  in  extending  such  relief  the  right  to  reduce  his  salary  does 
not  follow. 

It  was  not  until  January  13,  1904,  or  three  months  from  the  date  on  which 
Killips  began  to  teach  that  it  occurred  to  Hendrick  that  under  the  terms  of 
the  contract  Killips  was  entitled  to  only  $11  per  week.  It  was  not  within  the 
power  of  Hendrick  to  modify  the  contract  at  that  time  without  the  consent 
of  Killips.  Killips  might  have  been  dismissed  by  the  trustee  for  sufficient  cause, 
but  his  continuance  in  the  school  without  his  consent  to  a  modification  of  the 
contract,  renders  the  district  liable  for  the  full  compensation  provided  in  such 
contract. 

The  appellant  states  in  his  appeal  that  he  has  received  from  the  district 
payment  on  the  contract  in  question  to  the  amount  of  $390.  But  in  his  reply 
to  the  respondent's  answer  he  claims  an  error  was  made  in  stating  such  amount 
and  asks  the  privilege  of  correcting  such  error.  He  states  in  his  reply  that  the 
amount  he  did  receive  was  $320.34.  The  appellant  states  that  he  did  not  keep 
a  personal  written  account  of  the  payments  made  him  but  relied  on  the  records 
of  stubs  in  the  school  register.  He  also  alleges  that  the  school  register  was  in 
the  hands  of  the  trustee  at  the  time  he  made  his  appeal  and  that  such  trustee 
refused  to  permit  him  to  examine  the  register  to  obtain  information  from  such 
records.  If  an  error  was  made  in  stating  this  amount,  it  is  proper  that  such 
error  should  be  corrected.  The  appellant  shows  the  dates  on  which  orders  in 
his  behalf  were  issued  on  the  district  collector  and  on  the  supervisor  of  the 
town  and  gives  the  amounts  of  each  of  such  orders.  The  total  of  such  amounts 
appears  to  be  $320.34. 

The  respondent  has  not  met  this  question  in  such  a  way  as  a  public  officer 
is  bound  to  do.  The  records  of  his  office  should  show  what  payments  he  has 
made  to  the  appellant.  The  records  of  the  office  of  collector  of  the  district 
and  of  the  supervisor  of  the  town  should  show  the  amounts  which  each  of  these 
officers  has  respectively  paid  the  appellant.  The  respondent  could  easily  have 
shown  what  the  facts  are  on  this  point.  The  conduct  of  trustees  in  dealing 
with  teachers  must  be  open,  fair  and  honest.  Trustees  will  not  be  permitted 
to  resort  to  technicalities  for  the  purpose  of  withholding  from  a  teacher  any 
portion  of  the  salary  to  which  he  is  honestly  entitled.  If  the  facts  on  this  point 
are  not  completely  presented,  the  responsibility  for  failure  to  set  the  matter 
right  rests  upon  the  respondent. 

The  respondent  claims  that  he  paid  the  appellant  $10  more  than  was  agreed 

-upon  for  taking  care  of  the  librar}-  and  asks  that  such  sum  be  deducted  from  the 

amount  of  salary  still  due  appellant.     The  appellant  claims  that  he  agreed  to 

take  care  of  the  library  and  that  Trustee  Hendrick  agreed  to  pay  him  $40  for 


I086  THE    UNIVERSITY    OF   THE    STATE    OF    NEW    YORK 

such  services.  The  records  show  that  respondent  did  pay  him  that  amount. 
The  respondent  raises  this  question  and  the  burden  of  proof  falls  upon  him.  He 
has  failed  to  sustain  his  position. 

It.  therefore,  appears  quite  clear  that  under  the  terms  of  the  contract  in 
question  the  appellant  is  entitled  to  salary  for  services  for  the  period  of  36 
weeks  at  $14  per  week  or  $504.  It  also  appears  that  he  has  received  in  pay- 
ments on  such  contract  $320.34  and  that  there  was  due  to  him  June  i,  last,  a 
balance  of  $183.66. 

The  appeal  herein  is  sustained. 

It  is  therefore  ordered,  That  Patrick  Hendrick,  trustee  of  school  district 
no.  9,  town  of  Lima,  county  of  Livingston,  be,  and  he  hereby  is,  ordered  and 
directed  to  pay  to  the  said  Thomas  A.  Killips  the  sum  of  $183.66  with  interest 
thereon  at  six  per  cent  from  June  i,  1904.  If  the  said  district  no.  9,  Lima,  has 
not  the  available  funds  for  this  purpose  then  the  said  Trustee  Hendrick  is  also 
hereby  ordered  and  directed  to  raise  the  necessary  funds  therefor  by  levying 
a  tax  upon  the  taxable  property  of  the  district  as  provided  by  the  Consolidated 
School  Law. 


5143 

In  the  matter  of  the  appeal  of  Clara  Foster  v.  board  of  education  of  union  free 
school  district  no.    i,  town  of  Richfield,   Otsego  county. 

While  the  law  does  not  ignore  a  verbal  contract,  it  does  not  favor  one.  The  recorded 
action  of  the  board  reappointing  a  teacher  would  have  bound  the  board,  if  the  teacher 
had  taken  any  steps  which  clearly  indicated  to  the  board  an  acceptance  of  the  position. 
The  teacher  having  applied  for  another  position  without  accepting  the  first  one,  the 
whole  question  of  the  employment  and  the  disposition  of  her  services  for  the  ensuing 
year  was  in  abeyance  and  that  question  never  passed  out  of  the  realm  of  negotiation 
and  uncertainty  into  the  status  of  established  and  legal  rights. 

Decided  September  22,  1904 

Draper,  Commissioner 

The  appellant  was  a  teacher  in  the  Richfield  Springs  High  School  for  the 
year  1903-4.  and  about  May  i,  1904,  made  application  for  reappointment,  which 
the  board  of  education  approved.  The  board  followed  this  action  by  sending  to 
the  appellant  an  unexecuted,  written  contract  which  she  was  to  sign  and  return 
She  had  notice  that  if  she  desired  the  place,  the  contract  should  be  signed  and 
returned  by  the  15th  of  May.  This  was  not  done,  but  appellant  claims  that  she 
was  advised  by  the  president  of  the  board  that  it  would  make  no  difference  if 
slie  took  more  time.  In  this  statement  the  president  of  the  board  sustains  her. 
I  here  is,  perhaps,  some  weight  in  the  fact  that  this  official  ceased  to  be  a  member 
of  the  board,  by  reason  of  a  different  choice  at  the  ensuing  annual  school  meet- 
ing. The  reason  for  the  delay  on  the  part  of  the  appellant  in  signing  and  return- 
ing the  agreement  appears  in  the  fact  that  she  desired  a  different  position  at  a 


JUDICIAL    DECISIOXS:      TEACHERS'    CONTRACTS  IO87 

higher  salary,  for  which  she  made  application,  which  was  refused,  although  the 
statement  is  made  that  she  was  told  that  she  could  have  the  position  she  specially 
desired  at  the  same  salary  she  had  received  before.  In  time  appellant  notified 
the  board  that  she  would  prefer  to  take  the  old  position  rather  than  the  new  one 
at  the  same  salar}\  While  this  was  going  on  the  board  filled  the  old  position. 
Appellant  has  since  tendered  the  board  the  written  agreement,  signed  by  her, 
but  the  board  has  refused  to  execute  it  on  behalf  of  the  district.  She  claims  the 
position  for  the  present  year,  and  the  board  resists  the  claim. 

No  written  contract  has  been  executed  between  the  parties.  While  the  law 
does  not  ignore  a  verbal  contract,  it  does  not  favor  one.  The  recorded  action  of 
the  board,  reappointing  the  teacher,  would  have  bound  the  board,  if  the  teacher 
had  taken  any  steps  which  clearly  indicated  to  the  board  an  acceptance  of  the 
position.  If  it  is  claimed  that  because  the  teacher  applied  for  the  position  and 
the  board  voted  that  she  should  have  it,  this  constituted  a  contract  it  must  be 
said  that  the  subsequent  course  of  the  teacher  was  sufticient  to  overthrow  the 
belief  that  she  considered  herself  bound.  If  it  be  said  that  she  had  the  right 
to  rely  upon  the  statement  of  the  president  of  the  board  that  she  might  have 
more  time  in  which  to  accept  the  position,  it  must  also  be  said  that  she  clearly 
understood  that  she  had  not  accepted  and  that  there  was  no  existing  contract 
between  the  parties. 

It  can  hardly  be  successfully  maintained  that  she  had  a  right  to  the  position, 
that  the  board  was  bound  and  she  was  not,  while  she  was  negotiating  for  another 
place  at  higher  pay.  If  she  is  a  good  teacher,  as  I  have  no  reason  to  doubt,  it 
is  to  be  regretted  that  the  negotiations  were  not  more  free  and  open  and  that 
the  board  did  not  extend  the  time  for  accepting  the  first  position  until  she  had 
rejected  the  other;  but  it  can  hardly  be  said  that  they  did  so  or  that  in  view  of 
all  the  circumstances,  they  became  bound  to  her  in  any  way.  She  had  applied  for 
the  other  place  without  accepting  the  first  one  and  her  second  application  was 
in  abeyance.  This  being  so,  the  whole  question  of  the  emplopnent  and  the  dis- 
position of  her  services  for  the  ensuing  year  was  in  abeyance,  and  that  question 
never  passed  out  of  the  realm  of  negotiation  and  uncertainy  into  the  status  of 
established  and  legal  rights. 

It  follows  that  the  appeal  must  be  dismissed. 


4767 

In  the  matter  of  the  appeal  of  Uriah  C.  Gregg  v.  Anson  S.  Thompson,  sole 
trustee,  school  district  no.  8,  Ellisburg,  Jefferson  county. 

Trustees  of  school  districts  have  the  legal  authority  to  employ  a  person  duly  qualified 
under  the  school  law,  to  teach  in  their  respective  districts  for  the  entire  school  year, 
or  for  any  less  term  or  terms  of  time  during  the  school  year,  not  less  than  ten  weeks 

■"  -  unless  it  is  for  the  purpose  of  filling  out  an  unexpired  term  of  school.  Such  contracts 
should  be  reduced  to  writing  and  signed  by  the  parties. 


I0S8  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    VOKK 

It  is  well  settled  that  a  written  contract  supersedes  all  oral  negotiations  or  stipulations 
between  the  parties  thereto  which  preceded  or  accompanied  its  execution,  except  where 
the  contract  has  been  procured  through  duress,  fraud  or  undue  influence;  that  parol 
evidence  is  not  admissible  to  contradict  or  subsequently  vary  a  written  contract. 

Decided   May  26,    1899 

Skinner,  Supcrintcndetit 

This  is  an  appeal  from  the  action  of  Anson  S.  Thompson  as  sole  trustee  of 
school  district  8,  Ellisburg,  Jefferson  county,  in  dismissing  the  appellant  as 
teacher  in  tlie  school  in  such  district  during  the  course  of  a  term  of  employment 
without  sutiicient  cause. 

The  appellant  alleges,  as  the  grounds  for  bringing  his  appeal,  that  he  was 
employed  by  said  Trustee  Thompson  to  teach  the  school  in  said  district  for  the 
term  of  thirty-six  weeks  during  the  school  year  of  1898-99  at  the  compensation 
of  $10  per  week,  and  was  disinissed  after  teaching  twenty-six  weeks,  without 
sufficient  cause. 

The  appeal  herein  is  quite  lengthy  and  contains  much  that  is  not  material 
in  the  consideration  and  disposition  of  the  question  presented  for  my  decision, 
namely,  whether  Trustee  Thompson  employed  the  appellant  to  teach  in  the 
school  in  said  district  8,  Ellisburg,  for  thirty-six  weeks  during  the  school  year 
of  1898-99  as  claimed  by  the  appellant.  Trustee  Thompson,  in  his  answer  to 
the  appeal  herein  states  that  he  entered  into  two  contracts  in  writing  with  the 
appellant  during  the  present  school  year,  one  for  the  period  of  sixteen  weeks, 
and  the  other  for  the  period  of  ten  weeks,  at  a  compensation  of  $10  per  week; 
that  on  the  termination  of  the  term  of  eiriployment  of  the  appellant  of  the  ten 
weeks  mentioned  in  the  second  contract,  he  informed  appellant  that  he  did  not 
desire  to  employ  him  any  longer;  that  he  never  made  any  other  or  different 
agreement  with  the  appellant  to  teach  in  the  school  in  said  district,  other  than 
the  said  two  contracts,  copies  of  which  are  annexed  to  his  answer  and  marked 
"  Exhibits  A  and  B."  Trustee  Thompson  specifically  denies  the  allegations 
contained  in  the  appeal  herein,  that  April  3,  1898,  or  at  any  other  time,  he 
employed  the  appellant  as  a  teacher  in  the  school  in  said  district  for  the  then 
ensuing  school  year  at  a  salary  of  $10  per  week,  for  thirty-six  or  thirty-eight 
weeks  as  he  said  Thompson  should  determine,  and  which  he  did  determine  to  be 
thirty-six  weeks. 

It  is  established  by  the  proofs  filed  herein  that  August  3,  1898,  the  appellant 
applied  to  Trustee  Thompson  for  employment  as  a  teacher  in  the  school  in  said 
district  8;  that  August  5,  1898,  the  said  parties  again  met  and  a  further  con- 
versation and  negotiations  were  had  which  resulted  in  the  execution  of  a  con- 
tract in  writing,  made  in  duplicate,  dated  August  3,  1898,  whereby  the  appellant 
contracted  to  teach  the  school  in  district  8,  Ellisburg,  Jefferson  county,  for  the 
term  of  sixteen  consecutive  weeks,  commencing  September  5,  1898,  at  a  weekly 
compensation  of  $10,  payable  at  the  end  of  each  thirty  days  during  the  term  of 
employment,  and  Trustee  Thompson  contracted  to  employ  the  appellant  for  said 
period  at  the  said  rate  of  compensation,  payable  at  the  times  therein  stated  •  that 


JUDICIAL    DECISIONS:      TEACHERS'    CONTRACTS  I089 

one  copy  of  the  contract  was  signed  by  the  appellant  and  retained  by  Trustee 
Thompson,  and  one  copy  was  signed  by  Trustee  Thojnpson  and  retained  by  the 
appellant;  that  said  contract  was  performed  by  the  parties  thereto,  the  said 
term  closing  on  or  about  December  23,  1898,  when  the  school  was  closed  for 
the  holiday  vacation;  that  January  10  and  14,  1899,  respectively,  the  parties 
hereto  met  and  January  14,  1899,  a  second  contract  was  executed  in  writing  and 
in  duplicate,  dated  January  11,  1899,  whereby  the  appellant  contracted  to  teach 
the  school  in  said  district  for  the  term  of  ten  consecutive  weeks,  commencing 
January  11,  1899,  at  a  weekly  compensation  of  $10,  payable  at  the  end  of  each 
thirty  days  during  the  term  of  employment,  and  Trustee  Thompson  contracted  to 
employ  the  appellant  for  said  period  at  the  said  rate  of  compensation,  payable 
at  the  terms  therein  stated ;  that  one  copy  of  the  contract  was  signed  by  the 
appellant  and  retained  by  Trustee  Thompson,  and  one  copy  was  signed  by 
Trustee  Thompson  and  retained  by  the  appellant;  that  said  contract  was  per- 
formed by  the  parties  thereto  except  that  the  appellant  had  two  days'  service 
to  make  up;  that  April  10,  1899,  the  appellant,  Trustee  Thompson  and  a  Mr 
Littlefield  being  in  the  schoolhouse.  Trustee  Thompson  stated  to  appellant  that 
he  had  employed  Mr  Littlefield  to  teach  the  school,  but  he  would  permit  the 
appellant  to  teach  for  that  day  and  the  day  following  to  make  up  the  two  days ; 
that  on  the  morning  of  April  12,  1899,  the  appellant.  Trustee  Thompson  and 
Mr  Littlefield,  being  in  the  schoolhouse,  said  Thompson  said  "  Mr  Littlefield,  I 
place  you  in  charge  of  the  school  and  all  the  teachers  in  the  school,"  and  to  the 
pupils,  "  You  are  to  recognize  Mr  Littlefield  as  your  teacher,  obey  his  orders 
and  none  others";  that  the  appellant  said  to  Thompson  that  he  (appellant)  was 
there  to  teach  the  remainder  of  his  time,  and  requested  Thompson  to  remove 
the  obstruction  he  had  placed  to  prevent  him  (the  appellant)  from  doing  his 
work ;  that  Thompson  refused  and  said  to  appellant,  "  You  fix  up  your  register 
and  I  will  pay  you  for  the  time  you  have  taught  for  which  I  owe  you,"  and 
thereupon  the  appellant  left  the  schoolhouse;  that  said  Littlefield  is  teaching 
in  the  school  in  said  district,  and  the  appellant  is  teaching  in  school  district  17, 
Ellisburg. 

The  appeal  was  filed  May  11,  1899. 

Under  the  Consolidated  School  Law  of  1894,  the  trustees  of  school  districts 
are  empowered  to  contract  with  and  employ  all  teachers  in  the  district  school 
or  schools  as  are  qualified  under  the  provisions  of  said  law,  and  to  designate 
the  number  of  teachers  to  be  employed;  to  determine  the  rate  of  compensation 
to  be  paid  to  each  teacher  respectively,  and  to  determine  the  terms  of  school  to 
be  held  in  their  respective  districts  during  the  school  year.  All  trustees  of  such 
districts  when  employing  any  teacher  to  teach  in  any  of  said  districts  shall,  at 
the  time  of  such  employment,  make  and  deliver  to  such  teacher,  or  cause  to  be 
made  and  delivered,  a  contract  in  writing,  signed  by  said  trustee  or  trustees, 
or  by  some  person  duly  authorized  by  said  trustee  or  trustees  to  represent  him 
-or  them  in  the  premises,  in  which  the  details  of  the  agreement  between   the 

35 


I090  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

parties,  and  particularly  the  length  of  the  term  of  employment,  the  amount  of 
compensation  and  the  time  or  times  when  such  compensation  shall  be  due  and 
payable,  shall  be  clearly  and  definitely  set  forth. 

Under  the  aforesaid  provisions  of  the  school  law,  Trustee  Thompson  had 
the  legal  authority  to  employ  the  appellant  as  a  teacher  in  the  school  in  district 
8,  for  the  entire  school  year,  or  for  any  less  term  or  terms  of  time  during  such 
school  year,  not  less  than  ten  weeks,  unless  it  was  for  the  purpose  of  filling  out 
an  unexpired  term  of  school;  and  when  any  such  contract  was  entered  into,  it 
must  be  reduced  to  writing  and  signed  by  the  appellant  and  said  trustee.  A 
contract  was  made  in  writing  between  the  parties  August  5,  1898,  for  a  tenn 
of  employment  of  the  appellant  as  a  teacher  for  16  weeks  from  September  3, 
1898,  at  a  compensation  of  $10  per  week,  and  January  11,  1899,  a  second  con- 
tract was  made  for  a  like  employment  of  appellant  for  a  term  of  ten  weeks 
from  January  11,  1899,  at  a  compensation  of  $to  per  week. 

It  is  well  settled  by  the  courts  of  this  State  that  a  written  instrument  super- 
sedes all  oral  negotiations  or  stipulations  which  preceded  or  accompanied  its  exe- 
cution, except  where  the  instrument  has  been  procured  through  duress,  fraud  or 
undue  influence ;  that  parol  evidence  is  not  admissible  to  contradict  or  substan- 
tially vary  a  written   contract. 

Admitting,  for  the  purposes  of  argument  only,  that  Trustee  Thompson,  in 
the  conversation  and  negotiations  had  with  the  appellant,  prior  to  the  execution 
of  the  written  contract  August  5,  1898,  said  that  he  would  employ  the  appellant 
for  the  present  school  year,  such  statement  was  merged  in,  and  superseded  by, 
the  written  contract  then  made,  and  parol  evidence  is  not  admissible  to  contra- 
dict or  vary  such  written  contract.  The  same  is  true  relative  to  the  written 
contract  between  the  parties,  dated  January  11,  1899. 

The  contention  of  the  appellant  that  he  was  dismissed  as  a  teacher  in  the 
school  in  district  8,  EUisburg,  in  the  course  of  a  term  of  employment  is  not 
sustained. 

The  appeal  herein  is  dismissed. 


3768 

In  the  matter  of  the  appeal  of  Alice  A.  Tillson  v.  Isaac  McNeeley,  sole  trustee 
of  school  district  no.  4,  of  the  town  of  Forestburgh,  county  of  Sullivan. 

A  person  claims  to  have  been  employed  as  a  teacher  by  a  verbal  contract  for  a  term  of 
si.xteen  weeks.  The  school  trustee,  with  whom  the  contract  was  alleged  to  have  been 
made,  denies  any  agreement  whatever.  The  person  averring  the  employment  was  not 
allowed  to  teach  the  school.  On  an  appeal  of  this  nature,  where  the  parties  swear  to 
statements  which  are  diametrically  opposed  to  each  other,  the  preponderance  of  proof 
must  be  with  the  appellant,  or  the  appeal  can  not  be  sustained. 

The  alleged  contract  never  having  been  fulfilled,  the  appellant's  claim  would  be  for  damages 
upon  a  breach  of  contract. 


JUDICIAL  decisions:     teachers    contracts  1091 

It  is  not  the  policy  of  the  law  to  require  the  State  Superintendent  of  Public  Instruction  to 
measure  damages  for  a  breach  of  contract  when  the  extent  thereof  is  altogether 
indefinite  and  uncertain.    The  remedy  is  to  be  sought  by  an  action  in  a  local  court. 

Decided  March  23,  1889 

John  P.  Roosa,  attorney  for  appellant 
T.  F.  Bush,  attorney  for  respondent 

Draper,  Superintendent 

The  appellant  taught  school  in  the  district  above  named  from  September 

1888,  to  the  13th  of  February  1889.  She  claims  that  she  was  employed  by  the 
trustee  to  teach  a  term  of  sixteen  weeks,  commencing  on  the  14th  of  February 

1889,  at  $8.50  per  week.  She  states  that  the  agreement  to  this  effect  was  made 
in  conversations  between  the  trustee  and  herself  at  four  or  five  different  times. 
She  says  that  when  she  went  to  commence  the  school  on  the  14th  of  February 
she  found  the  door  locked  against  her,  and  that  she  was  unable  to  gain  admission. 
She  asks  that  the  trustee  be  directed  to  place  her  in  possession  of  the  school,  and 
to  pay  her  her  wages  as  agreed. 

The  trustee  denies  any  agreement  of  the  character  referred  to.  He  says 
that  he  never  had  any  conversations  as  described  by  the  appellant,  in  words  or 
substance,  and  that  he  never,  at  any  time,  agreed  that  she  might  teach  the  school 
during  the  spring  term. 

There  is  no  proof  submitted  by  the  appellant,  beyond  her  own  statement. 
It  is  incumbent  upon  her  to  prove  her  allegations.  The  parties  swear  to  state- 
ments which  are  diametrically  opposed  to  each  other.  The  preponderance  of 
proof  must  be  with  the  appellant  in  order  that  she  may  succeed.  There  is  no 
preponderance  on  her  side.  Moreover,  it  is  against  the  policy  of  the  Department 
to  interfere  in  a  case  of  this  kind.  If  there  was  an  agreement  between  the  par- 
ties, it  was  entirely  unfulfilled.  If  we  were  to  assume  that  all  the  appellant  claims 
were  true,  it  would  only  follow  that  the  respondent  was  guilty  of  a  breach  of 
his  contract  and  the  appellant  would  be  entitled  to  recover  damages  in  conse- 
quence thereof.  It  is  not  the  policy  of  the  law  to  require  the  State  Superintendent 
of  Public  Instruction  to  fix  damages  for  the  breach  of  a  contract,  when  the 
extent  thereof  is  altogether  indefinite  and  uncertain. 

If  the  appellant's  statement  is  true,  her  remedy  lies  in  an  appeal  to  the 
local  courts. 

The  appeal  is  dismissed. 


5288 

In  the  matter  of  the  application  of  Charlotte  Lamson  for  reinstatement  as 
teacher  in  union  free  school  district  no.  6.  towns  of  Ossining  and  Mount 
Pleasant,  county  of  Westchester. 

It  is  not  necessary  that  school  should  be  in  session  or  that  the  term  covered  by  a  teacher's 
contract  should  have  already  been  opened  in  order  to  permit  the  board  of   education 


1092  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

to  remove  such  teaclicr.    Any  action  of  a  board  which  prevents  a  teacher  from  entering 

upon  her  term  of  service  and  completing  it  is  in  fact  a  dismissal. 
The  contractual  ri^'l'ts  of  a  teacher  may  be  enforced  by  the  institution  of  any  proceeding 

necessary  to  protect  such  right. 
A  teacher's  contract  may  be  vacated  at  any  time  after  its  execution   for  conduct  inimical 

to  the  welfare  of  the  school. 
Decided  October  22,  1906 

Hon.  George  F.  Bodine,  attorney  for  appellant 
Baldwin  &  Baldwin,  attorneys  for  respondent 

Draper,  Commissioner 

Miss  Charlotte  Lamson  was  employed  as  one  of  the  teachers  in  the  Briar- 
cliff  school  for  two  years.  On  the  15th  day  of  May  1906,  she  made  a  contract 
for  tho  ensuing  school  year.  Under  this  contract  she  was  to  tea.ch  ten  months 
beginning  in  September  at  a  monthly  compensation  of  $65.  It  is  conceded  that 
during  the  two  years  she  taught  in  this  school  her  work  was  successful  and  satis- 
factory. Trouble  between  certain  teachers  and  the  board  of  education  took  place 
during  the  week  of  the  closing  exercises  of  the  school.  Thereafter  the  board  of 
education  asked  Miss  Lamson  for  an  explanation  of  her  conduct  in  connection 
with  such  trouble.  The  explanation  offered  by  Miss  Lamson  was  not  satisfactory 
to  the  board.  The  president  of  the  board  advised  Miss  Lamson  that  her  explana- 
tion was  not  satisfactory  and  suggested  to  her  the  propriety  of  resigning  to  avert 
the  humiliation  of  being  officially  requested  to  resign.  Miss  Lamson  refused  to 
resign.  Thereupon  the  board  of  education  through  its  clerk  advised  Miss  Lamson 
that  her  services  would  not  be  required  during  the  school  year  beginning  Sep- 
tember 13,  1906.  At  the  time  designated  for  opening  the  school  Miss  Lamson 
appeared  at  the  school  building  and  tendered  her  services.  The  board  refused 
to  permit  her  to  enter  upon  the  performance  of  her  contract  and  directed  her  to 
leave  the  school  grounds.  She  formally  notified  the  board  of  her  readiness  and 
desire  to  enter  on  the  performance  of  her  contract.  She  has  not  been  permitted 
to  do  this. 

Respondent's  attorney  raises  the  question  of  jurisdiction  and  claims  the 
Commissioner  of  Education  has  not  authority  to  entertain  this  proceeding.  He 
danns  that  this  is  not  an  appeal  over  which  the  statutes  confer  jurisdiction  to 
the  Commissioner  of  Education.  He  also  claims  that  the  Commissioner  of  Edu- 
cation has  not  the  power  to  grant  the  relief  requested.  He  further  contends 
that  the  proceedings  are  prematurely  instituted  as  it  appears  from  the  moving 
papers  that  the  petitioner  had  not  yet  entered  upon  the  term  of  her  allecred 
contract  and  was  not  therefore  a  teacher  in  said  school.  This  contention  is  not 
sound.  Title  16  of  the  Consolidated  School  Law  provides  for  appeals  to  the 
Commissioner  of  Education.  Section  i  of  such  title  names  various  bodies  and 
officers  whose  official  acts  and  decisions  are  appealable.  Subdivision  7  of  section 
I  specifically  provides  that  any  person  conceiving  himself  aggrieved  in  conse- 
quence of  any  decision  made  "by  any  other  official  act  or  decision  concerning 
any  other  matter  under  this  act,  or  any  other  act  pertaining  to  common  schools 


JUDICIAL  decisions:     teachers    contracts  1093 

may  appeal,  etc."  The  appellant  had  a  contract  to  teach  in  this  district.  The 
board  of  trustees  officially  notified  her  that  her  services  would  not  be  accepted 
under  such  contract.  This  action  on  the  part  of  the  board  of  education  is  an 
oiTicial  act  and  an  official  decision  and  it  pertains  to  the  common  schools  and  the 
petitioner  herein  is  aggrieved  thereby.  Clearly  imder  this  provision  of  law  she 
has  the  right  to  bring  an  appeal  to  the  Commissioner  of  Education  for  such  relief 
as  shall  be  found  upon  the  facts  in  the  case  to  be  just  and  equitable. 

Among  other  things  subdivision  11  of  section  15  of  title  8  of  the  Consolidated 
School  Law  provides  that  "  No  teacher  shall  be  removed  during  a  term  of  employ- 
ment unless  for  neglect  of  duty,  incapacity  to  teach,  immoral  conduct,  or  other 
sufficient  cause."  Subdivision  9  of  section  47,  title  7  also  provides  "  nor 
shall  any  teacher  be  dismissed  in  the  course  of  a  term  of  employment  except  for 
reasons  which  if  appealed  to  the  Superintendent  of  Public  Instruction  [Com- 
missioner of  Education]  shall  be  held  to  be  sufficient  cause  for  such  dismissal." 

Section  16  of  title  8  makes  this  provision  binding  upon  boards  of  education. 

Was  the  action  of  this  board  of  education  in  notifying  petitioner  on  August 
12,  1906,  that  her  services  would  not  be  required  in  fact  a  removal  or  dismissal? 
It  was  not  necessary  that  school  should  be  in  session  or  that  the  term  covered 
by  the  contract  should  have  already  been  opened  in  order  to  permit  the  board 
of  education  to  remove  her.  Any  action  of  the  board  which  prevented  her  from 
entering  upon  her  term  of  service  and  completing  it  was  in  fact  a  dismissal.  But 
whether  it  was  or  not  she  had  a  contractual  right  which  she  could  enforce  and 
might  begin  any  proceeding  necessary  to  protect  such  right.  The  action  of  the 
board  was  a  breach  of  contract  unless  good  reason  existed  therefor.  The  con- 
tention of  respondent  that  action  for  relief  could  not  be  brought  under  the  cir- 
cumstances of  this  case  previous  to  the  date  when  school  was  to  open  is  not  well 
founded.  It  is  a  well  settled  principle  of  law  that  where  one  party  to  a  contract 
is  guilty  of  a  breach  the  other  party  is  under  no  obligation  to  delay  action  until 
a  tender  of  performance  under  the  terms  of  such  contract  but  may  begin  action 
for  such  breach  of  contract  at  once  (Windmuller  v.  Pope,  107  N.  Y.  674)- 
Under  the  decisions  of  this  Department  a  teacher  in  such  case  may  bring  action 
,  for  reinstatement  or  for  the  payment  of  salary  for  the  time  the  teacher  was 
deprived  of  teaching.  I  must  therefore  hold  that  this  case  is  properly  before  me 
and  that  I  have  full  jurisdiction  to  determine  the  issues  presented.  There  appears 
to  be  only  one  question  for  determination  and  that  is  whether  or  not  the  action  of 
the  board  of  education  in  notifying  Miss  Lamson  that  her  services  would  not 
be  required  was  based  upon  valid  reasons. 

It  appears  from  the  pleadings  that  at  the  time  the  trouble  in  question 
occurred  George  A.  Todd  jr  was  the  principal  of  the  school;  that  Asa  Howard 
Geeding  was  musical  instructor  of  said  school ;  that  Charlotte  Lamson  the  peti- 
tioner was  a  teacher  in  the  academic  department  and  had  charge  of  physical 
culture;  and  that  Gertrude  Selter  (now  Guthrie)  was  a  teacher  in  the  grades 
"  and  by  special  agreement  acted  as  pianist  for  the  school.  It  was  customary  in 
the  closing  week  of  the  school  to  hold  public  exercises  of  a  literary  character. 


J094  THE    UNIVERSITY    OF    THE    STATE    Ol-     NEW    YORK 

Al.uiit  one  month  previous  to  the  lime  when  sucii  exercises  were  to  be  held  the 
principal  of  the  school  wrote  Mr  Geeding,  the,  musical  instructor,  requestmg 
him  to  get  up  something  for  the  public  entertainment  and  to  take  full  charge 
of  it.  It  also  appears  that  these  annual  entertainments  were  under  the  direction 
of  the  board  of  education  and  that  the  musical  instructor  after  deciding  upon 
the  exercises  to  be  given  submitted  his  selection  to  the  board  of  education  and 
the  principal.  He  was  directed  by  the  board  to  proceed  with  his  arrangements  as 
explained  to  them  and  the  plan  had  the  approval  of  the  principal.  Whatever  the 
plans  of  the  musical  director  were  they  had  the  indorsement  of  the  proper  school 
authorities. 

The  musical  director  desired  to  have  one  Miss  Schlier  play  the  accompani- 
ment. By  direction  of  the  board  he  obtained  her  services.  This  appears  to  be 
the  beginning  of  the  trouble.  It  appears  that  Miss  Selter  (now  Mrs  Guthrie) 
believed  that  she  should  perform  such  services  since  she  was  the  pianist  of  the 
school.  The  musical  instructor  claims  that  when  he  first  decided  on  the  selection 
to  be  given  he  consulted  Miss  Selter  about  playing  and  that  she  wanted  two  weeks 
to  practise  to  prepare  for  such  service  which  was  a  longer  period  than  time  would 
permit.  Miss  Selter  positively  denies  this  and  asserts  that  she  was  prepared  to 
play  without  practice,  was  anxious  to  do  so  and  wrote  Mr  Geeding  a  note  to 
that  effect.  The  evidence  given  on  this  point  by  Miss  Selter  is  directly  the 
reverse  of  that  given  by  Mr  Geeding.  From  this  the  trouble  spread.  Miss 
Lamson  and  apparently  other  teachers  began  to  think  that  they  were  being 
slighted  because  of  the  outsiders  who  were  brought  in  to  aid  the  musical 
director. 

The  whole  trouble  originated  over  a  trivial  affair.  Its  importance  was  un- 
necessarily and  unduly  magnified.  It  was  within  the  province  of  the  board  of" 
education  to  direct  the  employment  of  such  assistance  outside  of  the  school 
faculty  as  it  should  deem  proper.  It  appears  that  Miss  Schlier  was  a  resident 
of  the  village  who  possessed  musical  talent  and  who  rendered  similar  assistance 
in  many  public  functions  given  in  the  community  and  particularly  by  the  public 
schools.  She  gave  such  service  gratuitously.  Obtaining  Miss  Schlier  for  this 
service  was  no  reflection  upon  Miss  Selter.  It  did  not  indicate  that  Miss  Selter 
was  incompetent  to  perform  her  regularly  assigned  work  in  the  school.  In  view 
of  the  fact  that  Miss  Schlier  had  rendered  similar  assistance  at  previous  school 
entertainments  and  upon  other  public  occasions  it  is  doubtful  if  anyone  would 
ever  have  construed  her  employment  as  a  reflection  upon  Miss  Selter  if  the 
latter  and  her  friends  had  not  raised  that  issue.  It  may  be  suggested  however 
that  it  would  be  well  to  have  all  public  school  exercises  of  this  character  per- 
formed by  those  directly  connected  with  the  school.  These  exercises  are  given 
in  the  name  of  the  school  and  stand  for  it  and  should  be  representative  of  its 
working  forces,  both  pupils  and  teachers.  If  confined  to  these  forces  the  au- 
thorities will  avert  such  unpleasant  and  disagreeable  community  and  school  dis- 
turbances as  occurred  in  this  instance. 


JUDICIAL  decisions:     teachers'  contracts  1095 

The  pleadings  clearly  show  that  Miss  Lamson  the  petitioner  felt  seriously 
aggrieved  over  the  employment  of  Miss  Schlier  and  because  she  was  not  herself 
given  a  more  prominent  part  in  such  exercises.  In  her  moving  papers  peti- 
tioner alleges  that  she  was  "  shunned  in  every  way "  during  the  preparations 
and  rehearsals  for  the  entertainment  and  was  "  led  to  believe  that  she  was  not 
wanted  to  do  anything."  It  also  appears  that  she  believed  her  position  was 
"  usurped  by  strangers."  Miss  Lamson  also  appears  to  have  been  the  aggressor 
in  resenting  what  she  believed  to  be  the  slight  and  reflections  upon  Miss  Selter, 
herself  and  others.  It  appears  that  she  had  a  public  discussion  of  their  alleged 
grievance  at  the  school  building  in  the  presence  of  one  of  the  pupils  with  Mr 
Geeding  and  with  Miss  Schlier.  It  also  appears  that  Principal  Todd  was  pres- 
ent during  most  of  the  discussion  between  Miss  Lamson  and  Mr  Geeding  and 
that  Miss  Selter  was  present  when  the  interview  between  Miss  Lamson  and 
Miss  Schlier  took  place.  Many  statements  which  Mr  Geeding  and  Miss  Schlier 
swear  were  made  by  Miss  Lamson  are  positively  denied  in  the  affidavit  of  Miss 
Lamson  and  Mr  Todd  and  Miss  Selter  also  swear  that  she  did  not  make  them. 
It  may  be  held  that  the  wisest  course  for  a  teacher  to  pursue  when  she  believes 
that  she  has  not  received  the  treatment  to  which  she  is  entitled  is  to  present  her 
grievances  whatever  they  may  be  to  the  board  of  education  in  a  full  and  frank 
manner.  Usually  when  presented  in  this  way  they  will  receive  just  and  cour- 
teous consideration.  Differences  between  members  of  a  faculty  or  between  the 
faculty  and  a  board  should  not  generally  be  discussed  in  the  presence  of  pupils 
as  such  treatment  thereof  may  prove  injurious  and  prejudicial  to  the  disci- 
pline and  welfare  of  the  school. 

Miss  Lamson  closed  her  term  of  service  for  last  year  about  June  19th. 
About  July  I2th,  the  board  of  education  requested  an  explanation  of  her  con- 
duct in  relation  to  these  matters.  Her  answer  to  that  request  was  written  July 
i6th  or  about  one  month  after  the  trouble  occurred.  She  replied  to  the  letter 
suggesting  that  she  resign  under  date  of  August  i,  1906.  The  spirit  of 
these  letters  written  more  than  one  month  after  the  event  occurred  and  after 
she  had  had  opportunity  to  reflect  upon  them  furnish  a  fair  criterion  for  deter- 
mining to  some  extent  the  spirit  she  manifested  in  the  midst  of  the  trouble. 
These  letters  are  an  important  element  in  the  determination  of  this  proceeding. 
These  letters  show  that  Miss  Lamson  felt  that  she  had  been  ignored  not  only 
in  the  school  but  in  the  community.  She  points  out  all  she  did  to  build  up  the 
school  and  to  be  helpful  in  the  village  and  all  of  which  she  believes  was  not 
appreciated.  Her  letters  show  that  she  was  indifferent  to  the  preparation  of 
the  entertainment  and  because  she  believed  the  musical  instructor  had  been 
unkind  to  one  of  the  teachers.  She  says  that  she  often  went  to  Sunday  school 
and  no  one  had  spoken  to  her  but  the  superintendent.  She  also  says  that  she 
was  "  simply  ignored  so  far  as  being  asked  to  help  to  prepare  the  entertain- 
ment and  was  not  considered  of  enough  importance  to  be  introduced  to  the 
,- helpers."  And  again,  "I  had  sufficient  provocation  for  a  discussion  of  per- 
sonal issues  before  the  children  or  where  it  was  most  convenient."     She  fur- 


1096  THE    UNIVERSITY    OF   THE    STATE    OF    NEW    YORK 

ther  says,  "  I  have  a  contract  and  if  you  do  not  wish  me  to  teach  I'll  simply 
collect  my  i)ay  and  remain  at  home.  I  am  quite  sure  that  my  work  would  be 
as  pleasant  as  it  ever  has  been,  for  few  ever  exerted  themselves  to  make  my 
stay  in  Briarcliff  pleasant." 

It  is  not  charged  that  the  board  acted  impulsively  or  with  any  animosity 
in  the  matter  whatever-  It  appears  that  they  acted  very  deliberately  and  simply 
with  a  desire  to  do  what  they  regarded  for  the  best  interests  of  the  school.  It 
also  appears  that  none  of  the  other  teachers  identified  with  the' trouble  in  ques- 
tion are  now  employed  in  the  school  and  under  all  the  circumstances  I  think  it 
would  be  unwise  to  direct  the  board  to  reinstate  petitioner.  I  think  it  may  well 
be  held  that  the  question  in  this  case  is  one  involving  the  discretionary  power 
of  the  board  and  that  its  judgment  in  the  absence  of  any  improper  motive 
slioulil  be  conclusive.  It  may  also  be  said  that  the  action  taken  by  the  board  was 
during  a  vacation  period  and  at  a  time  when  petitioner  might  have  obtained  a  more 
congenial  i)osition  without  any  particular  hardship. 

It  is  contended  by  attorney  for  appellant  that  the  acts  complained  of  took 
place  in  June  and  that  under  her  contract  she  was  not  to  begin  to  teach  until 
September  and  that  the  contract  could  not  be  set  aside  for  conduct  which 
took  place  previous  to  the  time  when  she  was  to  enter  upon  her  term  of  service. 
This  position  is  untenable  and  it  must  be  held  that  a  teacher's  contract  may  be 
vacated  any  time  after  its  execution  for  conduct  inimical  to  the  welfare  of  the 
school. 

The  appeal  herein  is  dismissed. 


5225 

In  the  matter  of  the  api^cal  of  Annie  Y.  Fulton  Palmer  from  the  action  of 
Seymour  Gage,  trustee  of  school  district  no.  3,  town  of  Caroga,  Fulton 
county. 

A  teacher  who  attempts  to  decide  whether  or  not  nonresident  pupils  shall  be  admitted  to 

school  is  usurping  the  powers  of  a  trustee. 
A  teacher  who  refuses  to  teach  nonresident  pupils  admitted  by  the  trustee   exceeds  her 

authority  and  such  conduct  is  good  ground  for  her  dismissal. 
A  teacher  who  dismisses  school  for  a  single  day  without  good  cause  or  without  the  consent 

of  the  trustee  is  guilty  of  a  breach  of  contract  sufficient  for  dismissal. 
Decided  November  24,  1905 

Horton  D.  Wright,  attorney  for  appellant 
Jordan  &  Cassedy,  attorneys  for  respondent 

Draper,  Commissioner 

The  appellant  herein  contracted  with  the  trustee  of  school  district  no.  3, 
Caroga,  Fulton  county,  on  or  about  June  15,  1905,  to  teach  the  school  in  said 
district  during  the  ensuing  school  year.     Pursuant  to  the  provisions   of   said 


JUDICIAL  decisions:     teachers    contracts  1097 

contract  she  commenced  to  teach  in  such  school  on  the  4th  day  of  September 
1905.  It  appears  that  on  or  about  October  3,  1905,  Trustee  Gage  dismissed 
her.  The  only  question  to  be  determined  in  this  appeal  is  the  sufficiency  of  the 
grounds   upon   which   appellant  was   dismissed. 

The  pleadings  indicate  that  the  relations  between  the  trustee  and  teacher 
of  this  district  have  not  been  harmonious.  A  question  as  to  which  was  the 
proper  authority  to  determine  the  rights  of  certain  pupils  to  attend  the  school 
seems  to  have  arisen.  The  appellant  refused  to  admit  certain  pupils  who  were 
nephews  of  respondent  and  permanent  members  of  his  family  on  the  ground 
that  they  were  nonresident  pupils.  She  also  refused  to  give  them  instruction 
when  they  were  admitted  to  school.  She  appears  to  have  arrogated  to  herself 
the  authority  to  determine  what  pupils  should  be  admitted  to  school  and  also 
what  pupils  she  should  instruct.  The  law  imposes  upon  a  trustee  the  power  to 
determine  whether  or  not  nonresident  pupils  shall  be  admitted  to  school.  A 
teacher  has  no  authority  whatever  in  the  determination  of  such  question.  A 
teacher  is  employed  to  teach  the  pupils  admitted  to  school  and  a  refusal  to  in- 
struct such  pupils  and  to  extend  to  them  the  school  privileges  to  which  they 
are  entitled  is  good  cause  for  dismissal.  It  is  immaterial  whether  the  children 
in  question  were  residents  of  the  district  or  nonresidents.  That  they  were 
living  at  the  home  of  the  trustee  and  were  sent  to  school  by  him  was  known  to 
appellant.  Attempting  to  decide  that  they  were  nonresidents  and  not  entitled  to 
attend  school  in  this  district  was  a  usurpation  of  the  powers  legally  imposed  on  the 
trustee.  Had  pupils  come  to  the  school  without  the  knowledge  of  the  trustee  who 
were  nonresidents  it  would  have  been  the  duty  of  the  teacher  to  notify  the  trustee 
and  then  abide  by  whatever  orders  he  might  given  in  the  matter.  Going  beyond 
this  was  exceeding  her  rightful  powers  and  was  good  ground  for  dismissal. 

It  also  appears  that  appellant  dismissed  school  one  day  and  sent  all  pupils 
home  without  assigning  good  reason  therefor  and  without  permission  of  the 
trustee.  This  in  itself  was  a  breach  of  contract  and  sufficient  cause  for  dis- 
missal. 

I  do  not  find  that  the  trustee  has  exceeded  his  authority  in  any  way  and 
must  decline  to  interfere  with  the  action  he  has  taken.     However,  the  trustee 
should  without  delay  pay  appellant  the  salary  due  her  from  September  4,  1905, 
the  day  on  which  she  opened  school  to  the  date  on  which  he  dismissed  her. 
The  appeal  herein  is  dismissed. 

It  is  ordered,  That  appellant  shall  deliver  to  the  trustee  of  said  district  no. 
3,  Caroga,  Fulton  county,  the  key  to  the  schoolhouse  and  all  school  records  or 
school  property  in  her  possession  as  teacher  and  that  she  shall  vacate  the  posi- 
tion of  teacher  in  said  district  and  cease  to  interfere  in  any  way  with  the  teacher 
employed  to  continue  such  school  or  with  the  school  maintained  in  said  district. 


1098  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

5231 

In  the  matter  of  the  appeal  of  Francis  J.  Wilson  from  the  refusal  of  Sherman 
Sprague  as  trustee  to  recognize  him  as  teacher  in  school  district  no.  14,  town 
of  Liberty,  Sullivan  county, 

A  contract  between  a  trustee  and  a  teacher  which  knowingly  and  purposely  subordinates 

the  school  interests  of  the  entire  district  to  the  personal  interests  and  convenience  of 

the  teacher  will  be  set  aside. 
To  make  a  contract  with  a  teacher  whereby  such  teacher  may  take  six  weeks'  vacation 

whenever  he  desires  to  do  so  is  in  violation  of  the  rights  of  the  inhabitants  of  the 

district. 
Decided  December  15,  1905 

Draper,  Commissioner 

•At  the  annual  meeting  of  school  district  no.  14,  town  of  Liberty,  Sullivan 
county,  for  the  year  1905,  Andrew  Lewis  was  declared  elected  trustee.  An 
appeal  was  brought  to  the  Commissioner  of  Education  alleging  certain  illegal 
actions  and  on  such  appeal  the  election  was  set  aside  and  a  special  meeting  for 
the  election  of  a  trustee  ordered.  At  such  special  election  Sherman  Sprague 
was  chosen  trustee. 

On  August  5,  1905,  Appellant  Wilson  contracted  with  Trustee  Lewis  to 
teach  the  school  in  said  district  no.  14,  Liberty,  for  thirty-two  consecutive  weeks. 
From  the  time  of  the  annual  meeting  until  my  decision  declaring  the  election  at 
such  meeting  illegal  and  void,  Trustee  Lewis  was  a  de  facto  trustee  and  as 
such  had  authority  to  exercise  the  powers  and  perform  the  duties  conferred  by 
law  upon  trustees.  He  had  authority  to  make  a  contract  with  a  teacher  for  the 
school  year  which  would  be  binding  upon  the  district  and  upon  his  successor 
in  office.  A  legal  contract  made  by  a  de  facto  trustee  is  binding  upon  third 
parties  and  should  be  honored  by  a  de  jure  trustee  chosen  to  succeed  such  de 
facto  trustee.  If  the  contract  made,  therefore,  between  Trustee  Lewis  and  the 
appellant  was  one  which  might  legally  have  been  made  by  a  legally  chosen  trus- 
tee then  such  contract  is  binding  upon  the  district,  should  be  respected  by  Trus- 
tee Sprague,  and  the  relief  prayed  for  in  the  moving  papers  granted.  The 
conclusion  to  be  reached  in  this  case,  therefore,  depends  upon  the  provisions 
of  the  contract  in  question. 

This  contract  was  in  the  usual  form  except  that  it  contained  the  following 
provision :  "  Said  teacher  reserves  the  right  to  provide  for  a  vacation  or  vaca- 
tions of  not  more  than  six  weeks  in  the  aggregate  during  said  term  to  be 
taken  when  he  desires  it,  which  vacation  shall  not  count  as  a  part  of  the  term 
of  service  above  referred  to." 

The  pleadings  show  that  appellant  began  teaching  October  2d  and  taught 
one  week  when  he  closed  school  for  two  weeks.  The  pleadings  show  that 
at  the  time  this  contract  was  made  appellant  was  collector  of  the  town  of  Lib- 
erty. They  also  show  that  at  the  time  appellant  closed  school  in  October  he 
was  a  candidate  for  reelection  to  the  office  of  town  collector.  It  is  alleged  by 
respondent  that  the  two  weeks'  vacation  taken  in  October  and  after  the  school 


JUDICIAL  decisions:     teachers'  contracts  1099 

had  been  in  session  for  one  week  only  was  for  the  purpose  of  enabling  appellant 
to  electioneer  for  votes  for  the  said  office  of  town  collector.  Appellant  denies 
that  he  was  engaged  in  canvassing  for  votes  during  the  two  weeks'  vaca- 
tion of  October,  but  he  does  not  show  in  what  manner  he  was  engaged  at 
that  time  or  what  emergency  or  important  matter  arose  sufficient  to  warrant 
his  closing  school  for  two  weeks  and  at  the  most  desirable  period  of  the  year  for 
school  to  be  in  session. 

It  is  admitted  by  appellant  that  he  desired  the  six  weeks'  vacation  for  which 
provision  was  made  in  the  contract,  for  the  purpose  of  enabling  him  to  perform 
the  duties  of  his  office  as  town  collector.  Lewis,  the  de  facto  trustee,  also 
testifies  that  this  was  the  object  of  inserting  such  provision  in  the  contract.  We 
have  the  evidence  therefore  of  the  de  facto  trustee  and  the  teacher  that  they 
knowingly  and  purposely  entered  into  a  contract  which  subordinated  the  school 
interests  of  this  entire  district  to  the  personal  interests  and  convenience  of  such, 
teacher.  A  trustee  is  the  representative  of  the  district  and  in  his  official  capacity 
must  exercise  such  powers  as  will  protect  the  interests  of  the  district  and  pro- 
mote the  educational  facilities  of  the  community.  To  make  a  contract  with  a 
teacher,  whereby  such  teacher  may  take  six  weeks'  vacation  whenever  he  de- 
sires to  do  so,  is  in  violation  of  the  rights  of  the  inhabitants  of  the  district. 
Under  such  contract  a  teacher  could  close  school  the  whole  of  October  and  part 
of  November  or  part  of  October  and  the  whole  of  November.  He  might  select 
any  other  six  weeks  in  the  year  and  at  a  time  when  it  is  most  desirable  for  a 
public  school  to  be  in  session.  Vacations  should  be  arranged  by  boards  of 
trustees  to  meet  the  needs  of  the  district  and  not  the  convenience  of  a  teacher. 
Contracts  of  the  nature  of  the  one  in  question  must  be  regarded  as  inimical  to 
sound  educational  policies  and  can  not  be  approved  by  this  Department.  Trustee 
Lewis  exceeded  his  authority  in  making  such  contract.  Trustee  Sprague  acted 
within  his  legal  rights  in  disregarding  such  contract  and  dismissing  appellant 
for  closing  school  for  two  weeks  in  October.  Since  appellant  taught  the  school 
one  week  he  is  entitled  to  $10  compensation  for  that  week.  Trustee  Sprague 
should  pay  appellant  that  amount.  With  such  understanding  the  appeal  will  be 
dismissed. 

The  appeal  herein  is  dismissed. 


5148 

In  the  matter  of  the  appeal  of  Drucilla  M.  Brice  v.  L.  L.  Edsall,  B,  L.  Drew 

and  Robert  Doty  as  trustees  of  school  district  no.   i,  town  of  Warwick, 

Orange  county. 

When  two  members  of   a  board  of  trustees  sign  a  contract  form  simply  as  a  matter  of 

convenience  but  without  official  direction  by  the  board  and  the  teacher  is   fully  and 

promptly  advised  in  the  matter  it  was  held  that  the  transaction  fell  short  of  a  contract. 

Decided  October  25,   1904 


IIOO  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

Draper,  Commissioner 

The  appellanl  in  this  appeal  endeavors  to  show  that  she  was  employed  by 
the  trustees  of  district  no.  I,  town  of  Warwick,  Orange  county,  on  June  6,  1904, 
as  teacher  in  said  district  for  the  ensuing  school  year.  She  alleges  that  on  such 
date,  at  a  meeting  of  the  board  of  trustees,  a  contract  in  her  favor  was  signed 
by  two  members  of  the  board,  and  that  she  was  subsequently  notified  by  L.  L. 
I-'.dsall,  one  of  the  trustees,  that  she  had  been  employed  for  the  year  com- 
mencing in  September  1904.  The  appellant  attaches  much  importance  to  the 
alleged  notice  received  from  Mr  Edsall  and  introduces  the  affidavits  of  several 
persons  to  show  that  at  various  times  and  places  between  June  6,  1904,  and  Sep- 
tember 1st  following,  the  said  Edsall  had  stated  that  two  of  the  trustees,  Mr 
Drew  and  himself,  had  signed  a  contract  agreeing  to  employ  the  appellant  as 
teacher. 

The  respondents,  in  their  answer  to  the  appeal,  show  that  a  meeting  of  the 
board  of  trustees  was  duly  held  on  June  6,  1904,  at  7.30  p.  m.  at  the  house  of 
Trustee  Drew.  Trustee  Edsall  arrived  at  the  meeting  promptly,  but  was  not 
able  to  remain  after  7.40.  Trustee  Doty  did  not  arrive  at  the  meeting  until  8 
o'clock.  Between  7.30  and  7.40  Mr  Edsall  and  Mr  Drew  discussed  the  employ- 
ment of  a  teacher  and  agreed  to  sign  one  blank  form  of  contract,  naming  the 
appellant  as  teacher  for  the  ensuing  year,  but  on  the  explicit  understanding  that 
if  the  third  trustee,  Mr  Doty,  should  appear  at  the  meeting  before  8.30  and 
object  to  the  employment  of  the  appellant  no  contract  should  be  made  with  her. 
Mr  Doty  did  appear  at  such  meeting  previous  to  8.30  and  objected  to  the  employ- 
ment of  said  appellant.  No  contract  with  the  appellant  was  agreed  upon  at 
such  board  meeting  and  none  of  the  trustees  was  authorized  by  the  board  to  notify 
Ihe  appellant  of  her  employment.  The  board  of  trustees  subsequently  held  a  meet- 
ing and  agreed  and  voted  not  to  employ  said  appellant  for  the  ensuing  year. 
The  action  of  the  board  was  conveyed  to  the  appellant  on  June  9,  1904,  by  writ- 
ten notice,  signed  by  two  members  of  the  board.  Again  on  June  13,  1904,  fur- 
ther notice  of  the  action  of  the  board  was  served  upon  appellant  by  delivering 
to  her  a  written  notice  signed  by  all  members  of  the  board. 

The  appellant  has  replied  to  the  answer  of  the  respondents,  but  does  not 
refute  or  even  deny  the  statements  set  forth  by  the  respondents  in  their  answer 
to  the  appeal.  She  rests  her  right  to  a  contract  upon  the  statement  of  Mr  Edsall 
that  he  and  Mr  Drew  had  signed  one  blank  form  of  contract,  naming  her  as  the 
teacher  for  the  year.  It  is  true  that  they  had  signed  such  blank  but  only  as  a 
convenience  and  not  upon  official  direction  by  the  board.  No  motion  appears  to 
have  been  made  at  the  board  meeting,  or  any  other  action  taken,  authorizing  a 
contract  or  directing  any  member  of  the  board  to  notify  the  appellant  that  she 
had  been  employed. 

It  clearly  appears  from  the  foregoing  facts  that  there  was  no  action  of  the 
board  authorizing  a  contract;  that  no  contract  was  made  with  the  appellant  on 
June  6,  1904,  or  thereafter,  for  the  ensuing  year;  that  the  transaction  upon  which 
she  bases  her  claim  fell  short  of  a  contract  and  was  quickly  explained  to  her,  and 


JUDICIAL  decisions:     teachers'  contracts  iioi 

that  she  has  no  right  or  claim  to  act  as  the  teacher  of  the  district  for  the  current 
school  year.  The  board  of  trustees  voted  not  to  contract  with  her  and  treated 
her  with  prompt  fairness  by  notifying  her  as  early  as  June  9,  1904,  of  their 
action  so  that  she  might  arrange  her  affairs  for  the  ensuing  year  accordingly. 
After  seventeen  years'  service  in  this  district  the  appellant  would  have  acted 
prudently  had  she  readily  acquiesced  in  the  action  of  the  board  of  trustees. 
The  appeal  herein  is  dismissed. 


5308 

In  the  matter  of  the  appeal  of  Clara  L.  Botsford  from  her  dismissal  as  teacher 
by  John  Anderson,  trustee  of  school  district  no.  6,  town  of  Marlborough, 
Ulster  county. 
A  teacher  will  not  be  reinstated  when  it  appears  from  her  own  statements  that  she  was 

clearly  unable  to  maintain  discipline  in  the  school. 
Decided  February  15,  1907 

Draper,  Commissioner 

There  are  many  legal  objections  to  the  consideration  of  this  appeal  but  it 
seems  advisable  under  all  the  circumstances  to  decide  it  upon  appellant's  moving 
papers.  She  alleges  that  she  made  a  written  contract  for  thirty-six  weeks' 
service.  A  copy  of  the  contract  is  not  in  evidence  and  the  terms  of  the  contract 
are  not  clearly  set  forth.  The  school  appears  to  be  a  difficult  one  to  control  and 
it  appears  as  though  the  teacher  had  not  been  properly  supported  by  the  parents 
of  pupils  attending  the  school.  It  also  appears  from  appellant's  own  statements 
that  she  was  clearly  unable  to  manage  and  discipline  the  school.  The  school  had 
become  so  demoralized  through  lack  of  proper  discipline  that  it  was  of  little 
value,  if  any.  Under  the  circuinstances  it  would  be  unwise  to  reinstate  appellant 
as  teacher  and  it  must  be  held  that  the  trustee  acted  for  the  best  interests  of  all 
concerned  and  within  his  legal  right  in  dismissing  her. 

The  appeal  is  dismissed. 


5173 

In  the  matter  of  the  appeal  of  Thomas  H.  Le  Roy  froin  the  action  of  the  board 
of  trustees  of  school  district  no.  5,  town  of  Southampton,  Suffolk  county. 

When  a  contract  provides  for  nine  consecutive  months  at  a  monthly  compensation  of  $55 
payable  at  the  end  of  each  vwnth,  the  term  month  will  be  interpreted  to  mean  calendar 
month  if  the  conduct  of  both  parties  to  the  contract  shows  that  they  mutually  under- 
stood these  terms  to  mean  a  calendar  month. 

Decided  February  I,  1905 


1 102  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

Draper,  Commissioner 

On  August  15,  1903,  appellant  entered  into  a  contract  with  the  trustee  of 
district  no.  5,  town  of  Southampton,  SutTolk  county,  under  the  terms  of  which 
it  was  agreed  that  said  appellant  should  "  teach  the  public  school  of  said  district 
for  the  term  of  nine  consecutive  months,  commencing  September  8,  1903,  at  a 
monthly  compensation  of  $55,  payable  at  the  end  of  each  month." 

The  only  question  in  dispute  is,  what  constitutes  a  month  under  the  above 
contract?  The  appellant  taught  from  September  8,  1903  until  June  15,  1904, 
excluding  a  two  weeks'  vacation,  during  the  holidays.  At  the  close  of  school  he 
l)resented  a  bill  to  the  board  of  trustees  for  38  weeks  and  3  days'  service,  or 
9  months,  2  weeks  and  3  days  at  $55  per  month,  claiming  that  the  term  month 
in  his  contract  meant  a  period  of  four  weeks  or  a  "  school  "  month.  The  board 
of  trustees  paid  him  for  nine  months'  service  at  $55  per  month  and  refused  to 
pay  him  for  the  extra  lime  claimed  of  two  weeks  and  three  days.  The  board 
of  trustees  insist  that  the  term  "month  "  meant  a  calendar  month  and  that  appel- 
lant so  understood  it. 

The  pleadings  show  that  appellant  commenced  teaching  on  September  8th 
and  that  November  7th,  at  the  expiration  of  two  months,  he  was  paid  by  the 
district  and  accepted  $110  in  payment  of  his  salary  for  such  period  of  two 
months.  He  was  again  paid  by  the  district  December  7th  at  the  expiration  of 
the  third  month  and  accepted  as  salary  therefor  $55.  On  December  i8th  he 
was  paid  $20  and  on  January  7th  $35  which  made  $55  at  the  expiration  of  the 
fourth  month,  and  he  accepted  such  payments  as  his  salary  for  such  fourth 
month.  At  no  time  when  receiving  such  payments  did  he  claim  additional  com- 
pensation or  protest  against  receiving  the  amount  tendered  him  as  not  being  in 
full  of  all  claims  and  demands  until  the  close  of  the  year.  The  language  of  the 
contract  calls  for  nine  consecutive  months  at  a  monthly  compensation  of  $55 
payable  at  the  end  of  each  month.  The  conduct  of  both  parties  to  this  contract 
shows  that  they  mutually  understood  these  terms  to  mean  a  calendar  month. 
The  board  of  trustees  certainly  so  understood  them.  The  conduct  of  the  appel- 
lant shows  that  he  placed  the  same  interpretation  upon  them  because  he  taught 
two  calendar  months  and  accepted  $110  therefor.  At  the  end  of  the  third 
calendar  month  he  accepted  the  third  payment  and  so  on.  If  he  understood  the 
terms  of  his  contract  to  mean  that  he  should  be  paid  at  the  end  of  every  four 
weeks  why  did  he  not  demand  his  pay  at  the  end  of  each  of  such  periods  or 
make  some  comment  in  relation  to  it  instead  of  accepting  part  payment  at  the 
end  of  each  calendar  month  and  thus  acquiesce  in  the  understanding  which  his 
board  had  of  the  contract?  The  contention  of  appellant  could  be  sustained  only 
by  a  technical  holding  and  the  rights,  if  any,  to  which  he  may  have  been  thus 
entitled  were  waived  by  his  voluntary  acceptance  of  his  salary  of  $55  at  the 
end  of  each  calendar  month. 

The  appeal  herein  is  dismissed. 


JUDICIAL  decisions:     teachers    contracts  1103 

5155 

In  the  matter  of  the  appeal  of  Peter  Cruikshank  from  the  action  of  Harvey  L,. 
Qua,  trustee  of  school  district  no.  2,  town  of  Salem,  Washington  county, 
in  employing  his  son  Coulter  Qua,  to  teach  the  public  school  therein. 

The  approval  of  a  district  meeting  regularly  convened  is  absolutely  essential  to  a  valid  con- 
tract w^hen  relationship  of  any  degree  whatsoever  exists  between  the  trustee  and  the 
teacher.  A  written  statement  signed  by  every  legal  voter  of  the  district  approving  a 
contract  between  related  parties  does  not  satisfy  the  requirements  of  the  law. 

Decided  December  2,   1904 

Frank  C-  Brown,  attorney  for  appellant. 

Draper,  Commissioner 

The  appellant  shows  that  Harvey  L.  Qua,  sole  trustee  of  school  district  no. 
2,  town  of  Salem,  Washington  county,  employed  his  son,  Coulter  Qua,  about 
October  i,  1904,  to  teach  the  school  in  said  district  without  authorization  by  a 
district  meeting,  as  required  under  subdivision  9  of  section  47,  article  6,  title  7 
of  the  Consolidated  School  Law.  This  provision  of  the  law  prohibits  a  trustee 
from  employing  any  person  related  to  him  by  blood  or  marriage,  as  teacher  of 
the  school  of  his  district,  except  upon  the  approval  of  two  thirds  of  the  voters 
of  the  district  present  and  voting  upon  the  question  at  an  annual  or  special 
meeting  thereof.  This  approval  by  a  district  meeting  is  absolutely  essential  to 
a  valid  contract  when  relationship  of  any  degree  whatsoever  exists  between  the 
trustee  and  the  teacher.  Such  approval  must  be  obtained  at  a  district  meeting, 
regularly  convened.  A  written  statement  signed  by  every  legal  voter  of  the  dis- 
trict approving  a  contract  between  related  parties  does  not  satisfy  the  require- 
ments of  the  law. 

The  appeal  herein  is  sustained. 

It  is  ordered,  That  the  said  Harvey  L.  Qua,  trustee  of  school  district  no.  2, 
town  of  Salem,  Washington  county,  shall  immediately  dismiss  the  said  Coulter 
Qua  as  teacher  in  the  school  of  said  district  and  that  the  said  Trustee  Qua  shall 
immediately  employ  a  duly  licensed  teacher  as  required  under  the  provisions  of 
the  ConsoHdated  School  Law. 


5295 

In  the  matter  of  the  appeal  of  Mabel  Griffin  from  the  action  of  John  Eignor  as 
sole  trustee  of  district  no.  6,  town  of   Shawangunk,  county  of  Ulster,  in 
refusing  to  recognize  her  as  teacher  in  said  district. 
A  teacher  having  earned  a  certificate  and  received  official  notice  thereof  is  legally  qualified 

to  contract   to   teach. 
J\.   trustee   can   not   dismiss   a  teacher  under  legal  contract   for   laches   under  a   previous 

•    contract  which  has  terminated. 
Decided  October,  1906 


II04  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

Draper,  Commissioticr 

John  Meredith  was  trustee  of  school  district  no.  6,  town  of  Shawangunk, 
Ulster  county,  for  the  school  year  1905-6.  During  that  year  Mabel  Griffin, 
appellant  herein,  taught  the  school  in  said  district.  Mr  Meredith's  term  of  office 
expired  on  August  7,  1906,  the  date  of  the  annual  meeting.  On  July  25,  1906, 
he  made  a  written  contract  with  Miss  Griffin  to  teach  the  school  in  that  district 
for  the  ensuing  school  year.  At  the  annual  meeting  of  the  district,  held  on 
August  7,  1906,  John  Eignor  was  elected  trustee  to  succeed  Mr  Meredith.  On 
August  9,  1906,  Mr  Eignor  employed  another  teacher.  He  refused  to  permit 
Miss  Griffin  to  open  school  and  serve  as  teacher  in  accordance  with  the  pro- 
visions of  her  contract.  Hovv'ever,  he  did  not  open  school  in  his  district  until 
October  nth,  when  he  placed  Nellie  Ackerman,  the  teacher  with  whom  he  con- 
tracted on  August  o,  1906,  in  charge  of  the  school.  Miss  Griffin  reported  at 
the  schoolhouse  ready  to  assume  work  on  September  lOth,  but  no  children  were 
present  and  she  also  reported  on  September  24th,  but  the  building  was  not  open. 
She  has  reported  daily  since  October  nth  although  the  trustee  has  refused  to 
])emiit  her  to  teach. 

It  appears  that  the  night  of  the  annual  meeting  was  stormy  and  the  attend- 
ance was  not  large.  Trustee  Meredith  was  not  present  and  did  not  report  the 
contract  he  had  made  with  ]\Iiss  Griffin,  but  a  copy  of  such  contract  was  in  the 
school  register.  Mr.  Meredith  did  notify  Trustee  Eignor  on  August  9th,  two 
days  after  the  annual  meeting  of  the  contract  with  Miss  Griffin.  Eignor  swears 
in  his  answer  to  this  appeal  that  he  made  a  contract  with  Miss  Ackerman  on 
August  8th.  There  appears  to  be  some  question  as  to  the  date  on  which  this 
contract  was  executed  and  I  directed  School  Commissioner  Rhodes  to  take  testi- 
mony on  this  point.  He  obtained  the  afiidavit  of  Miss  Ackerman  and  she  swears 
that  she  did  not  sign  such  contract  until  August  9th.  On  August  9th,  Meredith 
notified  Eignor  of  the  contract  with  Miss  Griffin. 

Respondent  alleges  that  Meredith  did  not  make  a  contract  with  Miss  Griffin 
until  after  the  annual  meeting.  He  does  not  offer  competent  evidence  in  proof 
of  this  allegation. 

Meredith  swears  the  contract  was  made  on  July  25th.  Miss  Griffin  also 
swears  that  the  contract  was  made  on  July  25th.  A  daughter  of  Mr  Meredith 
swears  that  she  was  present  July  25th  when  this  contract  was  agreed  upon  and 
saw  It  signed  by  the  parties  thereto.  There  is  no  evidence  in  proof  to  the 
contrary. 

_  Respondent  also  alleges  that  Miss  Griffin  was  not  legally  qualified  to  teach 
in  the  second  school  commissioner  district  of  Ulster  county  as  the  school  com- 
missioner of  that  district  had  not  indorsed  her  teachers  certificate.  Respondent 
IS  wrong  ,n  this  contention.  The  records  of  this  Department  show  that  in  the 
April  1906  examination  Miss  Griffin  completed  the  work  for  a  certificate  of  the 
second  grade  in  the  first  commissioner  district  of  Orange  county  An  official 
report  was  forwarded  to  Miss  Griffin  advising  her  of  that  fact-  Having  earned 
her  certificate,  she  was.  under  the  rulings  of  this  Department,  legally  qualified  to 


JUDICIAL  decisions:    teachers'  contracts  1105 

contract  to  teach  in  any  school  district  in  the  State.  The  mere  formality  of  the 
issuance  of  such  certificate  did  not  disqualify  her  from  making  such  contract. 
Her  certificate  might  have  been  issued  for  first  Orange  or  for  second  Ulster. 
Any  school  commissioner  in  the  State  was  required  to  indorse  it  or  give  valid 
reason  for  not  indorsing  it.  The  right  of  appellant  to  contract  to  teach  was  not 
restricted  to  the  district  of  the  school  commissioner  who  issued  her  certificate. 
She  was  legally  qualified  to  contract  to  teach  in  any  school  district  in  the  State 
and  before  the  indorsement  of  her  certificate  by  the  school  commissioner  having 
jurisdiction.  The  commissioner  had  expressed  his  willingness  to  indorse  the 
certificate  when  presented  to  him.     [See  decision  no.  4488,  October  1896] 

It  is  claimed  by  respondent  that  he  did  not  refuse  to  recognize  appellant  as 
teacher  but  that  he  dismissed  her  from  service.  A  trustee  has  legal  authority  to 
dismiss  a  teacher  provided  good  reason  exists  for  such  action.  The  law  provides 
that  such  reason  must  be  one  which  the  Commissioner  of  Education  approves. 
The  reason  assigned  in  this  case  is,  in  substance,  the  failure  of  appellant  to  keep 
full  and  regular  hours  and  maintain  proper  discipline  during  the  past  year.  This 
would  have  been  good  ground  for  dismissal  under  last  year's  contract  but  it  is 
not  good  ground  for  dismissal  under  this  year's  contract.  The  present  contract 
can  not  be  set  aside  for  failure  to  perform  obligations  to  which  appellant  was 
bound  under  a  previous  contract. 

Trustee  Eignor  appears  to  have  been  incensed  because  the  retiring  trustee 
had  employed  a  teacher.  The  retiring  trustee  had  full  power  under  the  law  to 
hire  a  teacher  for  the  ensuing  year.  It  was  the  duty  of  the  incoming  trustee  to 
honor  such  contract  and  recognize  the  teacher  employed  thereunder.  His  plea 
that  he  had  no  official  knowledge  of  such  contract  is  not  entitled  to  considera- 
tion. He  admits  that  the  trustee  was  not  at  the  annual  meeting  and  his  report 
was  not  received.  It  was  the  duty  of  the  incoming  trustee  to  obtain  from  the 
previous  trustee  all  official  books,  papers  and  records  before  he  proceeded  to 
make  contracts  which  bound  the  district.  At  least  he  should  have  made  reason- 
able effort  to  obtain  them.  It  is  not  claimed  that  he  made  any  effort  whatever 
to  obtain  such  official  documents.  The  previous  trustee  who  was  not  at  the  meet- 
ing because  of  a  storm  appears  to  have  made  reasonable  eflrort  to  notify  his 
successor  that  he  had  contracted  with  a  teacher  as  such  notice  was  given  the 
second  day  after  the  annual  meeting.  This  must  be  regarded  as  a  reasonable 
time  in  a  rural  community. 

Appellant  had  a  valid  contract  to  teach  in  this  district  for  34  weeks  from 
September  10,  1906,  at  $9.50  per  week.  She  is  entitled  to  full  compensation 
from  that  date.  Trustee  Eignor  is  responsible  for  the  embarrassing  position  in 
which  he  has  placed  his  district. 

The  appeal  herein  is  sustained. 

It  is  ordered,  That  John  Eignor,  trustee  of  school  district  no.  6,  town  of 
Shawangunk,  county  of  Ulster,  shall  immediately  install  and  recognize  Mabel 
griffin,  the  appellant  herein,  as  teacher  of  the  school  in  said  district. 


IIOO  nil.    UM\  liRSITV    OF    THE    STATK    OF    NEW    YORK 

It  is  also  ordered,  That  the  said  John  Eignor,  trustee  of  said  district  no.  6, 
Shavvangunk,  shall,  without  unnecessary  delay,  pay  the  said  Mabel  Griffin  the 
sum  of  one  hundred  thirty-three  dollars  ($133)  the  same  being  the  salary  due  her 
from  September  10,  1906,  at  $9.50  per  week. 


5454 

In  tlie  matter  of  the  appeal  of  Elizabeth  Maconiber  from  the  action  of  the  board 
of  education  of  union  free  school  district  no.  12,  town  of  Salem,  Washing- 
ton county,  in  terminating  her  contract. 

Teacher's  contract;  right  of  board  of  education  to  transfer  teacher.  A  contract  with  a 
teacher  contained  a  clause  that  "  said  teacher  may  be  transferred  from  one  grade  to 
another  as  circumstances  may  require,  or  may  be  deemed  advisable  by  the  principal 
of  .'.aid  school."  Such  teacher,  after  having  taught  French,  German,  ancient  history, 
physiology  and  botany  in  the  academic  grades  for  a  year  or  more,  was  notified  that 
she  must  teach  in  grade  seven  in  the  elementary  department.  No  ground  of  complaint 
existed  against  the  teacher  for  her  work  in  the  academic  grades,  and  no  tangible 
reason  wa^s  given  for  the  transfer.  The  teacher  appeals  from  the  action  of  the  board 
in  transferring  her  to  the  elementary  grades.  Held,  that  the  power  of  transfer  reserved 
in  the  contract  was  not  absolute;  that  its  action  in  making  such  transfer  was  review- 
able on  appeal;  that  under  all  the  circumstances  the  transfer  was  unjustifiable. 

Rules  as  to  treatment  of  teachers.  If  a  board  of  education  charges  that  a  teacher  is 
ineflicicnt,  that  she  did  not  teach  competently  or  was  unable  to  control  her  pupils,  that 
she  had  been  insolent  to  the  board  or  her  superior  officer,  or  that  she  had  done  some- 
thing to  demoralize  or  discredit  the  school,  and  such  charges  are  supported  by  evidence, 
the  action  of  the  board  in  respect  to  such  teacher  will  be  pronounced  to  be  proper. 
But  a  board  of  education  has  no  absolute  power  to  discipline  a  teacher  without  assign- 
able reason,  especially  where  the  teacher  demands  a  statement  of  the  reasons  of  the 
board's  action  concerning  her. 

Decided  June  3,  1910 

Abner  Robertson,  attorney  for  appellant 
James  Gibson,  jr,  attorney  for  respondent 

Draper,  Commissioner 

The  appellant,  a  graduate  of  Wellesley  College  in  the  class  of  1906,  was 
employed  as  teacher  in  Washington  Academy,  which  is  the  public  school  of  union 
tree  school  district  no.  12  of  the  town  of  Salem,  Washington  county,  by  resolu- 
tion of  the  board  of  education,  on  the  3d  day  of  June  1907.  A  written  contract 
was  executed  between  the  board  and  the  teacher.  This  contract  was  upon  a 
form  specially  printed  by  the  board  of  education.  There  were  several  unusual 
features  m  the  terms  of  the  contract;  among  others  was  one  to  the  effect  that 
•  said  teacher  may  be  transferred  from  one  grade  to  another  as  circumstances 
may  require  or  may  be  deemed  advisable  by  the  principal  of  said  school."  The 
appellant  was  reemployed  for  the  two  succeeding  school  years  of  1908-9  and 
1909-10,  and  similar  contracts  were  executed  for  these  years.     Therefore    she 


JUDICIAL    DECISIONS:       TEACHERS'    CONTRACTS  .  IIO7 

has  been  in  the  school  for  three  school  years,  with  the  exception  of  the  few  days 
that  remain  of  the  present  year. 

In  the  beginning  of  her  work,  the  appellant  taught  in  the  elementary  grades, 
but  in  the  latter  part  of  her  service  she  has  taught  German,  French,  ancient 
history,  physiology,  and  botany,  in  the  academic  grades.  She  was  so  teaching 
when  on  the  29th  day  of  April  1910,  she  was  served  with  the  following  notice: 

Salem,  N.  Y-,  April  2p,  ipio 
Miss  Elisabeth  Macomher 

Salem,  N.  Y. 
Dear  Madam  : 

Pursuant  to  instructions  of  the  board  of  education  of  the  village  of  Salem, 
N.  Y.,  I  hereby  notify  you  that  your  services  are  no  longer  required  as  a  teacher 
in  Washington  Academy,  and  that  you  may  consider  your  contract  with  said 
board  terminated  as  of  this  date. 

Very  truly  yours 

[Signed]       Robert  N.  Wilson 
Clerk  of  the  hoard  of  education 

From  this  action  of  the  board  of  education  the  appellant  took  an  immediate 
appeal  to  the  Commissioner  of  Education.  Upon  being  served  with  this  appeal 
the  board  of  education  convened,  and  on  the  6th  day  of  May  1910,  the  appellant 
was  served  with  the  following  notice: 

Salem,  N.  Y.,  April  2p,  ipio 
Miss  Elisabeth  Macomher 

Salem,  N.  Y. 
Dear  Madam  : 

I  am  directed  by  the  board  of  education  of  the  village  of  Salem,  N.  Y.,  to 
notify  you  that  the  action  taken  by  the  board  at  a  meeting  held  on  the  twenty- 
ninth  day  of  April  1910,  in  dismissing  you  as  a  teacher  in  the  Washington  Acad- 
emy was  reconsidered  and  rescinded  at  a  meeting  of  said  board  held  tonight, 
leaving  your  contract  with  said  board  in  full  force  and  effect  as  though  the  said 
action  had  not  been  taken. 

Very  truly  yours 

[Signed]      Robert  N.  Wilson 
Clerk  of  the  hoard  of  education 

In  view  of  this,  the  appellant  attempted  to  resume  the  service  which  had 
been  thus  briefly  interrupted,  and  thereupon  the  principal  of  the  academy  called 
her  to  his  office  and  notified  her  that  her  services  in  the  department  where  she 
had  formerly  taught  would  no  longer  be  needed;  that  another  teacher  had 
been  engaged  for  that  work,  and  that  she  must  teach  in  grade  seven  of  the  ele- 
mentary department.  He  read  to  the  appellant  a  resolution  to  that  effect  which 
Jie  said  had  been  passed  by  the  board  of  education.  The  appellant  states  than 
she  advised  the  principal  that  she  would  accept  said  position  of  teacher  in  the 


II08  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

seventh  grade  and  would  obey  the  directions  of  the  board  of  education  and  of 
the  principal,  but  under  protest  and  without  prejudice  to  her  rights  in  the  premises. 
From  this  action  of  the  board  of  education  in  transferring  her  from  work  of 
an  academic  to  work  of  an  elementary  grade,  this  appeal  is  taken. 

The  teacher  alleges  and  swears  that  she  has  received  no  explanation  or  infor- 
mation of  any  kind  and  that  she  does  not  know  why  she  was  discharged,  or  why 
(the  attemjit  to  discharge  her  having  failed)  she  was  removed  from  the  academic 
work  and  given  work  of  an  elementary  grade.  I  have  read  the  somewhat 
voluminous  papers  with  care,  to  ascertain  what  the  ground  of  complaint  was 
against  her,  if  there  was  any.  I  can  not  assume  that  a  board  of  education  would 
so  humiliate  a  teacher  only  a  few  days  before  the  close  of  the  school  for  the  year, 
by  severing  her  relations  with  a  class  that  she  had  been  teaching  and  which  was 
about  to  be  graduated,  without  some  reason  which,  to  the  board  at  least,  might 
seem  sufficient ;  but  from  first  to  last  there  is  no  reason  assigned  by  the  board, 
except  in  the  most  undefined  and  intangible  way.  Notwithstanding  the  fact  that 
the  board  is  represented  upon  this  appeal  by  one  of  its  number,  who  is  a  capable 
attorney,  there  is  no  allegation  made  against  the  appellant  beyond  such  a  state- 
ment, for  example  as  that  "  we  were  loath  then,  and  are  now,  to  prefer  charges 
against  appellant,  and  we  felt  that  we  could  avoid  such  action  by  taking  her  out 
of  die  academic  department."  In  view  of  the  distinct  admission  on  the  part  of 
the  board  that  there  is  nothing  savoring  of  moral  delinquency  on  the  part  of 
the  teacher,  and  particularly  in  view  of  the  fact  that  she  is  as  aggressive  in 
securing  her  rights  as  she  has  proved  herself  to  be,  it  is  clear  to  me  that  the  board 
should  have  left  her  in  no  doubt  about  the  ground  of  their  complaint  against  her, 
if  there  is  any  ground,  and  that  they  should  have  made  the  reason  for  their  action 
entirely  clear  in  the  papers  on  appeal.  This  should  certainly  be  so  unless  the 
clause  which  I  have  quoted  from  the  contract,  to  the  effect  that  the  board  or 
the  principal  might  transfer  the  teacher  from  one  grade  to  another,  may  be  acted 
upon  at  any  time  and  without  any  reason. 

Such  construction  of  a  contract  with  a  teacher  will  no  longer  stand  in  the 
State  of  New  York.  In  so  far  as  a  written  contract  should  attempt  to  reserve 
such  an  absolute  power  to  a  board  of  education,  it  would  to  suc'h  extent,  at  least, 
be  in  violation  of  law.  The  authority  of  a  board  of  education  over  the  aflfairs 
of  a  school  is  certainly  large,  but  it  is  not  absolute.  The  board  can  not  deal  with 
such  a  matter  as  many  individuals  transacting  their  personal  business.  The  board 
IS  a  public  board  and  is  transacting  public  business.  It  must  transact  that  busi- 
ness in  ways  that  are  open  to  the  public  and  for  reasons  that  may,  if  need  be, 
be  given  to  the  public.  A  teacher  has  rights  which  in  the  common  interest  of 
teachmg  must  be  maintained.  It  is  no  small  matter  to  the  school  system  that  a 
board  of  education  assumes  to  peremptorily  dismiss  a  teacher  without  assigning 
any  reason.  The  act  is  specially  aggravating  when  it  is  performed  only  a  month 
before  the  school  is  to  be  closed  for  the  year.  Attempting  to  do  this  and  failing 
because  manifestly  in  violation  of  the  law,  it  is  hardlv  less  aggravating  to  restore 
the  teacher  to  her  right  to  compensation  and  then  transfer  her  from  one  class  of 


JUDICIAL  decisions:     teachers'  contracts  1109 

pupils  to  another  and  from  academic  to  elementary  work,  without  giving  any 
reason  therefor.  Only  in  February  last  the  principal  of  the  school  gave  to  the 
appellant  this  certificate : 

February    4,    1910 
To  whom  it  iiiav  concern: 

It  gives  me  pleasure  to  speak  a  word  in  behalf  of  Miss  Elizabeth 
Macomber  and  to  recommend  her  to  any  board  desiring  the  services  of  an  excel- 
lent teacher.  Her  work  in  the  classroom  is  of  the  highest  order,  thorough, 
systematic  and  inspiring.  Miss  Macomber  possesses  a  strong  and  pleasmg 
personality  so  that  her  discipline  is  at  all  times  of  the  best.  She  enjoys  the 
respect  and  confidence  of  the  entire  school  and  community.  In  fact,  J\Iiss 
Macomber  is  in  every  sense  of  the  word  an  excellent  teacher,  and  I  can  not 
recommend  her  too  highly.  While  we  would  greatly  regret  losing  Miss  Macomber 
from  our  faculty,  yet  we  feel  that  she  is  deserving  of  a  better  position  than  we 
are  able  to  offer  her. 

Very  truly  yours 

Seymour  B.  Smith 

In  the  face  of  this  and  of  all  the  circumstances  that  appear  in  the  case,  and 
in  the  absence  of  all  tangible  allegations  of  immorality,  misconduct  and  inefh- 
ciency,  it  is  not  enough  to  merely  assert  that  the  board  is  "  in  the  unfortunate 
position  of  having  to  make  this  contest  with  a  woman,"  nor  is  it  enough  to  allege 
that  the  board  is  prejudiced  because  "  of  the  constant  personal  solicitations  of 
the  appellant  and  her  various  counsel  at  the  door  of  the  Department,"  when  the 
element  of  time  is  an  important  factor  in  her  case,  and  when  her  counsel  and 
the  officers  of  the  Department  have  for  a  considerable  time  urged  the  board  to 
come  to  the  Department  and  present  whatever  they  thought  well,  orally  or  in 
writing.  The  Commissioner  of  Education  never  saw  the  appellant,  and  he  has 
afiforded  ample  time  and  opportunity  for  the  respondent  to  appear  at  the  Educa- 
tion Department  and  confront  appellant's  counsel.  Neither  is  it  sufficient  for 
the  principal  of  the  school  to  set  forth  that  the  pupils  have  been  demoralized  by 
reason  of  what  has  happened;,  that  the  teaching  results  in  the  academic  work 
have  been  as  good  since  the  appellant's  transfer  therefrom  as  before,  and  that 
additional  demoralization  will  result  from  her  reinstatement.  All  this  ignores 
the  teacher's  rights.  They  are  not  any  too  many  or  any  too  great,  and,  such  as 
they  are,  they  should  be  conserved.  If  the  board  of  education  had  charged  in 
any  definite  or  tangible  way  that  the  appellant  was  inefficient,  that  she  did  not 
teach  competently  or  was  unable  to  control  the  pupils,  that  she  had  been  insolent 
to  the  board  or  to  the  principal,  that  she  had  done  anything  to  demoralize  or 
discredit  the  school,  and  if  they  had  produced  any  evidence  to  sustain  such  alle- 
gations, I  should  be  disposed  to  uphold  the  board  on  the  ground  that  they  must 
be  presumed  to  act  honestly  and  with  information  superior  to  my  own,  but  it 
would  be  a  violation  of  the  statutes  of  the  State  and  a  serious  hurt  to  the  school 
system,  as  well  as  an  outrage  upon  the  rights  of  the  teacher,  to  hold  that  a  board 
ol  \education  has  any  absolute  power  to  remove  a  teacher  without  assignable 
reason,  and  this  would  be  most  emphatically  so  when  the  teacher  pursues  the 


mo  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

course  of  the  appellant  and  demands  a  statement  in  the  open  of  the  reasons  of 
their  action  concerning  her. 

The  appeal  is  therefore  sustained,  and  the  board  of  education  is  directed  to 
forthwith  restore  the  appellant  to  the  position  in  which  she  was  and  to  the  work 
which  she  was  floing  prior  to  their  action  assuming  to  dismiss  her. 


3898 

In  the  matter  of  the  appeal  of  Catharine  L.  Valentine  v.  The  board  of  education 

of  the  city  of  Brooklyn. 

The  authority  of  a  board  of  education  to  transfer  a  teacher  in  its  employ  from  one  position 
to  another,  where  there  is  no  reduction  of  compensation,  and  which  shall  seem  to  such 
l)card  calculated  to  promote  the  ellkiency  of  the  schools  in  its  charge,  upheld. 

Decided  August  2,  1890 

JJraper,  Superintendent 

In  1868  the  appellant  was  appointed  a  class  teacher  in  public  school  no.  34 
of  the  city  of  Brooklyn,  and  about  the  ist  of  September  1881,  she  was  appointed 
head  of  the  intermediate  department  in  said  school.  Previous  to  March  1889, 
she  was  absent  from  her  work  for  a  period  of  more  than  two  years  in  conse- 
quence of  sickness.  This  absence  was  by  the  leave  of  the  board.  On  the  7th 
of  March  1889,  she  resumed  her  position  and  occupied  it  until  the  summer 
vacation.  In  November  1889,  she  was  absent  from  her  work  for  several  days,  by 
further  sickness.  On  the  14th  of  November  1889,  she  received  a  letter  from  the 
chairman  of  the  local  committee  having  charge  of  her  school,  advising  her  that 
it  had  been  decided  by  a  unanimous  vote  of  that  committee,  to  transfer  her  from 
the  position  of  head  of  the  department  to  the  second  primary  grade.  This  letter 
was  very  kind  in  its  allusions  to  her,  advising  her  that  she  was  being  transferred 
to  a  position  where  she  would  receive  the  highest  pay  in  the  department,  and 
which  would  call  for  the  least  expenditure  of  strength.  The  appellant  declined 
to  accept  this  transfer,  or  to  enter  upon  the  new  position  assigned  her.  She 
appealed  to  the  board  of  education.  The  matter  was  investigated  by  the  teachers' 
committee  of  the  board  which  sanctioned  the  action  of  the  local  committee.  The 
report  of  the  teachers'  committee  was  approved  by  the  board  of  education.  The 
appellant  still  refused  to  accept  the  transfer.  The  matter  was  again  considered 
by  the  teachers'  committee  of  the  board  of  education,  and  the  committee  reported, 
recommending  that  she  be  dismissed  from  the  service  of  the  board  in  conse- 
quence of  such  refusal.  The  board  adopted  the  report.  From  such  action  this 
appeal  is  taken. 

I  can  entertain  no  doubt  of  the  authority  of  the  board  of  education  to  trans- 
fer teachers  in  its  employ  from  one  position  to  another  in  any  way  which  shall 
seem  to  such  board  best  calculated  to  promote  the  efficiency  of  the  schools  in  its 
charge.    Nothing  appears  in  the  papers  presented  to  indicate  that  the  respondent 


JUDICIAL  decisions:     teachers'  contracts  nil 

in  the  present  case  did  not  act  upon  a  clear  conviction  of  duty,  and  for  the  pur- 
pose of  advancing-  the  best  interests  of  the  school. 

I  must  add,  moreover,  that  it  seems  to  have  acted  with  deliberation,  patience, 
and  with  great  consideration  for  the  circumstances  and  feeling  of  the  appellant. 
It  is  much  to  be  regretted  that  she  could  not  accept  the  same  gracefully  and  in 
the  same  spirit- 

The  appeal  must  be  dismissed. 


5416 

In  the  matter  of  the  appeal  of  Jennie  Wight  from  her  dismissal  from  the  faculty 
of  the  Delaware  Literary  Institute  and  union  free  school  district  no.  10, 
town  of  Franklin,  Delaware  county. 

Dismissal  of  teacher.  Where  a  teacher  has  been  paid  in  full  and  dismissed  by  a  board 
of  education  for  cause  which  does  not  affect  her  reputation  as  teacher,  the  Commis- 
sioner will  not  interfere  with  the  determination  of  the  board;  this  is  especially  so 
where  the  teacher  is  not  injured  by  such  determination  and  the  appeal  is  apparently 
brought  to  settle  a  personal  controversy. 

Decided  October  13,  1909 

E.  A.  Mackey,  attorney  for  appellant 

Draper,  Commissioner 

The  appellant  seeks  to  set  aside  the  action  of  the  board  of  education  of 
union  free  school  district  no.  10,  town  of  Franklin,  county  of  Delaware,  in  dis- 
missing her  from  her  position  as  teacher  in  the  Delaware  Literary  Institute  and 
Union  Free  School,  and  refusing  to  reinstate  her  in  said  position.  The  appel- 
lant was  notified  of  her  dismissal  June  18,  1909  only  a  few  days  prior  to  the 
termirtation  of  her  contract  of  employment.  At  this  time  she  had  been  engaged 
to  teach  for  the  following  year  in  another  school.  Subsequent  to  her  dismissal 
she  received  full  payment  for  her  services  as  teacher  in  such  school. 

No  charge  is  made  against  Miss  Wight  which  affects  her  teaching  capacity 
or  her  conduct.  From  the  facts  alleged  in  the  papers  herein,  the  controversy 
seems  to  be  a  personal  one  between  the  teacher  and  the  principal.  The  board 
apparently  determined  that  the  educational  interests  of  the  school  required  that 
the  principal  should  be  sustained.  This  detemiination  may  have  been  affected 
by  the  fact  that  the  principal  had  been  reengaged  for  another  year,  and  that  the 
appellant  had  secured  a  position  in  another  school.  The  appellant  was  paid  in 
full  for  her  services,  which  is  in  eft'ect  an  admission  on  the  part  of  the  board 
that  she  had  satisfactorily  completed  the  terms  of  her  contract.  It  does  not 
appear  that  the  appellant  has  been  materially  injured  in  her  profession  by  the 
action  of  the  board,  for  at  the  time  of  her  dismissal  she  was  engaged  as  teacher 
in  -a  larger  school,  presumably  at  a  greater  compensation.  In  view  of  these  cir- 
cumstances I  do  not  deem  it  necessary  to  interfere  with  the  board's  determina- 


1 1 12  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

lion.  To  do  so  would  be  merely  to  settle  the  personal  controversy  which  arose 
l.ctwccn  the  appellant  and  her  principal.  This  is  not  witliin  my  province.  I 
therefore  dismiss  tlie  appeal. 


3603 

A  contract  of  employment  lictwcen  a  trustee  and  teaclicr  "  for  one  day  only  and  to  close 
every  night,"  is  void  as  being  in  conflict  with  the  spirit  of  the  school  laws  and  against 
sound  public  policy. 

Decided  July  20,  1887 

Draper,  Superintendent 

The  appeal  is  from  the  action  of  the  trustee  in  discharging  teachers.  The 
main  issue  is  as  to  the  terms  of  the  contract  of  employment.  The  appellants 
each  swear  that  the  employment  was  "  for  the  term  of  one  year  or  so  long  as 
said  Phillips  was  trustee  of  said  district." 

The  respondent  swears  "that  he  informed  said  teachers  when  he  employed 
them  that  he  hired  them  for  one  day  only  and  that  their  time  would  close  every 
night,  but  that  if  they  gave  satisfaction  he  would  keep  them  as  long  as  he 
remained  trustee." 

But  if  I  assume  that  the  agreement  was  as  the  trustee  alleges,  which  I  am 
obliged  to  do  because  it  is  not  clearly  proved  otherwise,  I  find  myself  unable  to 
uphold  such  a  contract  because  I  think  it  was  an  unconscionable  contract,  with- 
out sanction  of  law  or  good  usage  and  against  sound  policy.  I  am  of  the  opinion 
that  a  contract  of  employment  between  a  trustee  and  teacher  "  for  one  day  only 
and  to  close  every  night  "  is  void  as  being  in  conflict  with  the  spirit  of  the  school 
laws  and  against  sound  public  policy.  Teachers  are  compelled  to  have  a  license 
issued  pursuant  to  law  before  they  contract  to  teach.  This  license  carries  with 
it  an  assurance  of  qualifications  and  fitness.  The  law  provides  for  revoking  any 
license  where  sufficient  cause  is  shown  for  such  a  step.  The  revocation  of  a 
license  works  a  dissolution  of  any  contract  which  may  have  been  based  upon  it. 
This  is  the  ordinary  course  of  procedure  for  getting  rid  of  an  unworthy  or  unfit 
teacher  in  the  middle  of  a  term  of  employment.  Trustees  may,  undoubtedly,  at 
times  summarily  dismiss  a  teacher  for  a  palpable  breach  of  contract  or  gross  and 
open  immorality,  but  such  action  must  be  taken,  if  at  all,  upon  the  personal 
responsibility  of  the  officer.  But  these  are  exceptional  cases,  outside  of  the  gen- 
eral rule.  There  can  be  no  pretense  that  the  case  under  consideration  is  one  of 
that  nature.  Moreover  trustees  ought  not  to  be  permitted  to  absolve  themselves 
from  the  responsibility  of  making  investigations  and  of  exercising  proper  pre- 
cautionary care  and  good  judgment  when  employing  teachers,  by  reserving  the 
right  to  discharge  them  at  any  moment.  A  duly  licensed  and  employed  teacher 
ought  to  have  security  of  position  for  a  reasonable  length  of  time,  which  should 
be  long  enough  to  prove  himself  successful  or  to  demonstrate  his  inability  to  do 
so.     It  is  humiliating  to  self-respecting  teachers  to  be  at  all  times  liable  to  dis- 


JUDICIAL   DECISIONS:      TEACHERS'    CONTRACTS  III3 

charge  from  employment  because  others  may  want  their  places  or  because  of  the 
antagonisms  which  a  vigorous  and  wholesome  performance  of  their  duties  in  the 
schoolroom,  may  engender.  To  adopt  this  doctrine  is  only  to  drive  the  most 
self-respecting  and  the  best  qualified  persons  from  teachers'  work.  This  is 
unquestionably  against  wise  policy.  Furthermore,  if  the  trustee  could  discontinue 
these  teachers  at  any  time,  they  could  abandon  their  places  at  any  time.  But  the 
school  must  continue  without  interruption.  Teachers  must  be  under  a  legal  and 
honorable  obligation  to  so  continue  it.  An  agreement  between  trustee  and  teacher, 
which  does  not  involve  this  is  manifestly  against  the  interests  of  the  public 
school  system. 

What  is  a  reasonable  length  of  time  for  which  a  trustee  and  teacher  may 
properly  enter  into  a  contract  of  employment,  depends  upon  the  circumstances 
and  custom  in  each  district  and  must  be  determined  upon  the  fact  of  each  case  as 
it  arises.  It  appears  in  the  papers  in  this  case  that  the  appellants  had  taught  one 
term  of  nine  weeks  and  that  they  had  commenced  teaching  another  term  when 
dismissed.  I  am,  therefore,  led  to  hold  that  their  employment  must  have  been 
for  terms  of  at  least  that  length  of  time  and  that  having  taught  one  such  term 
and  entered  upon  another,  they  were  entitled  to  employment  for  at  least  another 
term  of  the  same  length  if  they  were  ready  and  able  to  fairly  discharge  the  duties 
of  the  places  in  which  they  were  employed. 

It  only  remains  to  consider  whether  the  trustee  was  justified  in  discharging 
them  in  the  middle  of  a  term  of  employment.  As  already  suggested  there  may 
be  exceptional  cases  in  which  a  trustee  would  be  justified  in  summarily  dismissing 
a  teacher  for  gross  immorality  or  for  utter  failure  to  fill  the  position  properly 
resulting  in  a  palpable  breach  of  contract.  In  such  a  case  he  would  act  upon  his 
own  responsibility  relying  upon  the  clearness  of  the  case  and  the  exigency  of  the 
occasion  for  his  justification.    Was  this  such  a  case?     I  think  not. 

The  trustee  alleges  as  the  reason  for  discharging  the  appellants  that  their 
work  was  not  satisfactory.  He  says  they  failed  in  discipline  and  did  not  produce 
desirable  results.  This  is  strenuously  contradicted  by  a  large  number  of  repu- 
table patrons  of  the  school.  In  any  event,  the  trustee  could  hardly  expect  the 
highest  professional  talent  for  four  dollars  per  week.  The  trustee  also  alleges 
certain  improprieties  between  the  appellants,  such  as  being  out  together  late  at 
night  and  kissing  each  other  in  the  presence  of  pupils  in  the  school.  Such  allega- 
tions as  these  should  not  be  set  up  unless  capable  of  unquestioned  proof.  Char- 
acter ought  not  to  be  attacked  by  anyone,  much  less  a  public  ofticer,  wantonly  or 
carelessly.  There  is  no  proof  whatever  to  sustain  these  allegations  so  far  as  I 
can  see.  Making  such  allegations  without  following  them  with  competent  proof, 
ought  to  weigh  against  the  party  responsible  for  it.  I  am  unable  to  sustain  the 
respondent  in  dismissing  the  appellants  in  the  summary  manner  he  did.  It  is 
shown  that  they  stood  ready  to  continue  their  service  and  I  am  of  the  opinion 
that  they  have  a  legal  claim  against  the  district  for  nine  weeks  pay  at  the  rate  of 
four  dollars  per  week.    Appeal  sustained. 


I  I  14  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

Where  a  teacher  after  teaching  three  days  of  his  term  found  the  schoolhouse  locked  against 
him,  and  without  applying  to  the  trustee  left  and  made  no  demand  for  opportunity  to 
continue  his  school  until  fifteen  days  afterward,  held  that  he  had  abandoned  the  contract 
voluntarily. 

Decided  March  30,  1861 

Van  Dyck,  Superintendent 

This  is  an  appeal  from  the  refusal  of  the  trustee  to  carry  out  a  contract  made 
by  a  former  trustee  with  the  appellant. 

The  appellant  fails  to  establish  that  the  contract  was  first  violated  by  the 
trustee.  He  admits  that  he  was  suffered  to  occupy  the  schoolhouse  for  three  days, 
and  that  then  the  door  was  locked  against  him.  He  does  not  say  by  whom  this 
\\as  done,  and  admits  that  the  first  demand  he  made  upon  the  trustee  for  oppor- 
tunity to  continue  his  school  was  fifteen  days  after  the  time  at  which  he  alleges 
the  door  was  closed  against  him.  There  is  no  evidence  produced  by  him  that  he 
sought  any  opportunity  to  continue  his  engagement,  or  made  any  demand  for 
such  opportunity,  prior  to  the  expiration  of  fifteen  days.  This  I  think  effectually 
conclutles  the  case  against  him.  By  all  ordinary  construction  and  usage  I  think 
this  must  be  regarded  as  an  abandonment  of  the  contract  on  his  part,  which  left 
the  district  to  enter  into  another  engagement. 


3468 

A  teacher  is  entitled  to  pay  for  services  during  the  time  a  school  shall  be  closed  hy  the 
trustee  on  account  of  an  infectious  or  contagious  disease  in  the  district,  when  such 
closure  occurs  during  a  term  for  which  the  teacher  was  employed. 

A  teacher  can  teach  another  school  or  engage  in  any  other  occupation  during  vacation  time 
between  terms  for  which  such  teacher  was  hired. 

Decided  January   18,   1886 

Morrison,  Acting  Superintendent 

The  appeal  is  brought  from  the  refusal  of  the  trustee  to  pay  the  teacher 
for  three  weeks  of  service  as  claimed. 

On  the  2d  day  of  September  1884,  this  appellant  and  P.  P.  Warren,  the 
trustee  of  school  district  no.  9,  Schroon,  entered  into  a  contract  under  the  terms 
of  which  P.elle  M.  Doherty,  then  a  duly  licensed  teacher,  was  to  teach  the  dis- 
trict school  in  said  district  for  a  period  of  thirty-two  weeks  at  a  weekly  com- 
pensation of  eight  and  one-fourth  dollars. 

The  thirty-two  weeks  were  to  be  divided  into  two  terms,  the  first  term  com- 
mcncuig  on  the  15th  of  September  and  ending  on  or  about  the  ist  day  of  January 
followmg.  The  school  was  then  to  be  closed  during  the  winter  months  and  until 
the  last  of  April,  owing  "  to  the  condition  of  the  roads,  severity  of  the  weather, 
and  the  distance  of  the  houses  of  the  children  from  the  schoolhouse  which  is  in  a 


JUDICIAL  decisions:    teachers'  contracts  his 

sparsely-settled  portion  of  the  Adirondack  region."  The  balance  of  the  thirty- 
two  weeks  were  then  to  be  taught. 

In  accordance  with  this  contract,  the  appellant  commenced  teaching  the  school 
on  the  15th  of  September  1884,  and  continued  to  teach  the  same  until  the  3d  day 
of  December  1S84,  when  the  school  was  closed  by  the  trustee  in  obedience  to  an 
order  of  the  board  of  health  of  said  town  "  through  fear  of  contagion  of  some 
disease  then  prevailing  in  said  town.''  The  school  remained  closed  by  virtue  of 
said  direction  during  the  remainder  of  the  first  term.  The  school  was  not  again 
open  until  the  27th  day  of  April  1885,  when  the  trustee  directed  that  the  second 
term  should  be  commenced.  This  second  term  was  continued  until  closed  by  the 
trustee  at  the  end  of  the  school  year,  making  the  time  actually  taught  twenty- 
eight  weeks  and  two  days. 

It  will  be  seen  from  the  above  that  there  were  three  weeks  and  three  days 
of  this  time  during  which  the  school  was  closed  by  order  of  the  trustee ;  and  the 
trustee  of  the  district,  elected  at  the  annual  meeting  in  1885,  refused  to  pay  appel- 
lant for  such  time.  The  appellant  thereupon  offered  to  continue  the  school  to 
make  up  for  the  lost  time,  but  said  offer  was  also  refused  by  the  trustee. 

The  question  to  be  passed  upon  is,  that  of  the  liability  of  the  district  to  the 
teacher  for  three  weeks  and  three  days.  This  is  easily  disposed  of  for  the  follow- 
ing reasons : 

First.  As  a  matter  of  law,  a  teacher  is  entitled  to  pay  for  services  during  the 
time  a  school  shall  be  closed  by  the  trustee  on  account  of  an  infectious  or  con- 
tagious disease  in  the  district,  when  such  closure  occurs  during  a  term  for  which 
the  teacher  was  employed.  The  school  was  not  taught  by  this  appellant  for  the 
three  weeks  and  three  days  for  the  reason  that  it  was  so  closed.  Second.  It  does 
not  appear  that  there  was  any  good  or  sufficient  reason  for  refusing  to  allow 
the  appellant  to  continue  the  school  long  enough  to  complete  a  period  actually 
taught  of  thirty-two  weeks,  although  under  the  law,  as  above  stated,  this  offer 
of  service  was  not  necessary  upon  the  part  of  the  teacher. 

It  is  urged  by  the  respondents  that  the  appellant  is  not  entitled  to  any  com- 
pensation for  these  three  weeks  and  three  days  for  the  reason  that  during  the 
period  the  school  was  closed  she  taught  a  school  in  another  district  for  a  few 
weeks.  This  objection  is  without  any  force,  as  it  appears  that  under  the  termS 
of  the  contract  there  was  to  be  a  vacation  during  the  winter  months,  and  it  was 
during  this  vacation  period  that  the  appellant  taught  for  three  or  four  weeks  a 
school  in  another  district.  This  she  was  legally  entitled  to  do,  or  to  engage  in 
any  other  work  or  business  she  might  desire,  as  district  no.  9,  town  of  Schroon. 
had  no  claim  upon  her  whatever  for  such  service  during  the  vacation  period 
between  the  close  of  the  first  term,  on  or  about  the  first  of  January  and  the  open- 
ing of  the  summer  term  on  the  27th  day  of  April. 

The  district  is,  therefore,  indebted  to  this  appellant  under  the  contract  for 
three  weeks  and  three  days  at  eight  and  one-fourth  dollars  per  week,  amounting 
to  tlie  sum  of  twenty-nine  dollars  and  seventy  cents. 


Ill6  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

Where  one  of  the  trustees  is  delegated  to  make  known  to  teachers  the  conditions  of 
cnga','ement  to  teach,  lie  acts  as  agent  for  the  whole  board,  and  the  board  is  bound 
by  the  terms  of  agreement  as  stated  by  him  and  accepted  by  the  teachers. 

Decided  January  25,  1862 

Kcycs,  Acting  Superintendent 

On  aii[)eal  from  the  action  of  the  trustees  in  dischargnig  certain  teachers 
from  employment  before  the  close  of  their  engagement,  the  question  l)cfore  the 
Department  is  whether  the  act  of  the  trustees  in  discharging  said  teachers  was  or 
was  not  in  violation  of  the  contract  entered  into  with  them. 

The  following  facts  are  disclosed  by  the  testimony  submitted. 

1  On  the  19th  of  September  1861,  the  trustees,  at  a  meeting  duly  held,  all 
being  present,  passed  a  series  of  resolutions,  to  the  effect  that  it  was  the  mind 
of  the  board  to  employ  as  teachers  in  the  diflerent  departments  of  the  district 
school  the  appellants  in  this  case,  for  the  term  commencing  October  ist,  then 
ensuing,  at  wages  named  in  the  resolutions,  and  subject  to  the  condition  of  a 
liability  to  be  discharged  if  they  should  fail  to  fill  their  situations  respectively  to 
the  satisfaction  of  the  trustees. 

2  G.,  one  of  the  trustees,  was  formally  or  informally  authorized  to  contract 
with  the  ai)pellants  under  the  authority  of  said  resolutions. 

3  The  said  appellants  were  employed  by  the  trustee  above  named,  but  with- 
out any  intimation  on  his  part  that  any  such  condition  as  that  named  in  the  reso- 
lution, relating  to  the  teiuire  of  their  term  of  service  being  dependent  upon  giving 
satisfaction  to  the  trustees,  was  a  part  of  the  contract.  Each  of  the  teachers  on 
her  part  consented  to  an  engagement  understood  to  be  for  a  term  of  six  months, 
at  wages  specified  and  subject  only  to  the  ordinary  conditions  that  attach  to  any 
such  contract. 

4  The  appellants  entered  upon  their  term  of  engagement,  and  discharged 
their  duties  to  the  evident  and  expressed  satisfaction  of  the  trustees  until  Decem- 
ber loth.  On  that  day  the  trustees  adopted  resolutions  to  the  effect  that  the 
teachers  then  employed  had  failed  to  give  satisfaction,  and  that  the  school  be 
closed  and  the  teachers  discharged  on  the  Friday  following,  December  13th. 

.  5  Notice  was  given  to  the  appellants  respectively  of  these  resolutions,  and 
causes  of  their  discharge  duly  assigned,  and  they  were  directed  to  leave  the 
school ;  but,  by  the  advice  of  the  dissenting  trustee,  they  still  continue  in  posses- 
sion, and  to  discharge  their  duties  as  heretofore. 

The  question  before  the  Department,  as  previously  stated,  relates  to  the  just 
and  legal  claim  of  these  teachers  for  a  continuance  of  their  services  in  said  school 
until  the  expiration  of  six  months,  and  for  the  wages  agreed  to  be  paid  to  them 
for  such  term. 

In  regard  to  this  claitn,  it  must  be  determined  by  the  principles  that  govern 
and  control  the  relations  of  principal  and  agent.  The  said  trustee,  G.,  in  con- 
tracting with  these  teachers,  acted  as  agent  for  the  board  of  trustees.  In  con- 
sidering how  far  the  act  of  the  agent  is  binding  upon  the  principal  we  are  not  to 


JUDICIAL   DECISIONS:       TEACHERS'    CONTRfVCTS  III 7 

look  SO  much  to  the  actual  authority  conferred,  as  to  what  third  parties  may  rea- 
sonably have  supposed  the  agent  to  be  invested  with.  No  principle  of  law  is  bet- 
ter established  than  this,  it  having  been  repeatedly  affirmed  by  the  highest  courts. 
The  teachers  had  a  right  to  presume  that  the  terms  offered  to  them  were  author- 
ized by  the  board  of  trustees.  They  assented  to  no  other  terms  than  these,  hence 
were  parties  to  no  other  contract-  They  can  not  be  permitted  to  suft'er  from  the 
laches  of  the  board,  who  permitted  them  to  take  their  situations  without  inform- 
ing them  of  the  terms  prescribed  by  the  resolutions. 

A  contract  made  with  a  person  authorized  to  represent  the  trustees  is  binding 
upon  them-,  though  contrary  to  the  letter  of  their  instructions.  If  any  damage 
results  to  the  trustees  from  this  disregard  of  their  instructions,  the  agent  is 
responsible  to  them,  but  the  trustees  can  not  shield  themselves  from  the  responsi- 
bility to  the  teachers. 

The  conclusion  is,  therefore,  that  the  contract  with  the  appellants  for  a  term 
of  six  months  is  valid  and  binding  upon  the  trustees,  and  the  services  of  these 
teachers  can  not  be  discontinued  before  the  expiration  of  said  term. 

Appeal  sustained. 


A  teacher  can  be  employed  only  by  the  trustees.     Therefore,  a  vote  taken  at  a  district 
meeting  to  dismiss  a  teacher  and  to  substitute  another  in  her  place  is  illegal  and  void. 
Decided  March  17,  1849 

Morgan,  Superintendent 

Samuel  T.  Peck  and  James  Smith,  two  of  the  trustees  of  district  no.  i,  Liv- 
ingston, hired  Miss  Susannah  Smith  to  teach  their  winter  school,  to  commence 
November  30,  1848.  Mr  Lament,  the  other  trustee,  was  consulted,  but  did  not 
consent  to  the  contract. 

Miss  Smith  commenced  the  school  in  the  schoolhouse  of  the  district  at  the 
stipulated  time. 

Mr  Lament,  not  being  satisfied  with  the  agreement  of  the  other  trustees, 
hired  Miss  Horford  to  teach  a  school  in  another  room. 

At  a  special  meeting  held  in  the  district  January  20,  1849,  for  the  purpose 
of  voting  a  tax  to  repair  the  schoolhouse,  and  for  other  purposes,  a  vote  was 
taken  and  carried  to  substitute  Miss  Horford  in  the  schoolhouse  as  teacher  in 
place  of  Miss  Smith. 

From  this  proceeding  the  two  trustees  appeal. 

In  employing  teachers,  the  trustees  should  consult,  as  far  as  possible,  the 
wishes  of  the  inhabitants  of  the  district.  But  when  the  trustees  have  contracted 
with  a  teacher,  thereby  binding  themselves  and  the  district,  the  inhabitants  can 
not  free  themselves  from  the  obligations  thus  imposed  by  the  official  acts  of  the 
trustees. 

Teachers  can  be  employed  only  by  trustees. 
"" '.   A  contract  made  by  two  trustees,  the  third  being  consulted,  is  valid ;  but  one 
trustee  can  perform  no  official  act  without  the  concurrence  of  at  least  another 
and  a  consultation  with  both. 


lIlS  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

111  this  case,  Miss  Smith  was  legally  employed  as  the  teacher  for  the  dis- 
trict, and  could  not  be  dismissed  except  by  the  trustees.  Therefore,  the  pro- 
ceedings of  the  district  meeting  on  the  20th  of  January,  to  dismiss  Miss  Smith 
and  substitute  Miss  Horford  as  teacher,  were  illegal  and  void,  and  Miss  Horford 
is  not  entitled  to  recover  any  of  the  public  money  or  to  continue  her  instruction 
in  the  district  schoolhouse.    Appeal  sustained. 


A  teacher  who  closes  his  school  upon  other  than  legally  authorized  days  ^for  closing, 
without  the  consent  of  the  trustees,  abandons  his  contract  and  is  liable  to  be  super- 
seded. 

Decided  March  21,   i860 

Van  Dyck,  Superintendent 

This  is  an  appeal  of  V.  H.,  a  teacher,  from  the  action  of  the  sole  trustee 
in  discharging  him  from  the  school  before  the  term  of  his  contract  had  expired. 

On  a  careful  examination  of  the  statements  I  discover  two  facts,  namely, 
that  the  appellant  dismissed  his  school  on  Tuesday,  January  24,  i860,  for  the 
rest  of  the  week,  without  permission  from  the  trustee,  but  rather  in  opposition 
to  his  expressed  wishes,  and  that  on  Thursday,  January  26th,  the  trustee  dis- 
charged him  from  the  remainder  of  his  engagement. 

Among  the  clearly  implied  conditions  of  every  contract  to  teach  is  this  one, 
that  the  school  shall  be  regularly  taught  from  the  beginning  of  the  term  until  its 
close.  The  teacher  can  not,  therefore,  close  his  school  except  upon  the  regularly 
appointed  days,  unless  with  the  approval  of  the  trustee.  In  doing  so  he  renders 
himself  liable  to  the  charge  of  abandoning  the  contract,  and  the  trustee  has  the 
legal  right  to  regard  the  contract  as  concluded. 


3504 

When  a  teacher  utterly  fails  as  a  disciplinarian,  and  does  not  possess  the  ability  to  detect 
and  search  out  the  beginnings  of  disorder,  the  board  of  education  will  be  sustained  in 
discharging  him. 

It  is  the  duty  of  a  member  of  the  board  of  education,  upon  hearing  that  a  disturbance  is 
tlircatcned  in  the  school  of  a  serious  nature,  not  only  to  warn  the  teacher  and  advise 
him  to  send  for  a  constable,  but  to  remain  at  the  school  and  see  that  the  peace  is  kept, 
and  the  order  of  the  school  and  community  maintained. 

Decided  .\pril  6,  1886 

Morrison,  Acting  Superintendent 

The  appellant  entered  upon  the  discharge  of  his  duties  as  principal  of  the 
school  at  the  time  when  he  feared  that  his  health  would  not  permit  him  to 
endure  the  work.  He  was,  at  the  time  of  his  employment,  wholly  without  experi- 
ence as  a  teacher.    The  appellant  commenced  his  term  of  service  on  the  31st  day 


JUDICIAL   DECISIONS:      TEACHERS'    CONTRACTS  II I9 

of  August  1885,  for  a  trial  term  which  would  expire  on  the  27th  day  of  Novem- 
ber of  that  year-  On  the  31st  day  of  October  he  wrote  a  letter  of  resignation, 
stating  that  on  account  of  his  health  he  thought  it  his  duty  both  to  himself  and 
to  the  district,  to  sever  his  connection  with  the  school.  This  letter 
was  placed  in  the  hands  of  the  president  of  the  board,  with  the  request 
that  it  be  presented  at  the  next  meeting.  The  president,  however,  advised  the 
withdrawal  of  the  resignation,  stating  that  the  appellant  was  giving  better  satis- 
faction than  had  been  expected,  and  advising  him  not  to  resign  imder  the  cir- 
cumstances, but  that  if  he  still  wished  to  resign  he  could  return  the  letter  before 
the  meeting  of  the  board  that  evening,  November  2d.  The  letter  was  not  re- 
turned, but  at  the  meeting  of  the  board,  on  the  2d  day  of  November,  with  but  one 
dissenting  voice,  it  was  voted  to  retain  him  in  his  position  for  the  remainder  of  the 
year. 

The  appellant's  second  term  commenced  on  the  30th  day  of  November.  It 
appears  that  he  had  trouble  in  disciplining  the  school  and  this  trouble  was  of 
so  grave  a  character  that  on  the  7th  day  of  December  the  board  unanimously 
voted  to  sustain  him  in  his  position.  On  the  9th  day  of  December,  while  engaged 
in  teaching,  he  was  set  upon  and  forcibly  removed  from  the  schoolroom  by  sev- 
eral of  the  boys  of  his  class.  The  leader  of  them  was  the  son  of  a  member  of 
the  board  of  education,  and  had  been  suspended  for  misconduct  and  was  at  school 
in  defiance  of  the  principal.  At  a  meeting  of  the  board,  in  the  afternoon  of  the 
same  day,  the  appellant  was  requested  to  resign.  On  his  declining  to  do  so,  the 
schoolroom  was  closed  against  him. 

Due  notice  of  that  fact  and  that  he  stood  ready  to  fulfil  his  contract  was  given 
to  the  board,  and  on  the  14th  of  December  the  board  voted  to  discharge  him  from 
his  employment.  On  the  23d  of  December  a  tender  was  made  to  him  of  $10.50 
in  payment  in  full  of  the  services  rendered  up  to  noon  of  December  9th,  it  being 
claimed  that  he  abandoned  his  contract,  whereas  he  was  not  discharged  until 
the  14th  day  of  December  following.  He  declined  to  receive  the  amount  so 
tendered  to  him. 

The  appellant  further  alleges  that  the  boys  were  encouraged  and  abetted  in 
their  plot  to  put  him  out,  by  at  least  one  of  the  members  of  the  board  of  edu- 
cation. 

I  find  from  the  evidence  that,  after  the  appointment  of  the  principal  at  a 
regular  meethig  of  the  board  in  November,  during  the  first  days  of  the  winter 
term,  serious  disturbance  and  disorder  in  the  grammar  department  was  reported 
to  various  members  of  the  board.  A  committee  of  the  board  visited  the  school 
and  found  the  class  taught  by  the  principal  without  discipline  and  in  a  condition 
where  proper  teaching  was  out  of  the  question.  It  was  suggested  that  the  prin- 
cipal might  be  encouraged  and  the  pupils  brought  into  proper  relations  to  tlieir 
teacher  by  the  passage  of  a  resolution  sustaining  all  teachers  in  disciplining  the 
school,  and  the  appellant  in  particular.  The  resolution  was  passed  and  was 
.announced  by  the  president  of  the  board,  the  object  being  to  encourage  and  sup- 
p(3rt  discipline. 


II20  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

In  all  the  evidence  of  this  case  I  fail  to  see  how  the  board  could  have  taken 
other  action  than  it  did.  The  teacher  seems  to  have  utterly  failed  as  a  cfisciplin- 
arian,  and  I  am  led  to  agree  with  the  board  that  had  he  possessed  the  ability  to 
detect  and  search  out  the  beginnings  of  the  disorder,  and  had  he  earnestly  and 
wisely  endeavored  to  check  the  disturbance  in  the  beginning,  he  might  have 
filled  the  position  to  his  credit  and  to  the  satisfaction  of  the  community. 

I  am  free  to  say  that  I  can  not  consider  that  member  of  the  board  of  edu- 
cation blameless,  who,  having  been  advised  of  a  conspiracy  among  the  more 
turbulent  spirits  of  the  class  in  charge  of  the  appellant  forcibly  to  eject  liim 
from  the  room,  considered  his  whole  duty  done  when  he  informed  the  prin- 
cipal of  the  anticipated  outrage  and  suggested  to  him  to  go  for  a  constal)le. 
That  member  of  the  board,  himself  an  officer  of  the  peace,  should  have  remained 
at  the  school  to  see  that  peace  was  kept  and  the  order  of  the  school  and  of  the 
community  be  maintained.  Had  he  done  so,  the  necessity  for  this  appeal  might 
not  have  arisen.  Nevertheless,  I  think  from  all  the  evidence  in  this  case,  the 
appellant  showed  himself  at  the  time  unable  to  perform  the  terms  of  his  contract. 


3732 

In  the  matter  of  the  appeal  of  Henry  C.  Alapes,  Irving  Washburn  and  others  v. 
the  board  of  education  of  union  free  school  district  no.  i,  town  of  West- 
chester, and  Alichael  E.  Devlin- 

A  board  of  education  previous  to  the  annual  school  meeting  employed  a  new  principal 
of  a  union  school.  At  the  annual  meeting  trustees  were  elected  known  to  favor  the 
retention  of  the  old  principal,  and  a  resolution  was  adopted  directing  the  board  to 
re-employ  the  former  principal,  and  raise  by  tax  sufficient  money  to  meet  any  claims 
which  might  be  adjudged  to  the  teacher  employed  by  the  old  board,  in  consequence  of 
the  violation  of  the  contract  entered  into  with  him,  and  the  board  acted  accordingly. 

Held,  first,  that  the  district  had  no  power  to  compel  the  board  to  take  any  specific  action 
touching  the  employment  and  pay  of  teachers. 

Second,  that  the  district  meeting  had  power  to  authorize  the  trustees  to  raise  the  additional 
sum  by  tax  for  teachers'  wages. 

Third,  that  the  board,  having  the  support  of  the  district,  had  power  to  disregard  the  action 
of  the  former  board  touching  the  employment  of  teachers  upon  the  payment  of  damages 
suffered  by  the  aggrieved  teacher  in  consequence  of  such  action,  or  upon  provision 
being  made  therefor. 

Decided  November  21,  1888 

Milton  A.  Fowler,  attorney  for  the  appellants 
H.  C.  Henderson,  attorney  for  the  respondents 

Draper,  Superintendent 

The  respondent,  Michael  E.  Devlin,  has  been  principal  of  the  school  in  union 
free  school  district  no.  i,  of  the  town  of  Westchester,  since  1881.  At  a  meeting 
of  the  board  of  education  held  on  the  7th  of  August  1888,  it  was  determined  by 


JUDICIAL   DECISIONS:       TEACHERS'    CONTRACTS  II2I 

tl^ie  board  by  a  vote  of  five  to  four  to  appoint  the  appellant,  Irving  Washburn,  as 
principal  of  the  school  for  the  ensuing  year,  at  a  salary  of  $1800  per  annum. 
Subsequently  a  written  agreement  was  entered  into  between  said  Irving  Wash- 
burn and  the  president  and  clerk  of  the  board,  whereby  Washburn  agreed  to 
serve  the  board  as  principal  for  the  period  of  one  year  from  the  20th  of  August 
1888,  and  the  board  agreed  to  pay  him  for  such  service  the  sum  of  $1800.  The 
action  of  the  board  in  employing  a  new  principal  is  shown  to  have  aroused  con- 
siderable feeling  in  the  district  and  the  annual  school  meeting  held  on  the  28th 
of  August  was  largely  attended.  At  such  meeting  three  trustees  were  elected  to 
serve  for  a  term  of  three  years  each,  and  one  to  serve  an  unexpired  term  of  two 
years.  Two  tickets  were  presented  for  these  places.  The  main  issue  between 
them  being  the  retention  of  the  old  principal  or  the  recognition  of  the  new  one. 
Some  350  votes  were  polled  and  trustees  favorable  to  the  retention  of  the  old 
principal  were  selected  by  a  vote  nearly  double  that  given  to  their  opponents. 
The  meeting  also  adopted  the  following  resolutions : 

Resolved.  That  the  action  of  the  board  of  education  of  this  district  in  dis- 
charging Michael  E.  Devlin  without  cause  is  hereby  condemned,  and  the  board 
of  education  is  hereby  directed  by  the  legal  voters  of  district  no.  i  of  the  town 
of  Westchester  to  discharge  immediately  Irving  Washburn. 

Resolved,  That  the  sum  of  $2100  is  hereby  ordered  to  be  added  to  the 
requisition  asked  for  by  the  board  of  education  to  be  paid  to  Alichael  E.  Devlin 
in  event  that  the  courts  decide  Irving  Washburn  entitled  to  his  full  salary  under 
his  contract;  and, 

Resolved.  That  the  said  board  of  education  is  hereby  empowered  by  this 
district  to  employ  counsel  to  contest  the  right  of  Irving  Washburn  to  any  salary 
under  his  contract  with  the  board. 

At  a  meeting  of  the  new  board  of  education  held  on  the  first  of  September 
following,  the  following  preamble  and  resolution  were  adopted : 

Whereas,  The  taxpayers  and  legal  voters  of  district  no.  i  of  the  town  of 
Westchester,  at  their  annual  school  meeting  held  August  28,  1888,  voted  unani- 
mously a  resolution  directing  this  board  of  education  to  employ  Michael  E. 
Devlin  for  the  ensuing  year  at  a  salary  of  $2100;  therefore,  be  it 

Resolved,  That  Michael  E.  Devlin  is  hereby  appointed  by  the  board  of  educa- 
tion to  be  principal  of  this  school  district  for  the  ensuing  year,  beginning  Septem- 
ber I,  1888,  and  ending  August  31,  1889,  at  a  salary  of  $2100  per  annum. 

Mr  Devlin  accepted  this  reemployment  and  has  since  been  acting  as  the 
pirncipal  of  the  school.  Mr  Washburn  has  claimed  the  right  to  act  as  principal, 
but  has  been  enjoined  from  interfering  with  the  school  or  assuming  to  perform 
the  duties  of  principal,  by  an  order  of  the  Supreme  Court  in  proceedings  com- 
menced after  the  petition  in  this  appeal  had  been  served. 

Mr  Washburn  as  well  as  numerous  residents  and  taxpayers  in  the  district 
now  appeal  against  the  action  of  the  district  meeting  and  the  subsequent  action 
of  the  board  of  education  above  quoted. 
36 


Iij2  Tllli    UNIVKKSITV    OF    THE    STATE    OF    NEW    YORK 

There  arc  niany  other  tilings  set  forth  in  the  voluminous  papers  served  and 
nied  by  the  resi)eclive  parties,  but  I  consider  the  foregoing  to  be  the  material 
facts  upon  which  I  am  called  to  act. 

It  has  always  been  held  by  this  Department  that  a  district  meeting  could 
neither  control  the  selection  of  a  teacher,  nor  determine  the  amount  of  salary 
which  should  be  paid  for  his  services.  It  is  the  policy  of  the  law  to  leave  those 
matters  exclusively  to  the  discretion  of  trustees.  The  action  of  the  district  meet- 
ing, therefore,  in  directing  the  board  of  education  to  discharge  Mr  Washburn, 
or  disregard  his  employment,  and  to  reemploy  Mr  Devlin,  had  no  binding  force 
upon  the  board.  It  was  under  no  lawful  obligation  to  follow  such  direction,  but 
the  board  seems  to  have  been  more  than  willing  to  take  such  action.  It  is  true 
that  in  its  action  it  recites  the  fact  that  the  annual  school  meeting  has  directed  it 
to  take  such  action,  but  there  can  be  no  pretense  that  any  coercion  was  required  to 
induce  the  board  to  pursue  the  course  which  it  did.  Indeed,  the  greater  number 
of  the  members  of  the  board  seem  to  have  been  chosen  for  that  particular  pur- 
pose. The  annual  school  meeting  recognized  the  fact  that  the  district  might  be 
liable,  under  the  contract  with  Mr  Washburn,  for  it  directed  sufficient  additional 
money  to  be  raised  to  meet  the  whole  of  his  year's  salary,  provided  so  much 
should  be  necessary. 

The  question  is  then  squarely  presented  whether  a  board  of  education  or  a 
trustee,  at  the  desire  of  a  majority  of  the  electors  of  the  district,  as  expressed 
at  an  annual  school  meeting,  can  disregard  a  contract  previously  entered  into 
for  the  employment  of  a  teacher,  provided  only  that  the  district  shall  pay  such 
damages  as  may  be  adjudged  against  it  for  such  breach  of  contract. 

The  learned  counsel  for  the  appellants  argues  very  strongly  and  closely  that 
the  resolution  of  the  district  meeting  to  raise  the  sum  of  $2100  additional  to  the 
estimated  expenditures,  presented  by  the  board  of  education,  was  illegal  and  void. 
Section  15  of  title  9  of  the  Consolidated  School  Act  makes  it  the  duty  of  the 
board  of  education  in  a  union  free  school  district,  to  present  to  the  annual  school 
meeting  a  detailed  statement  in  writing  of  the  amount  of  money  which  will  be 
required  for  the  ensuing  year  for  school  purposes,  exclusive  of  the  public  moneys. 
Section  16  provides  that  after  the  presentation  of  such  statement  the  question 
shall  be  taken  upon  voting  the  necessary  taxes  to  meet  the  estimated  expenditures. 
It  directs  that  the  question  shall  be  taken  upon  each  estimate  separately  upon 
the  demand  of  any  voter  present  and  then  in  words  provides  "  that  the  inhabitants 
may  increase  the  amount  of  any  estimated  expenditure  or  reduce  the  same, 
except  for  teachers'  wages  and  the  ordinary  contingent  expenses  of  the  school 
or  schools."  Counsel  insists  that  the  language  here  quoted  prevents  the  district 
meetmg  from  raising  any  more  or  less  money  for  teachers'  wages,  than  may 
have  been  shown  to  be  necessary  in  an  estimate  presented  to  the  meeting  by  the 
board  of  education. 

I  am  unable  to  agree  with  him  in  this  view.  It  seems  to  me  very  clear 
that  the  intent  of  the  statute  is  to  prevent  reducing  the  estimate  for  teachers' 


JUDICIAL    DECISIONS:       TEACHERS'    CONTRACTS  II23 

wages,  but  I  can  not  think  that  it  was  intended  to  precUide  the  annual  meeting 
from  increasing  such  estimate. 

Section  lo  of  title  9  of  the  Consolidated  School  Act  is  the  one  which  con- 
fers upon  the  annual  meeting  in  union  free  school  districts,  other  than  those 
whose  limits  correspond  with  an  incorporated  city  or  village,  power  to  levy 
taxes  for  school  purposes.  Among  the  powers,  by  this  section  conferred  upon  the 
annual  meeting,  is  authority  to  levy  taxes.  "  For  paying  the  wages  of  teachers 
and  the  necessary  expenses  of  the  schools,  or  for  such  other  purpose  relating  to 
the  support  and  welfare  of  the  school,  as  they  may  by  resolution  approve.'" 
This  same  section  10  goes  on  and  provides  that  no  tax  for  the  purchase  of  a 
new  site  or  an  addition  to  a  site,  or  for  the  erection  of  a  new  schoolhouse,  or  an 
addition  to  an  old  one,  etc.,  shall  be  levied  except  after  notice  of  such  proposed 
action  shall  have  been  given  by  publishing  or  posting  the  same  in  advance  of 
the  annual  meeting.  But  there  is  no  such  limitation  placed  upon  the  authority 
conferred  for  raising  money  for  teachers'  wages  or  other  ordinary  expenses.  It 
must  be  remembered  too  that  the  statutes  confer  larger  powers  upon  boards  of 
education  and  an  annual  school  meeting  in  a  union  free  school  district,  than  in 
an  ordinary  common  school  district,  and  taking  all  of  the  provisions  of  the 
statutes  together  I  have  no  difficulty  in  arriving  at  the  conclusion  that  the  annual 
meeting  had  the  legal  power  to  authorize  the  levying  of  an  additional  tax,  over 
and  above  the  sum  estimated  by  the  board  of  education  for  teachers'  wages, 
moreover,  it  is  to  be  remembered  that  the  real  question  here  is  not  whether  the 
annual  meeting  had  the  power  to  raise  the  additional  sum  of  $2100,  but  it  is 
whether  the  board  of  education  has  the  power  to  disregard  a  contract  made  by 
a  previous  board,  involving  the  displacement  of  an  old  teacher  and  the  employ- 
ment of  a  new  one  after  such  action  is  shown  to  have  been  opposed  by  a  majority 
of  the  district  as  represented  in  the  annual  meeting.  If  the  board  has  the  right, 
then  there  certainly  would  be  no  trouble  upon  the  residents'  view  of  the 
statute  in  raising  the  additional  money  necessary  to  pay  the  salary  of  the  teacher 
last  employed  and  liquidate  the  damages  adjudged  to  the  one  first  employed,  for 
the  board  could  present  its  estimate  at  any  special  or  annual  meeting  of  the  dis- 
trict, when  the  meeting  would  be  called  upon  to  vote  the  amount. 

I  come  then  to  what  I  consider  the  principal  question  involved  in  the  case, 
namely,  Is  Mr  Washburn  entitled  to  a  specific  performance  of  the  contract  made 
between  himself  and  the  old  board,  or,  can  the  present  board  of  education  dis- 
regard such  contract  upon  the  payment  of  such  damages  as  he  may  be  adjudged 
to  be  entitled  to,  by  competent  authority?  It  is  well  settled  that  one  party  to  a 
contract  can  claim  a  specific  performance  of  the  same  only  when  he  can  show 
that  other  legal  remedy  is  inadequate,  and  that  without  such  specific  performance 
injustice  or  irreparable  injury  will  be  done  him.  A  claim  for  such  a  perform- 
ance is  one  which  is  always  addressed  to  the  equitable  jurisdiction  of  the  court. 
The  relief  sought  by  the  claimant  in  such  a  case  is  not  one  which  is  asked  as  a 
"right,  but  one  which  is  addressed  to  the  discretion  of  the  court,  after  showing 
that  leo-al  remedies  are  inadequate.     The  appellant,  Washburn,  can  not  bring 


1  1J4  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

himself  within  these  well-settled  rules  of  law.  The  injury  to  which  he  may  be 
subjected  by  the  later  action  of  the  board  of  education  is  one  which  can  readily 
be  compensated  for  by  the  payment  of  money.  The  action  of  the  district  meet- 
ing i)laiiily  contemplates  a  settlement  with  him  upon  some  moneyed  basis.  The 
interminable  quarrel  in  that  district  leads  me  to  apprehend  that  such  a  settlement 
will  be  more  to  his  interest  than  it  would  be  to  be  able  to  exact  a  specific  per- 
formance of  his  agreement  with  the  board. 

If  Washburn  is  not  entitled  to  exact  a  specific  performance  of  his  agree- 
ment, it  seems  to  be  that  taxpayers  in  the  district  are  not.  They  are  bound  to 
pay  such  taxes  for  school  purposes  as  ma}-,  in  the  discretion  of  the  district 
meeting  and  the  board  of  education,  acting  within  their  legal  authority,  deter- 
mine to  be  necessary  to  the  best  educational  interests  of  the  district. 

Finding  no  insuperable  legal  objection  to  the  course  pursued  by  the  district 
meeting  and  the  board  of  education,  I  am  led  to  inquire  whether  there  is  any 
objection  on  principle  and  whether  upholding  such  action  would  be  a  precedent 
unwise  to  establish.  It  may  be  said  that  when  a  teacher  has  once  entered  into 
a  contract  with  a  board  of  education  he  ought  to  know  that  the  agreement  means 
something,  and  that  the  board  will  fulfill  the  same  on  its  part.  It  may  be  said 
also  that  school  districts  ought  not  to  be  subject  to  endless  confusion  and  uncer- 
tainty about  the  employment  of  a  teacher  or  to  the  manipulation  of  interested 
persons,  but  I  see  no  good  reason  why  contracts  touching  the  employment  of  a 
teacher  should  be  subject  to  any  other  limitation  or  regulation  than  other  con- 
tracts. The  fact  that  the  district  must  pay  such  damages  as  may  be  suflfered 
by  the  teacher  who  has  been  employed,  but  is  subsequently  displaced,  would 
seem  to  be  sufficient  to  deter  the  board  of  education  from  such  action,  unless 
the  manifest  sentiment  of  the  district  approves  it.  In  cases  where  such  general 
sentiment  does  approve  such  action  and  is  willing  to  pay  the  expense  involved, 
it  seems  to  me  that  it  ought  to  have  its  way. 

In  view  of  the  foregoing  considerations,  I  come  to  the  conclusion  that  it  is 
my  duty  to  dismiss  the  appeal. 


5422 

In  the  matter  of  the  appeal  of  Margaret  E.  McCullough  from  the  action  of  the 
trustees  of  school  district  no.  3.  town  of  North  Hempstead,  Nassau  county. 

Teacher's  contract;  annual  compensation  paid  monthly.  A  contract  witii  a  teacher 
n-hich  provides  that  she  shall  teach  "  for  a  term  of  forty-two  consecutive  weeks  .  .  . 
at  a  yearly  compensation  of  $600,  payable  one-twelfth  at  the  end  of  each  thirty  days 
until  close  of  year  in  June,  when  balance  shall  be  paid  "  is  not  to  be  construed  as  pro- 
viding for  a  deduction  in  case  of  a  failure  to  complete  the  term  of  forty-two  weeks. 

Decided  November  18,  1909 

W.  H.  Weller.  attorney  for  appellant 
Harry  W.  Moon,  attorney  for  respondents 


JUDICIAL  decisions:     teachers'  contracts  1 125 

Draper,  Commissioner 

The  appellant,  Margaret  E.  McCullough,  was  employed  as  teacher  by  the 
trustees  of  school  district  no.  3,  town  of  North  Hempstead,  county  of  Nassau, 
for  the  year  1908-9.  She  commenced  her  services  under  her  contract  September 
8,  1908,  and  continued  them  until  March  12,  1909,  when  she  was  released  at  her 
request  by  the  trustees  of  the  district.  She  had  then  taught,  according  to  her 
statement,  which  is  not  denied  by  the  respondents,  for  a  period  of  twenty-six 
weeks.  The  contract  executed  by  the  parties  provided  that  the  appellant  should 
"  teach  the  public  school  of  said  district  for  a  term  of  forty-two  consecutive 
weeks,  except  as  hereinafter  provided,  commencing  September,  1908,  at  a  yearly 
compensation  of  $600  and  no  cents,  payable  one-twelfth  at  the  end  of  each  thirty 
days  until  close  of  year  in  June  when  balance  shall  be  paid. 

The  trustees  paid  the  appellant  under  this  contract  $50  at  the  end  of  each 
thirty  days,  and  upon  her  leaving  the  school,  $25  for  the  time  taught  in  March, 
making  a  total  of  $325.  At  the  close  of  school  in  June  she  demanded  payment 
of  $65,  which  she  claimed  was  the  balance  due  her  under  the  contract.  The 
trustees  refused  to  pay  her  anything  and  insist  that  nothing  was  due.  They 
base  this  claim  upon  the  assumption  that  the  contract  calls  for  the  payment  of 
only  $50  for  each  calendar  month,  and  that  since  the  appellant  failed  to  complete 
the  year,  there  was  nothing  due  her  at  the  close  of  the  school  in  June. 

This  is  an  unwarranted  interpretation  of  the  contract.  The  contract  must 
be  construed  as  requiring  the  payment  of  $600  for  forty-two  weeks  of  teaching. 
The  appellant  actually  taught  twenty-six  weeks  and  she  is  entitled  to  full  com- 
pensation therefor.  The  trustees  voluntarily  released  her  from  her  contract 
without  reservation  or  condition.  The  contract  did  not  specifically  provide  for 
a  deduction  in  case  of  a  failure  to  complete  the  term  of  forty-two  weeks,  and 
in  the  absence  of  an  express  provision  to  that  efifect  it  should  not  be  so  con- 
strued. The  amount  which  should  be  paid  the  appellant  for  twenty-six  weeks  of 
teaching  is  $371.41.  She  has  been  paid  the  sum  of  $325,  and  there  is  now  due 
her  the  sum  of  $46.41. 

The  appeal  is  sustained. 

It  is  hereby  ordered,  That  the  trustees  of  school  district  no.  3.  town  of 
North  Hempstead,  county  of  Nassau,  issue  an  order  in  the  manner  provided  for 
by  law  for  the  payment  of  the  sum  of  $46.41  to  the  said  Margaret  K.  ^kFcCnllough, 
and  that  if  no  funds  are  avail alile  for  such  payment,  the  trustees  of  such  district 
raise  by  district  tax  a  sum  sufficient  for  such  payment. 


5437 

In  the  matter  of  the  appeal  of  Syrena  H.  Stackpole  from  the  action  of  the  board 
of  education  of  district  no.  5,  Islip,  Suffolk  county,  in  dismissing  her  from 
her  position  as  preceptress  in  Bayport  Union  School. 

Dismissal  of  teacher  by  board  of  education;  dismissal  not  sustained  for  alleged  insub- 
ordination. The  dismissal  of  a  teacher  by  a  board  of  education  will  not  be  sustained 
where  the  only   facts   presented  are  to  the  effect  that  the  teacher   was   the  aggressor 


1 126  THE    UNIVKKSITV    UF    THE    STATE    OF    NEW    YORK 


in  a 


controversy  with  the  principal  whicli  occurred  out  of  school  hours  and  which  did 

not  aflfect  directly  the  discipline  of  the  school.  Lack  of  harmony  between  a  teacher 
and  the  principal  is  not  of  itself  sufficient  cause  for  dismissal.  A  board  of  education  can 
only  insist  that  a  teacher  properly  perform  her  duties  as  such  and  that  she  comply  with 
the  reasonable  directions  of  the  principal  relative  to  the  school  over  which  he  has 
control. 
Decided  February  17,  1910 


John  R.  Vunk,  attorney  for  appellant 
R.  S.  Pelletreau,  attorney  for  respondent 


Draper,  Commissioner 

The  appellant,  Miss  Syrena  H.  Stackpole,  was  employed  as  preceptress  of 
the  Bayport  Union  School,  by  the  board  of  education  of  union  free  school  dis- 
trict no.  5,  town  of  Islip,  in  the  county  of  Suffolk,  for  a  period  of  forty  weeks, 
commencing  September  7,  1909.  She  served  in  such  position  until  December  8, 
1909,  when  she  was  summarily  dismissed  therefrom  by  the  board  of  education. 
She  brings  this  appeal  from  such  dismissal  and  asks  that  such  dismissal  be  set 
aside  and  that  she  be  reinstated  with  all  the  rights  and  emoluments  to  which  she 
is  entitled  under  her  contract  with  such  board  of  education.  The  grounds  for 
the  dismissal  as  stated  in  the  notice  is  that  the  appellant  questioned  the  authority 
of  the  principal  and  declared  that  she  had  no  respect  for  him  and  told  him  he 
was  no  gentleman.  It  was  further  stated  in  the  notice  that  the  appellant  had  not 
"  fulfilled  her  contract  as  a  teacher  in  said  school,"  and  that  to  retain  her  "  would 
be  detrimental  to  the  welfare  of  said  school." 

It  is  apparent  from  the  papers  that  there  was  a  personal  difference  between 
Miss  Stackpole  and  the  principal,  Matthew  J.  Pechtel.  The  only  question  for 
decision  seems  to  be  whether  the  appellant  has  been  guilty  of  a  sufficiently  griev- 
ous offense  to  justify  her  summary  dismissal.  She  expressed  her  unfavoi"able 
opinion  of  the  principal  in  his  presence,  outside  of  school  hours,  in  forcible 
language.  The  principal  naturally  resented  such  conduct  on  her  part  and  sub- 
mitted the  matter  to  the  board  of  education.  The  board  was  apparently  com- 
pelled to  decide  as  between  the  two  teachers,  for  it  seems  established  that  the 
principal  proposed  to  resign  unless  the  board  dismissed  the  appellant.  It  is 
probable  that  in  determining  the  matter  against  the  appellant  the  board  acted 
in  good  faith  and  for  what  it  deemed  the  best  interests  of  the  school. 

There  is  nothing  in  the  record  against  the  efficiency  of  the  appellant  as  a 
teacher.  There  is  no  charge  of  incompetency.  The  board  merely  asserts  that 
she  was  the  aggressor  in  the  controversy  with  the  princii)al  and  that  her  conduct 
was.  in  effect,  insubordination.  It  is  probably  true  that  the  appellant  was  unduly 
severe  in  her  language,  and  that  she  was  somewhat  hasty  in  her  action.  There  is 
nothing  here  to  indicate  insubordination  on  her  part.  There  is  not  sufficient  proof 
of  the  allegation  that  the  appellant  questioned  the  authority  of  the  principal. 
She  professes  her  willingness  to  obey  the  principal  and  perform  her  duties  under 
his  reasonable  direction  and  control. 


JUDICIAL  decisions:     teachers'  contracts  1 127 

The  conclusion  necessarily  is  that  the  board  dismissed  the  appellant  for  her 
part  in  a  controversy  with  the  principal  which  occurred  outside  of  school  hours, 
and  which  did  not  affect  directly  the  discipline  of  the  school.  If  both  parties  to 
the  controversy  continued  in  the  proper  exercise  of  their  respective  duties  there 
was  no  reason  why  the  school  could  not  have  been  successfully  conducted  with 
both  teachers  in  the  positions  for  which  they  had  been  employed.  The  wrong 
committed  by  the  appellant  was  too  trivial  in  itself  to  justify  her  dismissal.  The 
board  could  not  legally  terminate  her  contract  upon  the  ground  that  the  lack 
of  harmony  between  the  appellant  and  the  principal  threatened  to  break  down 
the  discipline  of  the  school  and  to  demoralize  its  work.  The  board  may  properly 
insist  that  she  perform  her  duties  in  such  position,  and  that  she  comply  with  all 
reasonable  directions  of  the  principal,  relative  to  the  school  over  which  he  has 
control.  The  board  may  not  complain  of  the  personal  differences  between  these 
teachers,  so  long  as  they  perform  their  duties  in  an  efficient  manner.  The  school 
may  prosper  even  if  they  have  no  mutual  respect  or  regard  for  each  other.  In 
any  event,  the  appellant  should  not  be  punished  by  loss  of  her  position  and  the 
consequent  injurious  eft'ect  upon  her  reputation  as  a  teacher  because  she  has  pro- 
fessed her  lack  of  respect  for  the  principal. 

The  appeal  herein  is  sustained. 

It  is  hereby  ordered,  That  the  dismissal  by  the  board  of  education  of  union 
free  school  district  no.  5,  town  of  Islip,  county  of  Suffolk,  of  Syrena  H.  Stack- 
pole,  as  preceptress  of  the  Bayport  Union  School,  under  date  of  December  8, 
1909,  to  take  effect  at  the  close  of  school  on  such  day,  is  hereby  set  aside  and 
declared  of  no  effect,  and  that  said  board  of  education  shall  immediately,  upon 
the  filing  of  this  order,  reinstate  the  said  Syrena  H.  Stackpole  as  preceptress  in 
said  school,  under  and  pursuant  to  the  terms  of  the  contract  entered  into  by  the 
said  board  and  the  said  Syrena  H.  Stackpole,  and  that  the  said  board  shall  pay 
to  the  said  Syrena  H.  Stackpole  all  such  sums  as  may  be  due  to  her  under  such 
contract  from  the  date  of  such  dismissal  to  the  date  of  her  reinstatement  as 
above  directed. 


5458 

In  the  matter  of  the  appeal  of  Ella  Baldwin  from  the  action  of  Gilbert  L.  Mosher, 
as  trustee  of  school  district  no.  9,  town  of  Danube,  Herkimer  county. 

Dismissal  of  teacher;  lack  of  punctuality.  The  persistent  failure  of  a  teacher  to  observe 
the  hours  fixed  by  a  trustee  for  opening  school  is  sufficient  cause  for  dismissal.  A 
trustee  is  authorized,  and  it  is  his  duty,  to  insist  that  the  teacher  employed  by  him 
shall  keep  the  hours  prescribed.  A  teacher  can  not  expect  promptness  on  the  part  of 
her  pupils  who  is  herself  guihy  of  habitual  lack  of  punctuality. 

Decided  June  11,  1910 

Lewis  &  Mcintosh,  attorneys  for  appellant 
Robert  T.  Livingston,  attorney  for  respondent 


1 1 28  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

Draper.  Commissioner 

The  appellant  Ella  Baldwin,  was  employed  by  the  respondent,  Gilbert  L. 
Mosher,  as  trustee  of  school  district  no.  9,  town  of  Danube,  Herkimer  county, 
to  teach  the  school  in  such  district  for  a  term  of  thirty-two  weeks,  commencing 
September  13,  1909.  The  appellant  was  dismissed  from  her  employment  De- 
cember 10,  1909,  according  to  the  statement  of  the  respondent,  although  the 
appellant  alleges  that  she  was  dismissed  on  December  20th.  The  appellant  con- 
tends that  the  dismissal  was  without  cause  and  asks  that  she  be  reinstated  and 
that  the  trustee  be  directed  to  pay  her  the  balance  due  under  the  contract. 

The  evidence  presented  is  conflicting  and  it  is  difficult  to  definitely  ascertain 
the  actual  facts  as  to  all  the  issues  raised.  The  respondent  evidently  did  not 
act  hastily  in  dismissing  the  appellant.  The  record  shows  that  he  sought  the 
advice  of  the  school  commissioner  of  his  district  and  of  the  State  Education  De- 
partment before  taking  any  action.  He  had  a  perfect  right,  and  it  was  indeed 
his  duty,  to  do  tliis,  although  the  appellant  seems  to  resent  it.  The  chief  cause 
of  complaint  against  the  teacher  by  the  trustee  is  her  failure  to  open  and  close 
the  school  regularly  at  the  hours  prescribed  by  him.  The  teacher  resided  during 
the  term  at  her  home  in  Little  Falls,  a  distance  of  about  six  miles  from  the 
school.  She  proposed  to  drive  to  and  from  the  school  morning  and  night.  The 
trustee  knew  this  and  refused  to  engage  her  until,  as  alleged  in  his  affidavit,  she 
promised  that  she  would  be  punctual  in  the  morning  and  would  not  close  her 
school  until  four  in  the  afternoon.  The  respondent  trustee  then  asserts  that 
after  a  week  or  so  the  appellant  failed  to  be  punctual  and  from  then  until  the 
time  of  her  dismissal  "  she  usually  arrived  late  and  failed  to  open  the  said  school 
until  9.15  to  9.45  o'clock  in  the  morning  and  made  almost  a  daily  practice  of 
closing  said  school  at  from  3  to  3.10  o'clock  in  the  afternoon."  The  respondent 
insists  that  he  had  many  talks  with  appellant  about  it  and  had  frequently  told 
her  that  "  she  must  be  there  and  open  the  school  at  9  o'clock  in  the  morning  and 
keep  it  until  4  o'clock  in  the  afternoon;  otherwise  he  would  not  continue  her 
services  and  that  she  would  be  dismissed  according  to  her  agreement  which  she 
had  made  in  the  beginning."  The  appellant  says  that  the  trustee  consented  to  a 
shortening  of  the  noon  hour  and  afternoon  recess  so  that  the  school  should  be 
closed  at  3.30  o'clock,  but  she  does  not  deny  the  charge  of  want  of  punctuality, 
nor  has  she  specilically  denied  that  she  has  frequently  closed  the  school  before 
the  prescribed  hour.  The  respondent's  statements  as  to  the  late  opening  and 
early  closing  of  school  are  supported  by  the  affidavits  of  two  other  persons.  The 
respondent  has  shown  by  a  preponderance  of  evidence  that  the  appellant  has 
been  habitually  late  in  opening  her  school  against  his  frequent  protest  and  that 
she  has  also  closed  the  school  without  his  consent  at  an  hour  earlier  than  that  pre- 
scribed by  him. 

The  que.'^tion  to  be  determined  is  whether  the  persistent  failure  of  the  ap- 
pellant to  observe  the  hours  fixed  for  opening  and  closing  school  is  sufficient 
cause  for  her  dismissal.  A  trustee  is  authorized,  and  it  is  his  duty,  to  insist  that 
the  teacher  employed  by  him  shall  keep  the  hours  prescribed.     Irregularity  in 


JUDICIAL  decisions:     teachers'  contracts  1 129 

the  time  of  opening  the  school  must  lead  to  confusion.  A  teacher,  who  is  herself 
guilty  of  habitual  lack  of  punctuality,  can  not  expect  promptness  on  the  part 
of  her  pupils.  If  a  teacher  wilfully  or  persistently  fails  to  comply  with  a  trus- 
tee's directions  as  to  the  time  of  opening  her  school,  she  should  be  disciplined. 
Such  conduct  is  a  sufficient  cause  for  dismissal.  The  facts  in  this  case  indicate 
that  such  a  cause  exists,  and  for  this  reason  the  appeal  must  be  dismissed. 

There  are  a  number  of  other  causes  alleged  in  the  respondent's  answer, 
which  he  claims  were  sufficient  to  justify  the  appellant's  dismissal.  Having  de- 
cided that  the  cause  above  considered  was  sufficient,  it  will  not  be  necessary  to 
give  attention  to  the  other  causes. 

The  ai)peal  is  dismissed. 


4349 

In  the  matter  of  the  appeal  of  Edith  L.  Porteus  v.  Joseph  Rutherford,  trustee, 
school  district  no.  15,  town  of  Lisbon,  St  Lawrence  county. 

Under  the  school  law  and  the  decisions  of  this  Department  and  the  courts  of  the  State,  a 
trustee  has  the  right,  for  cause,  to  dismiss  a  teacher  during  a  term  of  employment, 
and  that  the  failure  on  the  part  of  a  teacher  to  maintain  order,  good  government  and 
discipline  in  the  school,  is  sufficient  cause  for  such  dismissal.  The  certificate  held  by 
a  teacher  is  prima  facie  evidence  of  his  or  her  moral  and  mental  qualifications  to 
teach,  and  he  or  she  may  possess  an  excellent  method  of  imparting  instruction  to 
pupils  and  still  be  deficient  in  the  ability  to  manage  and  govern  the  school.  Without  good 
government  and  discipline  which  secure  obedience,  command  respect  and  preserve  order 
learning  is  of  little  avail. 

Decided  April   i,   1895 

Sellar  Leishman,  attorney  for  appellant 

George  E.  Van  Kennen,  attorney  for  respondent 

Crooker,  Superintendent 

The  appellant  in  the  above-entitled  matter  appeals  from  the  action  of  the 
respondent  in  dismissing  her  as  a  teacher  during  a  term  of  employment  without 
cause. 

The  respondent  has  filed  an  answer  to  the  appeal,  and  to  said  answer  the 
appellant  has  replied,  and  to  the  reply  a  rejoinder  has  been  made,  and  to  the  re- 
joinder the  appellant  has  filed  a  replication.  The  pleadings  and  proofs  have 
received  careful  consideration  and  examination.  The  questions  presented  to  me 
for  decision  are,  first,  was  the  appellant  dismissed  during  a  term  of  employment, 
and,  second,  if  yes,  was  there  sufficient  cause  for  such  dismissal.  Upon  the 
proofs  presented  the  following  facts  are  established: 

That  on  or  about  August  25,  1894,  the  appellant  herein,  then  holding  an 
unexpired  second  grade  certificate,  and  the  respondent  herein,  the  sole  trustee 
.of  school  district  no.  15,  town  of  Lisbon,  St  Lawrence  county,  entered  into  a 
verbal  contract  by  which  the  respondent  employed  the  appellant,  and  the  appellant 
contracted  to  teach  the  school  in  said  district  for  twenty  weeks,  of  which  twelve 


1 130  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

weeks  were  to  constitute  the  fall  term  and  eight  weeks  the  winter  term  of  said 
school;  that  for  the  fall  temi  the  respondent  agreed  to  pay  and  the  appellant 
agreed  to  receive  $5  per  week  and  be  boarded,  and  for  the  winter  term  $6.50 
per  week ;  that  the  appellant  entered  upon  her  duties  as  such  teacher  and  taught 
eight  weeks  when  a  further  agreement  was  made  between  the  appellant  and 
respondent,  whereby  the  appellant  taught  two  additional  weeks,  making  the  fall 
term  one  of  ten  weeks,  and  the  winter  term  to  be  one  of  ten  weeks  instead  of 
twelve  weeks  as  agreed  upon  in  the  original  contract  of  the  said  parties  thereto; 
tiiat  the  appellant  was  paid  in  full  by  the  respondent  for  the  ten  weeks  taught 
by  her  as  aforesaid;  tliat  on  or  about  December  17,  1894,  the  appellant  com- 
menced teaching  said  school  for  said  winter  term  of  ten  weeks  and  taught  said 
school  until  on  or  abt)ut  January  16,  1895,  when  the  respondent  came  to  the 
schoolhouse  and  informed  the  appellant  that  he  (respondent)  would  not  allow 
her  to  teach  said  school  any  longer,  and  that  he  should  close  the  school  that 
night,  and  then  and  there  dismissed  the  appellant  as  such  teacher;  that  subse- 
quently the  respondent  hired  another  teacher  for  said  school ;  that  the  appellant 
has  not  been  paid  for  her  services  for  teaching  said  school  for  the  two  weeks  she 
taught  in  said  winter  term ;  that  the  reasons  given  to  appellant  by  the  respondent 
for  dismissing  her  as  such  teacher  were  that  she  did  not  maintain  good  order 
and  government  in  said  school  and  that  she  failed  as  a  disciplinarian. 

By  subdivision  9.  of  section  47,  article  6,  title  7,  of  the  Consolidated  School 
Law  of  1894,  chapter  556  of  the  Laws  of  1894,  it  is  enacted,  "  nor  shall  any 
teacher  be  dismissed  in  the  course  of  a  term  of  employment,  except  for  reasons 
which,  if  appealed  to  the  Superintendent  of  Public  Instruction,  shall  be  held 
to  be  sufficient  cause  for  such  dismissal."  The  respondent  herein  alleges  that 
during  the  fall  term  of  said  school  many  complaints  were  made  to  him  that  the 
appellant  was  not  maintaining  proper  order  and  discipline  in  said  school,  and 
that  by  reason  of  the  dissatisfaction  on  the  part  of  many  of  the  patrons  of  the 
school  by  reason  of  such  want  of  proper  order,  government  and  discipline  pupils 
were  not  attending  the  school  regularly;  that  the  respondent  visited  the  school 
at  the  beginning  of  the  second  week  of  the  winter  term  and  found  said  school 
unsatisfactory  as  to  order  and  discipline  therein. 

It  is  clear  that  during  the  fall  term  of  said  school  there  was  dissatisfaction 
among  the  patrons  of  the  school  as  to  the  order,  government  and  discipline  of 
the  school  by  the  appellant,  else  why  should  Messrs  Hyde  and  Randies,  as  sworn 
to  m  the  affidavits  filed  with  the  reply  of  the  appellant,  have  called  among  many 
of  the  patrons  of  the  school  on  December  14,  1894,  to  ascertain  and  learn  how 
the  appellant  pleased  them  as  a  teacher? 

The  respondent,  with  his  rejoinder  herein,  has  filed  the  affidavits  of  every 
person  in  said  district  who  had  children  attending  said  school  (except  one  Hyde, 
who  is  a  brother-in-law  of  the  appellant)  and  with  said  exception,  and  one  other 
the  affidavits  of  every  other  resident  taxpayer  of  said  district,  showing  the  ab- 
sence of  order,  good  government  and  discipline  in  said  school  while  the  same 
was  being  taught  by  the  appellant. 


JUDICIAL   DECISIONS:       TEACHERS'    CONTRACTS  II3I 

The  said  affidavits  showed  that  noise  and  confusion  existed  in  the  school- 
room during  school  hours,  thereby  disturbing  those  pupils  who  desired  to  study ; 
that  pupils  during  school  hours  would  stroll  about  the  schoolhouse  grounds ;  that 
pupils  did  not  obey  the  bell  calling  them  to  resume  their  studies  after  recess  or 
the  noon  hour ;  that  pupils  during  school  hours  would  move  about  the  school- 
room and  talk  and  failed  in  obeying  the  appellant,  and  that  she  had  no  control 
over  said  pupils.  The  respondent  alleges  in  his  answer  that  at  the  time  of  en- 
tering into  contract  with  the  appellant  it  was  expressly  understood  and  agreed 
between  the  parties  that  if  in  the  opinion  of  the  respondent  the  appellant  failed 
to  maintain  order,  decorum  and  good  government  in  the  school  he  might  termi- 
nate the  contract  at  the  termination  of  any  term,  and  that  said  contract  was  con- 
ditional and  dependent  entirely  upon  the  ability  of  the  appellant  to  maintain  order 
and  discipline  and  control  the  pupils  attending  said  school.  This  the  appellant 
denies  and  alleges  that  the  contract  was  positive  and  absolute  and  not  contingent 
in  any  respect  whatsoever.  It  is  not  material  whether  the  respondent  is  correct 
or  not  in  his  understanding  of  the  conditions  of  the  contract,  as  under  the  school 
law,  and  the  decisions  of  this  Department  and  the  courts  of  the  State,  a  trustee 
has  the  right,  for  cause,  to  dismiss  a  teacher  during  a  term  of  employment,  and 
that  the  failure  on  the  part  of  a  teacher  to  maintain  order,  good  government  and 
discipline  in  a  school  is  sufficient  cause  for  such  dismissal. 

A  contract  with  a  teacher,  without  expressed  conditions,  is  to  be  inter- 
preted by  the  conditions  implied  in  the  very  nature  of  the  contract,  and  the  pur- 
poses for  which  it  is  entered  into.  Every  such  contract  implies  distinctly  that 
the  teacher  employed  possesses  the  essentials  of  moral  character,  learning,  ability 
and  will.  In  Gillis  v.  Space,  63  Barb.  177,  the  Supreme  Court  said  "  The  hcense 
which  he  holds  from  the  proper  officer  is  prima  facie  evidence  only  that  the  ap- 
plicant possesses  these  requisites,  but  it  is  not  conclusive ;  the  presumption  raised 
by  it  may  be  rebutted  by  direct  evidence  tending  to  show  that  the  holder  of  such 
license  lacks  any  or  all  of  these  qualifications." 

The  certificate  held  by  the  appellant  was  prima  facie  evidence  of  her  moral 
and  mental  qualifications  to  teach,  and  she  may  have  possessed  an  excellent  method 
of  imparting  instruction  to  her  pupils  and  still  have  been  deficient  in  the  ability 
to  manage  and  govern  a  school.  Without  good  government  and  discipline,  which 
secure  obedience,  command  respect  and  preserve  order,  learning  is  of  little  avail. 

I  am  satisfied  that  the  respondent  has,  by  a  preponderance  of  proof,  estab- 
lished the  fact  that  the  appeUant  did  not  maintain  order  and  good  government  in 
the  said  school,  and  that  she  failed  as  a  disciplinarian,  and  that  the  respondent 
had  sufficient  cause  to  dismiss  the  appellant  as  teacher  in  said  school  during  her 
term  of  employment. 

The  appellant  alleges  that  she  has  not  been  paid  the  sum  of  $13  for  the  two 
weeks  of  the  winter  term  in  which  she  taught  the  school.     She  should  be  paid 
such  said  sum  by  the  respondent. 
'.     The  appeal  herein  is  dismissed. 


1132  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

In  the  matter  of  the  appeal  of  Peter  E.  Demarest  v.  the  board  of  education  of 

Long  Island  City. 

Where  a  teacher  was  hired  for  the  term  of  one  year  from  September  12,  1892,  and  was 
dismissed  before  tlie  term  of  employment  had  expired  by  the  board  of  education  with- 
out cause;  held  that  such  dismissal  was  unlawful. 

Decided  November  2,  1893 

Foster  &  Foster,  attorneys  for  appellant 
William  E.  Stewart,  attorney  for  respondent 

Crocker,  Superintendent 

This  is  an  appeal  from  the  action  of  the  board  of  education  of  Long  Island 
City,  county  of  Queens,  taken  at  a  meeting  of  said  board  on  the  30th  day  of 
January  1893,  purporting  to  remove  the  above-named  appellant  from  the  position 
of  principal  of  the  fifth  ward  (new)  school  in  Long  Island  City. 

The  appellant  alleges  as  grounds  of  appeal : 

1  The  meeting  of  said  board  at  which  such  action  was  taken  was  a  special 
meeting  and  not  called  for  the  purpose  of  acting  upon  said  matter. 

2  That  appellant's  term  of  sen^ice  for  which  he  had  been  employed  had  not 
expired,  and  no  cause  whatsoever  touching  the  qualifications  or  duties  of  appel- 
lant as  principal  of  said  school,  was  assigned  for  said  action. 

3  No  actual  cause  existed  for  said  action,  arising  from  any  fault  or  mis- 
conduct whatever  on  the  part  of  the  appellant. 

4  That  no  charges  or  specifications  were  ever  served  upon  or  delivered  to 
the  appellant. 

5  That  no  proper  opportunity  was  given  to  or  afforded  the  appellant  to 
appear  before  said  board  of  education,  or  opportunity  given  him  to  be  heard. 

6  That  the  alleged  acts  of  said  board  of  education  were  illegal  and  void. 
An  answer  to  the  appeal  herein  was  interposed  by  the  board  of  education  of 

Long  Island  City. 

The  papers  presented  by  the  respective  parties  in  this  appeal  are  quite  volu- 
minous, and  have  been  carefully  read  and  considered. 

It  is  admitted  by  the  respondents  that  the  appellant  was  employed  as  prin- 
cipal of  the  fifth  ward  (new)  school.  Long  Island  City,  for  the  term  of  one  year, 
from  September  12,  1892.  at  the  annual  salary  of  $1800,  payable  monthly  in  ten 
equal  parts  at  the  end  of  each  month,  except  the  months  of  July  and  August; 
and  that  said  appellant  was  dismissed  as  such  principal  by  the  respondents  be- 
fore the  expiration  of  the  term  for  which  he  was  employed. 

The  following  facts  are  established  by  the  papers  presented  upon  this  appeal : 

That  the  appellant  after  his  employment  as  principal  of  the  said  fifth  ward 
school,  duly  entered  upon  the  performance  of  his  duties  as  such  principal,  and 
continued  in  the  performance  of  the  same,  until  forcibly  prevented  as  herein- 
after stated.  That  at  a  meeting  of  the  board  of  education  of  Long  Island  City, 
held  on  January  11.  1893,  a  resolution  was  adopted  that  the  appellant,  principal 
of  the  fifth  ward  school,  be  directed  to  act  as  superintendent  of   schools  of 


JUDICIAL  decisions:     teachers'  contracts  1 133 

Long  Island  City,  in  addition  to  his  duties  as  principal  of  the  new  fifth  ward 
school,  without  compensation,  until  further  notice  from  said  board;  that  a  com- 
munication dated  January  11,  1893,  signed  by  Thomas  A.  Larkin,  president  board 
of  education,  and  addressed  to  the  appellant  as  principal  of  said  fifth  ward  school, 
in  which  the  appellant  was  informed  that  said  board  of  education,  at  a  meeting 
held  that  evening,  had  appointed  appellant  "  acting  superintendent  "  of  schools  in 
addition  to  his  then  position  of  principal  of  said  fifth  ward  school,  he  to  hold 
such  position  until  the  further  orders  of  said  board,  such  duties  to  commence 
at  once.  That  said  appellant  received  a  communication,  under  date  of  January- 
II,  1893,  signed  by  Thomas  A.  Larkin,  president,  addressed  to  appellant  as  prin- 
cipal of  the  fifth  ward  school,  informing  the  appellant  that  Mrs  Alary  L.  Woods 
had,  on  that  day,  been  appointed  your  (the  appellant's)  assistant  principal  to 
take  charge  of  school  in  your  (appellant's)  absence,  at  same  salary  as  at  present, 
until  further  orders  of  said  board,  and  that  a  teacher  for  Mrs  Woods's  class 
would  be  sent  in  a  day  or  two.  That  the  appellant  continued  to  perform  his 
duties  of  principal  of  said  school,  until  the  morning  of  Januar\'  30.  1893,  when 
he  was  prevented  by  force  from  entering  the  school  building  and  house,  and 
performing  his  duties  as  such  principal.  That  the  new  mayor  of  Long  Island 
City  qualified  and  assumed  the  duties  of  said  office  on  January  21,  1893,  ^"^ 
on  January  24,  1893,  the  respondents  herein  qualified  by  filing  their  oaths  of 
office. 

That  the  following  is  an  extract  from  the  minutes  of  said  board.  "  City  Hall. 
January  24,  1893,  8.30.  The  following  letter  was  prepared  and  ordered  sent  to 
each  of  the  several  schools  of  the  city,  and  the  same  directed  to  be  read  aloud  to 
the  teachers  by  each  principal: 

Long  Island  City,  N.  Y.,  January  24,  i8p3 
To  all  the  principals  and  teachers   in  the  public  schools  of   Long  Island 
City : 

In  consequence  of  the  recent  outrageous  attempt  of  the  late  mayor  of  this 
city,  to  usurp  the  authority  and  powers  of  the  rightful  incumbent  and  present 
legally  constituted  mayor  of  this  city,  Hon.  Horatio  S.  Sanford,  by  appointing 
and  dismissing  persons  without  authority,  we,  the  duly  appointed  and  qualified 
board  of  education  of  Long  Island  City,  hereby  direct  that  until  further  notice 
from  this  board,  you  are  requested  to  recognize  Mr  Sheldon  J.  Pardee  as  the 
superintendent  of  schools  of  this  city.  Any  principal  or  teacher  failing  to  fully 
assent  to  and  act  upon  this  requirement  will  be  considered  as  insubordinate  and 
will  be  disciplined  or  dismissed,  as  in  the  opinion  of  this  board  may  be  considered 
advisable 

By  order  of  the  Board  of  Education. 

There  is  no  proof  produced  of  the  time  and  place  when  and  where  such 
letter  was  served  upon  the  appellant.  Mr  Pardee  alleges  that  he  delivered  it 
to  appellant,  and  the  appellant  alleges  Pardee  did  not  deliver  it  to  him. 

That  the  appellant,  on  or  about  January  30,   1893,  and  after  he  had  been 

-  forcibly  prevented  from  entering  the  schoolhouse  in  the  fifth  ward,  received  a 

communication,  under  date  of  January  28,  1893,  signed  by  Sheldon  J.  Pardee, 


I  134  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

superintendent,  suspending  the  appellant  from  his  position  and  directing  him  to 
appear  before  the  board  of  education,  at  a  meeting  to  be  held  in  the  board  rooms 
in  the  city  hall  on  Monday,  January  30,  1893,  t>"t  there  was  nothing  in  said 
communication  to  show  that  it  was  written  by  direction  of,  or  authorized  by, 
such  board. 

That  on  January  30.  1893,  the  board  of  education  adopted  the  following 
resolution:  "That  Peter  E.  Demarest,  principal  of  the  fifth  ward  new  school 
be  dismissed  upon  evidence  before  this  board  for  deserting  his  school  and  for 
insubordination,  having  refused  to  obey  the  order  issued  by  this  board  on  January 
24,  1893.  The  above  to  take  effect  immediately";  that  notice  of  the  foregoing 
resolution  was  transmitted  to  appellant  by  letter  signed  by  Sheldon  J.  Pardee, 
superintendent,  and  dated  January  31,  1893;  but  was  not  received  by  appellant 
until  March  8,  1893. 

That  no  charges  or  specifications  against  the  appellant  as  teacher  in  said 
public  schools  of  Long  Island  City,  or  as  principal  of  said  fifth  ward  school, 
whatever,  were  ever  served  upon  or  received  by  the  appellant,  nor  does  it  appear 
that  any  such  charges  were  ever  made  by  or  filed  with  the  respondent,  the  board 
of  education. 

The  respondent  present  with  their  answer  statements  that  on  January  26, 
1893,  the  appellant  visited  certain  schools,  and  that  on  January  13  and  24,  1893, 
he  visited  the  fourth  ward  school,  that  up  to  1.30  p.  m.,  January  22,  1893,  he 
was  not  present  at  the  fifth  ward  school;  also  an  affidavit  of  Mary  L.  Woods 
that  appellant  after  January  11,  1893,  did  not  attend  the  fifth  ward  school  as 
principal,  but  came  to  the  school  occasionally,  asking  her  how  matters  were  going 
on.  Mrs  Woods  corrects  this  affidavit  and  states  that  the  words  "  did  not  attend 
as  principal  "  should  read  "  did  attend  as  principal."  In  connection  with  these 
statements,  which  are  evidently  presented  to  sustain  the  allegation  that  the 
appellant  neglected  his  duties  as  principal  of  the  fifth  ward  school,  should  be 
taken  the  fact  that  on  January  11,  1893,  the  appellant  was  appointed  by  the  board 
of  education  as  acting  superintendent  of  the  schools  of  Long  Island  City,  in  addi- 
tion to  his  duties  as  principal  of  the  fifth  ward  school,  and  that  Mrs  Woods,  a 
teacher  in  said  school,  was  designated  as  assistant  principal  of  said  school  to  take 
charge  of  the  school  during  the  absence  of  the  appellant.  The  board  of  education 
knew  that  the  appellant  in  the  duties  of  acting  superintendent  would  necessarily  be 
absent  at  times  from  his  school;  that  such  necessary  absence  had  the  sanction 
of  said  board,  and  Mrs  Woods  was  authorized  to  take  charge  of  the  school  in 
such  absence  of  the  appellant.  The  respondent's  charge  of  insubordination 
seems  to  be  based  upon  the  allegation  contained  in  the  affidavit  of  Mr  Pardee 
that  the  appellant  did  not  recognize  the  authority  of  Pardee  as  superintendent 
of  schools,  or  to  read  the  resolution  passed  by  respondents  on  January  24,  1893, 
hereinbefore  mentioned.  Pardee  avers  a  copy  was  given  to  the  appellant,  and 
the  appellant  avers  it  was  not  delivered  to  him.  The  affirmative  is  upon  the 
respondents  to  establish  the  allegation  of  Pardee  and  in  this  the  respondents 
have  failed. 


JUDICIAL   DECISIONS:       TEACHERS'    CONTRACTS  II35 

It  appears  that  there  was  a  contest  in  Long  Island  City  relative  to  the  election 
of  a  mayor,  in  which  the  schools  were  drawn  so  far  as  the  personnel  of  the 
board  of  education  was  concerned,  and  the  inhabitants  of  the  city  were  greatly 
excited  and  each  inhabitant  took  sides  with  one  or  other  of  the  contestants  for 
the  office  of  mayor.  On  January  i,  1893,  Mr  Gleason,  as  mayor,  appointed  cer- 
tain persons  to  constitute  the  board  of  education  of  said  city  and  such  board 
removed  Pardee  as  superintendent  and  appointed  the  appellant  as  acting  super- 
intendent, as  hereinbefore  stated.  On  January  21,  1893,  Mayor  Sanford  assumed 
the  duties  of  mayor  and  claimed  Mr  Gleason  was  without  power  to  appoint  the 
members  of  the  board  of  education  and  that  the  board  so  constituted  was  without 
power  to  remove  Pardee  as  superintendent  of  schools.  It  is  claimed  that  appel- 
lant refused  to  recognize  Mr  Sanford,  but  even  if  this  was  true,  the  failure  of 
a  school  teacher  to  instantly  recognize  a  change  in  the  political  government  of  a 
municipal  corporation  is  not  sufficient  ground  for  dismissal.  It  would  seem  that 
under  the  excitement  existing  in  said  city  by  reason  of  the  mayoralty  contest, 
the  position  taken  therein  by  the  appellant,  was,  to  some  extent,  the  cause  of  the 
action  taken  by  the  respondents  on  January  30,  1893,  ^^  dismissing  the  appellant 
as  principal  of  the  fifth  ward  (new)  school. 

The  respondents  contend  that  the  Superintendent  of  Public  Instruction  has 
not  jurisdiction  to  entertain  and  decide  the  appeal  herein.  The  board  of  educa- 
tion of  Long  Island  City  exists  under  acts  of  the  Legislature  relating  to  said 
city  and  is  a  body  corporate.  The  trustees  of  the  common  and  union  free  school 
districts  of  the  State  are  elected  pursuant  to  the  Consolidated  School  Laws  of 
the  State,  passed  May  2,  1864,  and  the  acts  amendatory  thereof,  and  are  bodies 
corporate.  The  schools  of  said  city  are  not  designated  as  "  common "  or 
"union  free  schools,"  but  they  are  public  schools,  forming  a  part  of  the  common 
school  system  of  the  State,  and  supported  in  part  from  public  school  moneys 
of  the  State,  and  under  the  supervision  of  the  Superintendent  of  Public  Instruc- 
tion of  the  State.  By  section  i  of  title  12  of  the  Consolidated  School  Law,  it 
is  provided  that  any  person  conceiving  himself  aggrieved  in  consequence  of  any 
decision  made  as  specified  in  subdivisions  i  to  6,  inclusive,  may  appeal  to  the 
State  Superintendent,  and  subdivision  7  enacts :  "  By  any  other  official  act  or 
decision  concerning  any  other  matter  under  this  act,  or  any  other  act  pertain- 
ing to  common  schools,  may  appeal  to  the  Superintendent  of  Public  Instruction, 
who  is  hereby  authorized  and  required  to  examine  and  decide  the  same ;  and  his 
decision  shall  be  final  and  conclusive,  and  not  subject  to  question  or  review  in 
any  place  or  court  whatever." 

By  section  23  of  Charter  Laws  of  1871,  chapter  461,  page  969,  the  right  of 
appeal  to,  and  the  jurisdiction  of,  the  Superintendent  of  Public  Instruction  to 
entertain  appeals  is  recognized  in  the  provisions  that  in  any  suits  which  shall 
be  brought  against  the  said  board,  etc.,  for  any  act  performed,  etc.,  which  might 
have  been  the  subject  of  an  appeal  to  the  Superintendent,  no  costs  shall  be  al- 
lowed the  plaintiff,  etc. 


1 136  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

The  provisions  of  section  2;^  are,  in  substance,  the  same  as  the  provisions 
contained  in  section  6  of  title  13  of  the  Consolidated  School  Law  of  1864.  The 
contention  of  the  respondents  is  not  well  taken. 

The  respondents  contend  that  the  appellant  is  guilty  of  laches  in  bringing 
his  appeal.  It  appears  from  the  proofs  that  although  the  resolution  of  the  re- 
spondents, dismissing  the  appellant  as  principal  of  the  fifth  ward  school,  was 
passed  on  January  30,  1893,  no  copy  of  said  resolution  was  given  to  the  appel- 
lant until  March  8,  1893.  The  appeal  herein  was  verified  April  5,  1893,  a  copy 
was  served  upon  the  respondents  on  April  6,  1893,  and  the  original  appeal,  with 
proof  of  ser\ice  of  a  copy  on  respondent,  was  duly  filed  in  the  Department  on 
April  7,  1893. 

By  rule  5  of  the  rules  of  practice  of  this  Department  on  appeals,  it  is  pro- 
vided that  the  original  appeal  and  all  papers  annexed  thereto,  with  proof  of 
service  of  copies,  must  be  sent  to  this  Department  within  thirty  days  after  the 
making  of  the  decision  or  the  performance  of  the  act  complained  of,  or  within 
that  time  after  the  knowledge  of  the  cause  of  complaint  came  to  the  appellant, 
or  some  satisfactory  excuse  must  be  rendered  in  the  appeal  for  the  delay.  The 
contention  of  the  respondents  that  the  appeal  was  not  brought  in  time  is  not 
well  taken. 

The  courts  of  this  State  have  held  that  the  trustees  can  not  dismiss  a 
teacher,  without  cause  and  against  his  consent,  before  the  expiration  of  his 
contract.  This  Department  has  so  held.  In  appeal  no.  3864,  A.  Hall  Burdick  v. 
the  Board  of  Education  of  Long  Island  City,  and  appeal  3865,  Annie  M.  Law- 
ton  V.  the  Board  of  Education  of  Long  Island  City,  decided  March  26,  1890,  my 
predecessor,  Superintendent  Draper,  so  held.  In  appeal  no.  3864,  Superintendent 
Draper  says:  "There  is  no  diflference  between  the  legal  powers  and  duties  of 
school  trustees  in  cities,  and  like  officers  in  all  other  parts  of  the  State,  except 
as  such  differences  have  been  created  by  statutes  having  special  application  to 
a  particular  city.  It  does  not  appear  that  there  is  any  special  statute  conferring 
any  greater  or  different  powers  upon  the  board  of  education  of  Long  Island 
City,  so  far  as  the  dismissal  of  teachers  is  concerned,  than  trustees  of  schools  have 
m  general."    I  concur  with  Superintendent  Draper. 

In  subdivision  9  of  section  49,  title  9,  of  the  Consolidated  School  Law,  as 
It  existed  at  the  time  of  the  employment  of  the  appellant  herein,  it  is  provided: 
"  Nor  shall  any  teacher  be  dismissed  in  the  course  of  a  term  of  employment 
except  for  reasons  which,  if  appealed  to  the  Superintendent  of  Public  Instruc- 
tion, shall  be  held  to  be  sufficient  cause  for  such  dismissal." 

I  decide  that  the  reasons  for  which  the  appellant  was  dismissed  are  not  held 
by  me  to  be  sufficient  cause  for  such  dismissal.  This  being  so,  the  action  of  said 
board  in  attempting  to  dismiss  the  appellant  in  January  1893,  without  cause,  was 
unlawful. 

The  appeal  is  sustained,  and  the  action  of  the  board  in  dismissing  the  appel- 
lant is  held  to  be  unlawful  and  invalid. 


JUDICIAL  decisions:     teachers    contracts  1137 

3824 

In  the  matter  of  the  appeal  of  E.  Grace  McDowell  v.  school  district  no.  2  of  the 
towns  of  Middletown  and  Southfield,  in  the  county  of  Richmond. 

The    employment   of    a    teacher   by   two    of    three   trustees    without    consulting    the    third, 

illegal. 
The  teacher  may  have  her  remedy  against  the  persons  who  employed  her,  but  her  claim 

for  damages,  if  any,  can  be  enforced  only  by  an  action. 
Decided  November  9,   1889 

John  Widdecombe,  attorney  for  appellant 

Van  Hoevenberg  &  Holt,  attorneys  for  respondent 

Draper,  Superintendent 

The  appellant  alleges  that  on  the  15th  day  of  July  last  she  was  employed  to 
teach  the  school  in  the  above-named  district  for  the  term  of  one  year,  commenc- 
ing on  the  2d  day  of  September;  that  she  has  held  herself  in  readiness  and 
attempted  to  fulfil  the  terms  of  the  employment  on  her  part,  but  has  been  alto- 
gether prevented  from  doing  so  by  the  majority  of  the  present  board  of  trustees. 
She  has  demanded  her  pay  for  the  first  month  of  the  term  of  employment,  and 
been  refused.  She  brings  this  appeal  for  the  purpose  of  determining  and  enforc- 
ing her  rights. 

Two  of  the  three  trustees  answer  and  say  that  the  appellant  was  never 
legally  employed,  inasmuch  as  one  of  the  three  trustees  received  no  notice  of 
the  meeting  at  which  such  action  was  assumed  to  be  taken.  They  also  say  that 
one  of  the  two  trustees  who  assumed  to  employ  her,  went  out  of  office  by  expira- 
tion of  his  term,  and  was  not  reelected.  They  admit  that  they  have  declined  to 
recognize  the  employment  or  to  pay  appellant. 

This  is  evidently  one  of  many  cases  in  which  trustees  endeavor  to  forestall 
the  action  of  school  meetings,  or  their  successors  in  office,  by  acts  just  prior  to 
the  close  of  their  term  of  office.  The  Department  does  not  look  with  favor  upon 
such  acts,  and  wall  not  uphold  them,  unless  clearly  and  unmistakably  authorized 
by  law. 

It  is  undisputed  that  the  appellant  was  employed,  if  at  all,  by  the  action  of 
two  trustees  without  consultation  with  the  third.  This  was  illegal,  although 
the  teacher  might  possibly  have  redress  against  the  two  who  assumed  to  employ 
her.  If  she  has  any  remedy,  it  is  by  an  action  at  law  for  damages,  rather  than 
by  an  appeal  to  the  Department  to  have  the  contract  enforced.  The  Department 
has  no  facilities  for  measuring  damages.  Whether  the  appellant  is  entitled  to 
recover  damages,  and  if  so,  to  what  extent,  should  be  determined  by  the  courts. 

The  appeal  is  dismissed. 


1 138  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

3565 

In  the  matter  of  the  appeal  of  W.  M.  Hill,  D.  A.  Stark  and  others,  composing 
the  board  of  education  of  Millport  free  school  district  no.  8,  town  of  Veteran, 
Chemung^  county  v.  Harris  Wickham. 
The  State  Department  will  not  remove  a  teacher  on  the  ground  that  he  disregards   the 
wishes  and  directions  of  a  board  of  education.    It  is  for  the  board  to  dismiss  him  if  he 
is  guilty  of  such  insubordination  as  to  justify  it.    From  such  act  an  appeal  will  lie,  but 
the  aid  of  the  Department  can  not  be  invoked  in  the  first  instance. 
Decided  February  14,  1887 

Draper,  Superintendent 

This  proceeding  is  brought  by  the  board  of  education  of  Millport  union  free 
school  district  no.  8,  of  the  town  of  Veteran,  for  the  removal  of  Harris  Wick- 
ham, a  teacher  in  the  employ  of  said  board.  The  board  alleges,  as  reasons  for 
the  removal  of  Wickham,  that  he  acts  contrary  to  the  directions  of  the  board, 
and  specifies  several  instances  in  which  this  has  occurred.  It  is  said  that  he  com- 
menced the  term  of  the  school  contrary  to  the  directions  of  the  board;  that  he 
refused  to  permit  the  board  to  clean  the  school  building;  that  he  has  insulted  the 
board  by  undertaking  to  have  the  members  arrested  when  endeavoring  to  have 
the  building  cleaned  and  repaired ;  that  he  has  refused  to  meet  the  board  for  the 
transaction  of  school  business ;  that  he  has  exchanged  textbooks  contrary  to  the 
wishes  of  the  board ;  that  he  has  received  nonresident  pupils  without  the  knowl- 
edge of  the  board,  and  that  his  discipline  in  the  schoolroom  is  inefficient.  The 
teacher  sets  up  in  answer,  that  this  Department  can  not  remove  him  as  a  teacher 
except  by  revoking  his  license  to  teach. 

This  is  not  a  proceeding  to  revoke  the  teacher's  license  on  the  ground  of 
immoral  conduct.  No  allegation  is  made  against  the  moral  character  of  the 
teacher,  nor  against  his  mental  capacity.  The  things  complained  of  are,  if  true. 
indicative  of  insubordination  on  the  part  of  the  teacher  toward  the  board,  for 
which  the  board  itself  would  have  the  right  to  discontinue  his  services.  The 
teacher  does  not  say  whether  they  are  true  or  not.  He  takes  the  position  that  it 
is  for  the  board,  and  not  the  Departrnent,  to  remove  him,  in  the  first  instance. 
In  this  he  is  right.  If  the  proceeding  had  been  one  for  the  revocation  of  his 
license  to  teach,  the  Department  would  have  had  jurisdiction;  but,  as  it  is,  the 
board  itself  must  act  in  the  first  instance.  The  act  of  the  board  may  be  made 
the  subject  of  appeal,  when  the  truth  or  falsity  of  the  allegations  against  the 
teacher  will  have  to  be  inquired  into. 

The  appeal  must  be  dismissed. 


4588 
In  the  matter  of  the  appeal  of  William  H.  Witbeck  and  others  v.  Myron  Hunger- 
ford,  James  Johnston  and  Andrew  J.  Stable,  jr,  as  trustees  of  school  district 
no.  II,  town  of  Guilderland,  Albany  county. 
When  a  trustee  or  the  trustees  of  a  school  district  employ  a  teacher  for  the  school  in  such 
district  who  IS  related  by  blood  or  marriage  to  such  trustee  or  to  some  one  of  the 


JUDICIAL  decisions:     teachers'  contracts  1139 

trustees  and  a  special  meeting  of  the  inhabitants  of  the  district  is  held  to  act  upon 
the  question  of  approving  ;such  contract  and  at  such  meeting  two-thirds  of  the  voters 
present  and  voting  approved  of  such  employment,  such  trustee  or  trustees  during  their 
term  of  office  may  legally  enter  into  a  further  contract  with  such  person  to  teach  in 
the  district  without  any  further  action  by  the  voters  of  such  school  district. 
Decided  October  8,   1897 

A.  Helme,  attorney  for  appellants 

Clute  &  McCormic,  attorneys  for  respondents 

Skinner,  Superintendent 

This  is  an  appeal  by  the  appellants  in  the  above-entitled  matter  from  the 
action  of  the  respondents  herein  as  trustees  of  school  district  no.  11,  town  of 
Guilderland,  Albany  county,  employing  a  teacher  for  the  school  in  such  district 
for  the  school  year  of  1897-98,  a  person  related  to  one  of  said  trustees,  namely, 
^Myron  Hungerford,  in  violation  of  the  provisions  of  the  Consolidated  School 
Law.     The  above-named  trustees  have  answered  the  appeal. 

From  the  uncontroverted  statements  contained  in  the  appeal  and  answer  it 
appears : 

That  for  the  school  year  of  1896-97,  Messrs  Hungerford,  Johnston  and 
Stable  constituted  the  board  of  trustees  of  said  school  district,  and  early  in  such 
year  desired  to  employ  one  Anna  Radcliff,  a  relative  of  Trustee  Hungerford,  to 
teach  the  school  in  such  district;  that  on  August  17,  1896,  at  a  duly  called  special 
meeting  of  such  district,  by  the  affirmative  vote  of  two-thirds  of  the  voters  of 
such  district,  present  and  voting  upon  the  question  of  approving  such  hiring  by 
such  trustees  of  Miss  Radcliff,  as  such  teacher,  such  hiring  was  approved;  that 
such  special  meeting  did  not  determine  or  specify  any  term  of  time  for  which 
such  employment  of  Miss  Radcliff  should  be  made,  but  simply  voted  to  approve 
her  hiring  by  such  trustees  notwithstanding  her  relationship  to  Trustee  Hunger- 
ford; that  after  such  special  meeting  of  August  17,  1896,  said  board  of  trustees 
employed  Miss  Radcliff  to  teach  the  school  in  such  district,  and  under  such  con- 
tract of  employment  she  taught  such  school,  commencing  on  September  7,  1896, 
and  terminating  on  June  30,  1897;  that  on  July  28,  1897,  such  trustees  employed 
Miss  Radcliff  to  teach  the  school  in  such  district  for  the  school  year  1897-98,  to 
commence  on  or  about  September  i,  1897,  and  terminate  on  or  about  July  i, 
1898. 

It  further  appears  that  the  board  of  trustees  of  such  district  for  the  present 
school  year  is  composed  of  the  same  persons  as  in  the  school  year  of  1896-97 ; 
Mr  Johnston,  whose  term  as  trustee  expired  on  August  3,  1897,  was  at  the  annual 
meeting  of  the  school  district,  held  on  August  3,  1897,  reelected  as  trustee  for 
the  term  of  three  years. 

The  trustees  of  school  districts  alone,  under  the  provisions  of  the  Consoli- 
dated School  Law  of  1894,  can  make  contracts  with  teachers  for  the  district 
schools.  The  qualified  voters  of  a  district  can  not  control  the  action  of  the 
•trustees  in  the  matter,  although  they  may,  as  provided  in  such  school  law,  approve 


1140  THE    UNIVERSITV    OF    THE    STATE    OF    NEW    YORK 

liie  liiring  of  a  teacher  in  certain  cases  in  which  such  trustees  are  prohibited  from 
hiring  without  such  approval. 

In  subdivision  9  of  section  47,  article  6,  title  7,  of  the  Consolidated  School 
Law  of  1894,  it  is  enacted  that  no  person  who  is  related  to  any  trustee  or  trustees 
(that  is.  to  a  sole  trustee,  or  to  any  of  the  trustees,  if  there  are  more  than  one), 
by  blood  or  marriage  shall  be  employed  as  a  teacher  except  with  the  approval  of 
two-thirds  of  the  voters  of  such  district  present  and  voting  upon  the  question  at 
an  animal  or  special  meeting  of  the  district. 

Prior  to  June  30,  1894,  when  the  Consolidated  School  Law  of  1894  became 
a  law,  no  person  could  be  employed  as  a  teacher  by  any  trustee  or  trustees  who 
was  within  two  degrees  of  relationship  by  blood  or  marriage  to  such  trustee  or 
tnistecs,  except  with  the  approval  of  two-thirds  of  the  voters  of  such  district 
present  and  voting  upon  the  question  at  an  annual  or  special  meeting  of  the  dis- 
trict. L'nder  the  law,  since  June  30,  1894,  no  person  who  is  related  to  any  trustees 
by  blood  or  marriage  in  any  degree  whatever  can  be  so  employed  without  such 
approval  as  aforesaid.  The  approval  on  the  part  of  the  voters  of  the  district 
must  be  by  a  vote  either  at  an  annual  meeting  or  at  a  special  meeting  called  for 
that  purpose.  Such  approval  can  not  be  given  individually,  and  although  every 
inhabitant  of  the  district  might  sign  his  or  her  approval  to  a  paper  circulated  in 
the  district  it  would  not  meet  the  requirements  of  the  school  law,  and  would  not 
make  a  contract  of  employment  legal  and  binding  upon  the  district. 

The  ruling  of  this  Department  has  been  that  such  consent  may  be  made 
after  as  well  as  before  the  time  of  employment. 

When,  at  any  meeting  in  a  school  district,  the  question  presented  for  its 
action  is  simply  the  approval,  on  the  part  of  the  qualified  voters  present  and 
voting,  of  the  employment  of  a  person  named  as  a  teacher  in  the  school  in  the 
district  notwithstanding  such  person  is  related  in  some  degree,  by  blood  or  mar- 
riage, to  the  trustee,  or  to  some  one  of  the  trustees  if  the  district  has  more  than 
one  trustee,  the  voters  are  not  called  upon,  nor  have  they  any  authority  under 
the  school  law,  to  approve  any  specific  contract  of  employment  of  such  person 
for  a  term  of  time,  or  at  a  specified  rate  of  compensation,  but  only  to  approve  or 
refuse  to  approve  his  or  her  employment  as  a  teacher  notwithstanding  such 
relationship. 

From  anything  that  is  stated  in  the  papers  presented  herein,  the  only  ques- 
tion considered  and  acted  upon  at  the  special  meeting  held  in  such  district  on 
August  17,  1896,  in  reference  to  the  employment  of  Miss  RadcliiT,  as  a  teacher 
in  the  school  therein,  was.  Shall  we  approve  her  employment  as  such  teacher 
notwithstanding  her  relationship  by  blood  or  marriage  to  Mr  Hungerford,  one 
of  the  trustees  of  the  district?  and  that  such  approval  was  given  pursuant  to 
the  provisions  of  the  school  law. 

The  contention  of  the  appellant  is,  that  such  approval  was  given  for  the 
employment  of  Miss  RadcliflF  for  the  school  year  of  1896-97  only,  and  that  the 
respondents  could  not.  as  trustees  of  such  district,  legallv  employ  her  on  July  28 
1897.  for  the  school  year  of  1897-98,  or  any  part  of  such  school  year,  except  with 


JUDICIAL   DECISIONS:       TEACHERS     CONTRACTS  II4I 

the  approval  of  two-thirds  of  the  voters  of  such  district  present  and  voting  upon 
the  question  at  the  annual  meeting  on  August  3,  1897,  or  at  a  special  meeting 
duly  called.  Such  contention  is  not  supported  by  the  facts,  or  the  school  law,  or 
decisions  of  this  Department. 

1  It  is  not  established  by  the  proofs  that  the  approval  of  the  school  meet- 
ing of  August  17,  1896,  was  limited  to  the  employment  of  Miss  Radcliff  as  a 
teacher  for  the  school  year  1896-97. 

2  Admitting  for  the  purpose  of  argument  that  the  approval  was  limited  to 
her  employment  for  such  school  year,  I  am  of  the  opinion  that  the  meeting  did 
not  possess  the  authority  to  approve  or  disapprove  any  specific  contract  between 
the  trustees  and  the  teacher,  but  could  only  approve  or  refuse  to  approve  her 
employment  by  such  trustees  notwithstanding  her  relationship  to  one  of  the 
trustees. 

3  That  the  approval  of  the  special  district  meeting  of  August  17,  1896,  of 
the  hiring  of  Miss  Radclifif  as  a  teacher,  being  given,  the  trustees,  during  their 
term  of  office,  could  legally  enter  into  a  contract  with  her  to  teach  in  the  district, 
without  further  action  by  the  voters  of  the  school  district. 

4  That  it  appears  that  the  trustees  of  such  district  are  composed,  the  present 
school  year,  of  the  same  persons  as  during  the  school  year  of  1896-97;  James 
Johnston,  one  of  such  trustees,  whose  term  of  office  expired  at  the  annual  meet- 
ing held  on  August  3,  1897,  at  such  meeting,  was  reelected  as  trustee  for  the 
full  term  of  three  years. 

The  appeal  herein  is  dismissed. 


3758 

In  the  matter  of  the  appeal  of  Ambrose  Green  v.  John  H.  Galloway,  sole  trustee 
of  school  district  no.  15,  town  of  Cambridge,  Washington  county. 

The  hiring  of  a  teacher  who  is  related  to  the  trustee  within  the  prohibited  degrees, 
without  the  requisite  consent  of  the  voters  at  a  district  meeting  being  previously 
secured,  is  cured  by  subsequent  action  of  the  voters  by  a  two-thirds  vote,  approving 
such  employment.  The  trustee,  the  teacher,  and  their  relatives,  if  qualified  voters  of  the 
district  are  entitled  to  vote  upon  such  a  question. 

Decided  January  26,  1889 

Draper,  Superintendent 

This  is  an  appeal  taken  by  a  voter  in  school  district  no.  15,  town  of  Cam- 
bridge, Washington  county,  from  the  action  of  the  sole  trustee  of  said  district, 
in  employing  as  a  teacher  a  person  related  to  the  trustee  within  the  prohibited 

degree. 

The  respondent  has  filed  an  answer  and  therein  admits  the  fact  as  alleged 
by  the  appellant,  but  shows  affirmatively  that  since  the  hiring,  a  district  meeting, 
by  a  two-thirds  vote,  has  approved  and  ratified  the  employment  of  such  teacher 
by  the  trustee. 


I  142  THE    UNIVERSITY   OF   THE   STATE   OF    NEW    YORK 

The  appellant  replies  and  avers  that  the  meeting  v^as  not  properly  called  and 
conducted,  and  that  the  teacher  and  trustee  and  relatives  of  each  voted  upon  the 
question  in  the  aflirniative,  thereby  making  the  requisite  vote. 

The  provision  of  the  law  relative  to  the  employment  of  a  teacher  who  is 
related  to  the  trustee,  is  sufficiently  complied  with  when  it  is  made  to  appear  that 
the  legal  voters  of  the  district,  by  a  two-thirds  vote  of  their  number  present 
and  voting,  have  shown  their  satisfaction  with  such  employment.  It  is  not 
claimed  that  the  trustee  and  teacher  and  their  relatives  who  voted  were  not 
qualified  voters.  If  they  were  qualified,  they  had  a  perfect  right  to  vote  upon 
the  question.  I  am  satisfied  that  a  proper  notice  of  the  meeting  was  given  and 
the  meeting  properly  conducted,  and  that  the  meeting,  by  the  requisite  vote- 
approved  the  hiring.  That  the  vote  was  taken  subsequently  to  the  time  of  the 
emplovment  is  not  consequential. 

I  conclude,  therefore,  that  a  decision  of  this  appeal  is  unnecessary,  and 
have  made  such  note  upon  the  records. 


3575 
In  the  matter  of  the  appeal  of  Ida  L.  Griswold  v.  Alexander  Rossman,  trustee 

of  school  district  no.  4,  town  of  Claverack,  county  of  Columbia. 
At  the  time  of  employment  of  a  teacher,  it  was   agreed   that    she   should   board   with   the 

trustee.     Held,  That  such  agreement  was  void,  and  that  she  could  change  her  boarding 

place  at  any  time. 
While  a  teacher  may  board  with  a  trustee,  it  can  not  be  made  obligatory  upon  the  teacher 

to  do  so. 
A  trustee  is  guilty  of  gross  neglect  of   duty  in   delivering  a  tax  list  and   warrant  to   a 

collector  before  a  satisfactory  bond  has  been  furnished. 
A  collector  who  voluntarily  pays  over  the  district  money  to  a  trustee  is  personally  liable 

therefor,  and  a  trustee  is  censurable  for  receiving  it. 
Decided  May  25,  1887 

Charles  Beale,  attorney  for  appellant 
John  v.  Whitbeck,  attorney  for  respondent 

Draper,  Superintendent 

This  is  an  appeal  by  Ida  L.  Griswold,  who  was  employed  as  teacher  of  the 
school  HI  district  no  4,  town  of  Claverack,  county  of  Columbia,  against  the 
trustee  of  said  district,  demanding  the  removal  of  said  trustee  from  office. 

The  appellant  alleges  as  grounds  therefor  that  the  trustee  has  used  insulting 
language  toward  her  and  in  relation  to  her;  that  he  has  prevented  her  from  ful- 
hlhng  her  term  of  teaching;  that  he  has  taken  from  the  collector  the  district 
nioneys  and  retained  them,  and  that  he  has  neglected  to  pay  her  for  the  services 
she  has  rendered. 

The  respondent  in  ansxv^r  admits  that  he  received  from  the  collector  all  th<' 
district  moneys  then  held  by  that  officer,  and  alleges  as  an  excuse  therefor  that 


JUDICIAL   DECISIONS:       TEACHERS'    CONTRACTS  1 143 

while  he,  the  trustee,  was  responsible  for  the  safe  keeping  of  the  .same,  the 
collector  was  not  and  had  given  no  bond  as  such  collector.  He  admits  also 
that  the  teacher  taught  from  September  4,  1886,  until  February  4,  1887,  when 
dissatisfaction  having  been  manifested  in  the  district  with  her  teaching,  and  the 
funds  not  being  sufficient  to  continue  school  longer,  he  closed  the  school.  He 
alleges  that  he  reserved  the  right  to  terminate  the  teacher's  engagement  for  either 
cause.  The  trustee  denies  that  he  had  insulted  the  teacher,  but  admits  using 
strong  language  toward  her  while  in  a  passion  caused  by  alleged  tantalizing 
conduct  toward  him  on  the  part  of  the  teacher.  The  trustee  makes  other  charges 
against  the  teacher  which  are  not  necessary  to  be  considered  upon  this  appeal, 
as  the  trustee  and  not  the  teacher  is  the  accused  person. 

The  allegations  are  so  conflicting  that  I  directed  Oliver  W.  Hallenbeck, 
school  commissioner  of  the  first  district  of  Columbia  county,  to  give  notice  to  the 
respective  parties  and  take  their  testimony,  as  well  as  that  of  such  witnesses  as 
might  be  offered  by  them.  Notices  having  been  regularly  given  by  the  commis- 
sioner, the  hearing  was  proceeded  with  and  the  testimony  returned  to  me. 

From  the  evidence  so  taken  and  from  the  admissions  made  by  the  parties, 
I  find  the  facts  to  be  as  follows :  The  appellant  was  employed  to  teach  by  the 
respondent  as  trustee  for  from  thirty  to  forty  weeks  of  school  to  commence 
September  4,  1886,  or  until  the  district  moneys  were  exhausted,  unless  in  the 
meantime  general  dissatisfaction  should  prevail  in  the  district  toward  the  teacher 
when  her  term  should  end.  She  was  to  receive  six  dollars  a  week  and  board 
with  the  trustee,  he  to  charge  her  for  such  board,  including  washing,  at  two 
dollars  and  fifty  cents  per  week. 

The  appellant  taught  from  September  4,  1886,  until  February  4,  1887,  when 
the  trustee  discharged  her  and  closed  the  school.  As  the  teacher  was  absent 
several  days,  I  can  not  determine  from  the  testimony  before  me  just  how  much 
salary  she  is  entitled  to. 

During  Christmas  week  the  appellant  ceased  to  board  with  the  trustee,  and 
a  bitter  feeling  sprang  up  between  the  parties  to  this  appeal.  The  teacher  had 
a  perfect  right  to  change  her  boarding  place  at  any  time.  An  agreement  with  the 
trustee  to  the  contrary  is  illegal  and  void.  While  a  teacher  may  board  with  a 
trustee,  it  can  not  be  made  obligatory  upon  the  teacher  so  to  do. 

The  trustee  has  been  guilty  of  gross  neglect  of  duty  in  delivering  a  tax  list 
and  warrant  to  a  collector  before  a  satisfactory  bond  has  been  executed  and 
delivered  to  him  as  required  by  law,  and  a  person  who  has  held  the  office  of 
trustee  for  three  successive  years  can  have  no  reasonable  excuse  for  such  neglect. 

The  collector  rendered  himself  personally  liable  when  he  voluntarily  paid 
over  the  district  moneys  to  the  trustee,  as  the  trustee  was  blamable  when  he 
received  them. 

I  have  concluded  in  view  of  all  the  facts,  to  make  the  following  disposition 

of  this  appeal:     The  trustee  is  hereby  ordered  and  directed  to  pay  over  all  the 

"district  moneys  in  his  hands  to  the  collector,  first  requiring  such  collector  to 

give  a  sufficient  bond  to  protect  the  district  from  loss,  and  take  his  receipt  there- 


1 144  THE    UNIVERSITY   OF   THE   STATE   OF    NEW    YORK 

for.  He  is  also  directed  to  deliver  or  offer  to  deliver  to  the  appellant  an  order 
upon  the  collector  for  the  full  amount  due  her  for  teachers'  wages.  This  I  direct 
to  be  done  within  ten  days  from  the  date  of  this  decision.  Upon  satisfactory 
proof  of  a  compliance  with  this  order,  this  appeal  will  be  dismissed;  otherwise, 
a  further  order  will  be  made  in  the  premises. 


3640 

In  the  matter  of  the  appeal  of  Pierce  Craw  v.  Elisha  Teter,  Charles  Rice  and 
Reuben  W.  Mackey,  trustees  of  school  district  no.  12,  town  of  Rensselaer- 
ville,  Albany  county. 

In  a  district  having  three  trustees,  a  teacher  was  engaged  for  the  school  year  in  advance 
of  the  holding  of  the  annual  meeting.    Held,  that  the  hiring  was  both  proper  and  legal. 

No  written  memorandum  was  delivered  at  the  time  of  hiring,  nor  has  one  been  filed  with  the 
district  clerk.  Held,  that  the  failure  to  give  such  memorandum  to  the  teacher  would  not 
invalidate  the  contract.  It  could  be  given  at  any  time.  Filing  of  such  a  memorandum 
is  not  required. 

Where  a  district  lies  in  a  cold,  hilly  country,  and  in  winter  the  woods  are  frequently 
impassable  by  reason  of  snow,  the  trustees  exercise  a  proper  discretion  in  deferring  to 
fix  the  time  of  the  next  winter  term  until  the  condition  of  the  roads  can  be  determined. 

Decided  October  25,  1887 

Draper,  Superintendent 

This  proceeding  is  an  appeal  by  a  resident  and  taxpayer  of  school  district 
no.  12,  town  of  Rensselaerville,  Albany  county,  N.  Y.,  against  the  action  of  the 
trustees  of  last  year,  two  of  whom  continue  to  be  trustees  this  year,  in  employing 
a  certain  person  as  teacher  for  the  present  school  year,  in  advance  of  the  holding 
of  the  annual  school  meeting  in  said  district,  and  from  the  action  of  the  annual 
meeting  in  letting  a  contract  for  furnishing  wood  for  fuel  for  the  school 
year,  to  the  person  whose  term  as  trustee  had  just  ended  by  the  election  of  his 
successor.  It  is  averred  by  the  appellant  that  the  trustees  refuse  to  continue 
school  in  the  winter  months,  and  thereby  deprive  many  children  of  the  district 
from  the  benefits  of  the  school.  It  is  alleged  that  in  hiring  the  teacher,  the 
trustees  did  not  act  as  a  board,  and  did  not  at  the  time  of  hiring  make  and  deliver 
to  the  person  so  employed  a  memorandum  in  writing  of  the  terms  of  the  agree- 
ment as  required  by  law,  and  that  no  such  memorandum  was  filed  with  the  district 
clerk. 

The  respondents,  in  answering  the  petition  of  the  appellant, 
First,  raise  a  technical  objection  to  the  form  of  the  appellant's  papers; 
second,  aver  that  the  hiring  of  the  teacher  was  legal ;  that  the  person  so  employed 
was  the  teacher  who  taught  the  district's  school  the  preceding  year,  and  that  the 
eariy  action  by  the  board  was  necessarily  taken  to  secure  the  services  of  the 
teacher  who  had  repeated  offers  of  other  schools ;  that  the  employment  was  for  a 
period  of  twenty-eight  weeks,  and  was,  after  consultation  between  all  of  them 


JUDICIAL  decisions:     teachers'  contracts  1 145 

to  be  divided  into  terms,  as  the  interests  of  the  children  of  the  district  would 
seem  to  demand;  school,  however,  to  commence  on  September  19th. 

The  written  memorandum  was  not  prepared  and  delivered  to  the  teacher, 
for  the  reason  that  the  respondents  were  unaware  of  the  enactment  of  the  law 
of  last  winter,  which  requires  it;  since  the  appeal,  this  provision  of  law  has  been 
complied  with. 

The  respondents  further  state  that  the  district  is  located  in  a  hilly  country, 
and  the  roads  in  winter  are  blockaded  with  snow,  and  for  this  reason  the  trustees 
have  not  yet  decided  upon  the  terms  of  the  school,  and  their  action  relative  thereto 
will  depend  upon  the  condition  of  the  roads.  Relative  to  fuel,  they  allege  that 
the  contract  was  let  to  the  lowest  bidder,  and  the  price  to  be  paid  therefor  was 
not  exorbitant. 

In  considering  the  question  raised  by  the  pleadings  herein,  I  shall  not  pass 
upon  the  technical  defects  in  appellant's  papers,  but  must  hold : 

That  the  trustees  being  in  a  district  composed  of  three  trustees,  had  the 
right  to  employ  a  person  as  teacher  for  one  year  in  advance;  that  proper  con- 
sultation was  had  between  all  three  trustees,  and  a  valid  contract  entered  into ; 
that,  while  the  trustees  were  derelict  in  duty  in  failing  to  give  to  the  teacher  a 
written  memorandum  of  the  terms  of  the  hiring,  that  failure  did  not  vitiate  the 
contract,  and  that  the  law  does  not  require  the  memorandum  to  be  filed  in  the 
clerk's  office,  or  elsewhere ;  that,  from  the  pleadings  and  proof  presented,  I  do 
not  find  that  the  trustees  were  acting  contrary  to  the  wishes  of  the  inhabitants  in 
hiring  a  teacher  for  only  twenty-eight  weeks,  or  for  neglecting  to  hold  school 
in  the  severe  winter,  in  a  district  situated  as  is  the  one  to  which  this  appeal 
relates. 

I  am  unable  to  determine,  from  the  appellant's  statement,  that  the  price  for 
furnishing  fuel  to  the  district  was  exorbitant. 

I  therefore  dismiss  the  appeal. 


4002 

In  the  matter  of  the  appeal  of  T.ouise  Clemens  v.  Tsleton  Stedman.  sole  trustee 
of  district  no.  7,  of  the  town  of  Osceola,  in  the  county  of  Lewis. 

A  school  district  trustee  refused  to  continue  a  teacher  in  school  who  had  failed  to  receive 
a  renewal  of  her  certificate.  It  appears  that  a  second  temporary  license  was  not  received 
by    the    teacher    until    after    the    time    of    the    trustee's    action. 

Held,  that  the  trustee  acted  legally.     He  could  safely  have  taken  no  other  course. 

Decided  September  15,  1891 

Draper,  Superintendent 

The  appellant  alleges  that  she  was  employed  by  the  respondent  to  teach  the 
school  in  the  above-named  district,  for  the  term  of  sixteen  weeks  at  $5.50  per 
w-eek.     The  agreement  was  a  verbal  one  and  no  memorandum  of  the  hiring  was 


1I4()  THE    UNIVERSITY    OF   THE    STATE   OF    NEW    YORK 

^'iven  the  teacher.  After  she  had  taught  seven  weeks  in  all,  the  trustee  prevented 
iier  from  continuing.  He  alleges  that  the  reason  for.  this  was  because  she  had 
no  license.  It  seems  that  she  had  no  license  at  the  time  of  the  alleged  hiring, 
but  that  she  received  from  the  school  commissioner  two  temporary  permits,  one 
dated  April  6th,  and  the  other  May  i8th.  The  second  permit  was  granted  by  the 
school  commissioner  after  asking  leave  of  the  Department.  The  school  district 
is  some  distance  from  the  school  commissioner  and  the  communication  is  irregu- 
lar, and  considerable  time  was  consumed  in  correspondence  over  the  matter,  so 
that  the  second  temporary  permit  was  not  received  by  the  teacher  until  after 
the  time  when  the  trustee  had  prevented  her  from  continuing. 

I  find  nothing  in  the  papers  to  lead  me  to  believe  that  the  action  of  the 
trustee  in  causing  the  teacher  to  cease  work  was  due  to  any  other  cause  than  the 
lack  of  a  certificate  on  her  part.  If  this  was  the  only  cause,  then  he  acted  with 
entire  propriety,  indeed  he  could  safely  have  done  nothing  else.  It  does  not 
matter  that  a  second  temporary  permit  had  at  that  time  been  granted,  and  was 
in  course  of  transmission.  There  can  be  no  question  upon  the  papers  but  that 
the  teacher  was  remiss  in  the  matter  of  a  certificate. 

In  view  of  these  facts,  the  appeal  must  be  dismissed,  but  the  trustee  is 
directed  to  settle  with  the  appellant  for  the  time  actually  taught. 


3586 

Tn  the  matter  of  the  appeal  of  Nellie  A.  Hennessy  v.  Fred  W.  Rocks,  trustee 

of  school  district  no.  6,  town  of   Fabius,   Onondaga  county. 
The  contract  of  hiring  made  between  a  de  facto  (but  not  a  dc  jure)  trustee  and  a  teacher 

who  entered  upon  the  performance  of  her  contract,  sustained. 
Decided  April  16,  1887 

Draper,  Superintendent 

This  is  an  appeal  made  by  Nellie  A.  Hennessy,  a  person  employed  as  a 
teacher  by  one  Lawrence  Long,  then  acting  as  trustee  of  said  district,  from  the 
action  of  the  respondent,  the  trustee  of  said  district,  in  refusing  to  pay  her  in 
accordance  with  the  terms  of  said  employment.  It  is  alleged  by  the  appellant. 
and  the  facts  seem  undisputed,  that  the  appellant  was  employed  to  teach  school 
for  a  period  of  sixteen  weeks  at  the  agreed  price  of  $5.50  per  week,  to  commence 
on  the  4th  day  of  October  1886.  The  contract  was  entered  into  on  the  25th 
day  of  September  1886,  and  she  taught  pursuant  to  said  agreement,  up  to  and 
including  the  14th  day  of  January  1887,  when  she  was  prevented  from  further 
fulfilling  the  terms  of  her  contract  by  the  action  of  the  trustee,  who  locked  the 
door  and  would  not  admit  the  appellant  to  the  schoolhouse. 

The  respondent  denies  that  Long  was  ever  elected  trustee  of  the  district; 
asserts  that  he  did  not  serve  under  color  of  title,  and  that  he  was  a  mere  usurper. 
and  consequently  that  the  contract  was  illegal  and  in  no  way  bound  the  trustee. 


JUDICIAL  decisions:     teachers'  contracts  1147 

In  order  to  properly  understand  the  case,  it  is  necessary  to  refer  to  a  former 
appeal  decided  on  the  5th  day  of  January  1887,  by  the  decision  of  which  it  was 
held  that  F.  W.  Rocks  was  duly  elected  trustee  of  said  district  at  the  meeting 
held  for  that  purpose  on  the  7th  day  of  September  1886.  Upon  the  evidence 
adduced  on  that  appeal,  it  appeared  that  there  arose  a  dispute  at  the  school  meet- 
ing as  to  whether  Lawrence  Long  or  Rocks  was  elected  trustee.  The  evidence 
was  quite  conflicting.  It  appeared  that  Lawrence  Long  assumed  the  duties  of  the 
office  of  trustee  immediately  after  said  meeting,  employed  the  appellant  as 
teacher  and  commenced  school,  and  school  was  continued  under  his  supervision 
as  such  acting  trustee  until  the  decision  of  said  former  appeal,  when,  upon  the 
assumption  of  said  office  by  the  respondent  herein,  the  appellant  was  prevented 
from  further  continuing  school. 

There  is  but  one  question  raised  by  this  appeal  and  that  is,  whether  the 
action  of  Long,  while  acting  as  trustee,  in  employing  Miss  Hennessy  for  the 
term  of  sixteen  weeks,  was  a  valid  contract  so  far  as  the  district  and  the  appel- 
lant were  concerned,  and  whether  the  respondent  herein  is  compelled  by  law 
to  fulfil  the  conditions  of  the  contract.  It  can  not  be  disputed,  from  the  evidence 
elicited  upon  the  former  appeal,  that  Lawrence  Long  acted  as  trustee  under 
some  color  of  title.  From  the  action  of  the  district  meeting,  at  which  the  trustee 
was  elected,  I  can  not  fail  to  reach  the  conclusion  that  Long  was  claiming  and 
exercising  the  powers  of  trustee  when  the  contract  was  entered  into  between 
him  and  the  appellant,  with  some  color  of  right  to  do  so,  and  that  the  agreement 
became  binding  upon  the  district.  Miss  Hennessy  was  not  obliged  to  wait  until 
the  dispute  over  the  office  was  determined  before  she  took  the  school.  She  was 
justified  in  contracting  with  a  man  who  was  acting  and  recognized  as  trustee. 
I,  therefore,  conclude  that  this  appeal  must  be  sustained,  and  the  respondent  is 
hereby  directed  to  issue  to  Miss  Hennessy,  upon  receiving  from  her  the  school 
register  properly  verified  up  to  the  date  on  which  she  was  prevented  from  con- 
tinuing the  school,  an  order  upon  the  supervisor  of  the  town,  if  there  are  moneys 
in  his  hands  to  meet  the  same;  and,  if  there  are  not,  then  he  will  levy  a  tax  upon 
the  district  therefor,  and  deliver  to  her  an  order  upon  the  collector  of  the  dis- 
trict for  sixteen  weeks'  pay,  at  the  rate  of  $5.50  per  week. 


4355 

In  the  matter  of  the  appeal  of  Roy  O.  Carver  v.  Hugh  McCarrell,  sole  trustee, 
school  district  no.  3,  town  of  Portland,  Chautauqua  county. 

Where  it  appears  by  a  preponderance  of  proof  that  a  teacher  did  not  maintain  order  and 
good  government  in  a  school  taught  by  him,  and  that  he  failed  as  a  disciplinarian; 
held,  that  the  trustee  had  sufficient  cause  to  dismiss  such  teacher. 

Decided  June  25,  1895 

H.   C.  Kingsbury,  jr,  attorney  for  appellant 
Ottaway  &  Munson,  attorneys  for  respondent 


1148  THE    L'NIVEKSITY    OF   THE    STATE    OF    NEW    YORK 

Skinner,  Superintendent 

The  appellant  in  the  above-entitled  matter  appeals  from  the  action  and  de- 
cision of  the  respondent  therein  in  dismissing  the  appellant  as  a  teacher  in  school 
district  no.  3,  town  of  Portland.  Chautauqua  county,  as  alleged  in  said  appeal, 
in  the  course  of  a  term  of  employment,  without  sufficient  cause. 

The  appellant  alleges  that  in  August  1894,  he  and  the  respondent  as  trustee 
of  said  school  district,  entered  into  a  verbal  contract  by  which  the  appellant  con- 
tracted to  teach  the  school  in  said  district  for  the  term  of  thirty-four  weeks  at 
a  compensation  of  $9  per  week  for  one-half  of  the  time  and  $10  per  week  for 
the  remaining  half  of  the  time,  but  that  said  contract  was  subsequently  modified 
as  follows:  Said  appellant  was  to  be  paid  $9  per  week  for  the  fall  term,  $10 
per  week  for  the  winter  term  and  $9  per  w^eek  for  the  spring  term;  that  the 
appellant  in  August  1894,  commenced  teaching  said  school  under  said  contract, 
and  continued  to  teach  until  April  12,  1895,  ^^'hen  by  order  of  the  respondent 
said  school  was  closed  for  two  weeks;  that  on  April  22,  1895,  the  appellant 
received  a  letter  from  the  respondent,  dismissing  the  appellant  as  such  teacher; 
that  on  April  29,  1895,  the  date  when  the  appellant  understood  the  school  was 
to  be  resumed,  he  went  to  the  schoolhouse  prepared  to  resume  his  duties  as 
teacher,  but  the  respondent,  whom  he  found  at  the  schoolhouse,  would  not  permit 
him  to  teach. 

The  respondent  denies  that  he  ever  entered  into  a  verbal  contract  with  the 
appellant  that  the  appellant  should  teach  the  school  in  said  district,  but  avers 
that  he  made  two  written  contracts  with  the  appellant  to  teach  said  school,  each 
for  the  tenn  of  ten  weeks,  one  of  w^hich  was  made  on  August  20,  1894,  and 
the  other  on  December  10,  1894. 

The  respondent  also  alleges  that  the  appellant  as  such  teacher  disobeyed 
the  rules  for  the  government  and  discipline  of  said  school  as  prescribed  by  the 
respondent,  especially  in  administering  corporal  punishment,  and  that  the  appel- 
lant did  not  maintain  good  order  and  government  in  said  school,  and  failed  as 
a  disciplinarian.  From  the  proofs  presented  by  the  parties  to  this  appeal,  the 
following  facts  are  established : 

That  early  in  August  1894,  the  appellant  applied  to  the  respondent  to  teach 
the  school  in  said  district,  and  on  August  8,  1894,  also  applied  to  the  trustee  of 
school  district  no.  10,  of  Portland,  to  teach  the  school  in  that  district,  and 
requested  said  trustee  to  let  him  know  on  August  10,  1894,  whether  he  would 
entertain  such  application  ;  that  on  or  about  said  August  8,  1894  (the  date  at 
which  the  appellant  alleges  the  verbal  contract  to  teach  the  school  was  made  by 
the  respondent),  in  an  interview  between  the  appellant  and  respondent,  at  which 
a  Miss  Hale  was  present,  the  respondent  stated  he  would  hire  the  appellant  to 
teach  said  school  for  the  coming  school  year,  providing  he  did  not  hire  Miss 
Sawin :  that  on  August  9,  1894,  the  respondent,  in  reply  to  an  inquiry  of  the 
trustee  of  district  no.  10,  as  to  whether  respondent  had  hired  appellant,  said 
that  he  had  not.  and  that  a  lady  teacher  who  taught  the  last  term  of  school  in  his 
district  had  made  application  for  his  school  and  he  was  waiting  to  hear  from 


JUDICIAL  decisions:    teachers'  contracts  1149 

her  before  engaging  any  other  teacher;  that  on  August  20,  1894,  the  respondent 
dehvered  to  the  appellant  a  memorandum  in  writing,  signed  by  him,  hiring  the 
appellant  as  a  teacher  in  said  school  for  the  term  of  ten  weeks  from  the  date 
of  such  memorandum  at  the  compensation  of  $9  per  week,  payable  monthly,  and 
appellant  accepted  said  memorandum  and  entered  at  once  on  the  discharge  of  his 
duties  as  a  teacher  in  said  school  thereunder;  that  on  December  10,  1894,  the 
respondent  delivered  to  the  appellant  another  memorandum  in  writing,  signed 
by  him,  hiring  the  appellant  as  teacher  in  said  school  ior  the  term  of  ten  weeks 
from  the  date  of  such  memorandum,  at  the  compensation  of  $10  per  week,  pay- 
able monthly,  and  appellant  accepted  said  memorandum  and  entered  upon  the 
discharge  of  his  duties  as  a  teacher  in  said  school  thereunder;  that  after  the 
expiration  of  the  term  mentioned  in  said  memorandum,  dated  December  10, 
1894,  the  appellant  continued  to  teach  said  school  without  any  further  contract, 
verbal  or  w^ritten,  between  the  appellant  and  respondent,  until  on  or  about  April 
12,  1895,  when  said  school  was  closed  by  order  of  the  respondent  for  two  weeks; 
that  on  or  about  April  22,  1895,  the  appellant  received  a  letter  from  the  respond- 
ent, under  date  of  April  20,  1895,  in  which  respondent  referred  to  the  action  of 
the  appellant  in  whipping  one  Claude  Alden,  stating  that  the  appellant  knew  that 
it  was  against  the  orders  of  the  respondent  for  appellant  to  whip  any  scholars  in 
the  school,  but  when  scholars  did  not  obey,  the  appellant  should  send  them  home ; 
that  he  had  lost  confidence  in  the  appellant,  and  requesting  the  appellant  to 
come  and  complete  the  register  and  verify  it,  and  that  he  would  settle  with  ap- 
pellant and  put  in  another  teacher,  and  that  appellant  could  not  teach  the  school 
any  longer;  that  at  the  expiration  of  the  said  two  weeks'  closure  of  the  school 
and  on  April  29,  1895,  the  appellant  went  to  the  schoolhouse  in  said  district 
prepared  to  continue  to  teach  said  school  and  there  met  the  respondent,  who 
refused  to  permit  the  appellant  to  further  teach  in  said  school.  It  further 
appears  that  prior  to  the  appellant  commencing  to  teach  the  school  in  said 
district  the  respondent  in  the  establishing  of  the  rules  for  the  government  and 
discipline  of  said  school,  forbade  the  appellant  to  administer  corporal  punish- 
ment to  any  of  the  scholars;  that  on  April  11,  1895,  one  Claude  Alden,  a  pupil 
about  nine  years  of  age,  at  the  close  of  the  afternoon  recess  did  not  return 
to  the  schoolroom  until  some  ten  minutes  after  the  pupils  were  called  to  the 
schoolroom,  and  appellant  directed  said  Alden  to  remain  after  the  school  was 
dismissed  for  the  day,  and  explain  why  he  did  not  return  to  the  schoolroom 
with  the  other  pupils ;  that  after  the  school  was  dismissed  and  the  appellant  was 
engaged  in  some  work,  the  pupil,  Alden,  left  the  schoolroom  without  the  per- 
mission of  the  appellant  and  went  home;  that  on  April  12,  1895,  at  the  time  of 
the  forenoon  recess,  the  appellant  kept  said  pupil,  Alden,  in  the  schoolhouse 
and  punished  said  pupil  by  striking  him  with  a  stick  or  limb  of  a  tree  around 
the  legs  four  to  six  times,  stating  to  said  Alden  that  he  (appellant)  was  punish- 
ing him  for  not  remaining  in  the  schoolroom  the  afternoon  previous  after  the 
close  of  the  school,  and  giving  appellant  an  explanation  why  he  (Alden)  did 
not  come  into  the  schoolroom  with  the  other  pupils  at  the  close  of  the  recess. 


I  150  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

It  also  further  appears  that  during  the  time  appellant  taught  said  school 
complaints  were  made  by  patrons  of  the  school  to  the  respondent  in  reference  to 
the  absence  of  order  and  discipline  in  the  school ;  that  the  school  was  noisy  and 
disorderly ;  that  certain  pupils  were  permitted  to  whisper  and  move  about  the 
schoolroom  ;  that  on  more  than  one  occasion  the  respondent  was  called  in  to 
quell  disturbances  in  the  school. 

The  appellant  has  failed  to  sustain  his  allegation  in  his  appeal  that  in  August, 

1894,  a  verbal  contract  was  made  with  the  respondent  by  which  the  appellant 
was  hired  to  teach  the  school  in  said  district  for  thirty-four  weeks  during  the 
school  year  of  1894-95.  Had  such  a  contract  been  made  the  appellant  should 
not  have  accepted  the  memorandum  of  hiring,  dated  August  20,  1894,  for  ten 
weeks'  service  as  teacher,  but  should  have  refused  it,  and  insisted  upon  receiving 
a  memorandum  for  the  thirty-four  weeks,  and  failing  to  obtain  that,  to  stand 
upon  his  verbal  contract.  It  is  a  well-settled  principle  of  law  that  when  a  con- 
tract is  reduced  to  writing  and  executed  such  written  instrument  is  the  contract 
of  the  parties,  and  that  all  prior  negotiations  and  conversations  had  between  the 
parties  with  reference  to  the  subject  matter  of  the  contract  are  merged  in  the 
written  instrument.  On  December  10,  1S94,  the  appellant  received,  without 
objection,  a  second  memorandum  of  hiring  for  ten  weeks  from  the  date  of  the 
memorandimi.  It  does  not  clearly  appear  from  the  proofs  presented  herein  for 
what,  if  any.  specified  term  of  time,  the  appellant  was  hired  to  teach  said 
school  after  the  expiration  of  the  ten  weeks  commencing  December  10,  1894,  and 
I  am  of  the  opinion  that  after  the  expiration  of  said  term  the  appellant  had 
the  right  at  any  time  to  terminate  his  services  as  such  teacher,  and  the  re- 
spondent had  the  right  to  dismiss  the  appellant  as  such  teacher. 

Admitting  for  the  purpose  of  argument  only  that  the  appellant  on  April  29, 

1895,  was  dismissed  by  the  respondent  in  the  course  of  or  during  a  term  of  em- 
ployment, I  am  of  the  opinion  that  the  respondent  had  sufficient  cause  for  such 
dismissal.  The  respondent,  as  trustee  of  said  district,  had  authority  to  estab- 
lish rules  for  the  government  and  discipline  of  the  school,  and  it  was  the  duty 
of  the  appellant  to  obey  such  rules  and  see  that  they  were  enforced.  The 
appellant  had  no  authority  to  establish  rules,  nor  to  punish  by  corporal  punish- 
ment any  pupil,  nor  to  suspend  or  expel  a  single  pupil  without  the  order  or  con- 
sent of  the  respondent.  The  school  law  is  silent  in  relation  to  corporal  punish- 
ment ni  the  public  schools ;  it  neither  forbids  nor  permits  it,  but  leaves  the  matter 
to  the  judgment  and  discretion  of  the  trustees.  In  establishing  rules  for  the  gov- 
ernment and  discipline  of  the  school  in  his  district  the  respondent,  as  trustee, 
notified  the  appellant  he  must  not  whip  any  pupil  for  violation  of  such  rules,  but 
to  send  home  any  pupil  violating  the  rules.  The  appellant  disobeyed  the  order  of 
the  respondent  and  administered  corporal  punishment  to  the  pupil,  Alden. 

Under  the  school  law,  the  decisions  of  the  courts  of  this  State  and  of  this 
Department,  a  trustee  has  a  right,  for  cause,  to  dismiss  a  teacher,  and  that  the 
failure  on  the  part  of  a  teacher  to  maintain  order,  good  government  and  dis- 
cipline in  a  school,  is  sufficient  cause  for  such  dismissal. 


JUDICIAL  decisions:    teachers'  contracts  1 151 

I  am  satisfied  that  the  respondent  has,  by  a  preponderance  of  proof,  estab- 
lished the  fact  that  the  appellant  did  not  maintain  order  and  good  government 
in  the  school  taught  by  him,  and  that  he  failed  as  a  disciplinarian,  and  by  rea- 
son thereof  the  respondent  had  sufficient  cause  to  dismiss  the  appellant  as  such 
teacher. 

The  appeal  herein  is  dismissed. 


4311 

In  the  matter  of  the  appeal  of  Ella  A.  Woodward  v.  Hiram  B.  Hill,  trustee, 
school  district  no.  10,  town  of  Ancram,  Columbia  county. 

Where  the  sole  trustee  of  a  school  district,  prior  to  the  annual  meeting  of  the  school  district 
on  the  ist  day  of  August  1894,  entered  into  a  contract  for  the  employment  of  a  teacher 
for  the  school  in  said  district  for  not  more  than  one  year  in  advance,  to  wit,  for  the 
period  of  thirty-eight  weeks,  including  the  school  year  for  1894-95,  the  school  to  com- 
mence on  September  3,  1894,  at  a  compensation  of  $9  per  week,  such  contract  was  legal 
and  valid  and  binding  upon  the  teacher  and  the  trustee  of  the  district  elected  at  said 
annual  meeting  and  upon  said  school  district.  The  trustee  elected  at  said  annual  meeting 
having  neglected  to  open  the  school  on  the  3d  of  September  and  refusing  to  permit 
the  teacher  to  commence  teaching  the  school  on  that  day  and  not  commencing  said 
school  until  October  15,  1894,  was  guilty  of  a  breach  of  contract,  and  the  teacher  is 
entitled  to  be  paid  wages  for  the  period  of  time  between  September  3d  and  October 
15th,  she  being  ready  and  willing  to  perform  said  contract  upon  her  part. 

Decided  December  22,  1894 

Crooker,  Superintendent 

On  or  about  August  7,  1894,  William  H.  Porter,  then  sole  trustee  of  school 
district  no.  10,  town  of  Ancram,  Columbia  county,  and  the  above-named  appel- 
lant entered  into  a  contract  under  which  the  said  Porter,  as  such  trustee,  eni- 
])loyed  the  appellant  herein,  a  duly  qualified  teacher,  to  teach  the  school  in  said 
district  for  a  period  of  thirty-eight  weeks  during  the  school  year,  commencing 
August  I,  1894,  said  school  to  commence  on  September  3,  1894,  at  a  compen- 
sation of  $9  per  week.  That  at  the  annual  school  meeting  held  in  said  district 
on  the  first  Tuesday  of  August,  1894,  the  respondent  herein  was  elected  trustee 
of  said  district.  That  the  appellant  on  September  3,  1894.  went  to  the  respondent 
and  asked  for  the  keys  of  the  schoolhouse  and  to  open  the  school,  pursuant  to 
the  terms  of  the  aforesaid  contract ;  but  the  respondent  refused  to  give  said 
keys  to  appellant  or  to  permit  the  appellant  to  open  said  school.  That  on  Sep- 
tember 4  and  5,  1894,  the  appellant  made  like  application  to  respondent  and  re- 
ceived a  like  refusal  thereto.  That  the  respondent  did  not  permit  said  school 
to  be  opened  until  October  15,  1894,  upon  which  day  the  appellant  asked  re- 
spondent for  an  order  for  wages  from  September  3,  1894,  which  request  was 
refused;  but  the  respondent  paid  the  appellant  for  the  week  she  attended  the 
teachers  institute.  That  the  respondent  still  refused  to  pay  the  appellant  any 
further  sum  under  said  contract  between  September  3,   1894,  and  October  15, 


I  152  THE    UNIVKRSITY    OF    THE    STATE    OF    NEW    YORK 

1894.  From  said  refusal  of  the  respondent  to  pay  her  the  appellant  appeals. 
The  respondent,  in  answer  to  said  appeal,  alleges  first,  that  the  former  trustee 
hired  the  ajjpcllant  for  more  than  the  school  term;  second,  that  the  appellant  has 
plenty  of  time  to  teacli  the  term ;  third,  that  the  district  is  willing  that  the  ap- 
pellant shall  teach  the  term  if  she  fulfils  the  requirements  called  for;  fourth,  that 
respondent  can  not  pay  appellant  for  what  she  can  not  qualify  to  the  register. 

Xo  statement  is  made  or  proof  given  by  the  respondent  why  he  refused  to 
allow  the  appellant  to  open  the  school  on  September  3,  1894,  under  and  pur- 
suant to  the  terms  of  her  contract,  nor  why  said  school  was  not  opened  until 
October  15,  1S94.  Under  the  provisions  of  subdivision  9  of  section  47,  article 
6,  title  7  of  the  Consolidated  School  Law  of  1894,  Porter,  as  trustee  of  said 
district,  had  authority  to  employ  the  appellant  herein  as  a  teacher  in  said  district 
for  not  more  than  one  year  in  advance,  and  to  fix  the  date  when  such  employ- 
ment should  commence,  and  length  of  time  such  employment  should  continue, 
provided  such  term  should  be  more  than  one  year,  and  to  fix  the  compensation 
to  be  paid,  and  such  contract  was  binding  upon  the  respondent  as  trustee  of  the 
district  and  upon  said  district.  Under  said  school  law  the  trustee  or  trustees 
of  the  respective  school  districts  are  authorized  to  determine  the  time  during 
a  school  year  in  which  a  school  shall  be  maintained  in  their  respective  districts. 
Such  trustees  are  required  to  maintain  a  school  in  their  respective  districts  dur- 
ing each  school  year  for  at  least  160  days  of  school  inclusive  of  all  legal  holidays 
that  may  occur  during  the  term  of  said  schools  and  exclusive  of  Saturdays,  to 
enable  such  districts  respectively  to  receive  a  proportion  of  the  public  moneys 
appropriated  by  the  State  for  the  pul?lic  schools ;  but  such  trustee  may  maintain  a 
school  in  their  respective  districts  for  such  length  of  time  in  excess  of  said  160 
days  as  they  may  determine.  Said  Trustee  Porter  determined  that  a  school 
should  be  maintained  in  said  school  district  no.  10,  town  of  Ancram,  for  the 
period  of  thirty-eight  weeks  for  the  school  year,  commencing  August  i,  1894, 
and  that  such  school  should  commence  on  September  3,  1894,  and  made  a  con- 
tract with  the  appellant  accordingly.  Such  decision  of  Trustee  Porter  and  said 
contract  are  valid  under  the  school  law.  and  binding  upon  the  respondent  as 
trustee  of  said  district  and  upon  said  district.  The  appellant  was  employed  to 
teach  in  said  district  for  the  period  of  thirty-eight  weeks,  commencing  on  Sep- 
tember 3,  1894,  and  she  is  only  required  to  perform  her  contract,  and  it  is  imma- 
terial whether  or  not  she  has  plenty  of  time  to  teach  in  said  district,  during  said 
school  year,  after  October  15,  1894,  for  thirty-eight  weeks.  It  is  also  immate- 
rial whether  the  district  is  willing  she  should  teach  or  not,  as  the  qualified  voters 
of  the  district  had  nothing  whatever  to  do  with  the  employment  of  teachers. 
As  to  the  verification  of  the  school  register  of  the  district  by  the  appellant 
section  53.  article  6,  title  7  of  the  Consolidated  School  Law  enacts  that  teachers 
m  the  respective  school  districts  are  required  to  perform  certain  duties  specified 
therem  m  making  entries  of  daily  attendance,  etc.,  upon  such  register  when  the 
school  shall  be  in  session,  and  to  verify  such  entries,  and  until  such  entries  are 
made  and  verified,  tmstecs  shall  not  draw  order  for  the  payment  of  the 
teacher's  wages.     The  provisions  above  cited  are  applicable  when  a  school  is 


JUDICIAL  decisions:     teachers'  contracts  1153 

being  maintained  in  the  district,  and  do  not  apply  to  a  case  where  the  trustee 
has  refused  to  permit  the  school  to  be  opened,  and  to  allow  the  teacher  to  teach 
under  her  contract,  and  has  been  guilty  of  a  breach  of  the  contract. 

It  is  clear  from  the  proofs  that  the  respondent  is  guilty  of  a  breach  of  the 
contract  made  between  the  appellant  and  Trustee  Porter,  which  contract  was 
binding  upon  the  respondent  as  the  trustee  of  said  district  and  upon  said  dis- 
trict. No  good,  valid  or  legal  reason  for  the  refusal  of  the  respondent  to  open 
the  school  in  said  district  on  September  3,  1894,  and  for  the  refusal  to  permit 
the  appellant  from  commencing  to  teach  on  that  day,  or  for  his  refusal  to  pay 
the  respondent  her  wages  under  such  contract  from  September  3  to  October  15, 
1894,  after  deducting  the  amount  paid  to  her  for  the  week  she  attended  the 
institute,  is  given. 

The  appeal  herein  is  sustained. 

It  is  ordered.  That  the  trustee  of  school  district  no.  10,  town  of  Ancram, 
Columbia  county,  without  any  unnecessary  delay,  pay  to  the  appellant  herein, 
Ella  A.  Woodward,  her  wages  as  a  teacher  under  the  contract  hereinbefore 
stated,  from  September  3,  1894,  to  October  15,  1894,  to  wit,  for  six  weeks  less 
one  week,  in  which  appellant  attended  the  teachers  institute,  and  for  which  she 
has  been  paid,  being  for  five  weeks  at  $9  per  week,  amounting  in  the  aggregate  to 
the  sum  of  $45. 

It  is  further  ordered.  That  if  there  is  not  a  sufficient  sum  of  money  in  the 
hands  of  the  superA'isor  and  collector,  or  either  of  them,  applicable  to  the  payment 
of  teachers'  wages,  or  there  are  no  moneys  in  the  hands  of  said  supervisor  and 
collector,  or  either  of  them,  applicable  to  the  payment  of  teachers'  wages,  to 
pay  said  appellant  said  sum  of  $45,  the  trustee  of  said  district  is  hereby  ordered 
and  directed  forthwith  to  levy  a  tax  upon  the  property  within  said  district 
liable  to  taxation  for  school  purposes  in  a  sufficient  sum  to  pay  said  appellant 
said  sum  of  $45. 

4244 

In  the  matter  of  the  appeal  of  Edna  Cyener  v.  Jacob  Meyer,  trustee,  school 

district  no.  6,  towns  of  Otto  and  East  Otto,  Cattaraugus  county. 

Where  a  teacher  and  the  trustee  of  a  school  district  enter  into  an  oral  contract  by  which  the 
teacher  is  employed  to  teach  the  school  in  a  school  district  for  the  then  school  year, 
to  be  divided  into  three  school  terms,  namely,  fall  term  of  ten  weeks,  winter  term  of 
fifteen  weeks  and  the  spring  term,  to  be  thereafter  fixed,  at  a  compensation  of  $7  per 
week  for  the  fall  and  spring  terms,  and  $8  per  week  for  the  winter  term,  said  contract 
being  for  services  to  be  performed  within  the  year,  was  legal  and  binding  upon  the 
parties  thereto  and  upon  the  school  district ;  that  the  dismissal  of  the  teacher  and  refusal 
by  the  trustee  to  allow  her  to  teach  the  school  for  the  spring  term,  no  sufficient  cause 
being  shown,  was  without  authority  of  law;  that  the  teacher  is  entitled  to  pay  for 
the  spring  term  at  the  rate  of  compensation  agreed  upon  in  said  contract. 

Decided  May  i,  1894 

C.  Z.  Lincoln,  attorney  for  appellant 

D.  E.  Powell,  attorney  for  respondent 

Z1 


I  154  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

Crocker,  Supcrititcndcnt 

The  appellant  in  the  above-entitled  matter  appeals  from  the  action  and  deci- 
sion of  the  respondent  as  trustee  of  school  district  no  6,  towns  of  Otto  and  East 
Otto,  Cattaraugus  county,  in  dismissing  her  as  a  teacher  in  the  school  of  said 
district  in  the  course  of  a  term  of  employment.  The  respondent  has  answered 
the  appeal. 

It  appears,  from  the  papers  presented,  that  on  or  about  August  25,  1893, 
contract  was  made  between  the  appellant  and  respondent  that  the  appellant  was 
to  teach  the  school  in  said  district  no.  6  for  the  present  school  year;  that  the  fall 
term  was  to  continue  for  ten  weeks  and  the  winter  term  sixteen  weeks,  and  the 
spring  term  was  left  to  be  fixed  thereafter;  that  the  appellant  was  to  be  paid  $7 
per  week  for  the  fall  and  spring  terms  and  $8  per  week  for  the  winter  term. 
This  contract  was  not  reduced  to  writing  nor  was  there  any  memorandum  thereof 
made,  signed  and  delivered,  as  required  by  chapter  335  of  the  Laws  of  1887. 
The  respondent  avers  that  it  was  agreed  that  the  appellant  should  not  teach  said 
school  any  longer  than  she  gave  satisfaction.  To  sustain  this  allegation  he  pro- 
duces an  affidavit  of  Eliza  Meyer  who  avers  that  the  appellant  was  not  hired  to 
teach  said  school  for  the  term  of  one  year  absolutely,  and  there  was  no  talk  of 
her  teaching  said  school  for  the  term  of  one  year,  except  upon  the  ground  that 
she  gave  satisfaction.  On  the  part  of  the  appellant  two  affidavits  are  presented, 
one  by  Jennie  Cyener  and  the  other  by  John  Cyener,  in  each  of  which  is  given, 
with  some  detail,  the  conversation  that  took  place  at  the  time  the  contract  was 
made.  Jennie  Cyener,  who  is  clerk  of  the  district,  swears  that  the  respondent 
asked  if  Edna  (the  appellant)  wanted  the  school,  to  which  she  (the  deponent) 
replied  that  she  did  if  they  could  agree  upon  wages;  that  the  respondent  asked 
what  she  (the  appellant)  wanted,  and  the  deponent  replied  that  she  thought  she 
could  earn  as  much  as  other  teachers  there  had  been  getting,  and  respondent 
asked  what  the  others  had  been  getting  and  deponent  said  $7  for  fall  and  spring 
terms  and  $8  for  winter  term ;  deponent  then  asked  respondent  how  he  wanted  to 
hire  her  (the  ai)pellant),  whether  as  long  as  she  gave  satisfaction,  or  hozv,  and 
respondent  said  he  knew  her  (the  appellant)  reputation  and  he  wanted  to  hire 
her  for  a  year,  and  asked  deponent  how  much  school  there  must  be  in  a  year, 
and  deponent  replied  that  she  understood  that  there  must  be  at  least  thirty-two 
weeks  and  there  might  be  more;  respondent  then  asked  if  she  (deponent)  would 
see  to  making  out  the  taxes  and  look  after  the  business  of  the  district,  and 
deponent  replied  she  would;  that  respondent  then  said  to  Edna  (the  appellant) 
"  do  you  want  the  school,"  and  appellant  replied,  "  yes,  sir,"  and  he  then  said  he 
would  give  her  $7  for  the  fall  and  spring  terms  and  $8  for  the  winter  term  and 
asked  her  if  that  suited  her,  to  which  she  replied  that  it  did,  and  respondent 
then  said.  "  then  it's  a  bargain."  Respondent  then  talked  about  the  time  for  com- 
mencing school  and  said  he  thought  they  had  better  have  a  long  winter  term  and 
ten  weeks  in  the  fall,  and  as  to  the  spring  term,  he  said,  •'  we'll  fix  that  all  right." 

John   Cyener   swears   in   his   affidavit   that   a   conversation   was    had    with 


JUDICIAL   DECISIONS:       TEACHERS'    CONTRACTS  Il55 

respondent  relative  to  hiring  appellant,  and  states  the  terms  of  the  bargain  or 
contract  as  stated  in  the  affidavit  of  Jennie  Cyener. 

The  respondent  admits  he  had  a  conversation  with  Jennie  Cyener  about 
hiring  the  appellant,  but  does  not  state  what  that  conversation  was  and  does  not 
deny  the  statements  as  to  the  conversation  as  stated  by  Jennie  Cyener,  except 
that  he  states  that  it  was  expressly  agreed  that  appellant  should  not  teach  the 
school  any  longer  than  she  gave  satisfaction;  that  Eliza  Meyer  does  not  state 
the  conversation  had  relative  to  hiring  appellant,  nor  deny  the  said  statements 
contained  in  said  affidavit  of  Jennie  Cyener,  except  she  avers  that  there  was  no 
talk  of  hiring  the  appellant  for  a  year  except  upon  the  ground  that  she  gave 
satisfaction. 

The  appellant  states  in  her  appeal,  which  is  duly  verified,  that  at  the  time 
of  the  conversation  and  agreement,  in  August  1893,  there  were  no  limitations 
or  restrictions  in  said  agreement,  but  was  an  absolute  agreement  for  the  school 
year.  In  her  affidavit,  verified  March  24,  1894,  in  reply  to  the  answer  of 
respondent,  she  states  that  at  the  time  of  her  employment,  in  August  1893, 
nothing  was  said  about  her  teaching  as  long  as  she  gave  satisfaction,  but  that 
she  was  employed  for  the  school  year. 

It  also  appears  that  the  appellant  commenced  teaching  the  school  in  said 
district  in  September  1893,  and  taught  during  the  fall  term  of  ten  weeks;  that 
she  also  taught  the  winter  term  of  said  school,  consisting  of  sixteen  weeks,  which 
ended  on  March  9,  1894;  that  on  or  about  January  17,  1894,  the  appellant  directed 
a  pupil  in  the  school,  one  Rennie  Meyer,  a  son  of  the  respondent,  in  an  exercise 
in  language  on  the  blackboard,  to  write  out  the  parts  of  speech  in  a  sentence 
written  upon  said  blackboard,  when  said  pupil  replied  he  would  not  write  them 
out  and  repeated  such  statement  several  times,  whereupon  the  appellant  went 
to  the  seat  of  such  pupil  and  took  up  a  book,  and  the  pupil  took  hold  of  the  hair 
of  appellant  and  kept  such  hold  some  time,  when  he  released  it ;  that  appellant 
went  to  her  desk  and  again  asked  the  pupil  if  he  would  write  out  the  lesson, 
and  when  he  replied  "  no  "  the  appellant  then  took  her  ruler  and  went  to  the  pupil 
and  struck  him  under  the  left  arm,  when  he  rose  up  and  moved  toward  the 
appellant  and  the  appellant  struck  at  or  struck  the  pupil,  and  the  pupil  then  drew 
up  his  arm  to  strike  the  appellant,  when  another  pupil  took  hold  of  his  arm  and 
prevented  him  from  striking  her  and  the  affair  ended ;  the  pupil's  nose  was  bleed- 
ing, and  after  washing  off  the  blood  he  took  his  books  and  left  the  school ;  that 
just  prior  to  closing  the  school  for  the  day  the  respondent  came  to  the  school- 
house  and  inquired  as  to  what  had  occurred,  when  the  appellant  and  a  pupil,  one 
Walter,  stated  what  had  occurred  as  hereinbefore  stated;  that  the  said  son  of 
the  respondent  returned  to  the  school  on  the  next  day  and  continued  to  attend 
the  school  until  about  February  19,  1894,  when  he  left  the  school  for  that  term. 
It  does  not  affirmatively  appear  that  the  respondent,  during  the  time  the 
appellant  taught  the  school,  visited  the  school  except  twice  —  once  when  it  was 
to  inquire  as  to  the  punishment  of  his  son  and  the  other  on  the  close  of  the  spring 
term  on  March  9,  1894.     It  does  affirmatively  appear  that  the  respondent,  aside 


1150  THE    UNMVEKSITY    OF    TIIK    STATE    OF    NEW    YORK 

from  the  affair  of  his  son,  never  at  any  time  stated  to  the  appellant  that  he  \\as 
dissatisfied  witli  her  conduct  of  the  school  or  made  any  complaint  in  relation 
thereto ;  that  the  respondent,  in  an  interview  about  February  20,  1894,  with  one 
Bartlett,  the  only  complaint  he  made  in  relation  to  appellant  was  that  she  had 
punished  his  son,  and  stated  that  the  appellant  could  not  have  the  school  for  the 
next  term  and  that  he  had  hired  another  teacher;  that  in  an  interview  of  the 
respondent  with  Jennie  Cyener,  the  mother  of  appellant,  he  said  to  her  that  he 
did  not  like  appellant  to  punish  his  boy,  and  that  appellant  could  not  have  the 
school  for  the  next  term  and  he  had  hired  another  teacher. 

Tile  respondent  hired  one  Frank  Smallman  to  teach  the  school  for  the  spring 
term,  which  commenced  on  March  12,  1894. 

The  respondent  has  filed  sundry  affidavits  in  support  of  the  allegations  in 
his  answer  that  the  appellant  did  not  teach  the  school  in  a  satisfactory  manner. 

That  of  these  affidavits,  nine  are  by  pupils  attending  the  school  whose  ages 
are  between  that  of  10  and  17  years  and  three  are  children  of  the  respondent. 
This  kind  of  evidence  is  not  satisfactory  nor  can  it  have  efifect  in  determining 
the  condition  of  the  school.  The  children  of  some  of  the  affiants  attended  the 
school  but  a  small  portion  of  the  fall  and  winter  terms,  and  of  seven  persons 
who  join  in  an  affidavit,  five  of  them  have  no  children  of  school  age.  Not  one 
of  the  affiants  who  were  patrons  of  the  school  avers  that  he  or  she  ever  visited 
the  school  during  the  time  appellant  taught  therein.  The  appellant  denies 
specifically  the  allegations  contained  in  the  affidavits  filed  by  the  respondent. 

It  appears  in  proof  that  the  appellant  holds  a  second  grade  certificate  issued 
to  her  by  Stanley  N.  Wheaton,  school  commissioner  of  the  second  commissioner 
district  of  Cattaraugus  county,  bearing  date  February  11,  1893,  and  has  taught 
school  one  term  in  East  Otto,  and  three  consecutive  terms  in  the  town  of 
Mansfield. 

By  subdivision  9,  of  section  49,  of  title  7,  of  the  Consolidated  School  Law 
it  is  provided,  "  nor  shall  any  teacher  be  dismissed  in  the  course  of  a  term  of 
employment,  except  for  reasons  which,  if  appealed  to  the  Superintendent  of 
Public  Instruction,  shall  be  held  to  be  sufficient  cause  for  such  dismissal."  The 
appellant  was  hired  by  the  respondent  in  August  1893,  for  the  school  year,  as 
admitted  by  respondent,  although  he  qualifies  the  admission  by  stating  that  he 
hired  appellant  for  the  year,  "  if  she  gave  satisfaction."  The  trustee  of  any 
school  district  has  the  power  to  dismiss  a  teacher  hired  by  him  for  a  specific 
term,  before  the  expiration  of  said  term,  whether  such  hiring  was  upon  the  con- 
dition that  he  or  she  gave  satisfaction  or  not;  but  he  must  take  care  that  his 
reasons  for  such  dismissal  shall  be  held  to  be  sufficient  cause  by  the  Superin- 
tendent of  Public  Instruction  in  the  event  the  teacher  shall  appeal  from  the  action 
of  the  trustee  in  such  dismissal.  In  the  event  of  an  appeal  the  burthen  is  upon 
the  trustee  to  show  by  preponderance  of  proof  that  he  had  sufficient  cause  for 
such  dismissal.  Admitting  for  the  sake  of  argument,  that  the  contract  between 
the  appellant  and  respondent  was  a  hiring  for  the  school  year  "  if  the  appellant 
gave  satisfaction,"  the  respondent  must  do  more  than  set  up  a  plea  that  he  was 


JUDICIAL  decisions:     teachers'  contracts  1 1 57 

"  not  satisfied."  The  courts  of  this  State  have  held  for  years  "  that  a  simple 
allegation  of  dissatisfaction,  without  some  good  reason  assigned  for  it,  might  be 
a  mere  protest  and  can  not  be  regarded."  The  respondent  has  failed  to  establish 
any  good  reason  for  his  allegation,  that  he  was  "  not  satisfied. "  I  am  of  the 
opinion,  upon  the  papers  presented,  that  no  sufficient  cause  for  tlie  dismissal  of 
the  appellant  as  such  teacher  has  been  established. 

I  do  find  and  decide : 

That  on  or  about  August  25,  1893,  a  contract  was  entered  into  between  the 
appellant  and  the  respondent,  as  trustee  of  school  district  no.  6,  towns  of  Otto 
and  East  Otto,  Cattaraugus  county,  for  the  hiring  of  the  appellant  as  teacher  in 
the  school  in  said  district  for  the  present  school  year,  to  be  divided  into  three 
school  terms,  namely:  the  fall  term  of  ten  weeks,  the  winter  term  of  sixteen 
weeks,  and  the  spring  term,  the  length  of  which  was  to  be  thereafter  fixed,  at 
a  compensation  of  $7  per  week  for  the  fall  and  spring  terms,  and  $8  per  week 
for  the  winter  term;  that  said  contract  was  an  oral  one;  but  being  for  services 
to  be  performed  within  the  year,  was  valid  and  legal  and  binding  upon  the  parties 
thereto  and  on  said  school  district ;  that  the  appellant  taught  said  school  for  the 
fall  and  winter  terms  and  had  been  paid  therefor;  that  the  appellant  was  dis- 
missed as  such  teacher  by  the  respondent  at  the  end  of  the  winter  term,  on  or 
about  March  9,  1894,  and  the  respondent  refused  to  permit  the  appellant  to  teach 
said  school  for  the  spring  term  pursuant  to  the  aforesaid  contract,  although  the 
appellant  was  ready  and  willing  to  do  so ;  that  no  sufficient  cause  for  the  dis- 
missal of  the  appellant,  as  such  teacher  during  the  course  of  her  employment, 
by  the  respondent,  has  been  shown  or  established,  and  such  dismissal  was  invalid 
and  without  authority  of  law ;  that  the  appellant  is  entitled,  under  said  contract, 
to  be  paid  by,  and  to  have  and  receive  from  said  school  district,  pay  for  each 
week  of  school  held  and  maintained  in  said  district  during  the  spring  term  for 
the  present  school  year,  commencing  March  12,  1894,  at  the  rate  of  $7  per 
week,  she  having  been  prevented  from  teaching  said  school  for  and  during  said 
spring  term  by  the  wrongful  acts  of  the  respondent  as  hereinbefore  stated. 

The  appeal  herein  is  sustained. 

It  is  ordered,  That  the  trustee  of  school  district  no.  6,  towns  of  Otto  and 
East  Otto,  Cattaraugus  county,  if  the  spring  term  of  the  school  in  said  district 
for  the  present  school  year  has  been  completed,  forthwith  pay  to  Edna  Cyener, 
the  appellant  herein,  under  the  aforesaid  contract,  the  money  due  and  owing  to 
her  by  and  from  said  school  district,  being  the  aggregate  sum  produced  by  multi- 
plying the  number  of  weeks  of  school  during  said  spring  term  by  said  weekly 
compensation  of  7  per  week;  that  if  said  spring  term  be  not  completed,  then 
that  said  trustee  pay  her  the  amount  due  and  owing  by  the  district  as  aforesaid 
as  soon  as  such  spring  term  shall  be  completed. 

It  is  further  ordered,  That  if  there  shall  be  no  moneys  belonging  to  said 
district  applicable  to  the  payment  of  teachers'  wages,  in  the  hands  of  the  collector 
of  said  district,  or  the  supervisor  or  supervisors  of  said  town  or  towns,  sufficient 
to  pay  the  appellant  herein,  as  herein  ordered,  or  if  there  shall  not  be  a  suf^cient 


11^8  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

sum  in  the  hands  of  said  officers  to  make  such  payment,  then  in  either  event,  the 
said  trustee  of  said  district  sliall  forthwith  levy  and  assess  upon  said  district  a 
tax  in  such  an  amount  as  shall  be  sufficient  to  pay  the  appellant  herein  as  afore- 
said, and  cause  said  tax  to  be  collected,  and  the  proceeds  thereof,  when  collected, 
to  be  applied  as  aforesaid. 


4221 

In  the  matter  of  the  appeal  of  Jennie  L.  Patterson  v.  Georj^e  N.  PaflF,  T.  B. 
Bayles  and  Andrew  Vandewater,  trustees  of  school  district  no.  2,  town  of 
Hempstead,  Queens  county. 

Since  May  16,  1887,  all  officers  or  boards  of  officers,  who  shall  employ  any  teacher  to  teach  in 
the  public  schools  of  the  State  shall,  at  the  time  of  such  employment,  make  and  deliver 
to  such  teacher  a  memorandum  in  writing,  signed  by  said  officer,  in  which  the  details  of 
the  agreement  between  the  parties  shall  be  clearly  and  definitely  set  forth;  that  imder 
a  contract  to  teach,  such  person  can  not  be  required,  without  his  or  her  consent,  to 
perform  janitor  work  in  the  schcnj;  that  any  teacher  can  not  be  dismissed  in  the  course 
of  a  term  of  employment  except  for  reasons  which,  if  appealed  to  the  Superintendent 
of  Public  Instruction,  shall  be  held  to  be  sufficient  cause  for  such  dismissal;  that  a 
refusal  to  perform  janitor  work  by  a  teacher  is  not  sufficient  cause  for  dismissal; 
that  a  contract  to  teach  in  a  school  for  a  term  not  exceeding  one  year  is  valid  although 
not  in  writing. 

Decided  February  14,  1894 

Crooker,  Superintendent 

This  is  an  appeal  from  the  action  and  decision  of  the  respondents,  as  trustees 
of  school  district  no.  2,  town  of  Hempstead,  Queens  county,  in  refusing  to  pay 
the  appellant  as  a  teacher  in  the  school  in  said  district  for  her  services  for  the 
months  of  September  and  October  1893;  for  suspending  her  as  such  teacher,  and 
for  dismissing  or  discharging  her  as  such  teacher,  on  or  about  November  10, 
1893.  -'^n  answer  was  interposed  by  the  respondents,  to  which  the  appellant 
served  and  filed  a  reply.  On  or  about  December  5,  1893,  upon  request  of  re- 
spondents and  others,  I  directed  School  Commissioner  Merrill  to  visit  the  school 
district,  take  testimony  and  report  to  me.  On  February  9,  1894,  I  received 
his  report,  stating  that  the  appeal  herein  was  true. 

'I  he  following  facts  are  established  in  the  proceedings  herein:  That  the 
appellant  was  employed  and  performed  services  as  a  teacher  in  said  school 
district  for  the  school  year  ending  in  July  1893;  that  some  time  in  the  month 
of  July  1893,  the  members  of  the  board  of  trustees  of  said  district,  verbally 
agreed  to  and  with  the  appellant,  to  retain  her  as  a  teacher  in  said  district  for  the 
then  ensuing  school  year  at  a  salary  of  $400,  payable  in  ten  equal  monthly  instal- 
ments of  $40;  that  on  September  5,  1893,  the  school  in  said  district  was  opened 
and  the  appellant  duly  entered  upon  her  said  employment  as  teacher  therein ;  that 
on  September  8,  1893,  the  appellant  was  informed  bv  her  associate  teacher  that 
the  appellant  would  be  required  to  perform  one-half  of  the  janitor  work  of  said 


JUDICIAL    DECISIONS:       TEACHERS'    CONTRACTS  II 59 

school,  to  which  the  appellant  demurred;  that  on  or  about  September  15,  1893, 
the  respondents  Paff  and  Bayles  tendered  to  the  appellant  a  memorandum  of 
hiring  signed  by  them  and  dated  September  5,  1893,  statin^  therein  that  they 
had  engaged  the  appellant  to  teach  in  the  school  in  said  district  for  the  term  of 
ten  months,  commencing  September  5,  1893,  at  a  salarj'  of  $400,  payable  monthly, 
and  to  which  memorandum  was  added  "  and  she  to  do  all  the  janitor  work  in  the 
room  in  which  she  teaches  " ;  that  the  appellant  declined  to  accept  said  memo- 
randum so  tendered  to  her;  that  on  September  27,  1893,  the  appellant  received 
from  the  respondent,  Paff,  the  following  memorandum :  "  Uniondale,  Sept.  27, 
1893.  This  is  to  certify  that  I  accept  the  contract  drawn  up  by  the  trustees  of 
school  district  no.  2,  Uniondale,  town  of  Hempstead,  and  consent  to  the  terms 
and  payment  therein  contained."  That  the  appellant  declined  to  sign  said 
memorandum  and  sent  to  the  respondent,  Paff,  the  following:  "  I  hereby 
agree  to  teach  as  assistant  teacher  in  Uniondale  school  district  no.  2  for  one  year 
at  a  salary  of  $400  per  year.  Jennie  L.  Patterson."  To  which  the  respondent 
Paff  sent  word  to  appellant,  calling  her  attention  to  the  fact  that  she  had  not 
referred  to  the  janitor  work;  that  on  October  18,  1893,  the  appellant  received  by 
hands  of  the  respondent,  Paff',  a  letter  from  School  Commissioner  Merrill,  con- 
taining the  following :  "  The  trustees  propose  that  you  suspend  your  services 
as  teacher  without  prejudice  to  any  of  your  rights  or  your  compensation,  until 
the  matter  can  be  decided  by  the  State  Superintendent,  they,  in  the  meantime, 
to  supply  a  substitute  without  cost  to  you.  This  seems  a  fair  proposition,  for 
you  can  not  be  prejudiced  in  any  way.  They  will  give  you  a  memorandum  to 
this  effect."  That  on  October  20,  1893,  the  appellant  addressed  to  the  re- 
spondents a  notice  in  writing,  demanding  her  pay  as  teacher  for  the  month 
of  September,  and  that  they  deliver  to  her  a  memorandum  of  hiring,  exclusive 
of  janitor  service;  that  on  October  22,  1893,  the  respondents  served  upon  the 
appellant  a  written  order  of  her  suspension  as  a  teacher  and  appointed  his  daughter 
as  a  substitute;  that  a  meeting  of  respondents  was  held  on  October  23,  1893,  at 
which  the  appellant  was  present,  when  the  following  resolution  was  adopted,  and 
a  copy  thereof  given  to  appellant.  "At  a  meeting  of  a  board  of  trustees  of 
school  district  no.  2,  Uniondale,  town  of  Hempstead.     Present  Geo.   N.   Paff, 

T.  B.  Bayles  and  Vandewater,  it  was  voted  upon  and  agreed  between  said 

trustees  that  we  hire  Jennie  L.  Patterson  to  be  assistant  teacher  in  said  school 
district  at  a  salary  not  to  exceed  the  sum  of  (350)  three  hundred  and  fifty 
dollars,  payable  monthly,  and  the  district  to  furnish  a  janitor  at  an  expense  not 
to  exceed  (50)  fifty  dollars";  that  the  appellant  declined  to  accept  a  contract 
upon  the  terms  of  said  resolution;  that  on  November  9,  1893,  the  appellant 
presented  to  the  respondents  for  their  signature  the  following  order :  "  Union- 
dale,  L.  I.,  Nov.  9,  1893.  Mr  Valentine  Vandewater,  School  Tax  Collector. 
Please  pay  to  the  order  of  Jennie  L.  Patterson,  the  salary  for  September  and 
October  1893,  amounting  to  eighty  dollars,  for  services  rendered  as  assistant 
teacher  in  Uniondale  school  district  no.  2."  That  said  order  was  thereafter 
signed  by  the  respondents  and  delivered  to  said  school   district  collector,  who 


ll6o  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

handed  to  the  appellant  a  sum  of  money  and  said  original  order,  which  sum  of 
money  she  fonnd  to  be  but  $70  and  that  the  word  "  eighty  "  had  been  erased  in 
said  order  and  the  word  "  seventy "  inserted,  and  the  words  "  as  assistant 
teacher"  had  also  been  erased;  that  the  appellant  at  once  returned  said  money; 
that  on  November  10,  1893.  the  appellant  received  the  following  notice  from  the 
respondents :  "  Uniondale,  L.  I.  Miss  Jennie  L.  Patterson.  Your  services  as 
teacher  and  for  other  services  rendered  in  school  district  no.  2,  Uniondale,  town 
of  Hempstead,  are  no  longer  required.  You  are,  therefore,  at  liberty  to  seek 
other  employment.  You  are  discharged.  Mr  Valentine  Vandewater,  the  treas- 
urer of  the  district,  will  settle  the  amount  due  you  for  teaching  in  the  months 
of  September  and  October  of  the  present  year.  T.  B.  Bayles,  George  N.  PafT, 
A.  Vandewater,  trustees  of  district  no.  2,  Hempstead."  That  after  the  meeting 
of  the  respondents,  held  October  23,  1893,  one  Miss  Abbott  was  employed  as 
teacher  in  said  school  in  place  of  the  appellant.  That  the  appellant,  from  the 
opening  of  the  school  on  September  5,  1893,  up  to  the  time  of  her  suspension, 
as  aforesaid,  faithfully  performed  services  therein  as  a  teacher  under  her  con- 
tract of  employment,  and  ever  since  such  suspension  has,  at  all  times,  been 
ready  and  willing  to  perform  said  work  and  services  as  such  teacher,  under  said 
contract.  That  the  appellant  herein  has  never  been  paid  any  sum  whatever  for 
her  services  as  teacher  in  said  school,  nor  upon  her  contract  to  teach,  as  afore- 
said, by  the  respondents  herein,  nor  by  anyone  for  them  or  on  their  behalf. 
That  at  the  annual  meeting  held  in  said  school  district  in  August,  1893,  said 
1^1  ff  stated  to  the  meeting  that  Miss  Patterson  (the  appellant)  had  been  engaged 
at  a  salary'  of  $400  as  assistant  teacher;  that  Miss  Bates  was  to  receive  $500  as 
principal,  and  that  $100  was  appropriated  for  janitor  service;  that  no  statement 
was  made  by  any  of  the  respondents  at  said  meeting,  nor  any  intimation,  that 
the  appellant  was  to  perform  any  janitor  work.  That  the  respondents  did  not, 
nor  did  either  of  them,  ever  say  to  the  appellant  anything  about  janitor  work, 
or  request  her  to  perform  janitor  work,  or  state  to  her  that  they  would  require 
her  to  perform  janitor  work  prior  to  September  8,  1893,  nor  was  the  subject  of 
janitor  work  ever  mentioned  in  any  interview  between  the  appellant  and  the 
respondents  prior  to  said  date.  That  the  appellant  never  promised  or  consented 
to  perform  janitor  work. 

Under  the  Consolidated  School  Act  it  is  the  duty  of  the  trustees  of  school 
districts  to  provide  for  janitor  work  being  performed  by  some  person  or  per- 
sons in  their  respective  districts,  and  any  expenditure  made  or  liability  incurred 
therefor  is  a  charge  upon  the  district.  Trustees  may,  under  the  law,  make  an 
arrangement  with  the  teacher  or  teachers  to  perform  said  work,  providing  the 
teacher  or  teachers  consent.  There  is  no  provision  under  the  school  law  which 
requires  any  teacher  under  his  or  her  contract  to  teach  school  in  a  school  dis- 
trict to  perform  any  janitor  work  whatever,  nor  is  there  any  provision  of  the 
school  law  which  gives  trustees  any  power  or  authority  to  compel  any  teacher 
employed  under  a  contract  to  teach,  to  perform  janitor  work,  nor  to  suspend, 


JUDICIAL  decisions:     teachers'  contracts  ii6i 

dismiss  or  discharge  a  teacher,  under  a  contract  to  teach,  for  refusing  to  per- 
form janitor  work.  By  subdivision  9  of  section  49  of  title  7  of  the  ConsoHdated 
School  Act,  it  is  provided  that  any  trustee  or  trustees  shall  not  dismiss  a  teacher 
in  the  course  of  a  term  of  employment  except  for  reasons  which,  if  appealed  to 
the  Superintendent  of  Public  Instruction,  shall  be  held  to  be  sufficient  cause  for 
such  dismissal. 

I  find  and  decide  that  a  contract  was  entered  into  between  the  respondents, 
as  trustees  of  school  district  no.  2,  town  of  Hempstead,  Queens  county,  and  the 
appellant  herein,  hiring  and  employing  the  appellant  as  assistant  teacher  in  said 
school  district,  for  the  term  of  ten  months,  commencing  on  September  5,  1893, 
at  a  salary  or  compensation  of  $400,  payable  monthly,  and  that  such  contract 
is  legal  and  valid,  and  binding  upon  the  parties  thereto.  That  under  said  con- 
tract the  appellant  could  not  be  required,  without  her  consent,  to  perform  janitor 
work  in  said  school,  and  that  she  never  consented  to  perform  said  janitor  work. 
That  the  reasons  alleged  by  the  respondents  for  dismissing  and  discharging  the 
appellant  as  teacher  in  the  course  of  a  term  of  employment,  are  not  held  by  me 
to  be  sufficient  cause  for  such  dismissal  and  discharge,  and  the  action  of  the 
respondents  in  attempting  to  dismiss  and  discharge  the  appellant,  without  cause, 
was  unlawful  and  invalid.  That  the  appellant  herein  is  entitled,  under  chapter 
335  of  the  Laws  of  1887,  to  have  and  receive  from  the  respondents  herein  a 
memorandum  in  writing,  signed  by  them,  stating  the  employment  by  them  of  thtf 
appellant  as  assistant  teacher  in  said  school  district  for  the  term  of  ten  months, 
commencing  on  September  5,  1893,  at  a  salary  or  compensation  of  $400,  payable 
monthly;  and  the  appellant  is  entitled  to  have  and  receive  from  the  respondents 
the  sum  of  $40  each  for  the  months  of  September,  October,  November,  Decem- 
ber 1893,  and  January  1894,  with  interest  upon  said  $40  monthly,  from  the  date 
when  each  of  said  monthly  payments  of  $40  became  due;  and  also  the  payment 
of  $40  monthly  for  the  months  of  February,  March,  April,  May  and  June  1894, 
as  such  monthly  payments  respectively  become  due. 

The  appeal  herein  is  sustained. 

It  is  ordered.  That  the  trustees  of  school  district  no.  2,  town  of  Hempstead, 
Queens  county,  forthwith  deliver  to  Jennie  L.  Patterson,  the  appellant  herein, 
a  memorandum  in  writing,  signed  by  them,  stating  the  employment  of  Miss 
Patterson  as  assistant  teacher  in  said  school  district  for  the  term  of  ten  months, 
commencing  on  September  5,  1893,  at  a  salary  of  $400,  payable  monthly. 

It  is  further  ordered.  That  the  trustees  of  said  district  forthwith  pay  or  cause 
to  be  paid  to  the  said  Jennie  L.  Patterson,  under  said  contract  of  hiring,  the 
sum  of  $40  for  each  of  the  months  of  September,  October,  November  and  De- 
cember 1893,  and  January  1894,  with  interest  upon  each  of  said  $40  from  the 
date  when  each  of  said  monthly  payments  became  due  to  the  date  of  the  pay- 
ment thereof. 


Il62  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

It  is  further  ordered,  That  the  trustees  of  said  district  pay  or  cause  to  be 
paid  to  said  Jennie  L.  Patterson,  the  sum  of  $40,  under  said  contract,  at  the 
end  of  each  of  the  months  of  February,  March,  April,  May  and  June  1894. 

XoTE. —  Under  section  50,  article  6,  title  7  of  the  Consolidated  School  Law  of  1804,  it  is 
mandatory  upon  trustees  of  school  districts  to  provide  for  building  fires  and  cleaning  the 
schoolroom  or  rooms,  and  for  janitor  work  generally  in  and  about  the  schoolhouse  or 
houses,  and  pay  for  such  service  such  reasonable  sum  as  may  be  agreed  upon  therefor. 


4774 

In  the  matter  of  the  appeal  of  Charles  E.  Fairman,  president  of  board  of  educa- 
tion of  Lyndonville  union  school,  from  action  of  said  board  of  education 
in   re   Miss  Ella   Morgan. 

Where  a  board  of  education  of  a  union  school  district,  in  May  1899,  adopted  a  resolution, 
offering  to  a  teacher  in  the  schools  under  its  charge,  the  position  then  held  by  such 
teacher  for  the  ensuing  school  year,  and  such  action  was  communicated  to  such  teacher 
who  asked  for,  and  obtained  from  the  board,  time  to  consider  said  offer,  and  sub- 
sequently accepted  such  offer  in  writing,  which  acceptance  was  read  at  a  meeting  of 
the  board  held  on  July  6,  1899;  held,  that  a  motion  adopted  at  said  meeting  of  the 
board,  withdrawing  such  offer,  was  inoperative  and  void. 

IJccided  August  4,  1899 

Skinner,  Superintendent 

This  is  an  appeal  from  the  action  of  the  board  of  education  of  the  Lyndon- 
ville union  school,  on  July  6,  1899,  in  the  adoption  of  a  resolution  that  the  board 
withdrew  the  offer  made  by  it  May  12,  1899,  to  Miss  Ella  Morgan,  to  employ  her 
as  a  teacher  in  said  school  for  the  ensuing  school  year  at  the  like  compensation 
paid  to  her  as  a  teacher  in  such  school  during  the  school  year  of  1898-99. 

From  the  papers  filed  in  this  appeal  the  following  facts  are  established: 
The  following  persons  constituted  the  members  of  the  board  of  education  of 
tlie  Lyndonville  union  school  during  the  school  year  of  1898-99,  namely, 
C.  E.  Fairman,  president,  R.  B.  Wright,  secretary,  and  Messrs  Walter  A.  Tuttle, 
H.  M.  Hard  and  D.  S.  Eraser;  that  Miss  Ella  Morgan  was  a  teacher  in  such 
school  for  the  school  year  1898-99  and  had  been  such  teacher  for  several  previous 
school  years;  that  at  a  meeting  of  such  board,  held  on  May  12,  1899,  the  fol- 
lowing motion  was  adopted,  namely,  "  that  R.  B.  Wright  be  appointed  to  wait 
upon  Prof.  Filer  and  Miss  Ella  Morgan  and  offer  them  their  present  positions 
for  the  ensuing  school  year,  at  the  same  wages";  that  said  Wright  immediately 
notify  Miss  Morgan  of  said  action  of  the  board,  and  she  requested  time  to  con- 
sider such  offer  which  was  granted  by  said  Wright;  that  on  June  24,  1899,  upon 
the  request  of  President  Fairman,  said  Wright  asked  Miss  Morgan  for  her 
decision  upon  said  proposition  to  employ  her,  and  she  inquired  of  Wright  if  all 
of  the  board  were  agreeable,  and  Wright  told  her  the  action  of  the  board  was 
unanimous,  and  thereupon  Miss  Morgan  requested  ten  days  further  extension 


JUDICIAL  decisions:     teachers'  contracts  1 163 

of  time  before  giving  her  decision  which  was  granted  by  Wright.  In  a  letter 
addressed  to  said  Wright,  dated  June  28,  1899,  Miss  Morgan  accepted  the  said 
offer  of  the  board  of  education  of  the  position  as  teacher  in  the  school  for  the 
then  ensuing  year;  that  at  a  meeting  of  said  board  held  July  6,  1899,  the  said 
letter  of  acceptance  from  Miss  Morgan  was  read  to  the  board;  that  at  such 
meeting  of  July  6,  1899,  a  motion  was  adopted  that  the  board  withdraw  the  oft'er 
made  to  Miss  Morgan  ]\Iay  12,  1899. 

Upon  the  foregoing  facts  I  decide  that  by  the  offer  of  the  board  of  education, 
at  its  meeting  May  12,  1899,  to  be,  and  which  was,  communicated  to  her  by  the 
secretary  of  the  board,  of  the  position  of  teacher  in  said  school,  then  held  by  her, 
for  the  ensuing  school  year,  at  the  like  compensation  paid  to  her.  and  her  ac- 
ceptance of  said  offer  in  her  letter,  dated  June  28,  1899,  addressed  to  said 
Wright,  a  contract  was  entered  into  between  said  board  of  education  and  Miss 
Morgan  by  which  said  board  employed  Miss  Morgan  as  a  teacher  in  said  Lyn- 
donville  union  school  for  the  school  year  commencing  August  i,  1899,  at  the 
like  compensation  paid  to  her  as  a  teacher  during  the  school  year  of  1898-99,  and 
Miss  Morgan  contracted  to  teach  in  said  school  for  the  school  year  1899-1900  for 
the  like  compensation  paid  to  her  as  a  teacher  therein  for  the  school  year  of 
1898-99;  that  said  contract  is  binding  upon  said  board  of  education  and  upon 
Miss  Ella  Morgan,  and  that  the  action  of  the  said  board  of  education  on  July 
6,  1899,  withdrawing  said  offer  of  May  12,  1899,  after  the  acceptance,  in  writing, 
by  Miss  Morgan  of  such  offer,  on  June  28,  1899,  was  inoperative  and  void. 

The  appeal  herein  is  sustained. 


5000 

In  the  matter  of  the  appeal  of  Celia  Roberts  v.  board  of  education  of  union  free 
school  district  no.  9,  Turin  and  West  Turin,  Lewis  county. 

In  a  contract  made  between  the  board  of  education  of  a  union  free  school  district  and 
a  teacher,  employing  such  teacher  for  thirteen  consecutive  weeks,  in  which  it  is  stated 
that  if  at  the  end  of  the  thirteen  weeks  both  parties  to  the  contract  are  satisfied,  it 
shall  become  a  contract  for  thirty-seven  consecutive  weeks,  and  at  the  end  of  the 
thirteen  weeks  neither  of  the  parties  having  given  notice  of  any  dissatisfaction,  and  the 
teacher  having  taught  an  additional  week ;  held,  that  such  contract  became  a  valid  con- 
tract for  the  term  of  thirty-seven  consecutive  weeks. 

Decided  April  9,  1902 

F.  J.  De  La  Fleur,  attorney  for  appellant 
Capron  &  Bateman,  attorneys  for  respondent 

Skinner,  Superintendent 

This  is  an  appeal  from  the  action  of  the  board  of  education  of  union  free 
school  district  9.  Turin  and  West  Turin,  Lewis  county,  in  dismissing  the  appel- 


1164  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

lant  herein  as  a  icachcr  in  the  scliool  in  such  district  during  a  term  of  employ- 
ment, and,  as  she  alleges,  without  sufticient  cause. 

The  appeal  herein  was  filed  January  18,  1902.  On  February  7,  1902,  an 
answer  was  filed,  and  on  February  19,  1902,  the  appellant  filed  a  reply. 

Tile  follow  ing  facts  are  established : 

On  July  13,  1 901,  S.  Hart,  clerk  of  school  district  9,  Turin  and  West  Turin, 
wrote  a  letter  to  the  appellant  at  Port  Leyden,  stating  that  the  board  of  edu- 
cation of  said  district  had  decided  to  offer  her  the  primary  department  of  the 
school  at  $7  per  week  for  thirteen  weeks,  and  if  both  parties  were  satisfied 
for  the  year  of  thirty-seven  weeks.  On  August  14,  1901,  a  contract  was  entered 
into  and  signed  by  the  appellant  and  Messrs  Crofoot,  Hart,  Capron,  Allen,  Doud, 
Kutan  and  Robert,  members  of  the  board  of  education  of  such  district,  and  S. 
Hart  as  clerk,  in  which  the  appellant  agreed  to  teach  in  the  school  in  the  district 
for  the  term  of  thirteen  weeks,  commencing  September  16,  1901,  at  a  weekly 
compensation  of  $7,  payable  at  the  end  of  each  thirty  days  during  the  term  of 
such  employment,  and  if  both  parties  are  satisfied,  for  the  year  of  thirty-seven 
weeks;  and  the  members  of  said  board  agreed  to  employ  the  appellant  for  said 
period  at  said  rate  of  compensation,  payable  at  the  times  therein  stated.  In 
accordance  with  the  temis  of  said  contract  the  appellant  on  September  16,  1901, 
commenced  teaching  in  the  primary  department  in  the  school  in  such  district, 
and  continued  to  teach  therein  for  the  tliirteen  weeks,  and  until  the  afternoon 
session  of  the  school  on  Friday,  December  20,  1901,  an  additional  week,  making 
in  all  a  period  of  fourteen  weeks.  When  the  appellant  went  to  her  boarding 
place  at  noon  on  Friday,  December  20,  1901,  she  found  a  letter  which  had  been 
left  for  her,  dated  December  19,  190 1.  signed  by  S.  Hart,  clerk  of  the  board 
of  education,  stating  in  substance  that  owing  to  many  complaints  of  lack  of 
discipline  and  general  dis.satisfaction,  said  board  of  education  had  decided  that 
a  change  of  teachers  was  desirable,  and  that  her  services  would  not  be  required 
"  after  this  term." 

"  Where  a  written  contract  is  complete  on  its  face,  and  clear  and  unam- 
biguous in  its  terms,  oral  evidence  is  not  admissible  to  vary  or  contradict  the 
writing."     House  v.  Walch,  144  X.  Y.  418. 

"A  written  instrument  supersedes  all  oral  negotiations  or  stipulations  which 
preceded  or  accompanied  its  execution,  except  where  the  instrument  has  been 
procured  through  mistake,  menace,  duress,  fraud  or  under  influence."  Altman 
v.  Heckcr.  38  State  Reporter  724. 

"  Evidence  which  is  in  conflict  with  a  written  contract  and  which  will  nul- 
lify Its  provisions,  is  not  admissible."    Gordon  v.  Neeman,  118  N.  Y.  152 

The  respondents  claim  that  at  the  time  of  hiring  ihe  appellant  she  was 
informed  that  if  her  services  were  not  satisfactory  at  the  end  of  the  first  term 
of  school  she  would  then  be  excused  from  further  service,  and  in  such  arrange- 
ment she  concurred:  that  such  first  term  of  school  was  a  fourteen  weeks'  term. 

This  contention  on  the  part  of  the  respondents  is  denied  bv  the  appellant, 
and  she  alleges  that  nothing  was  said  relating  to  the  first  term  of  school      The 


JUDICIAL   DECISIONS:       TEACHERS'    CONTRACTS  I165 

proofs  herein  fail  to  establish  such  contention  on  the  part  of  the  respondents, 
or  that  there  was  any  mutual  mistake  in  the  execution  of  said  contract  of  employ- 
ment between  the  parties  thereto.  It  is  in  proof  that  during  the  thirteen  weeks 
in  which  the  appellant  taught  in  such  school  no  member  of  the  board  of  educa- 
tion visited  such  school  while  in  session,  nor  did  the  principal  of  the  school, 
and  hence  the  respondents  had  no  personal  knowledge  as  to  whether  the  services 
of  the  appellant  as  such  teacher  were  satisfactory  to  said  board. 

It  is  claimed  by  the  respondents  that  the  services  of  the  appellant  were  not 
satisfactory  to  some  of  the  patrons  of  the  school.  The  contract  of  August  19, 
1901,  was  not  that  the  services  of  the  appellant  during  the  thirteen  weeks  of 
employment  should  be  satisfactory  to  the  patrons  of  the  school,  but  was  that 
if  both  parties  to  the  contract  are  satisfied,  the  contract  was  one  for  thirty-seven 
weeks  of  employment. 

1  decide :  i  That  said  contract  entered  into  between  the  appellant  and 
respondents  was  not  entered  into  through  a  mutual  mistake  of  the  parties  thereto. 

2  That  such  contract  was  one  for  the  employment  of  the  appellant  as 
teacher  in  the  school  in  district  9,  Turin  and  West  Turin,  Lewis  county,  for 
thirteen  consecutive  weeks,  commencing  on  September  16,  1901,  at  a  compen- 
sation of  $7  per  week,  payable  at  the  end  of  each  thirty  days  of  employment; 
that  if  at  the  end  of  the  thirteen  weeks  both  parties  to  the  contract  were  satisfied, 
it  became  a  contract  for  the  term  of  thirty-seven  consecutive  weeks  from  Sep- 
tember 16,  1901 ;  that  at  the  end  of  said  thirteen  weeks,  namely,  December  13, 
1901,  the  appellant  not  having  informed  the  respondents  that  she  was  dissatisfied, 
and  the  respondents  not  having  notified  the  appellant  that  they  were  not  satisfied 
with  the  services  performed  by  the  appellant  under  such  contract,  but  permitted 
the  appellant  to  teach  for  an  additional  week,  such  contract  became  a  valid  con- 
tract between  the  parties  thereto  for  the  term  of  thirty-seven  consecutive  weeks 
commencing  on  September  16,  1901. 

3  That  the  dismissal  by  the  respondents,  on  December  19,  1901,  of  the 
appellant  as  a  teacher  in  such  school  was  a  breach  of  the  contract  entered  into 
between  the  parties,  and  without  authority  of  law. 

The  appeal  herein  is  sustained. 

It  is  ordered  that  the  respondents  herein,  the  board  of  education  of  school 
district  9,  Turin  and  West  Turin,  Lewis  county,  without  unnecessary  delay, 
pay  to  Celia  Roberts,  the  appellant  herein,  the  sum  of  $7  per  week  for  each 
v/eek  commencing  on  December  22,  1901,  to  the  time  of  payment,  with  interest 
on  so  much  of  such  sum  as  under  said  contract  became  payable  at  the  end 
of  each  thirty  days.  That  after  such  payment  the  said  board  pay  at  the  end 
of  each  thirty  days  to  said  appellant  the  sum  of  $7  for  each  week  until  such 
appellant  shall  have  been  paid  the  sum  of  $161,  being  the  balance  due  and  pay- 
able to  her  under  said  contract  for  the  period  of  thirty-seven  weeks  at  $7  per 
week. 


Il66  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

3838 

In  the  matter  of  the  appeal  of  Florence  H.  Thorn  v.  Edward  B.  Odell,  trustee 
of  school  district  no.  2,  of  the  town  of  Yorktown,  county  of  Westchester. 

A  teacher  brings  an  appeal  to  enforce  the  payment  of  wages  for  time  which  is  a  matter 
of  dispute.  The  teacher  neglected  to  verify  and  file  her  register.  Held,  that  until  the 
statute  in  this  respect  is  complied  with,  the  appeal  will  not  be  entertained. 

Decided  December  9,  1889 

Draper,  Superintendent 

The  appellant  was  employed  as  a  teacher  of  the  district  school  in  school 
district  no.  2,  of  the  town  of  Yorktown,  Westchester  county,  by  the  respondent 
for  a  term  of  seven  months,  to  begin  November  19,  188S. 

She  was  paid  for  five  months  and  up  to  April  19,  1889,  at  the  contract  price, 
less  six  days'  time  which  she  had  lost.  The  appellant  taught  until  June  18,  1889, 
and  claimed  the  right  to  make  up  the  lost  time  at  the  close  of  the  term,  by  an 
alleged  agreern.ent  with  the  trustee,  which  is  denied. 

The  pleadings  contain  much  of  no  relevancy  to  the  real  issue.  It  appears 
that  the  trustee  would  not  permit  the  appellant  to  make  up  the  lost  days  at  the 
end  of  the  term,  but  was  willing  to  pay  the  teacher  for  the  closing  two  months 
of  the  term,  and  $5  for  caring  for  the  fires. 

The  appellant,  it  seems  to  me,  has  been  more  contentious  than  discreet. 
She  has  not  yet  placed  herself  in  a  position  to  legally  demand  her  pay;  has  not 
verified  her  register  and  filed  the  same  so  as  to  entitle  her  to  her  wages.  The 
trustee  on  June  24th  last  gave  the  teacher  an  opportunity  to  get  the  register  from 
the  school  desk,  to  which  she  had  the  key,  and  she  neglected,  and  I  think,  in  a 
captious  manner,  to  do  so. 

Until  the  register  is  properly  made  up,  verified  or  sworn  evidence  given  of 
Its  correctness  and  appellant's  inability  to  obtain  the  register,  the  appeal  can  not 
be  entertained. 

I  dismiss  the  appeal,  but  without  prejudice  to  appellant's  right  to  enforce 
her  claim  by  an  action  against  the  district,  or  by  an  appeal,  when  she  shall  have 
complied  with  the  statute  and  verified  her  school  register. 


3717 
In  the  matter  of  the  appeal  of  Aurelia  M.  Loveland  v.  school  district  no.  6,  town 

of  Windsor,  Broome  county. 
A  teacher  was  to  be  paid  at  the  rate  of  $5  per  week  if  she  provided  her  own  board  and 

*3-50  per  week  if  the  district  provided  her  with  board. 
The  teacher  agreed  to  board  around  a  portion  of  the  time,  provided  her  mother,  who  was 

111.  should  so  far  recover  as  to  permit  the  teacher  to  remain  away  from  home. 
me  mother  faded  to  improve  and  the  district  did  not  board  the  teacher 
Held   That  the  teacher  is  entitled  to  compensation  at  the  rate  of  $5  per  week 
Decided  October  15,  1888 


juDici^^L  decisions:     teachers'  contracts  1167 

Draper,  Superintendent 

It  appears  that  the  appellant  was  engaged  by  Isaac  McMinn,  trustee  of  the 
district  above  named,  to  teach  school  in  said  district  for  a  term  of  fourteen  weeks 
and  that  she  has  completed  the  service  as  she  agreed.  She  states  that  the  trustee 
agreed  to  pay  her  $5  per  week  for  the  service,  provided  she  boarded  herself,  and 
$3.50  per  week  if  she  boarded  around  in  the  district.  She  states  also  that  she 
agreed  to  board  around  a  portion  of  the  term,  provided  her  mother,  who  was  ill, 
should  so  far  recover  as  to  enable  her  to  be  away  from  home,  but  that  she  did  not 
improve  in  health  and  she  was  unable  to  board  away  from  home.  She  has  been 
paid  $61,  leaving  a  balance  due  her  of  $9.  At  the  time  of  the  employment,  the 
trustee  filled  out  the  memorandum  of  employment  required  by  the  statute  and  the 
same  was  left  in  the  register  and  was  returned  to  the  trustee  with  the  register  at 
the  close  of  the  term  of  employment.  Subsequently  the  teacher  demanded  this 
memorandum  from  the  trustee,  but  he  refused  to  give  it  to  her.  The  trustee 
makes  no  answer,  and  I  therefore  assume  the  statements  of  the  appellant  are  true 
in  fact. 

The  appeal  must  be  sustained.  The  trustee  of  the  district  is  hereby  directed 
to  draw  his  order  upon  the  proper  officer  for  the  sum  of  $9  in  favor  of  the  appel- 
lant, provided  that  amount  of  money  is  in  the  hands  either  of  the  supervisor  or 
collector  to  the  credit  of  the  district.  If  such  is  not  the  case,  he  will  include  the 
amount  in  the  next  tax  levy,  and  when  raised,  pay  it  to  the  appellant. 


3696 

In  the  matter  of  the  appeal  of  N.  L.  Miller  v.  the  trustees  of  school  district  no. 

39,  town  of  Hector,  Schuyler  county. 
It  was  agreed  between  a  board  of  trustees  and  a  teacher  that  at  some  time  during  a  term, 

a  vacation  should  be  ordered  by  the  board,  and  that  the  time  of  vacation  should  not 

be  a  part  of  the  term  of  employment. 
Held,  That  the  teacher  was  not  entitled  to  pay  for  the  time  of  vacation. 
Decided  June  19,  1888 

Draper,  Superintendent 

It  seems  that  the  appellant  was  engaged  by  the  respondent  to  act  as  principal 
of  the  school  in  the  above  named  district  for  a  term  of  sixteen  weeks,  commencing 
on  the  26th  of  September  1887,  and  ending  on  the  27th  of  January  1888,  at  $3 
per  day.  In  December  the  board  entered  into  a  further  agreement  with  the  teacher, 
by  which  he  was  to  be  retained  for  the  balance  of  the  school  year,  a  further  period 
of  sixteen  weeks.    The  resolution  of  reemployment  by  the  board  was  as  follows : 

"  Resolved,  That  we  retain  Mr  Miller  as  principal  teacher  for  the  balance  of 
the  school  year,  sixteen  weeks,  at  the  same  wages." 

At  the  time  of  the  reemployment  there  was  some  talk  between  the  board  and 
the  teacher  as  to  a  vacation,  but  I  am  not  able  to  satisfy  my  mind  that  there  was 


Il68  THE    UNIVERSITY    OF   THE    STATE   OF    NEW    YORK 

any  definite  agreement  about  the  time  of  vacation.  The  action  of  the  board  seems 
clearly  to  imply  that  it  was  agreed  that  the  teacher  should  teach  during  another 
term  of  sixteen  weeks,  and  should  receive  $3  per  day  for  his  services,  and  that 
there  should  he  a  vacation  at  some  time  during  the  term  of  employment,  which 
time  should  be  fixed  by  the  board,  and  that  this  vacation  was  not  to  be  a  part  of 
the  term  of  employment.  As  a  matter  of  fact,  the  board  subsequently  resolved  to 
close  the  school  for  the  two  weeks  between  the  loth  and  the  26th  of  March  1888, 
and  it  was  so  closed.  It  transpires  that,  during  the  time  of  this  vacation,  the 
teachers  institute  for  the  county  of  Schuyler  was  held,  and  the  teacher  attended 
the  same.  The  teacher  now  claims  pay  for  the  two  weeks  covered  by  the  vacation. 
The  board  has  paid  him  for  the  week  of  the  institute,  but  he  demands  pay  for  the 
other  week  as  well.  The  board  refuses,  and  from  such  refusal  this  appeal  is 
taken. 

I  do  not  iliink  the  appeal  can  be  sustained.  From  the  statement  of  the  terms 
of  the  agreement  as  above  set  forth,  it  necessarily  follows  that  the  teacher  can  not 
recover  pay  for  the  time  for  which  he  claims.  All  of  the  proofs  submitted  lead  to 
the  conclusion  that  the  understanding  between  the  parties  was  that  there  should 
be  a  spring  term  of  sixteen  weeks  of  school,  and  that  the  board  was  to  declare  a 
vacation  of  reasonable  length  at  such  time  as  it  thought  proper.  The  fact  that 
the  board  has  paid  the  teacher  for  the  week  during  which  he  attended  the  teachers 
in.^titute  is  creditable  to  it,  and  indicates  that  the  school  was  not  closed  at  the 
particular  time  for  the  purpose  of  avoiding  the  payment  of  the  teacher's  wages 
during  institute  week.  It  seems  to  me  that  the  board  has  done  all  which  it  was 
bound  to  do  in  the  premises. 

The  appeal  is  dismissed. 


3917 

In  the  matter  of  the  appeal  of  Edwin  R.  Voorhies  v.  the  board  of  trustees  of 
school  district  no.  17,  town  of  Friendship,  county  of  Allegany. 

Teacher  employed  for  a  stated  term  at  a  stipulated  price,  who  has  held  himself  ready  to 
perform  on  his  part;  held,  entitled  to  the  compensation  provided  for  by  the  contract, 
although  before  completion  of  term,  the  building  in  which  school  was  taught  was 
destroyed. 

Decided  October  30,  1890 

Draper,  Superintendent 

On  or  about  September  i,  1889,  the  appellant  was  employed  by  the  trustees 
of  school  district  no.  17.  town  of  Friendship,  county  of  Allegany,  to  teach  the 
public  .school  in  said  district  for  the  year,  which  was  to  consist  of  thirty-six  weeks. 
Before  completing  the  term,  the  school  building  was  destroyed  by  fire,  and  in  con- 
sequence thereof,  school  was  discontinued.  To  complete  the  term  for  which  the 
teacher  was  employed,  would  require  nine  weeks  and  two  days.  The  appellant  was 
paid  in  full  at  the  contract  price,  $1.75  per  day,  up  to  the  date  of  the  destruction 


JUDICIAL  decisions:     teachers'  contracts  1 169 

of  the  schoolhouse.  The  appellant  alleges  that  he  held  himself  in  readiness  to  fulfil 
the  contract  upon  his  part,  and  that  the  trustees  have  neglected  to  pay  him  at  the 
stipulated  price,  for  nine  weeks  and  two  days. 

No  answer  has  been  interposed  by  the  board  of  trustees.  Assuming  the 
facts  as  alleged  by  the  appellant  to  be  true,  which  I  am  bound  to  do,  I  must  sustain 
the  appeal.  The  trustees  of  the  district  above  named  are  hereby  directed  to  forth- 
with provide  for  and  pay  the  appellant  the  sum  of  $82.25,  being  the  balance  due 
upon  said  contract. 


3840 

In  the  matter  of  the  appeal  of  Charles  H.  Ver  Nooy  v.  John  H.  Slater,  trustee  of 
school  district  no.  8,  town  of  Rochester,  Ulster  county. 

Teacher  claimed  pay  for  the  time  a  school  was  closed  by  the  trustee's  direction,  to  prevent 
the  spread  of  a  contagious  disease;  held,  that  the  teacher  having  resumed  the  school 
when  directed  by  the  trustee,  and  having  held  himself  in  readiness  to  teach  while 
school  was  closed,  is  entitled  to  pay. 

Decided  December  9,  1889 

L.  B.  Haskins,  attorney  for  appellant 

Draper,  Superintendent 

This  is  an  appeal  by  a  person  who  was  employed  to  teach  the  public  school  in 
district  no.  8,  of  the  town  of  Rochester,  Ulster  county,  from  the  refusal  of  the 
trustee  of  said  district  to  compensate  him  for  seventeen  days  in  February  and 
March  of  the  present  year,  when  the  school  was  closed  by  the  proper  direction  of 
the  trustee,  to  prevent  the  spread  of  a  contagious  disease  then  prevalent  among 
the  children  of  the  district. 

The  trustee  has  refused  to  pay,  upon  the  ground  that  the  teacher  was  hired 
by  the  day.  There  is  some  dispute  in  relation  to  the  understanding  at  the  time 
of  hiring,  but  it  is  undisputed  that  the  usual  term  of  the  school  after  the  winter 
holidays  continued  until  June,  in  fact,  this  very  term  was  continued  by  the  same 
teacher  until  June.  Some  days  after  school  was  closed  in  February  as  above 
stated,  the  trustee  directed  appellant  to  open  the  school,  but  a  few  children  were 
allowed  to  attend,  the  teacher  by  direction  of  the  trustee,  again  closed  it  and  it 
remained  closed  seventeen  days.  During  this  time  the  teacher  was  in  readiness  to 
open  the  school  when  directed  to  do  so,  and  I  hold  that  he  was  then  in  the  employ 
of  the  district  and  entitled  to  pay  the  same  as  if  school  had  been  taught. 

The  trustee  did  not,  in  words  or  action,  discharge  the  teacher;  on  the  con- 
trary, he  recognized  him  as  in  the  employ  of  the  district. 

The  appeal  is  sustained.  The  trustee  will  give  an  order  to  the  teacher  for 
his  wages  including  the  seventeen  days  in  difference. 


1 170  THE    UNIVLKSITV    OF    THE    STATE    OF    NEW    YORK 

3803 

In  the  matter  of  the  appeal  of  Lydia  Hunt  v.  Martin  Vanderzee,  trustee  of  dis- 
trict no.  14,  town  of  New  Baltimore,  Greene  county. 

A  teacher  who  has  not  been  paid  as  often  as  once  each  month  during  the  term  of  employ- 
ment as  required  by  statute  is  entitled  to  interest  on  the  several  monthly  payments 
which  have  been  withheld  from  the  time  when  payable. 

A  trustee  has  ample  authority  to  levy  a  tax  to  meet  the  wages  of  teachers  when  due. 

It  is  no  defense  for  a  trustee,  therefore,  that  he  had  no  funds  with  which  to  pay  the  teacher 
monthly. 

A  teacher  is  entitled  to  pay  for  the  time  a  school  is  closed  during  the  time  of  employment 
because  of  the  prevalence  of  an  epidemic  in  the  district. 

Decided  August  i,  1889 

Barlow  &  Greene,  attorneys  for  appellant 
E.  C.  Hallcnbeck,  attorney  for  respondent 

Draper,  Superintendent 

The  appellant  has  taught  the  school  in  the  above-mentioned  district  during 
the  past  year  under  an  agreement  to  teach  thirty-five  weeks  at  $7  per  week.  She 
has  been  paid  $104.92.  She  claims  a  balance  of  $140.08  with  interest  from  the 
time  when  the  several  payments  became  due.  The  trustee  admits  there  is  due  her 
only  $134.38.    All  the  trouble  is  about  the  difference  between  these  sums. 

The  ground  upon  which  the  respondent  insists  that  the  teacher  is  not  entitled 
to  what  she  claims  is  that  there  existed  in  the  district  for  several  weeks  during 
the  term  of  employment  an  epidemic  of  measles,  in  consequence  of  which  the 
school  was  closed ;  that  the  teacher  did  not  open  the  school  upon  the  day  when 
directed  by  him,  and  failed  to  do  so  for  a  period  of  four  days  thereafter.  But  it 
appears  that  this  failure  was  due  to  a  previous  instruction  of  the  trustee,  and  that 
the  last  direction  was  not  delivered  in  person,  and  was  not  received  until  too  late 
to  enable  her  to  comply  with  it.  I  am  of  the  opinion  that  she  fairly  fulfilled  the 
agreement  on  her  part,  and  is  entitled  to  the  full  amount  agreed  to  be  paid  her. 
She  also  claims  interest  on  the  several  monthly  payments  from  the  time  they 
became  due.  The  trustee  resists  this  and  says  she  relinquished  her  right  to  the 
monthly  payment  of  her  wages,  and  that  he  had  no  money  with  which  to  pay,  and 
could  not  levy  a  tax  because  of  insufficient  data. 

The  statute  specifically  provides  that  teachers'  wages  shall  be  due  and  payable 
as  often  as  at  the  end  of  each  calendar  month  of  the  term  of  employment.  This 
IS  mandatory  upon  a  public  ofticer.  No  agreement  of  hers  could  alter  the  terms 
of  the  statute  or  relieve  the  officer  from  the  discharge  of  his  statutory  duty.  If 
the  trustee  had  no  money,  the  law  provided  a  way  for  him  to  get  it. 

The  appeal  is  sustained  and  the  district  is  directed  to  settle  with  the  appellant 
by  paying  her  the  sum  of  $140.08,  with  interest  on  the  several  monthly  payments 
from  the  times  when  they  became  due,  at  the  end  of  each  calendar  month' of  the 
term  of  eiripjoyment. 


JUDICIAL  decisions:     teachers'  contracts  1171 

3679 

In  the  matter  of  the  appeal  of  Annie  E.  Robinson,  Elizabeth  A.  Cowan  and 
Margaret  McAuliffe  v.  the  board  of  education  of  union  free  school  district 
no.  I,  town  of  Westchester. 

Teachers  employed  in  the  usual  way,  by  a  board  of  education,  are  entitled  to  their  pay 
for  time  they  are  prevented  from  fulfilling  their  contract  because  of  wrangling  among 
the  members  of  the  board,  and  a  consequent  failure  to  open  the  schoolhouse  for  school 
purposes. 

Decided  April  7,  1888 

Baker  &  Risley,  attorneys  for  respondent 

Draper,  Superintendent 

This  is  an  appeal  brought  by  certain  teachers  in  the  district  above  named, 
from  the  refusal  of  the  board  of  education  to  pay  their  salaries  for  the  months  of 
September,  October,  November  and  December  1887.  Miss  Robinson  has  been  a 
teacher  in  the  district  for  fifteen  years.  Miss  McAuliffe  for  five  years,  and  Miss 
Cowan  for  two  years  last  past.  At  a  meeting  of  the  board  of  education,  held  on 
the  27th  day  of  August  1887,  the  following  resolution  was  adopted,  namely: 

Resolved,  That  our  present  principal,  M.  E.  Devlin,  be  reemployed  as  prin- 
cipal of  imion  free  school  district  no.  i  for  the  ensuing  year,  commencing  August 
2T,  1887,  and  ending  August  20,  i888,  at  his  present  salary,  $2100  per  year;  also 
the  present  teachers  at  their  respective  salaries. 

The  appellants  show  that  they  held  themselves  in  readiness  to  continue  work 
at  all  times  since  reemployment,  but  that  they  were  prevented  from  teaching 
until  January  9,  1888,  by  reason  of  the  fact  that  the  school  was  not  opened  until 
that  time,  in  consequence  of  disagreements  in  the  board  of  education.  Since 
January  9,  1888,  w^hen  the  school  was  again  opened,  they  have  been  teaching,  as 
they  claim,  under  no  other  employment  than  that  of  August  27,  1887. 

A  portion  of  the  board  of  education  answer  the  appeal,  and  say  that  the 
applicants  ought  not  to  be  paid  for  the  time  claimed,  for  the  following  reasons, 
namely:  (a)  That  the  resolution  of  employment,  August  2-/,  1887,  would  not 
have  been  adopted  but  for  the  affirmative  vote  of  Bernard  Lavin,  who  had  not 
attended  a  meeting  of  the  board  for  eight  months,  and  was  corruptly  procured  to 
do  so  at  that  time  for  the  purpose  of  voting  for  said  resolution,  (b)  That  the 
resolution  was  adopted  just  prior  to  the  annual  school  meeting,  at  which  five 
members  of  the  board  were  to  be  chosen,  (c)  That  no  notice  of  the  resolution 
was  given  by  the  clerk  to  the  appellant,  (d)  That  no  application  was  made  by 
the  appellants  to  the  board  for  reemployment,  and  that  no  notice  of  the  acceptance 
of  reemployment  was  given  to  the  board,  (e)  That  at  the  time  of  adopting  said 
resolution,  the  board  well  knew  that  a  new  schoolhouse  would  not  be  in  readiness 
for  occupancy  for  several  months,  and  that  the  old  building  had  been  disposed  of. 
(/)  That  one  of  the  appellants  taught  a  private  school  during  a  portion  of  the 
•time  for  which  pay  is  claimed  from  the  board,  (g)  That  the  sum  which  would 
be  required  to  pay  the  salaries  of  all  the  teachers  during  the  time  when  the 


1 172  THE    UiNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

school  was  not  running  would  exceed  $1800,  and  be  paid  for  no  corresponding 
service,  (/i)  That  the  salaries  heretofore  paid  to  the  dififerent  teachers  are  not 
relatively  just,  some  being  greater  and  some  less  than  they  ought  to  be.  (i)  That 
the  board  has  not  the  money  on  hand  with  which  to  pay  the  claims. 

It  seems  to  me  that  several  of  these  objections  have  too  little  force  to  justify 
their  separate  or  lengthy  discussion.  In  general,  it  may  be  said  that,  neither  the 
right  of  a  member  of  the  board,  with  a  prima  facie  title  to  his  seat,  to  appear  and 
vote  at  a  meeting  of  the  board,  nor  the  reasons  which  may  have  induced  him  to 
come  at  all  or  to  vote  in  any  particular  way,  can  be  denied,  nor  investigated,  col- 
laterally, in  this  proceeding.  The  board  had  the  legal  power  on  the  27th  of 
August  1887,  to  employ  teachers  for  the  ensuing  year.  It  was  not  necessary  that 
the  appellants  should  make  application  for  reemployment  in  order  to  enable  the 
board  to  reemploy  them.  They  had  been  employed  again  and  again,  year  after 
year,  and  prior  to  the  annual  school  meeting.  They  had  never  made  application 
nor  accepted  employment  in  writing.  It  is  not  denied  that  they  have  held  them- 
selves in  readiness  to  go  on  with  their  usual  work  from  the  time  of  reemploy- 
ment, as  in  all  preceding  years.  It  did  not  belong  to  the  appellants  to  provide  a 
place  in  which  to  conduct  the  school.  That  was  the  business  of  the  board,  and  if 
it  failed  to  do  so  it  was  not  their  fault.  It  appears  that  for  five  weeks  Miss 
Robinson,  one  of  the  appellants,  taught  a  private  school  at  her  home,  at  the 
request  of  parents  who  were  deprived  of  school  facilities  by  reason  of  the  failure 
of  the  board  to  open  the  public  school.  She  was  right  in  doing  this.  She  was 
not  bound  to  remain  idle.  The  law  placed  upon  her  the  obligation  of  earning 
whatever  she  reasonably  could  in  the  meantime.  Proof  upon  this  matter,  taken 
before  the  school  commissioner  of  the  first  commissioner  district  of  Westchester 
county,  shows  that  the  receipts  from  such  private  school  were  $39.25,  and  the 
expenses,  which  appear  to  be  reasonable,  were  $37.10,  leaving  a  profit  of  $2.15. 
If  no  service  was  rendered  to  the  board  during  the  four  months,  by  the  appellants, 
it  does  not  seem  to  have  been  through  any  fault  of  the  teachers.  The  fact  that 
salaries  may  be  inequitable,  is  no  reason  why  the  appellants  should  not  be  paid 
what  was  agreed  to  be  paid  them.  There  is  no  pretense  that  the  salaries  of 
appellants  are  excessive.  If  the  board  has  no  money  with  which  to  pay  teachers' 
wages,  the  law  provides  a  way  in  which  to  get  it.  It  also  provides  that  the  com- 
pensation of  a  teacher  shall  be  due  and  payable  as  often  as  at  the  end  of  each 
calendar  month  of  the  term  of  employment.     (Chapter  335  of  the  Laws  of  1887). 

Other  appeals  which  have  been  before  the  Department  from  this  school  dis- 
trict, as  well  as  the  papers  in  this  case,  have  given  abundant  evidence  of  a  most 
unseemly  and  disgraceful  controversy  between  the  members  of  the  board  of  edu- 
cation, which  has  been  so  violent  as  almost  to  overthrow  the  local  school  system, 
and  which  unnecessarily  prevented  the  opening  of  the  district  school  for  a  period 
of  four  months  after  the  usual  time.  I  can  see  no  good  reason  why  these  teachers, 
who  have  been  in  the  employment  of  the  board  for  a  long  time,  and  are  now 
teaching  in  the  school,  and  who  were  reemployed  at  the  usual  time  and  under  the 
usual  and  ordinary  circumstances,  so  far  as  they  were  concerned,  by  a  board 


JUDICIAL  decisions:     teachers'  contracts  1 173 

possessing  the  lawful  power  to  do  so,  should  be  compelled  to  suffer  the  loss  of 
four  months'  pay,  by  reason  of  circumstances  for  which  the  board  appears  to  be 
solely  and  only  responsible.  The  right  is  clearly  upon  their  side,  and  I  have  no 
doubt  that  the  law  is  also. 

The  appeal  is  sustained.  The  board  of  education  is  hereby  directed  forth- 
with to  pay  to  each  of  the  appellants  her  salary  for  the  months  of  September, 
October,  November  and  December  1887,  at  the  rate  which  they  were  respectively 
receiving  at  the  close  of  the  last  school  year,  after  deducting  from  the  account  of 
Miss  Robinson  the  sum  of  $2.15. 


3623 

In  the  matter  of  the  appeal  of  James  S.  Carr  v.  Henry  B.  Taylor,  Charles  L. 
Knapp  and  Lucius  L.  Shedden,  as  trustees  of  school  district  no.  3  of  the 
town  of   Mooers,  Clinton  county. 

Teachers  will  be  entitled  to  pay  for  a  week  during  which  school  was  closed  in  consequence 
of  a  teachers  institute  having  been  designated  for  that  week,  but  not  held  because  of 
storms  and  floods  which  rendered  it  impossible.  Also,  to  the  week  to  which  the  institute 
was  adjourned  and  held,  school  having  been  closed. 

A  teacher  can  not  charge  for  services  in  receiving  nonresident  tuition  fees  without  an 
agreement  with  the  trustees  to  that  effect. 

Decided  July  21,  1887 

Draper,  Superintendent 

The  appellant  has  been  principal  of  the  high  school  in  district  no.  3  of  the 
town  of  Mooers  during  the  last  year,  under  a  written  contract  made  with  the 
board  of  trustees  on  the  2d  day  of  June  1886.  He  was  to  teach  for  ten  months, 
having  twenty  school  days  in  each  month,  at  the  rate  of  fifty-five  ($55)  dollars 
per  month.  The  parties  fail  to  agree  upon  terms  of  settlement.  One  of  the 
matters  in  difference  seems  to  be  a  claim,  on  the  part  of  the  teacher,  for  two 
weeks'  time,  during  which  no  school  was  held  because  of  teachers  institutes 
having  been  appointed  to  be  held  in  the  school  commissioner  district,  one  week 
of  which  is  refused  by  the  trustees.  Another  is  a  claim  by  the  teacher  for  extra 
compensation  for  collecting  the  tuition  of  nonresident  pupils,  which  is  resisted 
by  the  trustees. 

I  am  of  opinion  that  the  board  ought  to  pay  the  teacher  for  the  two  weeks 
during  which  institutes  were  appointed  to  be  held  in  the  commissioner  district. 
It  is  true  that  during  one  such  week  there  was  no  institute  held  in  consequence 
of  severe  storms  and  floods  which  rendered  it  impossible,  but  this  was  not  the 
fault  of  the  teacher,  and  he  ought  not  to  suffer  in  consequence  of  it.  An 
adjournment  of  the  institute  was  taken  to  a  time  in  the  future,  at  which  it  was 
held,  and  it  was  probably  impossible  for  the  teachers  to  resume  school  during 
the  week  for  which  the  institute  was  appointed,  but,  in  fact,  not  held.  The  law 
contemplates  that  institutes  may  be  held  for  a  period  of  time  not  exceeding 
three  weeks  in  any  one  year,  and  provides  that  during  such  time  the  schools 


1174  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

shall  be  closed  and  the  teachers  be  allowed  their  wages  if  they  attend  the  insti- 
tute. So  it  seems  entirely  clear  to  me  that  the  board  ought  not  to  deduct  from 
Ihe  teacher's  wages  any  amount  for  time  lost  when  institutes  were  appointed  to 
be  held. 

The  teacher  claims  that  he  should  be  allowed  the  sum  of  twenty  dollars 
($20)  for  collecting  two  hundred  dollars  and  eighty-five  cents  ($200.85)  during 
the  last  two  years  for  the  tuition  of  nonresident  pupils.  I  think  the  board  is 
justified  in  resisting  this  claim.  The  service  was  trivial,  and  may  fairly  have 
been  considered  as  within  the  scope  of  the  teacher's  general  employment.  I 
notice  that  the  $200.85  ^o^  nonresident  tuition  fees  was  collected  during  a  period 
of  two  years'  employment.  If  the  teacher  expected  to  exact  extra  com- 
pensation for  attending  to  this  small  matter,  it  certainly  should  have  been  done 
at  the  end  of  a  preceding  year  in  which  he  occupied  the  same  position  and 
rendered  the  same  service.  He  should  not  have  entered  upon  his  second  year 
without  bringing  the  matter  to  the  attention  of  the  board  and  securing  an 
agreement  upon  it.  The  fact  that  he  failed  to  do  this  is  a  strong  reason  for  its 
disallowance  now. 

I  notice  that  the  board  refused  to  pay  for  one  day's  service  upon  which  it 
is  alleged  the  teacher  was  absent  from  school  without  supplying  his  place.  Such 
absence  is  not  denied,  and  the  board  is  therefore  probably  justified  in  with- 
holding the  day's  compensation.  It  was  agreed  between  the  parties  that  the 
teacher  should  be  allowed  $15  extra  for  assistance  in  building  fires. 

In  view  of  the  foregoing,  it  is  directed  that  a  settlement  be  efitected  between 
the  parties  as  follows: 

Ten  months'  services,  at  $55  per  month $550  00 

Assistance   in   building   fires 15  00 

$565  00 
Deduct  one  day  lost  by  teacher 2  75 

$562  25 
Amount  shown  to  have  been  paid 422  50 


Amount  due  the  appellant $i3q  7 


5 


3892 
In  the  matter  of  the  appeal  of  Frank  V.  Hinman  v.  William  Caywood,  trustee 

of  school  district  no.  2,  town  of  Erin,  county  of  Chemung. 
Arranging  a  period  of  vacation  by  a  trustee  so  as  to  avoid  the  payment  of  wages  to  a 
teacher  during  the  week  of  a  teachers  institute,  and  which  the  teacher  duly  attended 
IS  contrary  to  the  statute.     Held,  that  the  trustee  shall  allow  the  teacher  the  week  and 
pay  accordingly. 
Decided  July  24,  1890 


JUDICIAL  decisions:     teachers'  contracts  1 175 

Draper,  Superintendent 

The  appellant,  a  duly  qualified  teacher,  alleges  that  he  was  employed  by 
the  respondent  to  fill  out  an  unexpired  term  of  ten  weeks,  as  teacher  in  school 
district  no.  2,  of  the  town  of  Erin,  Chemung  county. 

The  respondent  alleges  that  the  contract  was  for  eight  weeks  and  that  a 
vacation  of  two  weeks  was  to  occur  during  such  time. 

The  only  point  at  issue  is  whether  the  appellant  is  entitled  to  pay  for  the 
week  the  institute  was  held  in  the  commissioner  district  of  which  this  district 
forms  a  part,  and  the  sessions  of  which  institute  the  appellant  attended. 

The  undisputed  facts  are  that  appellant  commenced  to  teach  November 
II,  1889,  and  taught  seven  weeks,  closing  December  27th,  when  the  trustee 
ordered  a  vacation  of  two  weeks,  and  school  was  closed  accordingly.  The 
second  week  of  the  vacation  the  institute  was  held,  commencing  January  6th. 
Subsequently  the  appellant  taught  two  weeks  commencing  Januar}^  20th,  having 
been  prevented  from  resuming  school  one  week  earlier  by  illness. 

The  claim  of  the  respondent  is  that  the  institute  having  been  held  during 
the  two  weeks  of  vacation,  the  teacher  is  not  entitled  to  pay  for  the  same. 

Whether  or  not  the  vacation  period  was  fixed  by  the  trustee  to  avoid  the 
law  which  gives  to  teachers  pay  for  institute  week  when  it  occurs  in  their  time, 
I  can  not  determine,  but  I  am  impressed  with  the  idea  that  it  was. 

Any  such  subterfuge  is  contrary  to  the  policy  and  spirit  of  the  law.  The 
holiday  vacation  is  usual  in  many  districts,  and  allowing  the  holiday  week,  the 
week  of  the  institute  commencing  January  6,  1890,  would  be  within  the  eight 
weeks  the  trustee  claims  the  contract  was  for.  Inasmuch  as  the  district  is 
allowed  the  same  aggregate  attendance  for  the  week  the  school  is  closed  during 
an  institute,  as  was  the  average  aggregate  attendance  of  pupils  during  the 
remainder  of  the  term,  upon  which  pubhc  money  is  apportioned  to  school 
districts,  I  am  of  the  opinion  that,  upon  the  facts  before  me,  the  teacher  should 
be  allowed  the  week  commencing  January  6th,  in  which  he  attended  the  insti- 
tute, and  receive  pay  therefor  at  the  stipulated  sum. 

The  appeal  is  sustained,  and  the  trustee  is  hereby  directed  to  issue  an 
order  for  the  amount  so  due  to  the  appellant. 


3829 

In  the  matter  of  the  appeal  of  John  B.  Flett  v.  the  board  of  education  of  union 
free  school  district  no.  2,  of  the  town  of  Springport,  county  of  Cayuga. 

A  teacher  of  a  district  school  neglected  to  attend  the  session  of  a  teachers  institute,  although 
the  school  was  closed  during  the  week,  by  the  trustees'  direction,  because  of  a  report 
which  prevailed  that  a  contagious  disease  was  prevalent  in  the  vicinity  where  the  institute 
was  held.  Held,  that  the  teacher  was  not  entitled  to  recover  pay  for  the  week  of  the 
institute. 

Decided  November  16,  1889 


1 1-6  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

Draper,  Superintendent 

During  the  school  year  1887-88,  the  appellant  was  a  teacher  in  the  above- 
named  district.  In  the  month  of  November,  that  year,  a  teachers  institute 
was  held  at  the  village  of  Moravia,  which  it  was  the  duty  of  the  appellant  to 
attend.  His  school  was  closed  to  permit  him  to  do  so.  He  did  not  attend  because 
of  reports  of  the  prevalence  of  diphtheria  at  Moravia.  The  board  of  education 
refused  to  pay  his  wages,  and  he  brings  this  appeal  to  compel  payment. 

The  records  of  this  Department  throw  some  light  upon  the  cause  which 
the  appellant  assigns  for  his  nonattendance  at  the  Moravia  institute,  for  the 
attention  of  the  Superintendent  was  called  to  the  matter  at  that  time.  He 
caused  an  investigation  to  be  made,  and  learned  that  there  was  no  substantial 
reason  why  the  institute  should  not  be  held  there,  as  arranged,  and  directed 
the  commissioner  to  advise  teachers  accordingly.  The  commissioner  advised 
the  appellant  to  this  effect.  The  greatest  care  was  exercised  in  the  matter,  and 
the  appellant  was  not  only  generally  advised  in  the  same  way  that  all  teachers 
were,  but  he  was  specifically  advised  by  letter  from  the  school  commissioner 
upon  the  authority  of  the  health  authorities  of  the  town  that  there  was  no  danger 
involved  in  his  attending  the  institute.  If,  after  this,  he  remained  away,  it 
should  be  at  the  loss  of  pay  for  the  week,  imless  there  were  some  other  con- 
siderations to  control  his  action.  He  says  that  he  was  advised  by  two  of  the 
three  members  of  the  board  of  education  not  to  attend  the  institute.  Two  of 
the  members  of  the  board  for  that  year  deny  this.  But  whatever  there  is  of 
that  is  not  very  material.  The  board  closed  the  school  during  institute  week 
to  enable  the  teachers  to  attend  the  institute.  This  is  the  important  fact  in  the 
case  as  indicating  the  purpose  of  the  board.  The  street  talk  of  individual 
members  would  count  but  little  as  against  the  formal  action  of  the  board. 

The  law  provides  that  teachers  shall  be  paid  for  time  spent  at  an  institute, 
as  it  does  for  time  spent  in  teaching.  If  prevented  from  teaching  during  any 
portion  of  the  term  of  employment  by  the  action  of  the  trustees,  and  for  reasons 
with  which  the  teacher  is  not  chargeable,  he  is  to  be  paid  the  same  as  though 
he  had  taught.  It  is  quite  possible  that,  although  the  school  was  closed  during 
the  institute  week,  a  teacher  might  be  entitled  to  pay  who  did  not  attend  the 
institute,  if  his  absence  was  due  to  the  official  action  of  the  trustees,  or  was 
for  a  cause  which  met  the  approval  of  the  trustees.  But  this  case  does  not 
come  within  that  rule.  The  board  has  closed  the  school  to  permit  attendance 
at  the  institute.  The  board  afterward  did  nothing  to  prevent  the  appellant 
attending  the  institute.  In  remaining  away  he  assumed  the  responsibility.  The 
board  does  not  now  think  he  had  sufficient  justification  for  his  absence.  In 
this  I  must  agree  with  them,  and  I  do  not  therefore  think  they  should  be  com- 
pelled to  pay  the  appellant  his  wages  for  the  week. 
It  follows  that  the  appeal  must  be  dismissed. 


JUDICIAL  decisions:     teachers    contr.\cts  1177 

3524 

In  the  matter  of  the  appeal  of  Sarah  M.  Peckhani  v.  the  board  of  education  of 
school  district  no.  5,  of  the  town  of  Oyster  Bay,  Queens  county. 

A  rule  of  a  board  of  education  which  provided  that  all  contracts  made  with  teachers 
should  be  subject  to  termination  by  either  party  on  one  week's  written  notice  to  the 
other  party,  held,  not  to  apply  to  a  teacher's  contract,  unless  it  is  clearly  shown  that 
the  teacher  had  notice  of  the  rule  at  the  time  the  contract  to  teach  was  entered  into. 

Decided  April  18,  1887 

Benjamin  W.  Downing,  attorney  for  appellant 
J.  B.  C.  Tappan,  attorney  for  respondent 

Draper,  Superintendent 

This  is  an  appeal  from  the  action  of  the  respondent  in  dismissing  the 
appellant  from  her  position  as  a  teacher  in  the  public  school  in  the  district  and 
in  refusing  to  pay  her  wages  claimed  to  be  due  under  a  contract  or  agreement 
entered  into  between  the  parties. 

The  appellant  showed  in  her  papers  on  appeal  that  she  had  been  employed 
as  a  teacher  in  the  district  for  about  seven  years,  when  in  June  1885,  she  was 
reengaged  for  the  ensuing  school  year,  to  commence  on  the  31st  day  of  August 

1885,  with  pay  at  the  rate  of  $15  per  week;  that  she  accepted  such  reengagement 
and  entered  upon  her  duties  pursuant  thereto;  that  on  the  22d  day  of  March 

1886,  she  received  notice  in  writing  from  the  board  reducing  her  pay  to  $12 
per  week  from  the  ist  day  of  April  following;  that  she  replied  that  she  should 
decline  to  accept  pay  at  the  reduced  rate;  that  she  was  subsequently  dismissed 
by  the  board  and  forcibly  prevented  from  teaching  the  remainder  of  the  year; 
that  she  at  all  times  held  herself  in  readiness  to  fulfil  the  agreement,  but  that  the 
board  had  refused  to  pay  her  her  wages  from  the  26th  day  of  April  1886.  to  the 
close  of  the  year. 

No  answer  having  been  interposed  by  the  respondent,  the  facts  set  forth 
by  her  were  assumed  to  be  true  and  a  decision  rendered  in  her  favor  on  the 
i6th  day  of  November  1886.  Subsequently,  upon  the  application  of  the 
respondent,  the  case  was  reopened  and  the  respondent  allowed  to  interpose  an 
answer. 

The  respondent,  now  answering  the  appeal,  admits  that  the  appellant  was 
a  teacher  in  the  school  for  several  years,  and  was  reengaged  in  June  1885,  but 
alleges  that  such  engagement  was  "  subject  to  the  rules  of  the  board,"  and  that, 
in  1879,  ^  rule  had  been  adopted  providing  that  all  contracts  made  with  teachers 
should  be  subject  to  termination  by  either  party  on  one  week's  written  notice  to 
the  other  party.  The  respondent  states,  on  information  and  belief,  that  said 
rule  "  was  fully  made  known  to  the  teachers,  including  the  appellant,  at  about 
the  time  of  the  enacting  thereof,  and  also  upon  the  occasion  of  the  subsequent 
engagements   of   some   of   the   same   teachers,   including  the  appellant."     It   is 


1 178  THt;    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

insisted  that  this   rule  was  well  known  to  the  teachers,  and  the  affidavits  of 
several  of  them,  which  are  submitted,  certainly  show  that  it  was  known  to  them. 

No  copy  of  the  rule  is  submitted  by  the  board.  It  is  not  shown  to  have 
ever  been  printed.  The  appellant  denies  that  she  ever  was  made  aware  of  the 
enactment  of  such  a  rule,  and  even  challenges  the  board  to  produce  the  record 
of  its  enactment,  and  they  do  not  produce  it.  In  any  event,  the  board  ought  not 
to  expect  to  bind  teachers  by  a  rule,  said  to  have  been  adopted  in  1879,  in  so 
important  a  matter  as  a  contract  of  employment,  without  bringing  such  rule 
clearly  and  distinctly  and  undeniably  to  the  attention  of  the  teacher  with  whom 
it  is  contracting.  Its  proof  comes  short  of  showing  that  it  did  this,  and,  in 
the  face  of  her  sworn  and  unimpeached  statements  to  the  contrary  I  can  not 
find  that  the  contract  was  subject  to  such  a  limitation. 

Moreover,  it  appears  clearly,  from  the  statements  of  all  the  parties,  that 
the  alleged  rule  was  invoked  in  the  appellant's  case  only  to  compel  her  to  accept 
less  pay  than  the  board  had,  at  the  beginning  of  the  school  year,  agreed  to  pay 
her.  No  allegation  was  made  against  the  character  or  the  qualifications  of 
the  teacher.  Indeed,  the  board,  in  writing,  proposed  to  allow  her  to  continue, 
provided  she  would  accept  the  reduced  pay.  I  am  convinced  from  the  corre- 
spondence between  the  parties,  as  set  forth  in  the  pleadings,  that  the  understand- 
ing on  both  sides  was  that  the  engagement  was  for  the  school  year,  and  that  the 
board  removed  the  teacher  only  because  she  insisted  upon  the  board  carrying 
out  its  original  agreement.  It  seems  to  me  that  the  equities  are  strongly  with 
the  appellant  in  the  controversy,  and  I  am  confident  that  the  law  is  also. 

It  is  too  late  to  reinstate  the  teacher  in  her  position,  but  the  board  should 
pay  her  to  the  end  of  the  school  year. 

It  is  ordered  that  the  respondent  pay  the  appellant  for  nine  weeks  at  the 
rate  of  $15  per  week,  amounting  to  the  sum  of  $135,  together  with  interest 
thereon,  at  6  per  cent  per  annum,  from  the  ist  day  of  July  1886. 


4521 


In  the  matter  of  the  appeal  of  Charles  W.  Townsend  v.  Peter  J.  Turck  and  Martin 
Lasher,  trustees,  school  district  no.  9,  town  of  Saugerties,  Ulster  county. 

In  contracts  made  between  trustees  and  teachers,  the  compensation  agreed  upon  may  be 
a  fixed  sum  per  diem,  per  week,  per  month  or  per  calendar  month ;  and  such  compensa- 
tion may  be  payable  at  the  time  or  times  agreed  upon  by  the  parties.  When  in  such 
contracts  the  compensation  is  to  be  paid  monthly,  it  means  at  the  end  of  each  school 
month,  consisting  of  four  school  weeks  of  five  school  days  in  each  week;  when  the 
compensation  is  to  be  paid  at  the  end  of  each  calendar  month  it  means  at  the  end 
of  each  thirty  days  of  employment;  when  no  time  of  payment  is  stated  in  the  contract 
such  compensation  must  be  paid  as  often  as  at  the  end  of  each  calendar  month 

Decided  December  4,   1896 

Brmnier  &  Newcomb,  attorney  for  respondents 


JUDICIAL  decisions:     teachers'  contracts  1 179 

Skinner,  Superintendent 

On  or  about  June  26,  1896,  the  respondents  in  the  above-entitled  appeal,  as 
trustees  of  school  district  no.  9,  town  of  Saugerties,  Ulster  county,  contracted 
with  the  appellant  herein  to  teach  the  school  in  such  district  for  the  term  of  one 
year,  commencing  September  ist,  at  a  monthly  compensation  of  $55,  payable 
monthly.  The  respondents  refuse  to  pay  the  appellant  such  monthly  compensa- 
tion for  each  school  month  of  four  weeks  of  five  days  each,  of  service  by  him, 
and  refuse  to  pay  such  monthly  compensation  except  at  the  end  of  each  calendar 
month. 

From  such  refusal  of  the  respondents  the  appellant  takes  an  appeal  to  me. 

The  respondents  have  answered  the  appeal  in  which  they  admit  the  employ- 
ment of  the  appellant  for  the  term  of  time,  and  at  the  rate  of  compensation 
monthly,  and  that  the  compensation  is  payable  monthly,  as  hereinbefore  stated; 
but  allege  that  under  the  provisions  of  subdivision  10  of  section  47,  article  6, 
title  7,  of  the  Consolidated  School  Law  of  1894,  as  amended  by  section  8  of 
chapter  264  of  the  Laws  of  1896,  the  monthly  compensation  of  $55  means  a 
calendar  month,  and  that  such  compensation  is  payable  at  the  end  of  each  calendar 
month. 

The  contention  of  the  respondents  is  not  well  taken. 

Subdivision  10  of  section  47,  article  6,  title  7  of  the  Consolidated  School  Law 
of  1894,  as  amended  by  section  8  of  chapter  264  of  the  Laws  of  1896,  enacts  that 
all  trustees  of  school  districts  who  shall  employ  teachers  in  any  of  said  districts 
shall,  at  the  time  of  such  employment,  make  and  deliver  to  such  teacher,  or  cause 
to  be  made  and  delivered,  a  contract  in  writing,  in  which  the  details  of  the  agree- 
ment between  the  parties,  and  particularly  the  length  of  the  term  of  employment, 
the  amount  of  compensation  and  the  time  or  times  when  such  compensation  shall 
be  due  and  payable,  shall  be  clearly  and  definitely  set  forth.  Such  subdivision 
went  into  effect  on  April  15,  1896,  and  this  Department  prepared  a  form  of  con- 
tract which  will  be  found  in  the  school  register  for  the  school  year  of  1896-97. 

Under  section  6,  title  2  of  the  Consolidated  School  Law,  to  entitle  any 
school  district  to  a  district  quota  or  quotas  of  the  public  money,  a  school  must  be 
maintained  in  such  district  in  each  school  year  for  at  least  one  hundred  and  sixty 
days  of  school,  inclusive  of  legal  holidays  that  may  occur  during  the  term  of  said 
school,  and  exclusive  of  Saturdays,  and  no  Saturday  shall  be  counted  as  part  of 
said  one  hundred  and  sixty  days  of  school.  A  school  week  consists  of  five  school 
days,  as  no  school  can  be  legally  held  on  Saturday  and  Sunday.  A  school  month 
consists  of  four  school  weeks  of  five  school  days  in  each  week. 

The  appellant  and  respondents  had  the  power  to  contract  that  the  compen- 
sation of  the  appellant  should  be  the  sum  of  $55  for  each  calendar  month  of 
school,  but  they  did  not  do  so,  but  did  contract  that  the  appellant  should  be  paid 
a  monthly  compensation  of  $55,  that  is.  the  sum  of  $55  for  services  rendered  for 
each  school  month. 

This  Department  has  uniformly  held  that  when  in  a  contract  of  employment 
of  a  teacher  no  time  of  payment  of  compensation  is  stated  therein,  that  such 


Il8o  THE    UNIVKRSITY    OF    THE    STATE    OF    NEW    YORK 

teacher  is  cMititlcd  to  be  paid  at  least  as  often  as  at  the  end  of  each  calendar  month 
of  the  term  of  employment ;  that  when  in  said  contract  it  is  agreed  that  the  pay- 
ment shall  be  made  monthly,  such  payment  shall  be  made  at  the  end  of  each 
school  month  of  service. 

I  decide,  that  under  the  contract  of  employment  made  between  the  appellant 
and  respondents  herein,  on  June  26,  1896,  the  appellant  herein  is  entitled  to  be 
paid  by  the  respondent,  for  each  school  month  of  four  school  weeks  of  five 
school  days,  of  services  rendered  by  him  as  a  teacher  the  sum  of  $55 ;  that  the 
said  sum  of  $55  should  -be  paid  to  the  appellant  by  the  respondents,  at  the  end 
of  each  school  month  of  service  rendered. 

The  appeal  herein  is  sustained. 

It  is  ordered,  That  Peter  J.  Turck  and  Martin  Lasher,  trustees  of  school  dis- 
trict no.  9,  town  of  Saugerties,  Ulster  county,  be,  and  they  are  hereby,  ordered 
and  directed  to  pay  to  Charles  W.  Townsend,  a  teacher  employed  by  them,  the 
sum  of  $55  for  each  and  every  school  month  of  service  rendered  by  him ;  and  that 
said  sum  of  $55  be  paid  to  him  at  the  end  of  each  school  month  of  services  per- 
formed by  him  during  his  term  of  employment  as  such  teacher. 


3965 

In  the  matter  of  the  appeal  of  Nelson  P.  Lasher  v.  the  trustees  of  school  district 
no.  7,  town  of  Red  Hook,  county  of  Dutchess, 

A  teacher's  contract  reads  "  employment  for  one  year  at  a  weekly  compensation  of  fifteen 
dollars,  payable  monthly." 

It  is  claimed  by  the  teacher  that  the  year  was  to  consist  of  forty- four  weeks,  if  he  could 
teach  that  time  outside  of  usual  vacations.  The  teacher  taught  forty-four  weeks,  the 
last  four  of  which  in  spite  of  the  protest  of  the  board  of  trustees.  The  board  insists 
that  the  year  was  to  consist  of  forty  weeks  at  fifteen  dollars,  and  that  the  teacher  was 
so  informed,  and  that  his  salary  would  be  $600. 

Held,  as  the  proof  greatly  preponderates  in  favor  of  the  trustees'  position,  that  the  school 
year  intended  was  one  of  but  forty  weeks. 

Decided  March  14,  i8gi 

Draper,  Superintendent 

The  only  question  presented  by  this  appeal  is  as  to  the  effect  of  the  contract 
of  employment,  by  which  the  appellant  was  employed  to  teach  the  school  in  said 
district.  The  contract  reads  that  the  employment  of  the  appellant  was  for  one 
year,  at  a  weekly  compensation  of  $15,  payable  monthly.  The  appellant  does  not 
claim  that  by  this  contract,  he  was  either  to  teach  forty-two  weeks,  or  be  paid 
for  that  time.  He  does  claim,  however,  that  he  was  to  teach  forty-four  weeks,  if 
they  could  be  made  within  the  year  outside  of  the  usual  vacations. 

The  trustees,  on  the  other  hand,  insist,  and  with  much  unanimity  swear,  that 
It  was  expressly  stated  to  the  appellant  that  he  was  to  teach  but  forty  weeks,  and 
that  his  compensation,  therefore,  at  the  rate  mentioned,  would  be  the  sum  of  $600. 


JUDICIAL   DECISIONS:       TEACHERS'    CONTRACTS  II81 

The  school  year  consists  of  thirty-two  weeks,  but  districts  are  not  limited  to 
this  time,  and  may  employ  teachers  and  continue  school  for  a  longer  period. 
There  seems  to  be  no  dispute  but  that  the  appellant  taught  forty-four  weeks,  but 
the  last  four  weeks  he  taught  against  the  express  directions  of  the  board  of 
trustees,  who  notified  him  to  close  the  school  at  the  end  of  forty  weeks.  The 
teacher  should  have  obeyed  the  directions  of  the  trustees  and  closed  the  school 
at  the  end  of  forty  weeks.  He  would  have  forfeited  no  right  by  doing  so,  to  his 
claim  for  compensation  for  forty  weeks,  nor  has  he  strengthened  his  position  by 
arbitrarily  continuing  the  school  contrary  to  the  action  of  the  board  of  trustees. 

The  evidence  on  the  issue  preponderates  in  favor  of  the  respondents,  and  I 
feel  constrained  to  hold  that  the  contract  was  for  the  forty  weeks,  and  that  the 
appellant  is  entitled  to  pay  for  that  time  only. 

It  appears  that  the  district  is  indebted  to  the  appellant  in  the  sum  of  $2.25,  a 
balance  remaining  due  for  teaching  forty  weeks  of  school.  This  the  respondents 
admit,  and  express  their  willingness  to  pay,  and  they  are  hereby  directed  to  do  so. 

The  appeal  is  overruled. 


3961 

In  the  matter  of  the  appeal  of  Romane  Saltsman  v.  Washington  Fox,  trustee  of 
school  district  no.  8,  town  of  St  Johnsville,  county  of  Montgomery. 

A  school  trustee  holding  over  beyond  his  term  because  of  the  adjournment  of  the  annual 
meeting,  entered  into  a  contract  with  a  teacher  to  teach  a  term  of  twenty-five  weeks, 
to  commence  more  than  one  month  after  the  date  of  the  adjourned  annual  meeting. 
The  adjournment  of  the  meeting  was  at  the  suggestion  of  the  teacher  so  employed, 
and  for  the  convenience  of  the  trustee  holding  over.  The  contract  was  entered  into 
as  alleged  by  the  teacher,  five  days  after  the  date  of  the  annual  meeting,  at  which  an 
adjournment  had  been  taken. 

At  the  adjourned  annual  meeting,  a  successor  to  the  trustee  holding  over  was  chosen,  where- 
upon the  retiring  trustee  advised  his  successor  of  the  contract  he  had  entered  into  with 
the  teacher. 

Upon  appeal,  the  validity  of  this  act  is  brought  in  question. 

Held,  to  be  in  violation  of  subdivision  9,  of  section  49,  of  title  7,  of  the  Consolidated  School 
Act   (set  forth  in  the  opinion),  and  void  as  to  the  district. 

Held,  also,  that  the  proofs  and  evidence  in  the  case  show  that  the  teacher  was  conversant 
with  school  law,  and  forces  the  impression  that  there  was  collusion  between  the  teacher 
and  former  trustee  in  entering  into  the  contract. 

Decided  February  9,  1891 

G.  E.  Phillips,  attorney  for  appellant 

Draper,  Superintendent 

Appellant,  a  duly  licensed  teacher,  appeals  from  the  action  of  Washington 
Fox,  sole  trustee  of  school  district  no.  8,  town  of  St  Johnsville,  county  of  Mont- 
gomery, in  refusing  to  issue  to  him  a  trustee's  order  for  one  month's  salary  as  a 
teacher,  under  a  contract  entered  into  August  11,  1890,  between  appellant  and  one 


Il82  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

Isaiah  Failing  who  was  the  respondent's  predecessor  in  the  office  of  trustee.  The 
contract  provided  that  appellant  should,  on  September  15,  1890,  begin  teaching  a 
term  of  twenty-five  weeks.  The  facts  disclosed  by  the  evidence,  and  which  appear 
to  be  conceded,  are  that  Isaiah  Failing  was  the  trustee  of  the  district  for  the  year 
ending  August  6,  1890;  that  at  the  annual  meeting  held  on  the  evening  of  August 
6.  1.S90,  an  adjournment  was  had  until  the  9th  instant,  without  electing  a  trustee, 
and  that  on  the  9th  instant,  a  further  adjournment  was  had  until  the  13th  instant. 
At  the  last  mentioned  date  the  respondent  was  chosen  trustee. 

It  is  alleged  by  the  respondent  that  the  adjournments  were  taken  in  order  to 
enable  the  outgoing  trustee  to  present  reports  to  the  inhabitants,  the  second 
adjournment  being  suggested  by  appellant  who  stated  that  the  trustee  was  ill. 
Immediately  after  the  election  of  respondent,  and  on  the  13th  day  of  August,  he 
was  notified  by  the  outgoing  trustee  that  appellant  had  been  employed  as  a  teacher 
for  twenty-five  weeks.  The  only  question,  therefore,  upon  the  appeal  is  as  to 
the  eflfect  of  the  contract  of  August  11,  1890,  between  the  trustee  holding  over  and 
the  appellant.  Subdivision  9  of  section  49  of  title  7  of  the  Consolidated  School 
Act,  provides  that  a  sole  trustee  shall  not  make  a  contract  for  the  employment  of 
a  teacher  beyond  the  close  of  the  school  term  commencing  next  preceding  the 
expiration  of  his  term  of  office  and  continuing  not  longer  than  sixteen  weeks, 
except  with  the  approval  of  a  majority  of  the  voters  of  the  district.  Any  person 
employed  in  disregard  of  the  foregoing  provisions  shall  have  no  claim  for  wages 
against  the  district. 

It  is  not  claimed  that  any  approval  of  a  district  meeting  was  asked  for  or 
given  to  this  contract,  and  its  legality,  so  far  as  the  district's  liability  is  concerned, 
must  depend  upon  the  power  of  the  trustee  in  the  premises.  Failing's  term,  for 
which  he  was  selected,  expired  with  the  annual  meeting,  but  he  was  holding  over 
lawfully  because  his  successor  had  not  been  chosen.  Had  a  term  then  com- 
menced during  this  period  I  should  not  question  the  right  of  the  officer  holding 
over,  and  it  would  have  been  his  duty  to  employ  a  teacher  for  the  term,  but  not 
for  more  than  sixteen  weeks.  But  this  was  not  the  case.  On  August  nth,  five 
days  after  the  date  of  the  annual  meeting  and  two  days  after  the  first  adjourned 
meeting,  this  contract  is  alleged  by  appellant  to  have  been  made  for  a  term  to 
commence  September  15th  (more  than  one  month  after  the  adjourned  meeting 
at  which  the  respondent  was  elected  trustee)  to  continue  not  sixteen  weeks  but 
twenty-five  weeks.  This  was  clearly  in  violation  of  the  provisions  of  the 
statute  above  referred  to. 

I  can  not,  therefore,  sustain  this  appeal  and  uphold  the  contract  The 
trustee  had  no  authority  to  enter  into  it,  and  it  was  an  attempt  to  take  an  undue 
and  unfair  advantage  of  the  district  and  of  the  person  to  be  chosen  trustee. 

Contracts  to  extend  beyond  the  term  of  a  trustee  are  onlv  permitted  when 
the  term  has  been  entered  into  before  such  expiration,  and  to^avoid  embarrass- 
ment which  a  change  of  teachers  during  a  term  might  occasion.  The  appellant 
was  fairly  cognizant  of  the  proceedings  in  the  district  and  of  the  several  rdjourn- 
ments  of  the  annual  meeting.     His  examination  before  the  school  commissioner 


JUDICIAL  decisions:     teachers'  contracts  1 183 

the  result  of  which  appears  with  appellant's  proofs,  shows  he  was  conversant 
with  school  law,  and  the  impression  is  carried  to  my  mind  that  the  appellant  and 
the  former  trustee  colluded  to  secure  an  unfair  advantage. 
The  appeal  is   overruled. 


3603 

In  the  matter  of  the  appeal  of  Charles  W.  Hurlbut  and  lona  Haskins  v.  Marvin 

Phillips,   sole   trustee   of    district   no.    16,   town   of   Harmony,    Chautauqua 

county. 

A  contract  between  a  trustee  and  a  teacher  for  "  one  day  only,"  and  to  "  terminate  every 

night "  is  without  the  sanction  of  law  or  good  usage,  and  is  against  sound  policy.     It 

is  in  conflict  with  the  spirit  of  the  school  laws,  and  will  not  be  upheld  by  the  Department. 

Decided  July  21,  1887 

F.  A.  Brightman,  attorney  for  appellants 
A.  C.  Picard,  attorney  for  respondents 

Draper,  Superintendent 

On  or  about  the  31st  day  of  August  1886,  the  respondent,  above-named, 
employed  the  two  appellants  to  teach  in  the  school  in  his  district,  and  agreed 
to  pay  them  at  the  rate  of  four  ($4)  dollars  per  week. 

The  appellants  taught  one  term  of  nine  weeks,  when  they  were  notified  by 
the  principal  of  the  school,  under  the  direction  of  the  trustee,  that  there  would 
be  a  vacation  for  one  week.  School  was  accordingly  closed  for  a  week.  At 
the  end  of  that  time  they  returned,  and  had  been  teaching  an  hour  or  more,  when 
they  were  discharged  from  employment  by  the  trustee,  in  person,  who  appeared 
in  the  schoolroom  and  notified  them  that  they  must  discontinue  teaching.  Each 
of  the  appellants  insisted  that  the  term  of  employment  was  for  a  year,  and 
asserted  a  purpose  to  go  on  and  fulfil  the  agreement,  unless  prevented  from 
doing  so,  but  the  trustee  refused  to  permit  them  to  continue. 

The  main  issue  is  as  to  the  terms  of  the  contract  of  employment.  The  appel- 
lants each  swear  that  the  employment  was  for  "  the  term  of  one  year,  or  so 
long  as  said  Phillips  was  trustee  of  said  district."  The  respondent  swears  "  that 
he  informed  said  teachers,  when  he  employed  them,  that  he  hired  them  for  one 
day  only,  and  that  their  time  would  close  every  night,  but  that  if  they  gave 
satisfaction,  he  would  keep  them  as  long  as  he  remained  trustee." 

Several  affidavits  by  dififerent  persons  are  oflfered  by  the  appellants  and  the 
respondent,  in  corroboration  of  their  statements,  which  are  no  less  contradictory 
than  the  affidavits  of  the  parties  themselves.  So  conflicting  is  the  evidence  that 
it  is  difficult  to  conclude  with  any  degree  of  confidence  what  the  real  terms 
of  the  agreement  were. 

The  burden  of  proof  is,  however,  on  the  appellants.  Before  I  can  overrule 
the  trustee  and  hold  the  agreement  to  be  what  the  appellants  say  it  was,  they 
miist  prove  it  by  a  clear  preponderance  of  evidence.  This  they  fail  to  do  to 
my  satisfaction. 


1 184  TIIK    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

But  if  I  assume  that  the  agreement  was  as  the  trustee  alleges,  which  I  am 
obliged  to  do  because  it  is  not  clearly  proved  otherwise,  I  find  myself  unable 
to  uphold  such  a  contract,  because  I  think  it  was  an  unconscionable  contract, 
without  sanction  of  law  or  good  usage  and  against  sound  policy.  I  am  of  the 
opinion  that  a  contract  of  employment  between  a  trustee  and  teacher  '*  tor  one 
day  only  and  to  close  every  night  "  is  void  as  being  in  conflict  with  the  spirit 
of  the  school  laws  and  against  sound  public  policy.  Teachers  are  compelled  to 
have  a  license  issued  pursuant  to  law  before  they  can  contract  to  teach.  This 
license  carries  with  it  an  assurance  of  qualifications  and  fitness.  The  law  pro- 
vides for  revoking  any  license  where  suflicient  cause  is  shown  for  such  a  step. 
The  revocation  of  a  license  works  a  dissolution  of  any  contract  which  may  have 
been  based  upon  it.  This  is  the  ordinary  course  of  procedure  for  getting  rid 
of  an  unworthy  or  unfit  teacher  in  the  middle  of  a  term  of  employment.  Trus- 
tees may,  undoubtedly,  at  times  summarily  dismiss  a  teacher  for  a  palpable 
breach  of  contract  or  gross  and  open  immorality,  but  such  action  must  be 
taken,  if  at  all,  upon  the  personal  responsibility  of  the  officer.  But  these  are 
exceptional  cases,  outside  of  the  general  rule.  There  can  be  no  pretense  that 
the  case  under  consideration  is  one  of  that  nature.  Moreover,  trustees  ought 
not  to  be  permitted  to  absolve  themselves  from  the  responsibility  of  making 
investigations  and  of  exercising  proper  precautionary  care  and  good  judgment 
when  employing  teachers  by  reserving  the  right  to  discharge  them  at  any  moment. 
A  duly  licensed  and  employed  teacher  ought  to  have  security  of  position  for 
a  reasonable  length  of  time,  which  should  be  long  enough  to  prove  himself  suc- 
cessful or  to  demonstrate  his  inability  to  do  so.  It  is  humiliating  to  self-respect- 
ing teachers  to  be  at  all  times  liable  to  discharge  from  employment  because 
others  may  want  their  places,  or  because  of  the  antagonisms  which  a  vigorous 
and  wholesome  performance  of  their  duties  in  the  schoolroom  may 
engender.  To  adopt  this  doctrine  is  only  to  drive  the  most  self-respecting  and 
the  best  qualified  persons  from  teachers'  work.  This  is  unquestionably  against 
wise  policy.  Furthermore,  if  the  trustee  could  discontinue  these  teachers  at 
any  time,  they  could  abandon  their  places  at  any  time.  But  the  school  must 
continue  without  interruption.  Teachers  must  be  under  a  legal  and  honorable 
obligation  to  so  continue  it.  An  agreement  between  trustee  and  teacher  which 
does  not  involve  this  is  manifestly  against  the  interests  of  the  public  school 
system. 

What  is  a  reasonable  length  of  time  for  which  a  trustee  and  teacher  may 
properly  enter  into  a  contract  of  employment,  depends  upon  the  circumstances 
and  custom  in  each  district,  and  must  be  determined  upon  the  fact  of  each 
case  as  it  arises.  It  appears  in  the  papers  in  this  case  that  the  appellants  had 
taught  one  term  of  nine  weeks,  and  that  they  had  commenced  teaching  another 
term  when  dismissed.  I  am,  therefore,  led  to  hold  that  their  employment  must 
have  been  for  terms  of  at  least  that  length  of  time,  and  that  having  taught  one 
such  term  and  entered  upon  another,  they  were  entitled  to  employment  for  at  least 
another  term  of  the  same  length  if  they  were  ready  and  able  to  fairly  discharge 
the  duties  of  the  places  in  which  thev  were  emploved 


JUDICIAL  decisions:     teachers'  contracts  1185 

It  only  remains  to  consider  whether  the  trustee  was  justified  in  discharging 
them  in  the  middle  of  a  term  of  employment.  As  already  suggested,  there  may 
be  exceptional  cases  in  which  a  trustee  would  be  justified  in  summarily  dismiss- 
ing a  teacher  for  gross  immorality,  or  for  utter  failure  to  fill  the  position  properly, 
resulting  in  a  palpable  breach  of  contract.  In  such  a  case  he  would  act  upon  his 
own  responsibility,  relying  upon  the  clearness  of  the  case  and  the  exigency  of 
the  occasion  for  his  justification.    Was  this  such  a  case?    I  think  not. 

The  trustee  alleges  as  the  reason  for  discharging  the  appellants  that  their 
work  was  not  satisfactory.  He  says  they  failed  in  discipline  and  did  not  produce 
desirable  results.  This  is  strenuously  contradicted  by  a  large  number  of  reputable 
patrons  of  the  school.  In  any  event,  the  trustee  could  hardly  expect  the  highest 
professional  talent  for  $4  per  week.  The  trustee  also  alleges  certain  improprie- 
ties between  the  appellants,  such  as  being  out  together  late  at  night  and  kissing 
each  other  in  the  presence  of  pupils  in  the  school.  Such  allegations  as  these 
should  not  be  set  up  unless  capable  of  unquestioned  proof.  Character  ought  not 
to  be  attacked  by  anyone,  much  less  a  public  officer,  wantonly  or  carelessly. 
There  is  no  proof  whatever  to  sustain  these  allegations,  so  far  as  I  can  see.  Mak- 
ing such  allegations,  without  following  them  with  competent  proof,  ought  to 
weigh  against  the  party  responsible  for  it.  I  am  unable  to  sustain  the  respond- 
ent in  dismissing  the  appellants  in  the  summary  manner  he  did.  It  is  shown 
that  they  stood  ready  to  continue  their  service,  and  I  am  of  the  opinion  that  they 
have  a  legal  claim  against  the  district  for  nine  weeks'  pay,  at  the  rate  of  $4 
per  week. 

The  appeal  is,  therefore,  sustained,  and  it  is  ordered  that  the  respondent 
forthwith  draw  his  order  upon  the  supervisor  of  his  town  in  favor  of,  and 
deliver  the  same  to  each  of  the  appellants,  for  the  sum  of  $36,  if  there  should  be 
such  sum  in  the  hands  of  the  supervisor  to  the  credit  of  the  district.  If  there 
is  not,  then  it  is  ordered  that  the  respondent  forthwith  levy  a  tax  upon  the  dis- 
trict for  such  amount,  and  that  he  make  and  deliver  to  each  of  the  appellants 
orders  upon  the  collector  for  the  sums  due  them. 


3735 

In  the  matter  of  the  appeal  of  Gertie  L.  Devoe  v.  the  board  of  trustees  of  district 

no.  7,  town  of  Rochester,  county  of  Ulster. 
The  school  law  does  not  contemplate  the  employment  of  a  teacher  "  for  such  time  as  she 

suited." 
The  employment  must  be  for  at  least  a  reasonable  length  of  time. 
In  the  absence  of  statutory  regulations,  a  reasonable  length  of  time  would  depend  upon 

the  custom  in  each  district. 
It  should  be  for  a  term  of  school  at  least. 
Nine  weeks  held  to  be  as  short  a  term  as  a  teacher  should  be  employed  for  in  a  common 

school  district. 

Lincoln  B.  Haskin,  attorney  for  the  appcllarit 
38 


ii86  Tin-:  university  of  the  state  of  new  york 

Draper,  Superintendent 

The  appellant  alleges  that,  being  a  duly  certified  and  qualified  teacher,  she 
was,  on  the  30th  day  of  August  1888,  employed  by  the  respondents  to  teach  the 
school  in  their  district  at  the  rate  of  seventy-five  cents  per  day,  boarding  her- 
self, as  long  as  she  suited  the  trustees;  that  she  commenced  teaching  on  Monday 
the  17th  of  September  1888;  that  after  she  had  been  teaching  about  ten  days, 
Henry  De  Witt,  one  of  the  trustees,  called  at  the  schoolhouse  and  informed  her 
that  her  service  would  terminate  the  next  night.  She  says  that  the  reason  the 
trustee  assigned  for  discharging  her  was  that  she  was  too  strict  in  her  discipline, 
although  no  one  of  the  trustees  had  visited  the  school  during  her  service,  and  that 
during  such  time  she  in  no  case  inflicted  corporal  punishment.  She  alleges  that 
the  real  reason  of  the  action  of  the  trustee  was  because  she  had  inflicted  a  slight 
punishment  upon  his  daughter;  that  no  complaints  were  made  to  her  in  reference 
to  her  course  in  the  school,  but  on  the  contrary  the  same  was  generally  com- 
mended by  the  resident?  of  the  district;  that  the  action  of  De  Witt  was  his  own 
action  alone  and  had  not  been  determined  upon  at  any  meeting  of  the  board  of 
trustees  of  the  district;  that  she  denied  the  right  of  De  Witt  to  discharge  her 
and  claimed  possession  of  the  school  on  Monday  morning,  October  i,  1888,  and 
that  she  has  held  herself  in  readiness  to  fulfil  the  agreement  on  her  part,  but  that 
she  has  been  prevented  from  so  doing  by  the  action  of  said  trustee.  She  therefore 
brings  this  appeal  against  the  action  of  the  trustees  and  demands  that  she  be 
reinstated  in  the  school. 

The  trustees  in  answering  the  appeal  say  that  they  employed  the  appellant 
as  she  states,  so  long  as  she  suited  the  trustees,  and  that  they  discharged  her  for 
incompetency  and  specify  that  she  could  not  do  certain  examples  in  arithmetic. 
They  allege  that  the  school  dwindled  from  twenty-two  scholars  to  four  scholars 
during  the  two  weeks  in  which  she  was  teaching.  They  say  also  that  she  was 
di.'-charged  by  the  consent  of  a  majority  of  said  trustees. 

Tlicre  is  no  doubt  in  my  mind  but  that  the  appellant  was  discharged  without 
any  good  and  sufficient  reason.  The  trustees  set  forth  two  reasons  for  their 
action.  One  is  that  she  could  not  perform  certain  problems  in  arithmetic,  the 
other  that  the  attendance  in  the  school  had  fallen  ofT  during  the  two  weeks  in 
which  she  had  charge  of  it.  The  proofs  indicate  that  the  first  reason  assigned 
is  frivolous  and  the  last  untrue.  She  held  a  certificate  from  the  proper  officer 
to  her  qualifications  as  a  teacher.  There  is  no  proof  whatever  submitted  by  the 
respondents  to  show  that  she  was  not  qualified.  The  trustee  who  undertook  to 
discharge  her,  in  an  answer  which  it  is  almost  impossible  to  decipher  because  of 
Its  illiteracy,  sets  up  this  lame  reason,  but  he  advances  nothing  whatever  in  proof 
of  his  assertion.  The  school  register  shows  that  the  attendance  upon  the  school 
continued  at  about  the  same  number  up  to  the  time  when  the  trustee  notified  her 
of  her  dismissal  and  removed  his  own  child  from  the  school  and  exerted  his 
influence  to  disparage  it  while  she  should  remain. 

Equally  clear  is  it  that  the  appellant  was  not  discharged  bv  any  lawful  action 
of  the  bo.ird  of  trustees.     One  of  them.  Henry  De  Witt,  assumed  to  do  all  of 


JUDICIAL    decisions:       teachers'    CONTIt.\CTS  IlSj 

the  business.  Another  presents  affidavit,  in  which  he  swears  that  he  has  given 
his  associates  authority  to  hire  and  discharge  teachers.  He  can  do  nothing  of 
the  kind,  and  his  attempt  to  do  so  is  sufficient  ground  for  his  removal  from  office. 
The  third  presents  an  affidavit  in  which  he  swears  that  he  acquiesced  in  the  dis- 
charge of  the  appellant.  There  is  no  pretense  that  the  course  of'De  Witt  in 
preventing  the  teacher  from  continuing  in  the  school  was  the  result  of  action 
taken  at  a  meeting  of  the  board.  It  was,  therefore,  without  authority  and 
unlawful. 

It  is  clear,  however,  that  a  majority  of  the  board  would  have  proceeded  to 
take  the  action  appealed  from,  if  they  had  understood  the  necessity  for  doing 
so,  and  there  is  no  occasion  for  resting  the  decision  of  the  case  upon  a  techni- 
cality alone.  The  agreement  between  the  teacher  and  the  board  was  not  of  such 
a  character  as  this  Department  can  sanction.  In  employing  the  teacher  for  such 
time  as  she  suited,  the  trustees  intended  to  reserve  the  right  to  do  just  what  has 
been  done  —  discharge  her  at  any  moment  without  cause.  The  school  law  does 
not  contemplate  any  such  procedure  on  the  part  of  the  trustees.  All  of  the 
provisions  of  the  statutes  clearly  indicate  that  it  is  the  duty  of  trustees  to  exercise 
proper  caution  in  employing  teachers  and  to  employ  them  for  a  reasonable  length 
of  time.  The  law  does  not  permit  trustees  to  assume  dictatorial  powers.  It  will 
not  allow  them  to  exact  agreements  of  teachers  into  which  a  self-respecting 
person  can  not  enter;  nor  will  it  allow  them  to  turn  a  teacher  out  of  a  school- 
house  in  the  midst  of  employment  only  because  of  pique  or  spite,  or  in  order 
to  put  someone  else  in. 

The  employment  must  be  at  least  for  a  reasonable  length  of  time.  What  is 
a  reasonable  length  of  time  would,  in  the  absence  of  statutory  regulations,  depend 
upon  the  custom  in  each  district.  It  should  be  for  a  term  of  school  at  least  — 
a  time  sufficient  to  enable  a  teacher  to  show  proficiency  or  make  so  complete  a 
failure  that  no  district  will  employ  him  again. 

In  the  absence  of  any  evidence  upon  which  to  determine  the  least  time  for 
which  a  teacher  should  be  employed  in  the  district  under  consideration,  I  have 
concluded  to  follow  the  time  fixed  upon  in  the  case  of  Hurlbert  v.  district  no.  6, 
town  of  Harmony  (decided  July  21,  1887),  as  the  circumstances  are  not  widely 
different,  and  I  know  that  the  time  there  fixed  upon  can  not  be  unjust  to  the  dis- 
trict. If  it  is  unjust  to  the  teacher,  it  can  be  nothing  more  than  she  ought  to 
sufifer  for  assuming  to  enter  into  so  unbusiness  like  an  agreement.  The  term 
there  fixed  upon  was  nine  weeks. 

The  appeal  is  sustained  and  the  respondents  are  hereby  directed  to  settle 
with  the  appellant  according  to  the  terms  of  their  agreement  with  her,  for  a 
period  of  nine  weeks,  deducting  any  payments  which  may  already  have  been  made 
to  her.  If  there  are  moneys  to  the  credit  of  the  district  now  in  the  hands  of 
the  collector  or  supervisor,  they  will  draw  their  draft  upon  the  proper  officer  to 
her  order  forthwith.  In  case  there  are  no  moneys  now  standing  to  the  credit  of 
the  district,  they  will  raise  the  requisite  amount  by  tax. 


Il88  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

3678 

In  the  matter  of  the  appeal  of  Fanchie  C.  Groom  v.  James  Hough,  sole  trustee 

of  school  district  no.  13,  town  of  Venice,  Cayuga  county. 
Agreements  between  teachers  and  trustees  that  either  party  may  terminate  the  employment 

at   any  time   are   against   public   policy.     Employment   should   be   for   a   specific   length 

of  time. 
It  is  a  duty  of  a  trustee  to  aid  a  female  teacher,  when  appealed  to,  in  reducing  to  subjection 

a   vicious   and   disturbing  pupil,   and,   if   necessary,   to   remove   such   a   pupil    from   the 

school. 
The  fact  that  one  disorderly  pupil   18  years  of  age  would  not  obey  the  teacher,   is  not 

sufficient  reason  for  dismissing  a  teacher  as  incompetent  to  manage  a  school. 
Decided  April  6,  1888 

Draper,  Superintendent 

The  appellant  above  named  was  employed  on  or  about  the  ist  day  of  Sep- 
tember 1887,  by  the  respondent  to  teach  the  school  in  the  above-named  district, 
for  the  term  of  fourteen  weeks  during  the  fall  and  winter  following.  After 
having  taught  for  nine  weeks  and  two  days,  the  trustee  discharged  the  teacher 
and  forbade  her  continuance. 

The  parties  agree  relative  to  the  terms  of  the  employment,  except  that  the 
trustee  insists  that  he  was  to  have  the  right  to  discharge  the  teacher  at  any  time, 
unless  she  gave  satisfaction  and  properly  governed  and  managed  the  school. 
The  ground  which  the  trustee  alleges  as  the  reason  for  discharging  the  teacher 
is,  that  she  failed  in  government.  No  proof  of  this  is  offered.  The  teacher 
swears  that  she  had  no  trouble  in  the  school,  except  with  one  young  man  18  years 
of  age,  who  was  vicious,  profane  and  exceedingly  troublesome.  It  can  hardly 
be  expected  that  a  lady  teacher  should  undertake  to  put  her  physical  strength 
against  that  of  a  vicious  boy  18  years  of  age,  and  it  was  the  duty  of  the  trustee 
in  that  case,  to  have  aided  the  teacher  in  reducing  such  pupil  to  subjection,  or 
he  should  have  removed  him  from  the  school.  She  says  that  she  called  upon  the 
trustee  to  aid  her  in  this  particular  case,  without  avail.  She  says  furthermore, 
that  she  protested  against  being  discharged  and  has  always  held  herself  in  readi- 
ness to  fulfil  the  terms  of  the  agreement. 

There  is  no  evidence  in  this  case  aside  from  the  statements  of  the  parties.  It 
appears  that  the  teacher  has  taught  several  terms  before,  and  successfully.  I 
feel  it  my  duty  to  discountenance  agreements  between  trustees  and  teachers  of 
the  character  such  as  the  trustee  in  this  case  alleges  that  he  made.  He  says  that 
he  employed  this  teacher  with  the  right  to  discharge  her  at  any  time  that  she 
did  not  give  satisfaction.  She  denies  this.  Whether  or  not  it  was  a  fact,  it  ought 
not  to  have  been  so.  A  trustee  should  employ  a  teacher  only  after  being  satis- 
fied of  her  ability  to  conduct  the  school  properly  and  successfully.  When  he 
employs  her  he  should  do  it  for  a  reasonable  length  of  time  and  he  should  live 
up  to  his  agreement.  It  is  against  sound  policy  to  permit  trustees  to  discharge  a 
teacher  at  any  moment  for  some  imaginary  cause  or  for  any  cause  at  all,  when 
they  feel  inclined  to  do  so.     It  hardly  looks  reasonable  that  the  teacher  in  this 


JUDICIAL  decisions:     teachers'  contracts  1 189 

case,  after  having  taught  more  than  nine  weeks  in  a  term  of  fourteen,  could  not, 
with  safety  to  the  interests  of  the  district  be  permitted  to  finish  her  term.  Her 
certificate  of  qualification  and  her  previous  experience,  ought  to  count  somewhat 
in  her  favor.  I  have,  therefore,  come  to  the  conclusion  that  the  appeal  ought  to 
be  sustained,  and  the  trustee  of  the  district  is  hereby  directed  to  settle  with  the 
appellant  according  to  the  terms  of  his  agreement  with  her. 


3850 

In  the  matter  of  the  appeal  of  Moses  N.  Roe  v.  Benjamin  Snyder  as  trustee  of 
school  district  no.  5,  of  the  town  of  Candor,  county  of  Tioga. 

The  statute  provides  that  teachers  shall  be  employed  for  at  least  sixteen  weeks.  Any 
employment  of  a  teacher,  unless  to  fill  out  an  unexpired  term,  will  be  held  to  be  for 
at  least  sixteen  weeks.  An  employment  for  less  than  one  year  is  not  invalid  because 
verbally  made.  A  trustee  who  neglects  to  give  a  teacher  a  written  memorandum  of 
hiring  is  guilty  of  laches. 

Dismissal  of  a  teacher  in  the  midst  of  a  term  for  incompetency  and  lax  discipline  in  the 
school,  which  clearly  appears,  will  be  sustained. 

Decided  January  3,  1890 

Stephen  S.  Wallis,  attorney  for  respondent 

Draper,  Superintendent 

About  the  first  of  October  last,  the  trustee  above  named  employed  the 
appellant  to  teach  the  school  in  his  district.  No  written  memorandum  of  employ- 
ment was  given.  The  appellant  began  service  on  the  14th  of  October,  and  was 
dismissed  by  the  trustee  on  or  about  the  4th  day  of  November  for  alleged  incom- 
petency. The  teacher  insists  that  the  dismissal  was  without  cause,  and  brings 
his  appeal  to  determine  his  rights  in  the  premises.  The  trustee  insists  that  the 
employment  was  for  no  specified  length  of  time,  and  that  he  took  the  teacher  only 
upon  trial. 

The  law  does  not  recognize  employments  of  such  a  character  as  that  insisted 
upon  by  the  trustee.  The  statute  provides  that  no  teacher  shall  be  employed 
for  a  shorter  term  than  sixteen  weeks,  and  therefore,  if  the  teacher  in  this  case 
was  employed  by  the  trustee  at  all,  it  was  for  at  least  that  length  of  time.  The 
trustee  insists  also  that  the  employment  was  invalid  for  the  reason  that  no  written 
contract  was  executed.  He  is  clearly  in  error  in  this.  An  agreement  between  a 
trustee  and  teacher  stands  upon  the  same  footing  as  any  other  agreement  and 
may  be  verbal  for  a  less  period  than  one  year.  It  is  true  that  the  statute  requires 
the  trustee  to  make  and  deliver  to  the  teacher  a  memorandum  stating  the  terms 
of  the  employment,  but  the  fact  that  no  such  memorandum  was  given  in  a  par- 
ticular case  would  not  invalidate  the  employment.  It  was  the  purpose  of  the 
statute  to  require  the  making  and  delivering  of  the  memorandum  as  a  protection 
to  the  teacher.    The  trustee  in  this  case  was  clearly  guilty  of  laches  for  refusing 


1190  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

to  make  such  memorandum  when  requested  to  do  so  by  the  teacher,  as  he  admits 
he  was. 

The  statute  provides  that  no  teacher  shall  be  dismissed  in  the  midst  of  a 
term  of  emplovnient  except  for  cause  which  would  be  sustained  by  the  State 
Superintendent  upon  appeal.  I  have  therefore  read  with  care  what  the  parties 
have  to  say  touching  the  reason  alleged  for  dismissal.  I  am  of  the  opinion  that  the 
trustee  makes  out  a  sufficient  cause  for  dismissing  the  appellant  in  the  midst  of 
a  term  of  employment.  He  shows  clearly  that  the  discipline  in  the  school,  while 
under  the  appellant's  charge,  was  lax  in  the  extreme.  No  teacher  can  expect 
employment  for  any  length  of  time  or  expect  to  be  upheld  by  the  State  Depart- 
ment who  is  unable  to  command  the  respect  and  the  unqualified  obedience  of 
pupils.  I  am  satisfied  that  such  respect  and  obedience  were  lacking  in  the 
present  case. 

I  therefore  arrive  at  the  conclusion  that  it  is  my  duty  to  dismiss  the  appeal. 


3864 

In  the  matter  of  the  appeal  of  A.  Hall  Burdick  v.  the  board  of  education  of 

Long  Island  City. 

A  teacher  having  been  employed  by  a  board  of  education  for  several  years,  was  reemployed, 
as  he  understood,  for  the  ensuing  year.  In  February  following  he  was  dismissed 
without  cause.  Held,  that  all  the  circumstances  justified  the  teacher  in  thinking  the 
employment  was  for  a  year,  and  that  it  was  such  in  law.  Held,  also  that  he  could 
not  be  dismissed  in  the  course  of  the  year,  except  for  cause. 

Decided  March  29,  1890 

W.  T.  B.  Milliken,  attorney  for  appellant 
W.  J.  Foster,  city  attorney,  for  respondent 

Draper,  Superintendent 

The  appellant  having  been  employed  for  two  preceding  years  as  principal  of 
one  of  the  public  schools  of  Long  Island  City,  was  reemployed  in  September 
1889,  m  the  same  position.  He  contends  that  the  last  reemployment  was  for  the 
term  of  a  school  year.  The  board  of  education  insists  that  it  was  for  no  specified 
length  of  time,  but  entirely  at  the  pleasure  of  the  board.  The  appellant  was 
dismissed  from  his  position  by  the  board  of  education  on  the  14th  day  of  Feb- 
ruary 1890.  No  reason  is  alleged  for  the  dismissal.  The  board  insists  that  it 
had  the  power  to  dismiss  him  at  any  moment,  and  without  assigning  a  cause. 
The  appellant  brings  this  appeal  from  the  action  of  the  board  in  dismissing  him, 
tor  the  purpose  of  determining  his  rights. 

It  is  clear  at  the  outset  that  the  broad  claims  of  the  board  of  education  can 
not  be  upheld.  An  individual  may  manage  his  individual  afifairs  in  any  capricious 
way  he  hkes,  so  long  as  he  does  not  interfere  with  the  rights  of  others-  but 
officers  m  managing  the  affairs  of  the  public  schools  can  not  go  as  far  as 'this 


JUDICIAL   DECISIONS:       TEACHERS'    CONTRACTS  II9I 

riiey  are  not  only  bound  to  respect  the  rights  of  others,  but  in  addition 
to  this  they  stand  in  a  representative  capacity,  and  must  transact  their 
official  business  in  a  way  which  will  best  promote  the  interests  of  the  public 
for  whom  they  act.  The  schools  are  continuous,  and  their  substantial  character 
and  efficiency  depend  not  only  upon  the  character  and  competency  of  teachers, 
but  also  upon  teachers  who  have  these  qualifications,  being  secure  against  the 
piques  and  caprices,  the  selfish  and  political  interests  of  individuals.  The  rela- 
tions between  school  trustees  and  school  teachers  are  reciprocal,  and  obligations 
are  mutual.  Trustees  fail  in  their  duty  if  they  employ  persons  who  are  not  com- 
petent and  adapted  to  the  employment.  To  uphold  the  claim  that  such  persons 
may  be  employed  only  from  day  to  day,  and  may  be  dismissed  at  any  moment 
without  warning  and  without  reason,  would  be  to  drive  qualified  and  self-respect- 
ing persons  out  of  the  teaching  service.  It  is  an  unconscionable  doctrine,  so  far 
as  individual  rights  and  interests  are  concerned;  it  is  destructive  of  the  efficiency 
of  the  schools,  and  subversive  of  the  interests  of  the  public.  This  principle  has 
been  previously  maintained,  notably  in  the  case  of  DeVoe  v.  district  no.  7,  of  the 
town  of  Rochester  (appeal  no.  3735).  That  case  arose  in  a  small  and  unstable 
school  in  a  rural  community.  The  principle  has  even  much  greater  force  in  a 
large  school  regularly  in  operation  during  definite  terms,  as  in  the  present  case. 
But  we  are  not  left  to  reasoning  alone  in  this  matter.  There  is  no  difiference 
between  the  legal  powers  and  duties  of  school  trustees  in  cities,  and  like  officers 
in  all  other  parts  of  the  State,  except  as  such  differences  have  been  created  by 
statutes  having  special  application  to  a  particular  city.  It  does  not  appear  that  there 
is  any  special  statute  conferring  any  greater  or  different  powers  upon  the  board 
of  education  of  Long  Island  City,  so  far  as  the  dismissal  of  teachers  is  concerned, 
than  trustees  of  schools  have  in  general.  Subdivision  9,  section  48,  title  7,  of  the 
Consolidated  School  Act,  as  it  existed  at  the  time  of  the  employment  in  the 
present  case,  provided  as  follows :  "  Nor  shall  any  trustee  or  trustees  employ 
any  teacher  for  a  shorter  term  than  sixteen  weeks,  unless  for  the  purpose  of 
filling  out  an  unexpired  term  of  school ;  nor  shall  any  teacher  be  dismissed  in  the 
course  of  a  term  of  employment  except  for  reasons  which,  if  appealed  to  the 
Superintendent  of  Public  Instruction,  shall  be  held  to  be  sufficient  cause  for  such 
dismissal." 

The  matter  here  in  issue  is  then  brought  within  narrower  compass,  for  it 
is  manifest  that  the  employment  could  not  have  been  merely  from  day  to  day,  as 
respondents  claim,  but  must  have  been  in  legal  contemplation  for  some  reasonable 
length  of  time,  and  that  within  such  time,  whatever  it  was,  the  appellant  could 
not  have  been  dismissed  except  for  a  reason  which  would  be  deemed  sufficient 
by  the  State  Superintendent  on  appeal.  As  no  reason  whatever  is  given  for  the 
attempted  dismissal,  either  at  the  time  thereof  or  now,  the  only  question  is,  what 
was  the  length  of  the  term  for  which  the  appellant  was  employed? 

I  have  read  all  that  has  been  said  by  the  respective  parties  upon  this  point, 
in  their  pleadings  and  affidavits,  and  by  their  able  counsel  on  the  oral  argument. 
The  appellant  was  first  employed  in  September  1887,  for  the  school  year  1887-88. 


Il(j2  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

In  the  summer  of  i8S8,  he  was  reemployed  for  another  school  year.  On  the 
25th  of  July  1889,  he  addressed  a  communication  to  the  board  of  education  in 
which,  after  speaking  of  the  condition  of  the  school  under  his  charge,  and  sug- 
gesting that  his  salary  ($1500)  was  less  than  had  formerly  been  paid,  he  said: 
"  I  respectfully  ask  to  be  continued  in  my  present  position  for  the  coming  year 
with  such  increase  of  salary  as  my  services  have  shown  me  to  merit."  He  swears 
that  on  the  7th  day  of  September  1889,  he  was  verbally  notified  by  the  clerk  of 
the  board  that  at  a  meeting  of  the  board  his  application  had  been  accepted,  and 
his  salar}'  increased  to  $1800,  and  that  he  reentered  upon  his  position  and  con- 
tinued to  act  in  that  capacity,  and  was  paid  at  the  increased  rate  up  to  the  time 
of  the  attempted  dismissal.    This  is  not  disputed. 

But  the  board  of  education  refers  to  certain  resolutions  as  a  justification 
for  their  action,  which  resolutions  were  adopted  in  July  1888,  and  were  in  the 
following  words : 

Resolved,  That  any  and  all  existing  by-laws,  rules  and  regulations,  resolu- 
tions, orders  etc.,  respecting  appointments  of  teachers  be  and  the  same  hereby 
are  revoked,  rescinded,  made  null  and  void;  and  all  contracts  therefore,  if  any, 
terminated  and  canceled. 

Resolved,  That  all  future  appointments  of  teachers  shall  be  for  term,  sub- 
ject to  the  pleasure  of  the  board. 

The  board  insists  that  these  resolutions  were  known  to  the  appellant,  and 
that  they  governed  the  terms  of  his  reemployment  of  1889.  He  admits  a  general 
knowledge  thereof,  derived  from  newspaper  reports,  but  says  that  he  inquired 
of  the  member  of  the  board  having  charge  of  his  school  whether  there  was  any- 
thing in  these  resolutions  affecting  his  position,  and  was  informed  that  they  were 
not  .intended  to  apply  to  him.  It  is  true  that  one  member  of  the  board  could  not, 
independently  of  his  associates,  bind  the  board,  but  it  is  also  true,  it  seems  to 
me,  that  the  appellant  was  justified  in  giving  much  weight  to  the  construction 
which  the  commissioner  in  charge  of  his  school  placed  upon  the  action  of  the 
board.  But  I  can  not  adopt  the  view  that  these  resolutions  in  any  event  were 
bmding  upon  the  appellant,  except  so  far  as  they  were  lawful,  and  so  far  he 
must  be  deemed  to  have  agreed  to  them.  The  resolutions  relied  upon  by  the 
board  are  of  a  most  novel  character,  and  seem  to  be  almost,  if  not  quite,  devoid 
of  legal  life  and  ettect.  That  part  of  the  resolutions  touching  the  employment 
of  teachers  could  certainly  not  be  carried  out  unless  it  was  "  the  pleasure  of 
the  board  "  to  employ  for  a  reasonable  term  of  service  any  more  than  that  other 
part  of  the  same  resolution  which  purported  to  cancel  and  annul  all  existing 
contracts  without  the  assent  of  the  other  contracting  parties. 

Moreover,  the  resolutions  were  intended  only  for  the  guidance  of  the 
board.  Subsequent  action  could  modify  them  or  change  their  effect.  The  appli- 
cation of  the  teacher  and  the  acceptance  constituted  an  agreement  upon  which 
he  had  the  right  to  rely,  unless  specially  notified  that  the  board  had  resolved  to 
employ  him  on  other  lawful  terms,  which  he  was  at  liberty  to  accept  or  reject 
There  is  no  pretense  of  this.     On  the  contrary,  it  appears  that  he  was  notified 


JUDICIAL  decisions:     teachers'  contracts  1193 

by  the  clerk  of  the  board  and  superintendent  of  schools  that  his  application  had 
been  accepted,  and  no  conditions  or  modifications  were  suggested.  No  doubt  he 
reasoned  as  he  was  advised  by  his  commissioner,  that  it  was  the  pleasure  of  the 
board  to  employ  him  according  to  the  terms  of  his  application,  and  that  the 
resolutions  adopted  more  than  a  year  previously  were  not  intended  to  affect  his 
position. 

More  than  this,  there  is  no  pretense  anywhere  that  if  the  employment  was 
for  a  term,  as  it  seems  clear  it  must  have  been,  that  that  term  was  for  any  other 
time  than  a  school  year.  That  was  at  least  the  natural  term  of  employment  in 
a  city,  and  it  was  evidently  the  term  in  the  minds  of  the  parties  at  the  time  of 
the  agreement. 

I  therefore  conclude  that  the  legal  term  for  which  the  appellant  was  employed 
in  September  1889,  was  for  the  school  year.  This  being  so,  the  action  of  the 
board  in  attempting  to  dismiss  the  appellant  in  February,  without  cause,  was 
unlawful. 

The  appeal  is  sustained,  and  the  action  of  the  board  in  dismissing  the 
appellant  is  held  to  be  unlawful  and  invalid. 


3748 

In  the  matter  of  the  appeal  of  Clarence  Edwards  v.  the  board  of  education  of 
union   free  school   district  no.    i,  town  of   Sharon,   Schoharie  county. 

A  written  contract  to  teach  for  a  period  of  forty  weeks,  during  which  time  a  holiday 
vacation  of  one  week  occurred,  would  not  entitle  a  teacher  to  pay  for  that  week,  when 
it  was  known  by  the  teacher  to  be  a  custom  observed  in  the  district  to  require  teachers 
to  teach  forty  weeks  exclusive  of  such  holiday  week. 

Decided  January  9,   1888 

Draper,  Superintendent 

This  appeal  is  brought  by  a  person  who  was  employed  by  the  respondent 
to  teach,  to  recover  a  balance  of  wages  claimed  to  be  due  him.  The  appellant 
alleges  that  in  May  1887,  he  was  employed  under  a  written  contract,  signed  by 
the  board  of  education,  to  teach  the  school  in  said  district  for  the  term  of  forty 
weeks,  to  con:mence  in  September  1887,  the  exact  time  of  opening  the  school  to 
be  designated  by  the  board  of  education,  for  the  sum  of  $iocK);  that  school,  in 
fact,  was  commenced  September  19,  1887,  and  the  appellant  continued  to  teach 
until  June  22,  1888,  a  period  of  forty  weeks  including  institute  week  and  legal 
holidays  allowed  by  law ;  that  he  has  been  paid  $975  and  that  there  remains  due 
him  upon  said  contract  $25. 

The  respondents  answer  and  admit  the  contract  of  hiring,  and  that  the 
school  was  taught  by  appellant  as  alleged,  excepting  during  the  holiday  week, 
when  a  vacation  occurred  by  the  board's  direction ;  that  school  was  continued  for 
a  week  after  Tune  22d,  and  that  appellant  neglected  to  teach  that  week.     This 


1 194  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

Statement  reveals  the  only  question  in  the  case.  The  teacher  claims  that  he  is 
entitled  to  the  holiday  week  vacation,  as  part  of  the  forty  weeks,  and  this  the 
respondent  denies. 

It  appears  from  the  pleadings  that  it  is  customary  in  this  district,  and,  in 
fact,  it  is.  in  nearly  all  of  the  schools  in  the  State,  to  take  the  holiday  week 
vacation.  It  appears  that  soon  after  the  appellant  entered  upon  his  work,  he 
inquired,  or  at  least  was  informed  that  the  term  would  be  divided  as  usual,  so 
as  to  allow  the  vacation  of  one  week.  The  appellant  did  not  dissent.  All  other 
teachers  continued  to  teach  the  school  until  June  29,  18S8,  in  order  to  complete 
the  term. 

While  it  is  true  the  written  contract  does  not  specify  this  vacation,  I  must 
hold  that  it  was  unnecessary,  as  the  teacher  must  have  known  the  custom  which 
had  been  uniformly  observed  in  the  district. 

The  appeal  is,  therefore,  overruled. 


3791 

In  the  matter  of  the  appeal  of  Edwin  J.  Bennett  v.  school  district  no.  14,  towns 
of  Norfolk  and  Louisville,  county  of  St  Lawrence. 

A  person  was  employed  to  teach  for  a  term  of  sixteen  weeks  to  commence  at  a  stated  time. 
After  teaching  about  four  weeks,  the  schoolhouse  was  burned,  and  seven  weeks 
elapsed  before  a  new  one  was  erected.  In  the  meantime,  the  teacher  held  himself  in 
readiness  to  teach,  and  offered  to  do  so,  if  temporary  accommodations  should  be 
provided.  The  trustee  of  the  district  made  an  effort  to  secure  temporary  accommoda- 
tions, and  claims  he  was  unable  to  do  so.  The  teacher  finished  out  the  remainder  of 
the  term,  and  claimed  pay  for  sixteen  weeks  inclusive  of  seven  weeks  no  school  was 
taught  because  of  the  destruction  of  the  school  building.  The  trustee  declined  to  pay 
for  said  seven  weeks;  held,  that  the  loss  of  time  being  occasioned  through  no  fault  of 
the  teacher,  the  teacher  was  entitled  to  pay  the  same  as  if  scliool  were  taught. 

Decided  April  27,  1889 

Charles  M.  Hall,  attorney  for  respondent 

Draper,  Superintendent 

1  his  appeal  is  brought  by  the  appellant,  who  was  duly  employed  as  a  teacher 
m  district  no.  14,  towns  of  Norfolk  and  Louisville,  county  of  St  Lawrence,  on 
or  before  October  15,  1888,  for  a  term  of  sixteen  weeks,  to  commence  October 
15.  1888,  at  a  weekly  compensation  of  $7.  It  is  alleged  by  the  appellant,  and 
admitted  by  the  respondent,  that  on  Friday  night,  November  16,  1888,  the  school- 
house  was  burned,  together  with  the  school  furniture  and  books,  and  that  a  new 
schoolhouse  was  constructed  and  ready  for  occupancy  seven  weeks  thereafter 
In  the  meantime,  the  appellant  alleges  that  he  offered  to  teach  if  the  district 
would  provide  temporary  accommodations  which  he  very  much  desired,  and  the 
respondent  alleges  that  he  made  an  effort  to  do  so,  but  was  unable  to  secure  a 
suitable  place,  and  one  that  was  satisfactory  to  the  school  commissioner  and  the 
district. 


JUDICIAL  decisions:     teachers'  contracts  1195 

The  appellant  finished  out  a  term  of  sixteen  weeks,  including  the  seven 
weeks  that  no  school  was  held,  and,  at  the  expiration  thereof,  demanded  pay 
pursuant  to  the  terms  of  the  contract.  The  amount  has  not  been  paid.  The 
evidence  of  the  respondent  shows  that  an  effort  was  made  to  induce  the  teacher 
to  teach  additional  weeks  in  order  to  make  up  for  the  time  lost  which  was 
occasioned  by  the  fire,  and  to  pay  him  an  increased  rate  for  so  doing,  but  this 
offer  the  appellant  declined. 

The  respondent  rather  insinuates  that  the  appellant  may  have  been  the 
cause  of  the  loss  of  the  school  building  through  his  own  carelessness,  he  having 
been  the  last  person  in  attendance  at  the  schoolhouse,  but  there  is  no  sufficient 
evidence  upon  w^hich  I  can  find  any  such  fact. 

My  decision  is  that  the  appeal  is  sustained,  and  that  the  district  is  liable  to 
the  teacher  for  the  term  of  sixteen  weeks  at  $7  per  week,  according  to  the  terms 
of  the  written  contract,  and  the  trustee  of  said  district  is  hereby  ordered  and 
directed  to  issue  to  the  appellant  his  order  for  the  amount  so  found  due. 


3854 

In  the  matter  of  the  charges  against  Andrew  J.  Mulligan,  sole  trustee  of  school 

district  no.  4,  of  the  town  of  Greece,  county  of  Monroe. 
It  is  against  sound  policy  for  a  trustee  to  continue  an  unlicensed  teacher  in  school,  even 

though   she  teaches  without  compensation. 
Decided  January  18,  1890 

Draper,  Superintendent 

Charges  are  made  against  the  respondent  to  the  effect  that  he  has  employed 
one  Sarah  E.  Kinsella,  as  a  teacher  in  the  school  under  his  charge,  while  she 
has  no  certificate  authorizing  her  to  teach. 

Both  by  affidavit,  as  well  as  upon  a  personal  appearance  before  the  Super- 
intendent, the  respondent  has  admitted  the  charges  to  be  substantially  true.  In 
extenuation  he  has  urged  that  he  did  not  pay  the  unlicensed  teacher  anything  for 
her  services  and  this  seems  to  be  true.  The  fact  undoubtedly  is  that  the  trustee 
has  been  continuing  Miss  Kinsella  in  the  school  in  the  hope  that  she  would  in  tlie 
meantime  procure  a  teacher's  certificate.  In  this  course  he  is  clearly  in  error. 
The  district  is  credited  with  four  teachers'  quotas  in  the  last  annual  apportion- 
ment. There  are  but  three  licensed  teachers  employed.  It  follows,  therefore, 
that  one  quota  is  being  drawn  for  this  unlicensed  teacher;  moreover,  it  is  mani- 
festly against  sound  policy  for  a  trustee  to  continue  a  person  as  a  teacher  in  a 
school  under  his  charge  who  is  not  duly  licensed,  even  without  compensation. 
Again,  the  patrons  of  the  school  are  entitled,  as  a  right,  to  have  the  school  taught 
by  a  teacher  certified  by  a  public  officer,  and  in  the  manner  provided  by  statute, 
to  be  competent  for  that  service.  Upon  the  assurance  of  the  trustee  to  the 
Superintendent  at  the  time  of  the  hearing  that  he  would  at  once  discontinue  the 
services  of  Miss  Kinsella  and  employ  a  duly  certified  teacher,  the  proceedings 
were  dismissed. 


Iiy6  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

3670 

In  the  matter  of  the  appeal  of  Richard  H.  Ryder  v.  WilHam  H.  Warts,  Christian 
Quaritious  and  William  11.  Taylor,  members  of  the  board  of  education  of 
union  free  school  district  no.  3,  town  of  Flatlands,  county  of  Kings. 

A  board  of  education  can  not  enter  into  a  legal  contract  with  persons  to  teach  who  do  not 
possess  certilkates  authorizing  them  to  teach. 

An  agreement  between  a  school  commissioner  and  trustees  touching  tlie  issuance  of  certifi- 
cates to  persons  whom  the  trustees  desire  to  employ,  is  void. 

The  certificate  is  to  be  based  upon  moral  character  and  capability  alone. 

Decided  February  28,  iHiiS 

Draper,  Supcr'uitcndcnt 

The  parties  to  this  appeal  are  members  of  the  board  of  education  of  union 
free  school  district  no.  3,  of  the  town  of  Flatlands,  Kings  county.  The  board 
consists  of  live  members.  The  grounds  of  the  appeal  which  are  alleged,  are  that 
the  board  of  education  at  a  meeting  held  July  15,  1887,  adopted  a  resolution  to 
engage  as  teachers  for  the  ensuing  year,  among  others,  Mrs  Lizzie  A.  Ryder, 
Mrs  Anna  E.  Bogart,  and  Miss  Carrie  N.  Jansen,  subject  to  their  receiving  their 
licenses  to  teach  from  the  school  commissioner  of  the  commissioner  district  of 
which  said  school  district  formed  a  part ;  that  previous  to  said  meeting  the  school 
commissioner  had  agreed  to  license  said  persons  as  teachers,  and  send  their 
respective  certificates  to  the  clerk  of  said  board ;  that  the  respondents  conspired 
with  said  commissioner  and  he  was  induced  to  withhold  his  certificates  and  refuse 
to  license  said  persons  as  teachers. 

The  respondents  admit  the  adoption  of  said  resolution  to  employ  said 
teachers  and  aver  that  the  said  persons  so  named  as  teachers  in  the  resolution 
failed  to  pass  the  examination  on  two  occasions,  and  that,  consequently,  other 
teachers  were  employed  in  their  stead. 

Although  the  appellant,  who  is  not  necessarily  an  aggrieved  party  asks  as 
relief  that  the  school  commissioner  be  required  to  issue  said  licenses  to  Mrs 
Lizzie  A.  Ryder,  Mrs  Anna  E.  Bogart  and  Miss  Carrie  N.  Jansen  he  has  not 
made  the  said  commissioner  a  party  or  caused  him  to  be  served  with  a  copy  of 
this  appeal.  The  commissioner  has  therefore  had  no  opportunity  to  be  heard  in 
the  matter. 

The  board  of  education  could  not  enter  into  a  legal  contract  with  persons 
to  teach  who  were  not  duly  licensed  and  the  possessors  of  certificates  authorizing 
them  to  teach.  It  is  not  alleged  that  the  persons  named  for  teachers  in  the  reso- 
lutions adopted  by  the  board  July  15,  1887,  were  qualified  as  aforesaid,  or  that 
subsequent  thereto  they  secured  the  necessary  certificates. 

The  action  of  a  commissioner  in  granting  licenses  can  not  be  made  dependent 
upon  the  wishes  of  a  school  district,  and  there  is  no  proof  that  the  school  com- 
missioner was  so  influenced.  The  aim  of  the  examinations  by  school  commis- 
sioners would  be  lost  by  any  such  arrangement,  and  such  an  unjust,  unfair  and 
illegal  agreement  would  not  be  upheld  by  the  Department.  If  it  is  claimed  that 
the  ladies  mentioned  attained  the  standard  required  in  the  commissioner's  exam- 


JUDICIAL  decisions:     teachers'  contracts  1197 

ination  for  licenses,  and  the  school  commissioner  collusively  refused  to  grant 
them,  an  appeal  should  have  been  taken  by  the  aggrieved  persons  themselves 
from  the  action  of  the  commissioner  in  refusing  to  grant  certificates,  and  service 
of  the  paper  should  have  been  made  upon  that  ofiicer. 
The  appeal  is  dismissed. 


4744 

In  the  matter  of  the  appeal  of  Julia  Moynihan  v.  George  P.helps  as  trustee  of 
school  district  no.  17,  Darien,  Genesee  county. 

Where  a  teacher,  under  an  alleged  contract  of  employment  to  teach  the  school  in  a  district, 
was  not  permitted  by  the  trustee  to  enter  upon  her  duties  of  teacher;  held,  that  the 
alleged  contract  not  having  been  fulfilled,  the  claim  of  the  teacher  would  be  for  dam- 
ages upon  a  breach  of  contract;  that  it  is  not  the  policy  of  the  law  to  require  a  State 
Superintendent  of  Public  Instruction  to  measure  damages  for  a  breach  of  contract 
when  the  extent  thereof  is  altogether  indefinite  and  uncertain.  The  remedy  of  the 
teacher  is  by  an  action  in  the  courts. 

Decided  February  17,   1899 

Tyrrell  &  Ballard,  attorneys  for  appellant 
Watson  &  Watson,  attorneys  for  respondent 

Skinner,  Superintendent 

This  is  an  appeal  from  the  action  of  George  Phelps  as  trustee  of  school 
district  17,  Darien,  Genesee  county,  in  refusing  to  permit  the  appellant,  Julia 
Moynihan,  to  enter  upon  the  performance  or  to  perform,  on  her  part,  a  certain 
contract  made  by  her  to  teach  the  school  in  said  district  for  the  term  of  forty 
consecutive  weeks,  commencing  September  6,  1898. 

The  appellant  alleges  that  on  July  28,  1898,  she  entered  into  a  contract,  a 
copy  of  which  is  annexed  to  her  appeal,  with  James  J.  McManis  as  sole  trustee 
of  school  district  17,  Darien,  Genesee  county,  to  teach  the  public  school  in  such 
district  for  the  term  of  forty  consecutive  weeks,  commencing  September  6,  1898, 
at  a  weekly  compensation  of  $11.25,  payable  at  the  end  of  each  thirty  days  during 
the  term  of  such  employment;  that  Trustee  McManis  contracted  to  employ  the 
appellant  as  teacher  for  said  period,  at  the  aforesaid  rate  of  compensation,  payable 
at  the  times  above  stated,  and  reserving  the  right  to  said  trustee  to  provide  for  a 
vacation  or  vacations  of  not  more  than  one  week  in  the  aggregate  during  such 
term  of  employment;  that  on  September  6,  1898,  the  appellant  went  to  the  resi- 
dence of  George  Phelps,  the  then  acting  trustee  of  such  district,  and  the  successor 
in  office  of  Trustee  McManis,  and  asked  Phelps  for  the  key  to  the  schoolhouse  of 
the  district,  informing  him  that  she  was  ready  to  commence  teaching  the  school 
therein,  in  accordance  with  the  terms  of  said  contract;  that  said  Phelps  refused  to 
deliver  to  the  appellant  such  key,  and  informed  her  that  her  services  as  teacher 
in  the  schools  in  the  district,  were  not  needed,  and  refused  to  allow  her  to  com- 
mence to  teach  such  school,  according  to  the  terms  of  such  contract ;  that  she  has 
ever  since  been  denied  admission  by  said  Phelps  into  such  schoolhouse,  and  by 


1 198  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

reason  thereof  she  has  been  unable  to  teach  in  the  school  in  said  district,  or  to 
perform  her  part  of  said  contract. 

Annexed  to  the  appeal  herein  is  an  affidavit  of  James  J.  McManis,  in  which 
he  states  that  he  was  the  trustee  of  said  district  for  the  school  year  1897-98, 
and  as  such  trustee,  entered  into  the  contract  with  the  appellant,  as  stated  in  her 
appeal ;  that  a  copy  of  the  contract  is  contained  in  the  school  register  of  the  dis- 
trict, and  that  said  Phelps,  who  was  elected  trustee  of  said  district  at  the  annual 
school  meeting  held  therein  on  the  first  Tuesday  of  August  1898,  was  informed 
of  such  contract  after  his  election  as  trustee,  and  that  before  the  election  of 
Phelps,  said  contract  was  read  at  such  annual  school  meeting. 

The  respondent  Phelps  has  answered  the  appeal  herein,  and  states  among 
other  things,  that  the  appellant  taught  the  school  in  said  district  during  the 
school  year  of  1897-98,  under  a  contract  made  by  her  with  said  McManis,  the 
then  acting  trustee  of  the  district,  and  that  shortly  prior  to  the  expiration  of  his 
term  of  office  as  trustee,  said  McManis  reengaged  the  appellant  to  teach  the 
school  for  40  consecutive  weeks,  commencing  September  6,  1898,  at  a  weekly 
compensation  of  $11.25;  that  shortly  after  a  special  meeting  of  the  district,  held 
.September  2,  1898,  at  which  a  resolution  was  adopted  disapproving  the  said 
contract  made  with  the  appellant  to  teach  the  school  in  the  school  year  of  1898-99, 
he  left  at  the  home  of  the  appellant  a  copy  of  the  resolution  adopted  at  said 
meeting,  with  notice  to  her  that  she  would  not  be  permitted  to  teach  under  the 
said  alleged  contract. 

The  pleadings  filed  herein,  in  addition  to  the  appeal  and  answer,  are,  a 
reply,  rejoinder,  rebutter  and  surrebutter  and,  with  the  papers  and  affidavits 
annexed,  are  exceedingly  voluminous.  Only  a  small  portion  of  their  contents  arc 
relevant  to  the  contract  of  the  appellant  and  Trustee  McManis  of  July  28,  1898. 

It  is  admitted  that  the  contract,  as  alleged  by  the  appellant,  was  made,  and 
that  the  appellant  herein  was  not  permitted  by  Trustee  Phelps,  either  to  enter 
upon  her  employment  to  teach  or  to  teach  the  school  in  district  17,  Darien. 
Genesee  county,  under  said  contract  made  by  her  and  McManis,  as  trustee  of 
the  district,  on  July  26,  1898. 

I  am  of  the  opinion,  however,  that  the  appeal  herein  must  be  dismissed. 
The  appellant  herein,  never  having  been  permitted  to  enter  upon  the  performance. 
on  her  part,  of  the  contract,  or  to  fulfil  the  contract,  and  such  contract  never 
having  been  fulfilled  by  Trustee  Phelps,  the  claim  of  the  appellant  would  be  for 
damages  for  the  breach  of  the  contract. 

This  Department  has  uniformly  held  that  it  is  not  the  policy  of  the  law  to 
require  the  State  Department  of  Public  Instruction  to  measure  the  damages  for 
a  breach  of  contract  when  the  extent  thereof  is  altogether  indefinite  and  uncertain. 
The  remedy  is  to  be  sought  by  an  action  in  the  court.  (See  decision  3768  made 
by  Superintendent  Draper,  March  23,  1889,  in  Tillson  v.  McNeeley,  trustee; 
and  decision  3797  by  Superintendent  Draper,  July  29,  1889,  in  Hall  v.  Booth 
and  others ;  and  decision  4784  made  by  me  December  30,  1898,  in  Fitts  v.  Sweeny, 
trustee.) 

The  appeal  herein  is  dismissed. 


JUDICIAL  decisions:     teachers'  contracts  1199 

3716 

In  the  matter  of  the  appeal  of  Henry  F.  Albro  v.  Daniel  L.  DeMott,  trustee  of 
school   district  no.    14,   town  of   Hempstead,   Queens   county. 

When  a  person  who  claims  to  have  been  employed  as  a  teacher,  has  never  entered  upon 
employment,  it  will  be  necessary  for  him  to  show  clearly  and  distinctly  and  by  a 
preponderance  of  proof  that  he  was  actually  employed  and  accepted  such  employment. 

The  appeal  being  in  the  nature  of  an  action  for  damages  for  a  breach  of  contract  might 
more  properly  have  been  brought  in  the  courts. 

Decided  October  4,  1888 

Draper,  Superintendent 

This  is  an  appeal  by  Mr  Albro  against  the  action  of  the  trustee  of  school 
district  no.  14,  of  the  town  of  Hempstead,  Queens  county,  in  refusing  to  pay  him 
wages  as  a  teacher  in  said  district.  He  claims  that  he  was  employed  by  the 
trustee  to  teach  a  branch  school  in  the  district,  to  commence  in  January  1888. 

The  trustee  denies  the  employment,  although  he  admits  that  there  were 
numerous  conversations  between  himself  and  the  appellant  relative  to  employ- 
ment, and  that  he  also  conversed  with  two  or  three  other  parties  touching  the 
employment  of  the  appellant.  It  seems  that  a  new  school  building  had  recently 
been  erected  and  was  nearing  completion,  but  that  it  was  not  furnished,  and  that 
no  funds  had  been  provided  for  procuring  furniture.  There  seems  to  have  been 
talk  about  furnishing  the  building  by  voluntary  subscription,  payment  of  which 
was  long  delayed.  The  trustee  admits  that  he  contemplated  employing  the  appel- 
lant, but  had  no  intention  of  doing  so  until  the  building  should  be  in  readiness 
for  occupancy,  and  denies  that  he  did  do  so.  The  appellant  never  entered  upon 
employment,  if  there  was  any,  although  he  maintains  that  he  held  himself  in 
readiness  to  do  so,  and  made  application  from  time  to  time  for  permission  to 
open  school.  The  only  evidence  beyond  that  of  the  immediate  parties  to  the 
controversy  is  by  two  newspaper  reporters,  who  swear  that  they  ferreted  out  the 
fact  that  Albro  had  been  employed,  and  published  it  in  their  newspapers,  and  of 
one  other  person,  who,  in  conversation  with  the  trustee,  says  he  admitted  the 
employment. 

The  case  has  been  referred  to  the  school  commissioner  to  take  the  testimony 
of  the  parties  and  witnesses,  and  I  have  read  the  testimony  taken  with  care.  It 
seems  to  me  that  the  testimony,  outside  of  that  given  by  the  appellant  and  the 
respondent,  respectively,  is  not  entitled  to  much  weight.  In  view  of  the  fact 
that  the  appellant  never  entered  upon  employment,  it  is  necessary  for  him  to 
show  that  he  was  actually  employed  and  accepted  such  employment,  clearly  and 
distinctly,  and  by  such  a  preponderance  of  proof  as  would  leave  no  doubt  as  to 
what  the  fact  was.  He  does  not  do  this  to  my  satisfaction.  Furthermore,  it  may 
be  said  that,  inasmuch  as  he  never  entered  upon  the  employment,  his  appeal  is  in 
the  nature  of  an  action  for  damages  for  the  breach  of  a  contract.  Such  an  action 
might  more  properly  have  been  brought  in  the  courts  than  brought  here  in  the 
nature  of  an  appeal.  But  regardless  of  that  fact,  there  is  no  testimony  whatever 
in  the  case  upon  which  I  could  intelligently  measure  the  damages  which  the 
appellant  may  have  suffered. 


I200  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

I  am,  therefore,  compelled  to  dismiss  the  appeal.  It  is  proper  for  me  to 
add,  however,  that  I  do  so  without  prejudice  to  the  right  of  the  appellant  to 
bring  an  action  in  the  courts  of  his  locality. 


4724 

In  the  matter  of  the  appeal  of  Henry  J.  Fitts  v.  Amos  Severy  as  trustee  of 
school  district  no.  7,  Dryden,  Tompkins  county. 

A  teacher  who  has  taught  a  public  school  for  two  years  and  who  claims  he  was  subsequently 
reemployed  for  another  school  year,  but  who  did  not  enter  upon  the  duties  of  teacher 
under  the  alleged  reemployment,  not  being  allowed  to  perform  such  alleged  contract 
by  the  trustee  then  in  office,  the  alleged  contract  never  having  been  fulfilled,  the  teacher's 
claim  would  be  for  damages  for  a  breach  of  the  contract.  The  appeal  of  such  teacher 
can  not  be  entertained,  as  his  damages,  if  any,  are  unliquidated,  and  it  is  not  for  the 
State  Superintendent  of  Public  Instruction  to  measure  them.  The  remedy  of  the 
teacher  is  to  be  sought  by  an  action  in  the  courts. 

Decided  December  30,  1898 

Skinner,  Superintendent 

This  is  an  appeal  from  the  action  and  decision  of  Amos  Severy  as  trustee 
of  school  district  7,  Dryden,  Tompkins  county,  in  refusing  to  permit  the  appellant, 
Fitts,  to  perform  a  certain  contract  made  by  him  to  teach  the  school  in  said 
district  for  the  period  of  forty  weeks  to  commence  September  5,  1898. 

The  appellant  alleges  as  the  grounds  for  bringing  his  appeal  that  the  action 
of  said  trustee  was  unlawful ;  that  there  was  no  grounds  authorizing  or  justifying 
said  action ;  that  the  appellant,  a  duly  licensed  teacher,  had  entered  into  a  written 
contract  of  employment  with  G.  W.  Gibson,  a  duly  elected  trustee  of  said  district, 
whose  term  expired  the  2d  day  of  August  1898,  such  contract  having  been  made 
June  30,  1898,  and  which  contract  was  in  force  at  the  time  of  the  refusal  of  said 
trustee  Severy  to  allow  the  appellant  to  perform  such  service. 

Trustee  Severy  has  answered  the  appeal,  and  to  such  answer  appellant  has 
replied. 

It  appears  that  during  the  school  years  1896-97  and  1897-98,  one  G.  W. 
Gibson  was  the  trustee  of  said  district  7,  and  during  such  years  the  appellant 
herein  taught  the  school  in  such  district;  that  annexed  to  the  appeal  herein  is  a 
contract  alleged  to  have  been  made  June  30,  1898,  between  the  appellant  and 
said  Gibson  as  such  trustee,  by  which  the  appellant  was  to  teach  the  school  therein 
for  the  term  of  forty  consecutive  weeks,  commencing  September  5,  1898,  at  a 
weekly  compensation  of  $7,  payable  at  the  end  of  each  thirty  days  during  the 
term  of  such  employment;  that  Gibson  contracted  to  employ  the  appellant  as 
teacher  for  said  period  at  such  rate  of  compensation,  payable  at  the  times  stated 
therein,  reserving  the  right  to  provide  for  a  vacation  or  vacations  of  not  more 
than  three  weeks  in  the  aggregate  during  such  term ;  that  there  is  also  annexed 
to  the  appeal  the  affidavit  of  Gibson  in  which  he  states  that  he,  as  trustee  of  the 


JUDICIAL   decisions:       teachers'    contracts  I20I 

district,  entered  into  the  contract  with  the  appellant  as  annexed  to  the  appeal,  and 
that  at  the  annual  meeting  held  August  2,  1898,  in  said  district,  said  Severy 
having  been  elected  trustee  of  the  district,  he  notified  Severy,  in  writing,  of  such 
employment  of  the  appellant  herein  as  teacher. 

The  respondent,  Severy,  alleges  in  his  answer  that  the  patrons  of  the  school 
were  dissatisfied  with  the  appellant  as  a  teacher  and  desired  that  the  respondent 
employ  some  other  person  than  the  appellant  to  teach  the  school  in  the  district. 

It  is  admitted  that  the  appellant  herein  was  not  allowed  to  teach,  nor  did 
he  enter  upon  the  duties  of  a  teacher  in  the  school  in  district  7,  Dryden,  Tomp- 
kins county,  under  the  contract  alleged  to  have  been  made  by  him  and  ■Sir  Gibson, 
as  trustee  of  said  district  for  the  school  year  of  1897-98,  June  30,  1898. 

The  appeal  herein  must  be  dismissed. 

The  alleged  contract  not  having  been  fulfilled,  the  claim  of  the  appellant 
would  be  for  damages  upon  a  breach  of  contract.  This  Department  has  held  that 
it  is  not  the  policy  of  the  law  to  require  the  State  Superintendent  of  Public 
Instruction  to  measure  damages  for  a  breach  of  contract  when  the  extent  thereof 
is  altogether  indefinite  and  uncertain.  The  remedy  is  to  be  sought  by  an  action  in 
court.  (See  decision  3768  made  by  Superintendent  Draper,  March  23,  1889,  in 
Tillson  v.  McNeeley,  trustee;  and  decision  3796,  also  made  by  Superintendent 
Draper,  July  29,  1889,  in  the  appeal  of  Hall  v.  Booth  and  others.) 

The  appeal  herein  is  dismissed. 


4294 

In  the  matter  of  the  apj^cal  of  Analusia  Barnard  v.  the  board  of  education  of 
union  free  school  district  no.  3,  town  of  Mount  Pleasant,  Westchester 
county. 

Boards  of  education  of  union  free  school  districts,  under  the  school  law  of  the  State  in  force 
prior  to  June  30,  1894.  have  power  to  remove  teachers  employed  by  them  for  neglect  of 
duty  for  immoral  conduct;  but  such  teachers  should  have  notice  of  the  charges  pre- 
ferred against  them  and  an  opportunity  to  be  heard  thereon,  especially  when  such 
charges  affect  the  moral  character  or  responsibility  of  the  teacher.  In  prescribing  the 
rules  and  regulations  concerning  the  order  and  discipline  of  the  schools  under  their 
charge,  said  boards  must  act  as  a  board,  and  copies  of  the  rules  and  regulations  should 
be  given  to  the  teachers,  and  individual  members  of  the  board  have  no  authority  to  make 
rules  or  to  give  orders  to  teachers. 

The  method  of  imparting  instruction  is  given,  under  the  school  law,  to  teachers,  and  a 
visiting  committee  of  a  board  in  visiting  a  school  has  no  authority  to  interfere  with 
the  methods  of  instruction  pursued  by  the  teachers,  nor  to  give  orders  to  the  teacher 
nor  to  interfere  in  the  recitations  or  assume  to  conduct  such  recitations,  nor  to  conduct 
examinations  on  their  own  account,  without  advising  with  the  teacher.  No  members 
of  such  visiting  committee  of  the  board  should  reprimand  or  criticise  the  teacher  in 
the  presence  of  the  school  or  any  pupil  attending  the  same,  as  such  a  course  will  b^ 


J202  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

in  the  highest  degree  detrimental  to  the  best  educational  hitcrests  of  the  same.  Where 
a  teacher  is  dismissed  by  a  board  during  the  term  of  employment  without  an  oppor- 
tunity to  be  heard  and  without  sufficient  cause,  such  teacher  is  entitled  to  receive  pay 
for  the  balance  of  his  or  her  term  of  employment,  and  such  dismissal  is  unlawful, 
invalid  and  void. 
Decided  November  20,  1894 

James  B.  Lockwood,  attorney  for  appellant 
L.  T.  Yale,  attorney  for  respondents 

Crooker,  Superintendent 

The  appellant  herein  appeals  from  the  action  of  the  respondents  herein,  taken 
on  December  29,  1893,  in  dismissing  her  from  her  position  as  a  teacher  in  the 
union  free  school  in  district  no.  3,  town  of  Mount  Pleasant,  Westchester  county, 
without  sufficient  cause  and  before  the  expiration  of  her  term  of  employment. 
An  answer  has  been  filed  to  the  appeal,  a  reply  to  the  answer,  a  rejoinder  to  the 
reply;  and  also  additional  proofs  on  the  part  of  the  appellant.  From  the  papers 
filed  it  appears : 

That  the  appellant,  from  an  early  age  and  until  the  summer  of  1887,  attended 
the  public  schools  in  the  city  of  New  York,  when  she  graduated  at  school  No.  57 
in  said  city;  that  in  September  1887,  she  entered  the  normal  college  in  the  city  of 
Xew  York,  where  she  remained  until  the  close  of  school  in  the  summer  of  1890; 
that  on  account  of  the  removal  of  her  family  to  Yonkers  she  entered  the  senior 
class  of  the  Yonkers  High  School  in  September  1890,  and  graduated  from  said 
high  school  in  June  1891 ;  that  from  September  1891,  until  May  1892,  she  taught 
private  pupils  in  the  city  of  Yonkers.  That  during  the  school  year  1892,  begin- 
ning in  the  fall,  she  taught  a  graded  school  of  third  year  pupils  in  Hackensack, 
New  Jersey,  to  the  approval  and  satisfaction  of  the  principal  and  board  of 
trustees  of  said  school,  and  resigned  such  situation  at  the  end  of  the  school  year 
on  account  of  the  climate  at  Hackensack ;  that  upon  her  examination  by  a  board 
of  examiners  at  Hackensack  she  received  the  following  credits  in  the  several 
subjects  m  which  she  was  examined:  Orthography,  93;  reading,  84;  writing,  95; 
geography.  S; :  practical  arithmetic,  81  ;  English  grammar,  75  ;  arrangement  of 
examination  papers,  95 ;  and  theory  and  practice  of  teaching,  95. 

That  m  August  1893,  the  appellant  applied  through  a  teachers"  agency  in 
New  York  City  for  employment  as  a  teacher  in  the  schools  of  this  State,  and 
having  been  put  in  communication  with  the  respondent  herein,  she  forwarded  to 
the  respondent  her  testimonials  as  a  teacher,  and  subsequently  had,  at  said 
teachers'  agency,  an  interview  with  Mr  Law  and  Mrs  Sherwood,  two  of  the 
respondents;  that  subsequently  she  received  a  letter,  dated  at  Pocantico  Hills, 
August  21,  1893,  addressed  to  her,  signed  by  Mr  Law,  by  which  she  was  informed 
that  the  board,  at  a  meeting  held  on  the  evening  of  said  date,  had  decided  to 
engage  the  appellant  as  teacher  in  the  union  free  school  at  said  place  for  the 
coming  year  from  September  1893,  to  and  including  June  1894,  at  a  salary  of 
3500;  t\m  5ajrl  .letter  stated  that  the  trustees  would  want  the  school  to  open  the 


JUDICIAL  decisions:     teachers'  contracts  1203 

first  week  in  September;  that  the  appellant  accepted  the  terms  of  employment 
as  stated  in  the  said  letter  of  Mr  Law,  and  commenced  teaching  the  school  in 
the  said  district  under  the  said  contract  on  September  5,  1893;  that  during  the 
time  the  appellant  so  taught  in  said  school  she  received  her  pay  for  said  services, 
at  $50  per  month,  by  orders  signed  by  the  clerk  of  said  board  of  education, 
to  wit,  for  the  months  of  September,  October,  November  and  December  1893; 
that  said  school  is  an  ordinary  country  school,  consisting  of  pupils  of  the  average 
age  of  about  11  years,  and  the  average  attendance  was  about  forty  in  number; 
that  the  appellant  had  communicated  to  her  verbally  by  one  or  more  of  the  board 
of  education  of  said  district  some  of  the  rules  of  said  board. 

She  was  not  furnished  with  any  copy  of  such  rules  prior  to  the  month  of 
November  1893;  that  the  only  members  of  said  board  who  visited  said  school 
while  the  appellant  taught  therein  were  Mrs  Rufus  T.  Weeks  and  Mrs  Elizabeth 
Sherwood;  that  said  two  ladies,  prior  to  November  1893,  visited  said  school  at 
rare  intervals,  but  after  said  first  of  November  their  visits  began  to  increase  from 
once  in  a  week  to  three  times  a  week,  such  visits  increasing  in  length  from  one 
hour  to  an  entire  school  day ;  that  sometimes  Mrs  Weeks  visited  the  school  alone, 
and  at  other  times  she  was  accompanied  by  Mrs  Sherwood ;  that  at  the  first  visits 
nothing  unusual  took  place,  but  after  the  said  ist  of  November  Mrs  Weeks 
assumed  to  exercise  supervisory  powers  over  the  methods  of  teaching  by  appel- 
lant, and  on  different  occasions  conducted  recitations  of  various  classes ;  that  on 
different  occasions  Mrs  Weeks  criticised  the  methods  of  appellant  in  the  presence 
of  the  school  and  assumed  to  direct  the  work  of  the  appellant  in  the  presence  of 
the  pupils ;  that  on  one  occasion  she  took  a  book  from  the  hands  of  the  appellant 
with  which  the  appellant  was  conducting  a  recitation  and  proceeded  with  the  same 
to  hear  the  recitation;  that  Airs  Weeks  also  interfered  with  the  arrangement 
of  the  appellant  as  to  the  seating  of  the  pupils,  and  directed  appellant  not  to 
reprimand  a  pupil  in  the  presence  of  another;  that  in  the  month  of  December 
Mrs  Weeks  took  possession  of  the  school  and  subjected  the  pupils  to  a  two  days' 
examination,  refusing  to  allow  the  appellant  to  have  any  control  over  said  exam- 
ination, and  that  appellant  had  never  seen  the  examination  papers  which  were 
given  to  the  pupils  or  the  answers  thereto;  that  on  December  22,  1893,  said 
school  was  closed  for  the  usual  holiday  vacation;  that  on  said  day,  in  a  conver- 
sation had  by  appellant,  at  the  schoolhouse,  with  the  clerk  of  the  board  or  district, 
said  clerk  referred  to  some  dissatisfaction  with  the  conduct  of  said  school  by  the 
appellant,  and  suggested  to  the  appellant  that  she  tender  her  resignation,  which 
appellant  declined  to  do;  that  the  appellant,  after  the  closing  of  said  school  on 
December  22,  1893,  returned  to  her  home  in  Yonkers  to  remain  until  the  opening 
of  the  said  school  in  January  1894;  that  on  December  30,  1893,  the  appellant 
received  by  mail,  at  Yonkers,  a  letter  dated  at  Tarrytown,  December  30,  1893, 
signed  by  one  William  H.  Crooks,  district  clerk,  containing  an  extract  from  the 
proceedings  of  a  special  meeting  of  the  board  of  education  of  union  free  school 
district  no.  3,  town  of  Mount  Pleasant,  held  on  Friday  evening,  December  29, 
1893,  reciting  that.  Whereas,  The  appellant,  from  the  observation  of  the  board 


1204  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

and  the  result  of  recent  examination  of  the  school,  was  a  failure  as  a  teacher; 
that,  Whereas,  Appellant  in  many  respects  and  instances  neglected  her  duty  as 
a  teacher  and  violated  express  instructions  of  the  board;  that,  Whereas,  Appel- 
lant's deficiencies  in  moral  responsibility  are  such  that  it  is  impossible  for  he-r 
to  exert  a  good  influence  over  the  children;  and,  Whereas,  The  duty  of  the 
board  to  the  district  and  to  the  children  will  not  allow  us  to  continue  them 
longer  under  the  care  of  one  who  is  of  no  benefit  to  them;  therefore,  be  it 
Resolved,  That  Miss  Analusia  Barnard  is  hereby  dismissed  from  the  employ  of 
said  board,  and  that  the  clerk  be  instructed  to  mail  a  copy  of  the  resolutions  by 
special  delivery  to  her;  that  after  the  receipt  of  said  letter  the  appellant  notified 
the  respondents  that  she  was  ready  to  continue  her  services  as  teacher  in  said 
school,  and  tendered  her  services  to  said  board  under  the  contract  entered  into 
by  respondent  in  that  regard  for  the  balance  of  the  school  year ;  but  the  respond- 
ents refused  to  allow  the  appellant  to  reopen  said  school  in  January  1894,  or 
to  continue  to  teach  in  said  school,  but,  on  the  contrary,  entered  into  a  contract 
with  another  person  as  teacher,  and  who  taught  said  school  for  the  balance  of 
said  school  year. 

It  also  appears  that  Mrs  Weeks  and  Mrs  Sherwood  were  appointed  by  the 
respondents  as  a  committee  to  visit  the  school  in  said  district,  and  as  such  com- 
mittee made  a  report  in  writing  to  the  board,  and  that  upon  such  report  the 
board  acted  in  the  dismissal  of  the  appellant  as  teacher;  that  no  charges  were 
preferred  against  the  appellant  prior  to  her  dismissal,  nor  was  any  copy  of  any 
charges  served  upon  her,  and  no  opportunity  was  offered  her  of  being  heard 
before  said  board  on  the  subject  of  her  dismissal,  or  of  answering  any  charges 
against  her ;  that  the  said  report  of  the  visiting  committee  was  not  communicated 
to  her,  and  the  first  knowledge  she  had  of  such  report  was  the  copy  thereof 
attached  to  the  answer  of  the  respondent  to  the  appeal  herein,  a  copy  of  which 
answer  was  served  upon  her  on  February  2,  1894.  The  appeal  herein  has 
annexed  thereto  certain  papers  and  affidavits  in  support  thereof;  to  said  appeal 
an  answer  has  been  filed  to  which  are  annexed  certain  affidavits  with  a  copy 
of  the  report  of  the  visiting  committee  to  the  board  of  education  in  support  of 
such  answer.  A  reply  to  said  answer  has  also  been  filed  and  a  rejoinder  to  such 
reply  and  also  certain  other  proofs  on  the  part  of  the  appellant.  The  papers  are 
quite  voluminous  and  have  received  careful  examination  and  consideration. 

Under  subdivision  8  of  section  13,  title  9  of  the  Consolidated  School  law 
of  1864  and  the  amendments  thereto,  as  the  same  was  in  force  in  1893  and  up 
to  June  30,  1894.  boards  of  education  of  union  free  school  districts  had  power 
to  remove  teachers  at  any  time  for  neglect  of  duty  or  for  immoral  conduct.  Sub- 
division 9  of  section  47,  title  7  of  said  act  of  1864,  as  amended,  provided  "  nor 
shall  any  teacher  be  dismissed  in  the  course  of  a  term  of  employment,  except  for 
reasons  which,  if  appealed  to  the  Superintendent  of  Public  Instruction,  shall  be 
held  to  be  sufficient  cause  for  removal." 

The  courts  of  this  State  have  held,  and  this  Department  has  uniformly  held, 
that  the  trustees  of  school  districts  can  not  dismiss  a  teacher  during  a  term  of 
employment  without  cause  and  against  his  or  her  consent. 


JUDICIAL  decisions:     teachers'  contracts  1205 

In  a  decision  by  Superintendent  Van  Dyck  in  1858  in  an  appeal  by  a  teacher 
from  the  action  of  the  trustees  of  a  school  district  in  dismissing  such  teacher  dvtr- 
ing  a  term  of  employment,  he  says :  "  The  decision  as  to  the  propriety  of  the 
act  and  the  power  to  perform  it  rest  with  the  trustees.  For  an  abuse  of  their 
discretion  or  an  unwarranted  exercise  of  their  authority,  they  are,  of  course, 
responsible.  On  the  complaint  of  the  party  sustaining  what  he  considers  a 
grievance  or  wrong,  the  issue  becomes  one  of  fact  and  it  devolves  upon  the  trus- 
tees to  show  by  evidence  that  the  teacher  lacked  the  character,  the  ability  or  the 
will  essential  to  a  proper  discharge  of  his  duties,  and  that  he  failed  thus  to  fulfil 
the  obviously  implied  conditions  of  his  contract.  The  mere  fact  of  dissatisfaction 
on  their  part,  or  that  of  the  inhabitants,  is  not  sufficient  to  justify  the  discharge 
of  a  teacher  employed  for  a  definite  period."  I  concur  fully  in  the  views 
expressed  by  Superintendent  Van  Dyck. 

The  grounds  alleged  by  the  respondent  for  the  dismissal  of  the  appellant  as 
teacher  are  substantially  as  follows:  (i)  failure  of  the  appellant  as  teacher; 
(2)  neglect  of  duty  and  violation  of  instructions  of  the  board;  (3)  deficiency  in 
moral  responsibility. 

Admitting,  for  the  sake  of  argument  only,  that  the  respondent  had  the  juris- 
diction and  authority  to  act  without  any  notice  whatever  to  the  appellant  of  the 
charges  preferred  against  her  or  any  opportunity  for  her  to  be  heard  before 
such  board  and  especially  relative  to  the  charge  of  "  deficiency  in  moral  respon- 
sibility," has  the  respondent  shown  by  evidence  that  the  appellant  was  a  failure 
as  teacher,  or  that  she  had  neglected  her  duty  as  such  teacher,  or  was  guilty  of 
a  violation  of  the  instructions  of  the  board,  or  was  deficient  in  moral  responsi- 
bility, or  of  all  or  either?  In  the  reply  of  the  appellant  to  the  answer  of  respond- 
ent to  her  appeal  herein,  she  has  met  specifically  every  one  of  the  charges  made 
against  her  and  controverts  the  statements  in  that  regard  in  said  answer;  gives 
a  full  statement  of  the  facts  of  matters  in  which  in  the  affidavits  on  the  part  of 
the  respondent  there  is  a  suppression  of  the  full  facts.  Take  the  following 
affidavits  in  said  answer,  namely:  One  Ferguson  swears  on  information,  of 
course,  from  his  son,  that  the  appellant  on  one  occasion  wiped  a  filthy  sponge 
over  the  face  of  his  son,  to  which  charge  the  api^ellant  states  that  the  boy  had 
been  detected  in  a  falsehood,  and  by  way  of  punishment  she  wiped  his  mouth 
with  a  moist,  but  not  filthy,  sponge.  One  Egan  swears  on  information,  of  course, 
from  his  children,  that  the  appellant  threw  his  boy  on  the  floor  and  struck  him  on 
the  head  with  a  ruler  and  used  unbecoming  language  toward  all  his  children,  and 
that  he  was  compelled  to  take  his  children  from  school,  to  which  charge  the 
appellant  swears  that  one  of  the  children  of  Egan  caused  a  disturbance  in 
the  school,  and  that  she  suspended  the  child  and  reported  the  matter  to  the 
board  and  the  board  requested  Egan  to  take  the  children  from  school  and 
thereupon  he  removed  all  of  his  children  from  school.  Delany,  one  of  the 
board,  swears  that  his  children  did  not  do  well  in  the  school,  to  which 
charge  the  appellant  replies  that  their  attendance  was  very  irregular.  The 
appellant  is  charged  with  being  late  in  coming  to  the  school,  to  which  appel- 


I2o6  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

lant  answers  that  it  was  not  until  about  October  first  that  she  was  notified 
that  she  was  expected  to  be  at  the  schoolhouse  at  8.30  in  the  morning,  and 
she  shows  that  after  such  notification,  by  her  own  affidavit  and  that  of  Mrs 
Ely,  her  landlady,  that  she  left  at  an  earlier  hour.  Mrs  Weeks  calls  atten- 
tion to  one  occasion  when  she  visited  the  school  and  the  appellant  did  not 
arrive  until  a  few  minutes  before  9,  which  statement  the  appellant  admits;  but 
states  that  on  that  day  she  was  sufiFering  with  a  sprained  foot;  the  appellant  is 
charged  with  a  failure  to  funiish  the  board  with  an  inventory  of  the  school  prop- 
erty, which  charge  the  appellant  denies ;  and  in  my  opinion  such  duty  was  not 
incumbent  upon  her  under  her  contract  to  teach  the  school,  but  was  a  duty  of 
the  board.  Tlie  appellant  is  charged  with  a  failure  to  give  sewing  lessons,  to 
which  she  answers  that  under  the  rules  of  the  board  she  was  allowed  to  use 
her  discretion  in  that  respect.  The  appellant  is  charged  with  dismissing  the 
school  on  the  last  half  day  of  the  school  term,  as  sustaining  the  allegation  against 
her  disregard  of  her  duties  and  the  instructions  of  the  board,  to  which  the  appel- 
lant answers,  that  it  being  the  last  day  of  the  term  the  ordinary  program  of  the 
school  had  been  omitted  to  enable  the  school  to  close  with  appropriate  exercises, 
the  preparations  for  which  had  been  going  on  for  some  time  without  any  attempt 
at  concealment.  To  the  charge  that  appellant  was  deficient  in  moral  responsi- 
bility, but  one  specification  is  made,  and  that  is  contained  in  the  affidavit  of  Mrs 
Weeks  relating  to  a  sewing  lesson.  It  appears  that  on  a  visit  to  the  school  by 
the  visiting  committee  the  appellant  was  asked  if  she  was  ready  to  give  a  sewing 
lesson,  and  the  appellant,  naturally  assuming  that  the  inquiry  was  as  to  whether 
she  was  then  prepared  to  devote  her  time  and  attention  to  the  exercise,  replied 
*'  yes,"  and  because  it  transpired  that  one  pupil  was  without  a  thimble  and  another 
without  a  needle,  etc.,  the  appellant  is  charged  and  convicted,  without  a  hearing, 
as  being  deficient  in  moral  responsibility,  or,  in  other  words,  as  not  being  of  good 
moral  character. 

The  appellant  produces  an  affidavit  of  Elias  Bryan,  who,  for  twelve  years, 
was  a  trustee  of  the  district,  and  of  other  persons,  patrons  of  the  school,  who 
testify  to  the  competency  of  the  appellant  as  a  teacher  and  her  success  in  the 
school. 

Without  going  further  into  this  part  of  the  appeal,  sufficient  answer  to  the 
charges  made  against  the  appellant  has  been  shown  to  warrant  the  assumption 
that,  had  the  appellant  been  informed  of  the  charges  against  her  and  been 
allowed  an  opportunity  to  be  heard  in  relation  thereto  before  said  board,  that 
said  board,  or  at  least  a  majority  thereof,  acting  fairly,  impartially  and  without 
prejudice  or  influence,  would  have  dismissed  the  charges,  and  not  the  teacher. 

The  ex  parte  action  of  the  respondent  in  the  dismissal  of  the  appellant  as 
teacher  is  not  approved.  It  is  not  claimed  that  the  appellant  was  a  fully  equipped 
teacher,  as  her  age  and  limited  experience  do  not  warrant  such  an  assumption ; 
but  it  is  clearly  established  in  proof  herein  that  she  was  a  young  lady  of  good 
education,  refinement  and  culture,  and  that  had  she  been  permitted  to  pursue 
her  methods  ot  instruction  in  the  school  in  said  district  without  interference  the 


JUDICIAL  decisions:     teachers'  contr.\cts  1207 

results  would  have  been  beneficial  to  the  pupils  attending  the  school.  Where 
charges  are  preferred  against  a  teacher,  and  affecting  especially  his  or  her  moral 
character  or  responsibility,  it  is  the  duty  of  the  trustees  or  boards  of  education 
to  give  the  teacher  notice  thereof  and  an  opportunity  to  be  heard  thereon.  The 
principles  of  equity,  justice  and  of  fairness  in  dealings  between  employers  and 
employees  require  this  and  forbid  that  anyone  should  be  condemned  without 
a  hearing,  and  summarily  discharged  from  employment  before  the  expiration  of 
the  term  of  employment,  and  branded  as  incompetent,  and  deficient  in  moral 
responsibility. 

The  respondent  herein  has  failed  to  show  that  the  appellant  failed  as  a 
teacher  in  the  school  in  said  school  district,  or  that  she  neglected  her  duty  as  such 
teacher  and  violated  the  express  instructions  of  said  respondent,  or  that  she  is 
deficient  in  moral  responsibility;  and  has  failed  to  show  sufficient  cause  for  the 
dismissal  of  the  appellant  as  such  teacher. 

Many  of  the  acts  and  proceedings  of  the  members  of  the  visiting  committee 
in  the  school  in  said  district,  taught  by  the  appellant,  as  established  in  the  proofs 
herein,  are  disapproved  as  being  wholly  unauthorized  under  the  school  law 
and  contrary  to  the  uniform  rulings  of  this  Department  in  relation  to  the  power 
and  duty  of  teachers  and  the  methods  adopted  by  them  of  imparting  instruction 
to  the  scholars  in  the  schools  taught  by  them.  Boards  of  education  of  union  free 
school  districts  are  bodies  corporate,  and  must  act  as  a  board  in  making  rules 
and  regulations  relative  to  the  discipline  and  government  of  the  schools  under 
their  charge;  in  prescribing  the  studies  to  be  taught;  in  grading  and  classifying 
the  schools  and  regulating  the  admission  of  pupils  therein,  and  in  the  general 
management  and  superintendence  of  said  schools.  The  rules  and  regulations  of 
the  board  relative  to  the  matters  upon  which,  under  the  school  law,  they  are 
authorized  to  act  should  be  adopted  by  the  board  at  sessions  of  the  board,  and 
copies  of  the  rules  and  regulations  should  be  given  to  the  teachers.  Individual 
members  of  the  board  have  no  authority  to  make  rules,  nor  to  give  orders  to 
teachers.  Under  the  school  law,  the  method  of  imparting  instruction  belongs 
exclusively  to  the  teachers.  The  teachers  assign  seats  to  the  scholars,  regulate  the 
order  in  which  recitations  of  classes,  pursuing  the  different  studies  taught  in  the 
school,  are  to  be  held,  and  conduct  such  recitations.  A  visiting  committee  of  a 
board,  visiting  a  school,  has  no  authority  to  interfere  with  the  methods  of  instruc- 
tion pursued  by  the  teachers,  nor  to  give  orders  to  the  teacher,  nor  to  interfere 
in  the  recitations  or  assume  to  conduct  such  recitations,  nor  to  conduct  examina- 
tions on  their  own  account,  without  advising  with  the  teachers,  nor  to  interfere 
with  the  seating  of  the  pupils.  Such  committee  should  visit  the  school  at  such 
times  as  it  shall  deem  necessary  and  proper,  and  watch  carefully  the  methods 
pursued  by  the  teacher,  the  government  and  discipline  of  the  school,  whether  or 
not  the  teacher  maintains  good  order  and  discipline,  etc.,  etc.,  and  report  the 
facts  relative  to  such  matters  to  the  board.  If,  in  the  opinion  of  the  board,  the 
condition  of  the  school  is  such  that,  in  its  judgment,  is  not  for  the  best  educa- 
tional interests  of  the  school,  then  it  should  call  the  attention  of  the  teachers 


I208  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

thereto.  No  members  of  a  visiting  committee  or  the  board  should  criticize  or 
reprimand  a  teacher  in  the  presence  of  the  school  or  any  pupil  attending  the  same, 
as  such  a  course  will  be  in  the  highest  degree  detrimental  to  the  best  educational 
interests  of  the  same. 

In  a  rejoinder  of  the  respondent,  filed  in  this  Department  on  April  4,  1894, 
to  the  reply  of  the  appellant,  it  is  alleged,  upon  information  and  belief,  that  at 
the  time  the  appellant  entered  into  the  contract  with  said  board  of  education  and 
at  the  time  appellant  entered  upon  the  alleged  performance  of  her  duties,  and  for 
several  weeks  thereafter,  the  appellant  was  without  due  license  or  certificate  of 
any  grade  qualifying  and  enabling  her  to  lawfully  teach  any  of  the  public  schools 
of  the  State.  The  foregoing  allegations  in  said  rejoinder  are  not  in  answer  to 
anything  contained  in  any  of  the  pleadings  on  the  part  of  the  appellant,  but  are 
set  up  by  respondent  as  grounds  for  sustaining  its  action  in  dismissing  the  appel- 
lant as  teacher  "  if  none  of  the  several  other  reasons  set  forth  in  this  proceeding 
were  valid  and  sufficient  grounds  for  the  dismissal  of  the  appeal,"  as  stated  in 
the  brief  of  the  attorney  of  respondent. 

From  the  proofs  herein,  it  appears  that  prior  to  September  1893,  the  appel- 
lant had  never  taught  a  common  school  in  this  State,  and  was  ignorant  of  the 
provisions  of  the  school  law  of  this  State  requiring  teachers  employed  in  said 
schools  to  have  a  diploma,  certificate  or  license  issued  by  competent  authority,  in 
order  to  receive  for  wages  any  of  the  public  money  raised  for  payment  of  such 
wages  of  teachers,  or  to  have  a  claim  against  the  district  in  which  such 
teachers  were  employed  to  teach,  for  their  wages  as  such  teacher.  That  after 
appellant  had  commenced  to  teach  she  was  informed  by  the  then  school  commis- 
sioner of  the  commissioner  district  in  which  such  school  is  situate,  that  it  was 
necessary  that  she  have  a  certificate ;  that  at  the  time  of  such  examinations  before 
said  commissioner  the  appellant  was  unable,  by  reason  of  her  illness,  to  attend 
such  examination;  that  subsequently  the  appellant  was  examined  by  the  school 
commissioner,  and  on  December  2,  1893,  received  from  him  a  third  grade  certifi- 
cate. It  clearly  appears  that  with  the  exception  of  a  few  weeks  after  the  appel- 
lant commenced  to  teach  the  school,  she  was  in  possession  of  a  license  or  certifi- 
cate as  a  qualified  teacher  under  the  school  law,  and  was  such  qualified  teacher 
at  the  time  of  her  dismissal  by  the  respondent  on  December  29,  1893.  A  con- 
tract of  employment  was  made  in  August  1893,  between  the  respondent  and 
appellant  for  teaching  the  school  in  said  district  to  commence  early  in  September 
1893.  for  the  school  year  to  consist  of  ten  months,  at  a  salary  of  $500,  payable 
m  ten  equal  payments  of  $50  at  the  end  of  each  month;  but  whether  under  said 
contract  the  respondents  as  individuals,  or  the  school  district  of  which  they  con- 
stitute the  board  of  education,  were  liable  it  is  not  necessary  in  this  appeal  to 
decide.  It  IS  clear,  however,  that  the  appellant,  having  subsequently  obtained  a 
license  and  certificate  which  made  her  a  qualified  teacher  under  the  school  law 
and  being  continued  by  the  respondent  in  the  school,  the  contract  made  in  August 
1893.  became  a  contract  between  the  appellant  and  the  district.  It  appears  that 
the  respondent,  at  the  end  of  each  month,  commencing  in  September  1893,  paid 


JUDICIAL  decisions:     teachers'  contracts  1209 

the  appellant  for  her  services  as  such  teacher,  by  orders  upon  the  fund  of  teachers' 
wages  in  the  hands  of  the  treasurer  of  the  district,  and  unless  the  appellant  was 
a  qualified  teacher  when  such  payments  were  made,  then  each  member  of  said 
board  of  education  was  guilty  of  a  misdemeanor  under  the  school  law. 

Each  member  of  said  board  of  education  had  knowledge  that  the  appellant 
was  not  licensed  when  they  employed  her.  It  is  a  well-settled  principle  of  law 
that  no  person  will  be  permitted  to  benefit  by  his  wrongful  acts.  The  position 
taken  by  the  respondent  in  the  rejoinder  is,  "  we  dismiss  the  appellant  for  cer- 
tain specified  reasons,  but  if  we  did  wrong,  in  any  event,  we  had  no  right  to 
employ  her  because  she  had  no  license  or  certificate  entitling  her  to  teach."  This 
contention  is  not  tenable.  The  counsel  for  the  respondent  contends  in  his  brief 
that  there  was  no  contract  made  with  appellant  except  by  letter  from  the  president 
of  the  board  of  education.  The  proofs  show  that  said  president  addressed  a  let- 
ter, under  date  of  August  21,  1893,  to  the  appellant,  stating  that  the  board  of 
trustees  had  decided  to  engage  her  as  teacher  in  the  school  in  the  district  for  the 
coming  year,  from  September  1893,  to  and  including  June  1894,  at  a  salary  of 
$500,  and  wished  to  have  the  school  open  on  the  first  week  in  September.  This 
letter  contained  a  written  ofifer  of  employment  on  the  part  of  the  board  of  educa- 
tion, and  the  appellant  unconditionally  accepted  the  offer  and  entered  upon  the 
employment,  and  hence  such  offer  and  its  acceptance  constituted  a  binding  con- 
tract under  the  school  law  in  force  at  the  time  of  the  aforesaid  contract,  and  the 
board  of  education  was  required  to  make  and  deliver  to  the  appellant,  or  cause 
to  be  made  and  delivered  to  her,  a  memorandum  in  writing,  signed  by  the  mem- 
bers of  the  board,  in  which  the  details  of  the  agreement  between  the  parties 
should  be  clearly  stated  and  definitely  set  forth;  but  the  board  failed  to  comply 
with  such  provision  of  law. 

The  counsel  for  the  respondent  also  contends  that  as  the  appellant  was  an 
infant  she  was  disqualified  by  reason  of  her  infancy  to  make  a  contract.  This 
contention  is  not  tenable,  for  the  courts  of  this  State  have  held  that  the  contracts 
of  infants  are  not  void,  but  voidable  at  their  election. 

I  find  and  decide,  That  in  1893  ^  contract  was  entered  into  between  the 
respondent  herein,  the  board  of  education  of  union  free  school  district  no.  3, 
town  of  Mount  Pleasant,  Westchester  county,  and  the  appellant  herein,  Analusia 
Barnard,  employing  the  said  appellant  as  a  teacher  in  said  school  for  the  term 
of  ten  months,  commencing  in  September  1893,  and  including  June  1894,  at  a 
salary  of  $500,  payable  monthly,  to  wit,  $50  at  the  end  of  each  calendar  month 
of  said  employment.  The  said  appellant  has  been  paid  for  services  under  said 
employment  for  the  months  of  September,  October,  November  and  December 
1893.  That  on  December  29,  1893,  while  said  appellant  was  a  qualified  teacher 
under  the  school  law  then  in  force,  and  in  and  during  the  course  of  a  term  of 
employment  as  such  teacher  in  said  school  district,  that  said  board  of  education, 
the  respondent  herein,  dismissed  and  discharged  her  as  such  teacher  in  said 
school  district.  That  the  reasons  alleged  by  said  board  of  education  for  the  dis- 
missal and  discharge  of  the  said  appellant  as  such  teacher  during  the  course  of  a 


I2I0  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

term  of  employment,  are  not  held  by  me  to  be  sufficient  cause  for  such  dismissal 
ant!  discharge,  and  the  action  of  said  board  of  education  in  such  dismissal  and 
discharge  of  the  appellant  without  sufficient  cause,  was  unlawful,  invalid  and  void. 
That  the  appellant  is  entitled  to  be  paid  by,  and  to  have  and  receive  from,  said 
school  district  the  sum  of  $300,  with  interest  upon  the  sum  of  $50  from  the  end 
of  each  of  the  months  of  January,  February,  March,  April,  May  and  June  1894, 
until  paid  by  said  district,  this  Department  having  uniformly  held  that  where  a 
teacher  is  not  paid  her  wages  as  often  as  at  the  end  of  each  calendar  month,  such 
teacher  is  entitled  to  be  paid  interest  upon  such  monthly  payments. 

The  appeal  herein  is  sustained. 

It  is  ordered.  That  the  board  of  education  of  union  free  school  district  no.  3, 
town  of  Mount  Pleasant,  Westchester  county,  without  unnecessary  delay,  pay  to 
the  appellant,  Analusia  Barnard,  out  of  any  funds  belonging  to  said  school  dis- 
trict, applicable  to  the  payment  of  teachers'  wages,  said  sum  of  $300,  with  interest 
upon  each  of  said  monthly  payments  of  $50  from  the  respective  dates  when  each 
of  said  monthly  payments  became  due  to  the  date  of  the  payment  thereof. 

It  is  further  ordered,  That  should  there  not  be  any  sum  of  money  belonging 
to  said  school  district  applicable  to  the  payment  of  teachers'  wages,  or  not  a  suffi- 
cient sum  of  money  of  said  fund  to  pay  to  the  said  Analusia  Barnard  said  sum 
of  $300,  with  interest,  as  aforesaid,  the  said  board  of  education  is  hereby 
ordered,  without  unnecessary  delay,  to  raise  by  tax  upon  the  real  and  personal 
property  within  said  school  district,  liable  to  assessment  and  taxation  for  school 
purposes,  a  sum  sufficient  to  pay  to  said  Analusia  Barnard  said  sum  of  $300,  with 
interest  as  aforesaid. 


3493 

In  a  contract  leasing  a  school  building  from  the  trustees  of  St  Raphael's  church,  by  the 
board  of  education  of  a  union  free  school  district,  the  provision  that  three  teachers 
from  the  class  commonly  called  "sisters"  shall  be  kept  employed,  is  contrary  to  the 
spirit  of  the  school  law  and  against  public  policy. 

The  local  school  authorities  have  no  right  to  limit  the  class  of  persons,  who  have  reached 
the  required  standing  of  learning  and  ability  to  teach,  from  which  the  teachers  of  the 
school  may  be  selected. 

Decided  April  i,  1886 

Morrison,  Acting  Superintendent 

This  is  a  proceeding  by  Leauder  Colt,  appealing  from  the  action  of  the  board 
of  education  of  union  free  school  district  no.  7.  in  the  village  of  Suspension 
Bndge,  town  of  Niagara,  county  of  Niagara,  in  making  a  lease  of  St  Raphael's 
Catholic  School  building,  situated  in  said  village,  for  the  term  of  one  year  from 
.November  10,  1885,  and  the  making  of  covenants  and  agreements  in  said  instru- 
ment of  lease,  by  the  said  board  of  education,  "  with  the  trustees  of  the  Roman 
Catholic  school,  wherein  said  board  of  education  undertakes,  in  substance,  t6 
support  a  Roman  Catholic  school  out  of  the  school  moneys  appropriated  to  such 


JUDICIAL    decisions:       teachers'    contracts  121 1 

free  school  district  no.  7,  or  realized  from  school  taxes  levied  upon  the  inhabit- 
ants of  said  district."     (Several  grounds  of  appeal  are  stated.) 

It  is  unnecessary  to  reviev^  these  grounds  of  appeal,  further  than  to  examine 
and  ascertain  the  effect  of  the  lease  itself.  It  can  not,  of  course,  be  assumed  that 
the  board  of  education  has  no  power  to  lease  the  premises  belonging  to  a  sec- 
tarian body  for  school  purposes,  for  it  must  be  presumed  that  when  these  premises 
come  into  the  possession  of  the  school  authorities,  the  laws  of  the  State,  pro- 
hibiting sectarian  instruction,  will  be  observed.  But  this  agreement,  entered  into 
by  Felix  Nassory  and  his  associate  trustees  of  the  St  Raphael's  school,  together 
with  the  Right  Reverend  Bishop  Ryan  of  the  city  of  Buffalo,  parties  of  the  first 
part,  and  the  board  of  education  of  union  free  school  district  no.  7,  party  of  the 
second  part,  is  open  to  this  fatal  objection:  namely,  the  board  of  education  agrees 
in  said  instrument,  during  the  term  of  the  lease,  to  cause  one  of  the  schools  of 
the  district  to  be  kept  in  operation  in  said  schoolhouse  building,  and  to  keep 
employed  as  teachers  therein  for  such  school,  three  competent  teachers  "  of  the 
class  commonly  called  '  sisters,'  provided  such  teachers  shall  make  application 
in  the  due  form  to  be  so  employed,  and  shall  be  found  to  be  duly  qualified  accord- 
ing to  law  to  act  in  the  capacity  of  teachers,  and  should  any  of  these  teachers 
be  withdrawn  from  the  school,  others  may  be  employed  in  their  stead  '  of  the 
same  class,'  provided,  '  three  such  teachers  of  the  class  called  sisters  be  so 
employed  during  the  term  of  the  lease.'  "  This  provision  is  contrary  to  the  spirit 
of  the  school  law  and  against  public  policy.  The  board  of  education,  doubtless, 
has  a  right  to  employ  as  teacher,  any  person  of  the  requisite  age  and  possessed 
of  the  qualifications  recognized  by  the  statute.  But  the  local  school  authorities 
have  no  right  to  limit  the  class  of  persons,  who  have  reached  the  required  stand- 
ing of  learning  and  ability  to  teach,  from  whom  the  teachers  for  the  school  may 
be  selected.  As  this  provision  seems  to  be  the  controlling  condition  of  the  lease, 
the  action  of  the  board  of  education  must  be  set  asiide. 


4488 

In  the  matter  of  the  appeal  of  Eugene  G.  Putnam  v.  the  board  of  trustees  of 
union  free  school  district  no.  6,  Port  Richmond,  Richmond  county. 

Under  the  school  laws  and  rules  and  regulations  prescribed  by  this  Department  governing 
uniform  examinations  of  persons  proposing  to  teach  common  schools  and  for  com- 
missioners' certificates,  a  first  grade  certificate  received  by  any  such  person  so  ex- 
amined legally,  entitles  the  holder  thereof  to  teach  in  any  school  commissioner  dis- 
trict in  the  State;  and  such  right  can  only  be  defeated  by  the  refusal  of  the  school 
commissioner,  having  a  valid  reason,  to  indorse  such  certificate.  The  first  grade 
certificate  granted  to  appellant  in  March  1896  entitled  him  to  teach  in  Richmond 
county  at  any  time  after  the  date  thereof  during  the  term  of  time  stated  therein,  subject 
to  such  right  being  defeated  by  the  refusal  of  the  school  commissioner  of  such  county, 
for  a  valid  reason,  to  indorse  the  same.  The  contract  entered  into  between  the  appel- 
'  lant  and  the  then  trustees  of  the  district  was  a  legal  contract  binding  upon  the  parties 


1212  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

thereto  and  upon  the  succeeding  trustees  of  the  district  and  upon  the  district.  It  was 
the  duty  of  the  trustees  of  the  district,  for  the  school  year  of  1896-97  to  recognize  the 
legality  of  the  contract  and  to  have  permitted  the  appellant  to  teach  in  the  school  of  the 
district  when  the  school  therein  was  opened  on  September  8,  i8g6,  the  appellant  then 
holding  such  first  grade  certificate,  indorsed  by  the  school  commissioner  for  Richmond 
county. 
Decided  October  14,  1896 

Thomas  W.  Fitzgerald,  attorney  for  appellant 

Skinner,  Superintendent 

The  appellant  in  the  above-entitled  matter  appeals  from  the  action  of  the 
respondents  therein  in  refusing  to  recognize  the  appellant  as  qualified  to  teach 
in  the  school  in  union  free  school  district  no.  6,  Port  Richmond,  Richmond 
county,  and  refusing  to  permit  the  appellant  to  perform,  on  his  part,  a  certain 
contract  entered  into  on  June  8,  1896,  between  the  then  trustees  of  said  district 
and  the  appellant,  in  and  by  which  contract  the  appellant  was  employed  to  teach 
in  said  district  for  the  school  year  of  1896-97  at  the  annual  compensation  of 
$1600,  payable  in  ten  monthly  instalments  of  $160  on  the  first  day  of  each  month, 
the  first  instalment  payable  on  the  ist  of  October  1896. 
The  respondents  have  answered  said  appeal. 
The  following  facts  are  established  by  the  papers  filed  herein : 
That  in  the  month  of  March  1896,  the  appellant  herein  received  a  first  grade 
certificate  to  teach  in  the  public  schools  of  this  State,  pursuant  to  the  provisions 
of  the  school  laws  and  the  rules  and  regulations  prescribed  by  the  State  Super- 
intendent of  Public  Instruction,  pursuant  to  the  authority  given  him  by  said 
school  laws  for  the  examination  of  persons  proposing  to  teach  in  said  public 
schools,  not  possessing  said  Superintendent's  certificate  of  qualification,  or  a 
diploma  of  a  State  normal  school,  and  governing  uniform  examinations  for  cer- 
tificates of  school  commissioners,  which  certificate  covered  a  period  at  least  as 
long  as  the  contract  of  service  hereinafter  stated;  that  during  the  school  year  of 
1895-96,  prior  to  July  8,  1896,  Charles  H.  Ingalls,  Charles  H.  Vail  and  George 
H.  Janneman  were  the  trustees  or  members  of  the  board  of  education  of  said  school 
district;  that  Messrs  Vail  and  Janneman,  as  such  trustees,  under  date  of  April  6, 
1896,  sent  to  the  appellant  herein  a  letter,  signed  by  them  as  such  trustees,  stat- 
ing that  "  we  having  considered  your  (appellant's)  letters  of  recommendation,  and 
having  from  other  sources  satisfied  ourselves  concerning  your  (appellant's) 
qualifications  to  fill  the  position  of  principal  and  teacher  of  our  school,  agree  to 
employ  you  at  a  salary  of  $1600  per  year,  for  the  coming  school  year,  commenc- 
ing about  September  i,  1896,"  and  that  they  would  ratify  this  action  at  a  subse- 
quent meeting  of  the  board;  that  the  foregoing  negotiations  relative  to  the 
employment  of  the  appellant  as  such  teacher  were  opposed  by  Mr  Ingalls,  the 
third  member  of  said  board ;  that  on  June  8,  1896,  a  contract  was  entered  into 
between  the  said  Vail  and  Janneman,  as  such  trustees,  and  the  appellant  herein, 
of  which  the  following  is  a  copy : 


JUDICIAL  decisions:    teachers'  contracts  1213 

Memorandum  of  hiring  required  by  the  ConsoHdated  School  Law 
This  is  to  certify  that  we  have  engaged  Mr  E.  G.  Putnam  (a  duly  licensed 
teacher),  whose  certificate  does  not  expire  prior  to  July  i,  1897,  to  teach  in  the 
union  free  school,  district  no.  6,  town  of  Northfield,  county  of  Richmond,  for 
the  term  of  (i)  year,  commencing  on  this  date,  at  a  yearly  compensation  of 
$1600,  payable  in  ten  monthly  instalments  of  $160,  payable  on  the  first  day  of 
each  month,  the  first  instalment  payable  on  the  ist  day  of  October  1896;  this 
hiring  and  employment  to  be  subject  to  the  rules  and  regulations  of  the  board 
of  education  of  said  district  now  in  force  and  such  other  rules  and  regulations 
as  may  hereafter  be  made  and  promulgated  by  the  board. 
Dated,  Port  Richmond,  this  8th  day  of  June  1896. 

C.  H.  Vail 

G.  H.  Janneman 

Trustees 

I  accept  the  foregoing  employment,  subject  to  the  conditions  named 
therein. 

E.  G.  Putnam 

Teacher 

That  on  July  8,  1896,  the  State  Superintendent  of  Public  Instruction,  in  a 
decision  made  by  him,  upon  proceedings  on  a  petition  to  him  for  the  removal  of 
said  Vail  and  Janneman  as  trustees  of  said  district,  duly  removed  them;  that  at 
the  annual  school  meeting  held  in  said  district  on  August  4,  1896,  it  is  claimed 
that  a  proposition  to  increase  the  number  of  the  members  of  the  board  of  educa- 
tion of  said  district  from  three  to  five  was  adopted,  and  that  the  respondents 
herein  were  at  such  meeting  elected  as  trustees  or  members  of  the  board  of 
education  of  said  district;  that  on  August  21,  1896,  Mrs  Julia  K.  West,  school 
commissioner  of  Richmond  county,  indorsed  the  said  first  grade  certificate  held 
by  the  appellant  herein ;  that  the  respondents  herein  decided  to  open  the  school 
in  said  district  on  September  8,  1896;  that  the  respondents  herein  refused  to 
recognize  the  aforesaid  contract,  dated  June  8,  1896,  between  said  Vail  and 
Janneman,  as  trustees  of  said  school  district,  and  the  appellant,  and  refused 
permission  to  the  appellant  to  teach  in  said  school  under  said  contract  or  to 
allow  the  appellant  to  perform  his  part  of  said  contract. 

It  further  appears,  from  the  records  in  this  Department,  that  on  July  24, 
1896,  C.  H.  Ingalls,  a  member  of  the  board  of  trustees  of  said  district,  was 
informed  by  me  that  before  the  appellant  herein  was  permitted  to  enter  upon 
the  service  of  teaching  in  said  district  that  he  (Ingalls),  as  such  member  of  said 
board,  would  have  the  right  to  demand  that  he  (appellant)  present  his  certificate 
of  qualifications  entitling  him  to  teach  in  said  district;  that  in  the  month  of 
August  1896,  the  question  of  the  legality  of  said  contract  employing  the  appel- 
lant herein  to  teach,  was  submitted  to  me  upon  certain  papers  and  letters  by  the 
board  of  trustees  of  said  district,  and  that  on  or  about  August  29,  1896,  I 
informed  said  board  through  J.  W.  Wortz,  its  president,  both  by  letter  and 
telegram,  and  also  the  appellant  herein,  that  I  sustained  said  contract. 


I2I4  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

The  respondents  herein,  in  their  answer,  allege,  upon  information  and  belief, 
that  the  said  Vail  and  Janneman,  in  making  said  contract  with  the  appellant  herein 
against  the  protest  of  their  cotrustee,  Ingalls,  did  so  with  the  purpose  of  fore- 
stalling my  decision  in  the  proceedings  then  pending  before  me  for  their 
removal  from  office  and  forcing  upon  the  district  a  teacher  of  their  selection; 
that  such  facts  were  known  to  appellant  at  the  time  he  made  the  contract.  Such 
allegations  are  not  established  by  proof. 

While  it  may  be  that,  as  a  matter  of  taste,  said  Vail  and  Janneman  should 
have,  pending  the  appeal  against  them,  abstained  from  acting  in  the  matter  of 
employing  teachers  for  the  school  year  commencing  on  August  i,  1896,  it  not 
appearing  that  any  order  was  made  restraining  them  from  performing  any. act 
which  the  school  laws  of  this  State  permitted  them  to  do,  as  two  of  the  trusetes 
of  said  district  they  had  the  legal  authority  to  act,  until  removed  from  ofifice, 
in  the  employment  of  a  teacher  or  teachers. 

It  is  the  custom  in  school  districts,  where  a  large  number  of  teachers  are 
employed,  for  the  school  authorities,  before  the  schools  of  the  districts  are  closed, 
to  contract  for  teachers  in  the  schools  of  their  respective  districts  for  the  ensuing 
school  year,  and  the  school  law  authorizes  such  school  authorities  to  make  such 
contracts,  provided  the  services  are  to  be  performed  within  the  school  year  next 
following  the  date  of  the  contracts.  Negotiations  relative  to  such  employment 
are  often  entered  into  as  early  as  was  the  one  with  appellant,  namely,  April  6th, 
which  ripen  into  contracts  concluded  at  different  dates  in  May,  June  and  July 
following. 

The  respondents  herein  allege  that  the  term  of  service  of  said  appellant, 
being  for  one  year  from  June  8,  1896,  would  expire  seven  weeks  before  the  end 
of  the  school  year,  and  that  there  was  no  vacancy  in  the  office  of  principal  or 
teacher  in  the  school,  the  contracts  with  the  teachers  then  teaching  not  expiring 
until  June  30,  1896.  Neither  of  these  contentions  is  tenable.  The  communica- 
tion in  writing  to  the  appellant,  under  date  of  April  6,  1896,  stated  that  the  trus- 
tees agreed  to  employ  the  appellant  for  the  coming  school  year  commencing 
about  September  i,  1896.  It  was  clearly  understood  between  the  appellant  and 
Vail  and  Janneman  that  the  appellant  was  not  employed  to  teach  any  part  of  the 
school  year  of  1895-96,  but  was  employed  for  the  term  of  time  during  which 
the  schools  of  the  district  were  held  during  the  school  year  of  1896-97. 

The  main  ground  alleged  by  the  respondents  for  their  refusal  to  recognize 
the  contract,  made  between  the  appellant  and  Vail  and  Janneman,  is  that  at  the 
tUTie  of  the  making  of  said  contract  the  appellant  did  not  possess  an  unannulled 
diploma  of  a  State  normal  school,  or  an  unrevoked  or  unannulled  certificate 
given  by  the  State  Superintendent  of  Public  Instruction,  or  an  unexpired  certifi- 
cate of  qualification  given  by  a  school  commissioner  within  the  district  in  which 
the  said  union  free  school  district  no.  6  of  Northfield  is  situated,  and  that  there- 
fore the  appellant  was  not  eligible  to  make  a  valid  and  binding  contract  accord- 
ing to  the  statute;  that  the  respondents  obtained  the  opinion  of  counsel  and 
were  advised  that  said  contract  was  not  binding  upon  said  district  under  the 


JUDICIAL  decisions:     teachers'  contracts  1215 

statutes  as  repeatedly  interpreted  by  the  Supreme  Court  of  the  State;  that  the 
appellant  did  not  have  the  certificate  to  teach  held  by  him  indorsed  by  the  school 
commissioner  of  the  school  commissioner  district  in  which  said  school  district  is 
situate  until  more  than  two  months  after  said  contract  was  made,  and  that  his 
alleged  employment  was  certainly  not  within  the  letter  of  the  law,  or  the  deci- 
sions of  the  courts  as  they  are  advised  and  believe. 

Annexed  to  said  answer  is  a  copy  of  the  opinion  of  counsel  consulted  by 
the  respondents. 

Counsel  cites  section  11,  article  4,  title  8  (undoubtedly  intending  to  cite  sub- 
division II  of  section  15,  article  4,  title  8),  section  38,  article  5,  title  7;  section  9 
of  same  article  (undoubtedly  meaning  subdivision  9  of  section  47,  article  6, 
title  7),  of  the  Consolidated  School  Law  of  1894,  chapter  556  of  the  Laws  of 
1894;  and  also  the  case  of  Gillis  v.  Space,  63  Barbour,  177,  decided  by  the 
Supreme  Court  in  June  1872,  and  the  case  of  Blandon  v.  Moses,  29  Hun  606, 
decided  in  April  1883. 

The  decisions  of  the  Supreme  Court  were  made  under  the  Consolidated 
School  Act  of  1864  and  the  amendments  thereof,  and  upon  facts  before  the 
court  in  each  case  respectively. 

In  Gillis  V.  Space  it  appears  that  the  plaintiff  and  the  then  trustee  of  a  school 
district  on  September  29,  1870,  entered  into  a  written  agreement  whereby  the 
plaintiff  was  engaged  to  teach  school  in  said  district  for  the  term  of  one  year 
commencing  October  17,  1870;  that  on  October  11,  1870,  the  defendant  Space 
was  elected  trustee  of  the  district ;  that  at  the  time  of  entering  into  said  contract 
the  plaintiff  had  no  license  or  certificate  as  a  teacher  as  required  by  the  school 
laws  then  in  force;  that  the  plaintiff  claimed  it  was  agreed  that  she  should 
procure  a  certificate  before  the  commencement  of  the  school,  but)  it  did  not 
appear  that  such  condition  was  embraced  in  the  written  contract ;  that  on  October 
12,  1870,  the  plaintiff  procured,  under  the  laws  then  existing,  a  certificate  from 
a  district  commissioner,  that  is,  a  certificate  of  qualifications  of  the  second  grade; 
that  on  October  17,  1870,  the  plaintiff  presented  herself  at  the  schoolhouse  and 
offered  to  the  defendant,  then  trustee,  to  enter  upon  her  said  contract  to  teach, 
and  said  defendant  refused  to  permit  her  to  teach  and  gave  her  a  written  notice 
of  such  refusal  the  same  day,  in  which  he  stated  the  grounds  of  his  refusal; 
that  the  plaintiff  gave  notice  of  readiness  to  teach  the  school,  and  that  she  would 
remain  in  readiness  to  teach  for  a  year,  and  did  for  the  whole  year  hold  herself 
in  readiness  to  teach  such  school ;  that  the  plaintiff  brought  an  action  against  the 
defendant  in  the  Supreme  Court  which  was  tried  and  the  court  ordered  a  verdict 
in  her  favor  for  $480,  the  contract  price  for  the  whole  year ;  that  exceptions  were 
taken  to  the  rulings  of  the  court,  and  appeal  was  taken  to  the  general  term.  The 
general  term,  in  the  opinion  written  by  Barker,  justice,  passed  upon  the  several 
objections  taken  and  ordered  a  new  trial.  In  his  opinion  Justice  Barker  said: 
"  The  trustee  of  a  school  district  has  no  power  to  contract  for  the  services  of 
an  unlicensed  teacher  and  bind  the  district.  If  he  should  make  a  condition  of 
hiring  that  the  teacher  should  procure  a  certificate  before  entering  upon  the 


I2l6  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

duties  of  teaching,  such  contract  would  doubtless  be  valid,  for  then  the  services 
of  a  licensed  teacher  are  bargained  for,  citing  provisions  of  the  school  act  of 
1864,  and  page  140  of  the  Code  of  Public  Instruction  of  1868. 

In  Blandon  v.  Moses  it  appears  the  action  was  brought  in  the  Onondaga 
county  court  to  recover  damages  for  the  breach  of  an  oral  contract  by  which  the 
defendant  employed  the  plaintiff  as  a  teacher  for  his  school  district  for  the 
period  of  twelve  weeks;  that  after  the  making  of  the  contract  the  defendant 
notified  the  plaintifT  that  he  revoked  the  contract;  that  at  the  time  the  contract 
was  made  the  plaintiff  had  no  license  to  teach,  but  after  the  revocation  of  the 
contract,  and  prior  to  the  time  the  school  was  to  open  he  passed  an  examination 
and  procured  the  requisite  certificate;  that  a  judgment  was  rendered  in  favor  of 
the  plaintiff  from  which  an  appeal  was  taken  to  the  general  term  of  the  Supreme 
Court. 

In  the  memorandum  of  the  court  at  general  term,  the  court  said :  "  Two 
questions  are  presented  for  our  consideration  on  this  appeal ;  one  is,  was  the 
contract  valid  and  binding  upon  the  parties  thereto,  or  was  it  illegal  and  inopera- 
tive for  the  reason  that  the  defendant,  as  trustee,  had  no  power  and  authority 
to  contract  for  the  plaintiff's  services  as  teacher,  he  at  the  time  having  no  certifi- 
cate from  the  proper  officers?  In  Gillis  v.  Space,  63  Barb.  177,  it  was  held  that 
a  trustee  of  a  school  district  had  no  authority  to  contract  for  the  services  of  an 
unlicensed  teacher,  and  that  an  executory  agreement  engaging  the  services  of 
such  a  person  was  invalid  and  not  binding  upon  the  school  district.  This  decision 
was  made  in  this  Department  and  we  adhere  to  the  interpretation  then  given 
to  the  statute  creating  and  defining  the  duties  and  powers  of  school  trustees  as 
contained  in  chapter  555,  Laws  of  1864." 

The  contract  set  out  in  this  appeal  was  made  under  the  provisions  of  the 
Consolidated  School  Law  of  1894,  chapter  556,  of  the  Laws  of  1894,  and  the 
rules  and  regulations  made  by  the  State  Superintendent  of  Public  Instruction 
pursuant  to  the  authority  given  to  him  by  said  law,  in  force  at  the  time  said  con- 
tract was  made,  and  the  factfe  established  relative  to  such  contract,  and  its 
legality  depends  on  whether  it  is  in  accordance  with  such  provisions,  rules  and 
regulations. 

When  said  counsel  cited  in  his  opinion  certain  provisions  of  the  Consolidated 
School  Law  of  1894,  he  overlooked,  or  at  least  omitted  to  cite,  some  other  pro- 
visions of  said  law  material  to  be  considered  in  determining  the  legality  of  the 
contract  made  by  the  appellant  and  Vail  and  Janneman. 

Section  14,  title  i  of  said  Consolidated  School  Law  enacts  that  the  State 
Supermtendent  of  Public  Instruction  shall  prepare  suitable  registers,  -blanks,  forms 
and  regulations  for  making  all  reports  and  conducting  all  necessary  business  under 
this  act,  and  shall  cause  the  same,  with  such  information  and  instructions  as  he 
shall  deem  conducive  to  the  proper  organization  and  government  of  the  common 
schools  and  the  due  execution  of  their  duties  by  school  officers,  to  be  transmitted 
to  the  officers  and  persons  intrusted  with  the  execution  of  the  same 

In  subdivision  5  of  section  13,  title  3  of  said  Consolidated  School  Law,  it  is 
enacted  that  every  school  commissioner  shall  have  power,  and  it  shall  be  his  duty 


JUDICIAL  decisions:     teachers'  contracts  1217 

to  examine,  under  such  rules  and  regulations  as  have  been,  or  may  be,  prescribed 
by  the  Superintendent  of  Public  Instruction,  persons  proposing  to  teach  common 
schools  within  his  district,  and  not  possessing  the  Superintendent's  certificate  ot 
qualification  or  a  diploma  of  a  State  normal  school,  and  to  inquire  into  the  moral 
fitness  and  capacity;  and,  if  he  find  them  qualified,  to  grant  them  certificates  of 
qualification,  in  the  forms  which  are  or  may  be  prescribed  by  the  Superintendent. 

In  section  15,  title  5  of  said  Consolidated  School  Law  it  is  enacted  that  the 
school  commissioners  shall  be  subject  to  such  rules  and  regulations  as  the  Super- 
intendent of  Public  Instruction  shall,  from  time  to  time,  prescribe,  and  appeals 
from  their  acts  and  decisions  may  be  made  to  him,  as  hereinafter  provided. 

The  rules  and  regulations  prescribed  and  adopted  by  the  State  Superin- 
tendent, under  the  authority  of  the  provisions  of  the  school  law  above  cited,  have 
upon  school  officers  the  binding  force  of  a  statute.  Among  the  rules  and  regula- 
tions prescribed  by  the  State  Superintendent,  in  force  in  the  school  year  1895-96, 
governing  uniform  examinations  of  persons  proposing  to  teach  in  the  common 
schools,  and  the  granting  of  certificates,  was  the  rule  that  a  school  commissioner 
shall  indorse  for  the  full  period  for  which  they  are  valid,  when  presented  to  him 
or  her  for  indorsement,  first  and  second  grade  certificates  issued  by  any  other 
school  commissioner  in  the  State,  unless  a  valid  reason  exists  for  withholding  such 
indorsement.  A  valid  reason  is  held  to  mean,  a  reason  based  upon  some  fact 
known  to  the  commissioner  afifecting  the  moral  or  mental  qualifications  of  the 
person  to  whom  the  certificate  is  granted,  and  must  be  stated  by  the  commissioner. 
An  appeal  from  the  refusal  of  a  school  commissioner  to  indorse  such  certificate 
may  be  taken  to  the  State  Superintendent,  and  if  in  his  opinion  the  school  com- 
missioner gives  no  valid  reason  for  his  refusal,  he  may  order  the  school  commis- 
sioner to  make  the  indorsement,  and  if  such  order  is  not  obeyed  he  may  remove 
from  office  such  commissioner. 

As  long  ago  as  September  1891,  upon  the  inquiry  of  a  school  commissioner, 
if  the  rules  and  regulations  governing  the  uniform  examinations  for  commis- 
sioners certificates,  issued  by  the  Department  of  Public  Instruction  were  binding, 
and  if  it  was  within  the  power  of  the  State  Superintendent  to  make  such  rules, 
etc.,  the  Attorney  General  of  the  State  stated  that  he  found  nothing  therein  which 
attempts  to  annul  or  is  in  conflict  with  the  statutory  provisions  then  in  force,  or 
which  is  beyond  the  power  granted  to  the  State  Superintendent. 

By  subdivision  5  of  section  13,  title  5  of  the  Consolidated  School  Law  of 
1894,  above  quoted,  school  commissioners  have  the  power  to  examine  under  such 
rules  and  regulations  as  have  been  or  may  be  prescribed  by  the  Department  of 
Public  Instruction,  persons  proposing  to  teach  common  schools,  etc. 

The  purpose  of  the  rule  that  school  commissioners  shall  indorse  certificates 
of  the  first  and  second  grade  when  no  valid  reason  exists  for  a  refusal  to  indorse 
is  given,  is  that  such  certificates  shall  be  good  in  all  of  the  school  commissioner 
districts  of  the  State. 
39 


I2l8  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

It  does  not  appear  when  the  appellant  herein  presented  his  certificate  to  teach 
to  the  school  commissioner  of  Richmond  county  for  indorsement,  but  it  appears 
that  it  was  indorsed  on  August  21,  1896,  about  eighteen  days  before  the  schools 
in  the  district  were  open,  and  his  services  as  a  teacher  therein  were  required 
under  his  contract.  It  can  not  be  seriously  contended  that  a  person  holding  a  first 
grade  certificate  will  present  his  certificate  for  indorsement  to  a  school  commis- 
sioner other  than  the  one  who  signed  the  certificate,  until  he  has  secured  employ- 
ment to  teach  in  a  district  within  the  commissioner  district  of  the  school  com- 
missioner whose  indorsement  is  required. 

Upon  the  first  grade  certificate,  letters  and  recommendations  presented  by 
the  appellant  herein,  on  or  prior  to  June  8,  i8g6,  to  the  then  trustees  of  said  dis- 
trict, said  trustees  had  the  right  to  assume  that  there  was  no  valid  reason  why  the 
indorsement  of  said  certificate  by  the  school  commissioner  of  Richmond  county, 
should  not  be  promptly  made. 

As  hereinbefore  stated,  in  the  month  of  August  1896,  the  respondents  herein 
voluntarily  submitted  to  me  the  question  of  the  legality  of  the  contract  employing 
the  appellant,  and  on  or  about  August  29,  1896,  received  through  the  respondent, 
Wortz,  both  by  letter  and  telegram,  as  did  also  the  appellant,  notice  that  I  sus- 
tained the  contract.  It  appears  by  a  copy  of  the  proceedings  of  a  meeting  of  said 
respondents,  at  which  all  of  the  respondents  were  present,  annexed  to  both  the 
appeal  and  answer  herein,  that  as  the  decision  by  me  was  adverse  to  their  views, 
such  decision  was  wholly  ignored.  Said  copy  of  the  minutes  of  said  meeting  con- 
tains the  following:  "Telegram  and  communication  from  the  State  Superin- 
tendent received,  read  and  ordered  placed  on  file.  Mr  Ingalls  offered,  and  Mr 
Wortz  seconded,  a  motion  that  Mr  Putnam  be  requested  to  withdraw  his  claim 
under  his  so-called  contract.  On  vote,  the  president  declared  it  to  be  a  tie  vote, 
Mr  Sheridan  not  voting.  On  motion  (Ingalls  and  Wortz)  it  was  voted  that  O.  H. 
Hoag  be  employed  as  principal  for  three  months.  On  motion  (Ingalls  and  Wortz) 
it  was  voted  that  Mr  Putnam  be  requested  to  withdraw  his  claim  under  his  so- 
called  contract." 

In  the  copy  of  said  minutes  of  said  meeting,  annexed  to  the  appeal  herein, 
the  following  appears :  Mr  Ingalls  moved,  seconded  by  Mr  Wortz,  that  O.  H. 
Hoag  be  employed  as  principal  for  three  months;  Mr  Ingalls  and  Mr  Wortz 
votmg  '  yes  '  and  balance  of  board  not  voting ;  president  declared  motion  carried." 

It  clearly  appears  that  the  respondents  herein,  by  their  action  at  said  meeting. 
not  only  wholly  disregarded  their  submission  to  me  by  them  of  the  question  of  the 
validity  of  the  contract  with  appellant,  but  wholly  ignored  my  decision  by  adopt - 
mg  a  resolution  requesting  the  appellant  to  withdraw  his  claim  under  the  con- 
tract which  I  had  decided  to  be  valid.  Not  only  did  the  respondents  by  the 
aforesaid  action  on  their  part  ignore  and  refuse  to  accept  my  decision  upon  a 
question  submitted  by  them  to  me,  and  request  the  appellant  to  withdraw  his 
claim  under  a  contract  decided  by  me  to  be  valid;  but  they  went  further  and 
employed,  or  attempted  to  employ,  another  person  to  perform  the  services,  which 


JUDICIAL  decisions:     teachers    contracts  1219 

the  appellant,  under  a  legal  contract  of  employment  was  ready  and  willing  to 
perform,  but  which  the  respondents  refused  to  permit  him  to  perform. 

There  is  a  conflict  as  to  how  many  of  the  persons  present  at  said  meeting 
voted  to  employ  Hoag.  Assuming,  for  the  purpose  of  argument  only,  that  the 
five  respondents  present  at  the  meeting  constitute  the  members  of  the  board  of 
education  either  de  facto  or  de  jure,  it  required  the  vote  of  a  majority  of  them, 
namely,  three,  to  legally  authorize  the  employment  of  Hoag. 

The  respondents  herein  claim  to  be  acting  in  the  matter  of  the  contract  with 
appellant  impartially,  without  malice,  prejudice  or  bias  either  for  or  against  the 
appellant,  and  with  the  sole  desire  to  do  what  is  right  and.  legal.  Their  action, 
as  set  out  in  the  minutes  of  the  proceedings  of  their  meeting  of  August  31,  1896, 
has  caused  me  to  entertain  grave  doubts  whether  their  claim  is  true. 

1  decide :  i  That  under  the  school  laws  and  the  rules  and  regulations  pre- 
scribed by  this  Department  governing  uniform  examinations  of  persons  proposing 
to  teach  common  schools  and  for  commissioners  certificates,  that  a  first  grade 
certificate  received  by  any  person  so  examined  legally  entitles  the  holder  thereof 
to  teach  in  any  school  commissioner  district  in  the  State ;  and  that  such  right  can 
only  be  defeated  by  the  refusal  of  school  commissioners,  having  a  valid  reason, 
to  indorse  such  certificate. 

2  That  the  first  grade  certificate  granted  to  appellant  in  March  1896,  and  held 
by  him,  entitled  the  appellant  to  teach  in  Richmond  county  at  any  time  after  the 
date  thereof  during  the  term  of  time  stated  therein,  subject  to  that  right  being 
defeated  by  the  refusal  of  the  school  commissioner  of  said  county,  for  a  valid 
reason,  to  indorse  the  same. 

3  That  the  contract  entered  into  on  June  8,  1896,  between  the  appellant 
herein  and  said  Vail  and  Janneman,  as  trustees  of  said  district,  was  a  legal  con- 
tract binding  upon  the  parties  thereto,  and  upon  the  succeeding  trustees  of  said 
district,  and  upon  said  district. 

4  That  it  was  the  duty  of  the  trustees  of  said  district,  for  the  school  year 
of  1896-97,  to  recognize  the  legality  of  said  contract,  and  to  have  permitted  the 
appellant  to  teach  in  the  schools  in  said  district  under  said  contract,  when  the 
school  for  said  school  year  was  opened,  commencing  on  September  8,  1896,  the 
said  appellant  then  holding  said  first  grade  certificate,  indorsed  by  the  school 
commissioner  of  Richmond  county. 

The  appeal  herein  is  sustained. 

It  is  ordered,  That  the  trustees  or  members  of  the  board  of  education  of 
union  free  school  district  no.  6,  Port  Richmond,  Richmond  county,  be,  and  they 
are  hereby  directed,  without  unnecessary  delay,  to  recognize  the  appellant  herein, 
F.ugene  G.  Putnam,  as  a  teacher  in  the  school  or  schools  of  said  district,  under 
the  contract  entered  into  between  the  trustees  of  said  district  and  said  appellant, 
dated  June  8,  1896,  and  to  permit  the  said  appellant  to  teach  in  said  school  or 
schools,  and  to  perform,  on  his  part,  the  terms  of  said  contract. 


1220  THE    UNIVERSITY    OF    TIIF    STATE    OF    NEW    YORK 

5172 

In  the  matter  of  the  appHcatioji  of  the  board  of  education  of  union  free  school 
district  no.  12,  town  of  Warwick,  Orange  county,  for  the  revocation  of  the 
certificate  of  S.  Jennie  Townsend. 

A  teacher  did  wronK  in  accepting  a  more  desirable  offer  before  being  released  from  a  prior 
engagement  which  she  made.  The  Commissioner  of  Education  must  decline  going  to 
the  length  of  revoking  her  certificate  under  the  circumstances  of  this  case  and  putting 
a  dark  mark  upon  her  life. 

Decided  February  17,  1905 

Draper,  Commissioner 

The  respondent  herein  was  employed  as  teacher  of  music  and  oratory  in  the 
school  of  the  above  named  district  during  the  school  year  ending  July  31,  1904- 
During  the  month  of  April  the  board  of  education  otTered  to  retain  her  in  the 
same  position  for  the  ensuing  year  at  a  salary  of  $600  per  year.  On  April  25, 
1904,  she  accepted  the  offer.  A  memorandum  of  agreement  was  signed  by  the 
board  of  education  and  delivered  to  Miss  Townsend  about  April  29th  and  one 
bearing  the  same  date  was  signed  by  Miss  Townsend  and  filed  with  the  board 
of  education. 

On  July  13.  1904,  Miss  Townsend  forwarded  to  Doctor  Wood,  a  member  of 
the  board  of  education,  a  telegram  tendering  her  resignation  and  requesting  an 
answer  in  relation  to  its  acceptance  on  that  day.  Doctor  Wood  wired  that  he 
had  no  authority  to  accept  the  resignation ;  that  only  three  members  of  the 
board  were  in  town  and  that  he  would  write  her. 

Miss  Townsend  had  been  offered  the  position  of  teacher  of  music  and  oratory 
in  the  State  Normal  College  of  Plymouth,  New  Hampshire,  at  a  salary  of  $900 
per  year  and  the  prospect  of  an  increase  if  her  work  was  satisfactory.  She  was 
required  to  give  an  answer  within  two  days.  Assuming  that  the  board  would 
accept  her  resignation  she  notified  the  New  Hampshire  Normal  College  that  she 
would  accept  the  position.  She  then  wrote  Doctor  Wood  of  her  acceptance  of 
the  position.  The  board  of  education  at  a  meeting  held  July  28th  directed  its 
clerk  to  notify  Miss  Townsend  that  as  she  had  broken  her  contract  with  them  the 
board  conceived  it  their  duty  to  notify  the  State  authorities  of  her  action.  The 
board  of  education  filed  a  petition  for  the  revocation  of  her  certificate  with  this 
Department  January  13,  1905,  having  made  due  service  thereof  on  Miss  Towns- 
end  January  9,  1905,  or  nearly  six  months  after  the  act  complained  of  took  place. 
The  respondent  has  not  filed  an  answer  to  the  petition  but  has  filed  a  request 
for  the  dismissal  of  the  petition  on  the  ground  that  rule  5  regulating  the  practice 
of  appeals  in  this  Department  requires  an  appeal  to  be  brought  within  thirty 
days  after  the  act  complained  of  took  place  or  a  valid  reason  must  be  assigned 
for  failing  to  do  so.  The  petitioners  claim  that  this  proceeding  is  not  an  appeal 
and  not  subject,  therefore,  to  the  rule.    In  this  they  are  doubtless  right. 

The  teacher  did  wrong  in  accepting  a  more  desirable  offer  before  being 


JUDICIAL   decisions:      teachers'    contracts  1221 

released  from  a  prior  engagement  which  she  had  made.  But  the  temptation  was 
too  much  for  her.  She  made  the  effort  to  secure  release.  She  was  not  met  with 
immediate  refusal,  or  with  decisive  action  of  any  kind,  and  she  presumed  upon 
a  very  common  usage  of  trustees  to  grant  release  in  such  cases  rather  than  to 
endure  the  consequences  of  disappointment.  Doubtless  teachers  ought  to  be 
required  to  abide  business  contracts  as  sharply  as  other  people,  and  women 
teachers  as  much  as  men  teachers.  It  is  difficult  to  do  it,  but  if  it  was  a  question 
of  enforcing  or  assuring  the  results  of  a  contract  the  Commissioner  would  try  to 
do  it.  But  that  is  not  it.  He  is  asked  to  punish  a  woman  teacher  for  a  frailty. 
He  will  do  it  to  the  extent  of  telling  her  she  did  wrong  and  must  not  repeat  the 
offense,  but  he  must  decline  going  to  the  length  of  revoking  her  certificate  and 
putting  a  dark  mark  upon  her  life. 
The  petition  herein  is  dismissed. 


TEXTBOOKS 

3583 

In  the  matter  of  the  appeal  of  Newton  W.  Edson  v.  the  board  of  education  of 

the  city  of  Binghamton. 

The  jurisdiction  of  the  State  Superintendent  to  hear  and  determine  appeals  is  conferred 
by  the  general  school  laws,  and  extends  to  localities  subject  to  local  and  special  acts, 
unless  such  acts  take  it  away,  as  to  such  localities,  in  language  so  clear  as  to  admit 
of  no  doubt  of  such  intent  of  the  Legislature. 

An  appeal  will  lie  from  acts  of  the  board  of  education  of  the  city  of  Binghamton. 

Where  a  textbook  is  in  use  for  more  than  five  years,  without  any  designation  and  adoption 
of  the  same  as  a  textbook,  and  the  board  of  education  by  a  majority  vote  decides  that 
such  book  shall  be  continued  in  use  for  the  remainder  of  the  school  year,  held,  not  a 
designation  and  adoption  of  a  textbook  within  the  meaning  of  chapter  413,  Laws  of  1887. 

The  board  of  education  may,  under  such  circumstances,  by  a  majority  vote,  designate  a 
textbook  to  be  used  in  the  schools  under  their  charge,  the  same  to  go  into  effect  at  a 
stated  time  in  the  future,  not  unreasonably  distant. 

Decided  April  4,  1887 

Arms  &  Curtiss,  attorneys  for  appellant 
Chapin  &  Lyon,  attorneys  for  respondent 

Draper,  Superintendent 

The  facts  upon  which  this  appeal  arises  are  undisputed,  and  are  as  follows: 
Three  textbooks,  entitled  respectively,  "  Our  World,"  "  Guyot's  Grammar  School 
Geography  "  and  "  Guyot's  New  Intermediate  Geography,"  had  been  in  use  in 
the  schools  of  the  city  of  Binghamton  for  at  least  six  years  prior  to  the  i8th  day 
of  October  1886,  within  which  time  there  had  been  no  action  of  the  board  adopt- 
ing the  same  as  textbooks  in  the  schools  of  the  city.  Upon  the  iSth  day  of 
October  1886,  the  board  of  education  held  a  meeting,  at  which  it  was  unanimously 
resolved  that  no  change  should  be  made  in  the  geographies  in  use  in  the  schools 
during  the  present  school  year.  At  the  next  meeting  of  the  board,  held  on  the 
1st  day  of  Xovcmber  1886,  a  motion  or  resolution  was  adopted,  by  a  vote  of 
seven  to  three,  that  the  resolution  of  October  i8th  be  reconsidered,  pursuant  to 
a  standing  rule  or  by-law  of  the  board  allowing  such  reconsideration  at  the  same 
or  next  regular  meeting. 

At  a  meeting  held  on  the  6th  of  December  following,  the  board,  by  a  vote 
of  seven  to  six,  adopted  the  following  resolution,  namely: 

Resolved,  That  the  use  of  the  primary  geography  entitled  "  Our  World,"  be 
discontmucd  as  a  textbook  in  our  schools,  and  that  Barnes's  Elementarv  Geoo-- 
n^.  Ivfhn  ^'-^""^  '"  '^?  place,  and  that  Barnes's  Complete  Geography  be  adopted 
rf  th'txf scho^olVetr^^ '  "^  "^^'  ''°-^^^^'  ^^  ^^  P^^^P-^^  -tU  L  beginn\.g 

[1222] 


JUDICIAL  decisions:     textbooks  1223 

At  a  meeting  of  the  board  held  on  the  3d  of  January  1887,  the  following 
resolution  was  offered,  namely : 

Resolved,  That  Guyot's  geographies  be  discontinued  as  textbooks  in  our 
common  schools  at  the  close  of  the  present  year. 

As  objection  was  made  to  this  resolution,  its  consideration  was  postponed 
until  the  next  meeting,  pursuant  to  the  rules  of  the  board,  but  at  such  meeting, 
held  on  the  17th  day  of  January,  the  resolution  was  adopted  by  a  vote  of  seven  to 
five.  It  was  admitted  upon  the  argument  of  the  case  before  me,  that  the  term 
"  present  year  "  at  the  end  of  this  resolution,  meant  the  present  "  school  year." 

The  appellant  alleges  that,  after  the  passage  of  the  resolution  of  October 
i8th,  providing  that  no  change  should  be  made  in  the  geographies  during  the 
present  school  year,  and  relying  upon  it,  he  purchased  two  of  Guyot's  grammar 
school  geographies  for  the  use  of  his  children,  and  that  others  did  the  same.  It 
is  claimed,  on  behalf  of  the  appellant  and  these  others,  that  the  resolution  of 
October  i8th  was,  in  purpose  and  effect,  a  designation  of  the  Guyot's  geographies 
as  textbooks  in  the  schools  of  Binghamton,  within  the  provisions  of  chapter  413 
of  the  Laws  of  1877,  and  that,  consequently,  no  other  textbook  could  displace 
them  for  the  period  of  at  least  five  years  thereafter,  as  provided  by  that  act, 
except  by  a  three-fourths  vote  of  the  board  of  education.  It  is  accordingly 
insisted  that  the  resolutions  of  November  ist,  December  6th  and  January  17th 
are  in  contravention  of  the  "  act  to  prevent  frequent  changes  in  textbooks  in 
schools  "  and  are,  therefore,  void. 

The  appellant  has  brought  two  separate  appeals,  but  they  may  more  easily 
than  otherwise  be  disposed  of  together. 

The  respondent  denies  that  the  State  Superintendent  has  any  jurisdiction  to 
hear  and  decide  these  appeals.  It  is  said  that  the  school  system  of  the  city  of 
Binghamton  is  governed  by  a  special  act  of  the  Legislature  (chapter  322,  Laws 
of  1861)  and  its  amendments,  and  that  there  is  nothing  in  this  special  act  con- 
ferring upon  the  State  Superintendent  the  authority  to  determine  appeals  from 
the  acts  of  the  board  of  education  of  that  city.  It  is  also  insisted  that  the  pro- 
visions of  the  Consolidated  School  Act  (chapter  555,  Laws  of  1864),  concerning 
appeals  to  the  State  Superintendent' from  the  acts  of  local  school  officers,  do  not 
extend  jurisdiction  to  the  act  of  a  board  of  education  in  a  city  having  a  special 
school  act.  It  is  accordingly  argued  that  there  is  no  jurisdiction  at  all  in  the 
present  case. 

The  question  is  an  important  one,  and  I  have  endeavored  to  give  it  that 
examination  which  its  gravity  demands. 

I  have  examined  the  statutes  specially  referring  to  the  supervision  of  the 
schools  of  the  city  of  Binghamton  with  considerable  care,  and  am  of  the  opinion 
that,  if  jurisdiction  in  this  case  depended  alone  upon  these  statutes,  it  would  not 
be  difficult,  reading  the  several  successive  acts  together,  to  discern  an  intention 
to  confer  it  on  the  part  of  the  Legislature. 

But  in  my  opinion  it  does  not  depend  upon  the  provisions  of  the  special  acts, 
having  reference  only  to  a  particular  locality.  Title  12,  section  i,  chapter  555, 
Laws  of  1864,  is  as  follows: 


1224  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

Section  i  Any  person  conceiving  himself  aggrieved  in  consequence  of  any 
decision  made : 

1  By  any  school  district  meeting. 

2  By  any  school  commissioner  or  school  commissioners  and  other  officers, 
in  forming  or  altering,  or  refusing  to  form  or  alter,  any  school  district,  or  in 
refusing  to  apportion  any  school  moneys  to  any  such  district  or  part  of  a  district. 

3  By  a  supervisor  in  refusing  to  pay  such  moneys  to  any  such  district. 

4  By  the  trustees  of  any  district  in  paying  or  refusing  to  pay  any  teacher, 
or  in  refusing  to  admit  any  scholar  gratuitously  into  any  school. 

5  By  any  trustees  of  any  school  district  library  concerning  such  library,  or 
the  books  therein,  or  the  use  of  such  books. 

6  By  any  district  meeting  in  relation  to  the  library. 

7  By  any  other  official  act  or  decision  concerning  any  other  matter  under 
this  act,  or  any  other  act  pertaining  to  common  schools,  may  appeal  to  the  Super- 
intendent of  Public  Instruction,  who  is  hereby  authorized  and  required  to 
examine  and  decide  the  same;  and  his  decision  shall  be  final  and  conclusive. 
and  not  subject  to  question  or  review  in  any  place  or  court  whatever. 

The  seventh  subdivision  of  this  section  contains  language  as  comprehensive 
as  could  well  be  employed.  It  authorizes  any  person  aggrieved  at  "  any  other 
official  act  or  decision  concerning  any  other  matter  under  this  act  or  any  other 
act  pertaining  to  common  schools,"  to  appeal  to  the  State  Superintendent.  The 
contention  of  the  respondent's  counsel  that  the  phrase  "  any  other  official  act  " 
refers  only  to  acts  by  the  same  body  or  of  the  same  nature  as  though  specified  in 
the  first  six  subdivisions  of  the  section,  can  not  be  adopted.  It  is  an  official  act 
concerning  "  any  other  matter  under  this  act  or  under  any  other  act  pertaining  to 
common  schools,"  which  is  the  subject  of  appeal.  It  was  the  obvious  intent  of 
the  Legislature  to  provide  an  easy,  inexpensive,  speedy  and  conclusive  way  for 
procuring  a  determination  of  complaints  against  any  official  act  of  any  local 
school  official.  Both  the  language  of  the  law  and  the  different  steps  taken  by  the 
Legislature  to  bring  it  to  its  present  state,  sustain  this  construction.  Enacted  in 
the  early  days  of  the  school  system,  it  has  from  time  to  time  been  added  to  with 
the  evident  purpose  of  making  it  clear  that  the  jurisdiction  of  the  Superintendent 
is  mtended  to  be  statewide  and  is  to  cover  all  controversies  touching  any  official 
act  of  local  school  officials. 

These  provisions  of  the  general  law  were,  in  substance,  in  force  long  before 
the  passage  of  the  special  laws  referring  only  to  the  city  of  Binghamton.  If  the 
Legislature  had  intended  to  cut  off  the  right  of  appeal,  as  to  that  city,  it  would 
have  so  provided  in  the  laws  particularly  applicable  to  it.  It  not  only  did  not  do 
this,  but  it  is  worthy  of  note  that  it  expressly  preserved  the  right  in  the  first 
mstance  and  omitted  to  do  this  only  upon  a  reenactment  of  the  Binghamton  school 
laws  consequent  upon  the  granting  of  a  city  charter  to  the  place.  It  is  fair  to 
assume  that  the  omission  at  that  time  was  either  because  of  inadvertence  or 
because  an  express  reservation  was  deemed  unnecessary.  In  any  event,  the 
State  Superintendent  does  not  get  jurisdiction  from  local  school  acts,  but  from 
the  general  school  law.  The  authority  mu.st  be  held  to  be  general  unless  taken 
away  by  a  special  act,  in  language  so  clear  as  to  leave  no  doubt  of  its  intent, 
and  there  is  no  such  taking  away  in  the  statutes  applicable  only  to  the  city  of 
Binghamton. 


JUDICIAL  decisions:     textbooks  1225 

There  is  another  consideration  which  has  not  been  suggested  by  the  able  and 
alert  counsel  who  appeared  upon  the  argument  of  this  appeal  and  which,  in  view 
of  the  foregoing,  is  perhaps  not  material  to  the  determination  of  the  question  of 
jurisdiction,  and  yet  it  has  sufficient  bearing  upon  it  to  justify  me  in  mentioning 
it.  The  appellant  claims  that  the  action  of  the  respondent  is  in  violation  of 
chapter  413  of  the  Laws  of  1877,  entitled  "An  act  to  prevent  frequent  changes  of 
textbooks  in  schools."  This  is  "  an  act  pertaining  to  common  schools."  The 
question  brought  here  is  one  arising  under  it.  The  determination  of  this  question 
may  involve  the  construction  of  the  provisions  of  this  general  law,  rather  than 
of  the  special  laws  relating  to  Binghamton.  It  will  hardly  be  contended  that  the 
Legislature  meant  to  leave  it  to  the  board  of  education  or  trustees  in  each  city 
or  district  having  a  special  school  act,  to  place  such  construction  as  it  should  see 
fit  upon  this  general  law  and  to  suit  its  acts  to  its  views  of  the  meaning  of  the 
law,  without  affording  a  means  of  redress  to  persons  differing  with  it  in  opinions 
and  aggrieved  by  its  acts.  Such  a  view  would  result  in  as  many  different  con- 
structions of  the  meaning  of  this  statute  as  there  are  different  localities  having 
special  acts,  and  would  defeat  the  purpose  and  intent  of  this  general  law. 

In  view  of  these  considerations,  it  seems  clear  to  me  that  the  grievance  of  the 
appellant  is  properly  brought  before  the  Department  by  means  of  an  appeal,  and 
that,  under  the  laws,  it  is  the  duty  of  the  Superintendent  to  determine  the  matter. 

Passing,  then,  to  the  consideration  of  the  merits  of  the  case,  several  questions 
present  themselves.  Has  the  appellant  been  aggrieved?  Was  the  resolution  of 
October  i8th,  providing  that  no  change  should  be  made  in  the  geographies  in  use 
in  the  schools  during  the  present  school  year,  an  adoption  and  designation  of  a 
textbook  within  the  meaning  of  chapter  413  of  the  Laws  of  1877,  entitled  "An  act 
to  prevent  frequent  changes  of  textbooks  in  the  schools?  "  If  so,  had  the  board 
a  right  to  reconsider  such  action  at  the  same  or  next  regular  meeting,  as  provided 
by  its  by-laws?  If  it  was  an  adoption  of  a  textbook  within  the  meaning  of  the 
act  to  prevent  frequent  changes  of  textbooks,  was  the  subsequent  action  of  the 
board  in  violation  of  that  statute?  If  the  action  of  October  r8th  was  not  an 
adoption  and  designation  of  a  textbook,  and  if  the  subsequent  action  of  the 
board  was  not  in  violation  of  the  law  to  prevent  frequent  changes  of  books,  still 
had  the  board  power  to  provide  by  resolution  that  Barnes's  geographies  should  go 
into  use  at  the  beginning  of  the  next  school  year,  when  it  is  admitted  that  the 
board  may  be  differently  constituted  prior  to  that  time? 

It  should  be  borne  in  mind  that  chapter  413  of  the  Laws  of  1877,  entitled 
"An  act  to  prevent  frequent  changes  of  textbooks  in  schools,"  was  not  enacted  for 
the  benefit  of  book  publishers,  nor  for  the  purpose  of  preventing  progress  in  the 
schools.  It  is  intended  to  prevent  changes  in  textbooks  upon  the  same  subject 
oftener  than  once  in  five  years,  unless  the  sentiment  in  favor  of  such  change 
should  be  so  strong  that  a  three-fourths  vote  of  the  board  of  education  in  cities, 
villages  and  union  free  school  districts,  or  of  the  legal  voters  at  the  annual  school 
meeting  in  the  other  districts  of  the  State  should  be  cast  in  favor  of  the  change. 
When  a  book  has  been  adopted  and  designated  as  provided  in  the  act,  it  can  not 


1226  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

be  clianged  k)r  the  period  of  five  years,  except  by  a  three-fourths  vote.  After  the 
expiration  of  such  period,  another  book  may  be  adopted  in  place  of  it  by  a 
majority  vote  of  the  board  of  education,  or  a  two-thirds  vote  of  the  electors,  as 
the  case  may  be. 

It  is  conceded  that  Guyot's  geographies  had,  at  the  time  of  the  action  of  the 
board  in  question,  been  in  use  in  the  schools  of  Binghamton  for  more  than  five 
years.  There  had  at  no  time  been  any  formal  action  of  the  board  designating 
them  as  textbooks,  under  the  provisions  of  chapter  413  of  the  Laws  of  1877,  vv^hen 
the  resolution  of  October  i8th  was  adopted.  That  resolution  simply  provided 
that  no  change  should  be  made  in  the  geographies  in  use  in  the  schools  during  the 
present  school  year.  It  is  impossible  to  hold  that  this  was  an  adoption  or  designa- 
tion of  Guyot's  geographies  as  textbooks  under  the  provisions  of  the  law  to  pre- 
vent frequent  changes  of  textbooks,  and  that,  consequently,  they  could  not  be 
superseded  for  the  period  of  five  years,  except  by  a  three-fourths  vote  of  the 
board.  If  it  was,  why  should  the  board  have  resolved  to  make  no  change  during 
"  the  present  school  year."  It  was  manifestly  the  expression  of  an  intention  not 
to  supersede  the  book  during  the  school  year  and  nothing  more.  If  the  action  of 
October  iSth  was  not  a  designation  of  a  textbook  under  the  law,  then  there  was 
certainly  no  statutory  impediment  to  the  reconsideration  of  that  action  within  the 
time  provided  by  the  rules  of  the  board.  Moreover,  the  resolutions  passed  subse- 
quently by  the  board  adopting  Barnes's  geographies,  did  not  contravene  or  infringe 
upon  the  resolution  of  October  18th  in  the  least.  The  last  named  resolution  only 
provided  that  no  change  should  be  made  during  the  present  school  year.  The 
resolutions  adopting  Barnes's  geographies  provides  that  their  use  should  not  be 
commenced  until  the  beginning  of  the  next  school  year,  'i'he  resolution  of  Janu- 
ary 17th,  providing  that  the  use  of  Guyot's  geographies  should  be  discontinued 
after  the  present  school  year,  was  only  in  completion  of  the  purpose  of  the 
board.  I  do  not  see  its  materiality  in  any  event.  If  the  resolution  adopting 
Barnes's  geographies  was  lawful  and  it  was  regularly  adopted,  then  it  very 
eflfectually  discontinued  Guyot's  geographies  when  it  went  into  operation. 

If  the  resolution  of  October  i8th  was  not  an  adoption  of  Guyot's  geographies 
for  the  period  of  five  years,  and  as  already  observed,  it  seems  clear  that  it  was 
not,  then  there  would  seem  to  be  no  reason  why  the  board  could  not  adopt 
another  series  of  geographies  at  any  time  by  a  majority  vote. 

But  the  board  has  provided  that  the  Barnes's  geographies  should  go  into  use 
at  the  beginning  of  the  next  school  year,  and  the  appellant  says  that,  by  reason 
of  an  intervening  election  or  otherwise,  there  might  be  changes  in  the  board  before 
that  time,  and  that  the  board  as  now  constituted  can  not  legislate  for  a  board 
which  may  be  diflferently  constituted  when  its  action  is  to  go  into  operation.  It 
is  not  improper  to  say  that  I  have  considered  this  question  as  more  serious  than 
any  other  which  has  been  suggested  in  the  case.  But  it  is  not  well  to  anticipate 
difficulties.  From  the  observations  already  made,  it  seems  clear  to  me  that  the 
board  had  the  power,  by  a  majority  vote,  to  adopt  Barnes's  geographies  or  any 
other  and  to  direct  that  their  use  should  begin  immediately.    This  being  so,  there 


JUDICIAL  decisions:    textbooks  1227 

would  seem  to  be  no  good  reason  outside  of  the  law,  and  I  can  see  no  provision 
in  the  law  to  prevent  them  directing  that  the  use  of  the  new  books  should  com- 
mence at  a  fixed  time  in  the  future.  Indeed,  the  fact  that  they  had  once  resolved 
that  Guyot's  geographies  should  not  be  displaced  during  the  present  school  year, 
and  that  patrons  of  the  schools  had  purchased  accordingly,  bound  the  board  in 
honor,  if  not  in  law,  not  to  put  the  new  books  in  use  prior  to  the  beginning  of  the 
next  school  year.  Moreover,  the  beginning  of  a  school  year  would  seem  to  be 
the  proper  and  appropriate  time  for  taking  such  a  step.  Whether  the  board,  as 
now  constituted,  could  change  its  mind,  or  whether  the  board,  after  changes  in 
its  membership,  could  overthrow  this  action  by  less  than  a  three-fourths  vote 
prior  to  the  time  when  the  new  books  are  to  go  into  use,  or  prior  to  the  time 
when  it  had  become  necessary  for  patrons  to  supply  their  children  with  books, 
are  questions  which  it  is  not  necessary  to  consider  before  such  action  should  be 
taken. 

The  appeals  must  be  dismissed  and  it  is  so  ordered. 


3631 

In  the  matter  of  the  appeal  of  Joseph  H.  Chittendon  v.  the  board  of  education 

of  the  city  of  Binghamton. 

A  board  of  education  adopted  and  designated  a  textbook  under  the  provisions  of  chapter 
413,  Laws  of  1877,  and  fixed  a  time  in  the  future  when  the  same  should  go  into  use. 
Before  that  time  arrived,  and  before  patrons  were  required  to  supply  themselves  with 
the  book,  rescinded  and  overthrew  the  action  by  less  than  a  three-fourths  vote. 

Held,  That  the  board  had  the  right  to  do  so,  notwithstanding  the  provision  of  chapter  413 
of  the  Laws  of  1877.  That  act  is  prohibitive  in  character  and  must  be  so  construed  as 
to  leave  with  the  board  power  not  expressly  taken  away  by  it. 

The  board  had  a  rule  of  order  that  a  question  once  decided  could  be  reconsidered  only  at  the 
next  regular  meeting.  The  action  appealed  from  is  alleged  to  have  been  taken  in  con- 
travention of  this  rule. 

Held,  That  the  body  which  makes  a  rule  of  order  is  the  highest  authority  for  construing 
it.  Again  the  rule  could  have  been  suspended  by  a  majority  vote,  the  same  which 
adopted  the  action  complained  of.  Furthermore,  the  board  can  not  at  one  time  take 
action  which  will  prevent  the  board  at  another  time  from  taking  any  lawful  action  it 
may  deem  best,  and  if  the  rule  of  order  is  antagonistic  to  this  principle,  it  is  opposed 
to  the  law  and  can  not  be  upheld. 

Decided  August  16,  1887 

Chapman  &  Lyon,  attorneys  for  appellant 
Arms  &  Curtiss,  attorneys  for  respondent 

Draper.  Superintendent 

Three  textbooks  entitled,  respectively,  "  Our  World,"  "  Guyot's  Grammar 
School  Geography "  and  "  Guyot's  Intermediate  Geography  "  had  been  in  use 
in  the  schools  of  the  city  of  Binghamton  for  at  least  the  period  of  six  years, 


1228  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

during  which  time  there  had  been  no  action  of  the  board  of  education  of  that 
city  adopting  and  designating  the  same  as  textbooks  in  said  schools,  when,  upon 
the  i8th  of  October  1886,  said  board  unanimously  resolved  that  there  should  be 
no  change  in  geographies  in  use  during  the  present  school  year.  Upon  the  6th 
day  of  December  1886,  the  board,  by  a  vote  of  seven  to  six,  adopted  the  follow- 
ing, namely: 

Resolved,  That  the  use  of  the  primary  geography  entitled  ^  Our  World,"  be 
discontinued  as  a  textbook  in  our  schools,  and  that  Barnes  s  Elementary  Geog- 
raphy be  adopted  in  its  place,  and  that  Barnes's  Complete  Geography  be  adopted 
as  a  textbook  in  our  schools,  its  use,  however,  to  be  postponed  until  the  beginning 
of  the  next  school  year. 

On  the  17th  day  of  January  1887,  said  board,  by  a  vote  of  seven  to  five, 
adopted  the  following  resolution : 

Resolved,  That  Guyot's  geographies  be  discontinued  as  textbooks  in  our 
schools  at  the  close  of  the  present  year. 

Following  this  action  by  the  board  Mr  Newton  W.  Edson  appealed  there- 
from to  this  Department,  claiming  that  the  action  of  October  i8th  was  an 
adoption  and  designation  of  geographies  within  the  meaning  of  chapter  413 
of  the  Laws  of  1877,  and  that,  consequently,  no  change  could  be  made  within 
five  years,  except  as  provided  in  that  act.  Beyond  this,  it  was  urged  that  the 
action  of  the  board  could  not  be  upheld  for  the  reason  that  it  provided  that  the 
newly  adopted  books  should  go  into  use  at  a  time  in  the  future,  before  which 
time  the  board,  by  expiration  of  term  or  otherwise,  might  be  differently  con- 
stituted. The  decision  of  that  appeal  was  adverse  to  the  position  of  the  appellant. 
It  was  held  that  the  action  of  October  i8th  was  not  an  adoption  and  designation 
of  a  textbook  within  the  meaning  of  the  five-year  act,  and  that  the  board  had  the 
lawful  right  to  adopt  a  book  to  go  into  use  in  the  future.  The  question  as  to 
whether,  between  the  time  of  adoption  and  the  time  of  going  into  use,  the  board 
could  change  its  mind,  or,  being  differently  constituted,  could  reverse  or  change 
its  action  with  less  than  a  three-fourths  vote  was  expressly  reserved  until  cir- 
cumstances should  make  its  consideration  necessary.    That  time  has  now  arrived. 

On  the  i6th  day  of  May  1887,  the  board  by  a  vote  of  seven  to  six  adopted 
the  following,  namely : 

Resolved,  That  Guyot's  Intermediate  and  Grammar  School  Geographies  be 
and  the  same  hereby  are  continued  in  use  in  our  schools  in  the  grades  where 
they  now  are,  and  that  no  change  of  geographies  be  made.  This  to  take  effect 
immediately. 

On  the  5th  day  of  July  1887,  the  board  by  a  vote  of  seven  to  five,  adopted 
the  following,  namely : 

Resolved,  That  Barnes's  Complete  Geography  be  and  the  same  hereby  is 
dropped  from  the  list  of  textbooks  of  the  city  of  Binghamton. 

The  appellant  herein  brings  separate  appeals,  from  the  action  of  the  board 
in  adopting  these  respective  resolutions,  which,  for  the  sake  of  expedition,  will 
be  considered  and  determined  together. 


JUDICIAL  decisions:    textbooks  1229 

Preliminarily,  it  is  objected  by  the  respondent  that  the  appellant  is  not  an 
"  aggrieved "  person  within  the  meaning  of  the  statute,  and  so  not  competent 
to  bring  the  appeal.  It  appears  that  he  is  a  resident  and  taxpayer  of  Binghamton, 
and  has  children  who  attend  the  schools  of  that  city  and  who  use  the  textbooks 
involved  in  this  controversy.  The  statute  authorizes  any  person  conceiving 
himself  aggrieved  to  bring  an  appeal  and  it  then  directs  the  Superintendent 
to  dismiss  such  appeals  when  it  shall  appear  that  the  appellant  has  no  interest 
in  the  matter  appealed  from.  In  view  of  these  provisions,  it  seems  to  me  that 
this  objection  of  the  respondent  ought  not  to  be  sustained. 

A  close  reading  of  the  several  resolves  of  the  board,  shows  that  the  only 
book  in  controversy  is  Barnes's  Complete  Geography.  The  action  of  December 
6th  adopted  Barnes's  Elementary  Geography  in  the  place  of  Guyot's  Primary 
Geography  entitled,  "  Our  World,"  and  the  book  so  adopted  went  into  use 
immediately.  No  action  since  taken  purports  to  overturn  this.  But  that  part 
of  the  resolution  of  December  6th  adopting  Barnes's  Complete  Geography  is 
sought  to  be  rescinded  and  nullified  by  the  resolutions  of  May  i6th  and  July  5th 
following.  The  appellant  insists  that  this  could  only  be  done  by  a  three-fourths 
vote.  It  was  conceded  upon  the  argument  that  there  was  no  claim  that  patrons 
of  the  schools  had,  subsequent  to  the  action  of  the  board  adopting  "  Barnes's 
Complete  Geography  "  and  before  the  action  rescinding  such  adoption,  purchased 
copies  of  that  book.  The  most  that  was  urged  in  this  direction  was  that  pupils 
passing  from  one  grade  to  another  would  be  required  to  change  from  one  series 
of  geographies  to  the  other  at  added  expense  to  the  parents;  but,  having  in 
view  the  fact  that  the  city  superintendent  has  unrestricted  authority,  under 
the  by-laws  of  the  board,  to  arrange  grades  and  to  rearrange  them  at  any  time, 
as  well  as  to  classify  and  promote  pupils  at  will,  and  that  it  must  be  assumed 
that  this  authority  would  be  so  exercised  as  to  adjust  the  proper  grades  of 
books  adopted  by  the  board  to  the  grades  of  pupils  so  as  best  to  promote  the 
interests  of  the  schools  without  unnecessary  expense  to  patrons,  it  seems  to  me 
that  this  fact  lacks  sufficient  substance  and  is  too  remote  to  be  adopted  as  the 
foundation  upon  which  to  rest  a  holding  that  the  action  of  the  board  contravenes 
the  provisions  of  the  five-year  act.  The  question  is  then  squarely  presented 
whether  a  board  of  education,  having  adopted  and  designated  a  textbook  to 
go  into  use  at  a  fixed  time  in  the  future,  can,  before  that  time  arrives  and  before 
patrons  have  supplied  themselves  with  the  book,  and  notwithstanding  the  pro- 
visions of  chapter  413  of  the  Laws  of  1877,  rescind  and  overthrow  such  action 
with  less  than  a  three- fourths  vote? 

I  have  no  doubt  of  the  power  of  the  board  to  adopt  a  textbook  and  provide 
that  its  use  shall  commence  in  future.  In  the  nature  of  things  it  must  be  so.  But 
the  board,  as  now  constituted,  can  not  usurp  the  functions  of  the  board  as  it 
may  be  constituted  nine  months  hence,  in  such  a  manner  and  with  such  effect 
as  to  cut  off  the  succeeding  members  from  the  right  to  exercise  their  own  pre- 
rogatives according  to  their  own  judgment.  If  the  board  could  thus  forestall 
action  for  a  period  of  nine  months,  when  within  that  time  the  term  of  one  of 


1230  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

the  members  was  to  expire  and  a  single  vote  would  reverse  the  action,  as  in 
tlie  present  case,  it  could  likewise  do  it  for  the  period  of  five  years.  There  is 
no  difference  in  principle. 

It  is  to  be  borne  in  mind  that  the  purpose  of  the  Legislature  in  enacting 
chapter  413  of  the  Laws  of  1877  was  to  protect  patrons  from  the  expense 
consequent  upon  frequently  superseding  one  textbook  with  another  upon  the 
same  subject  and  of  like  grade.  The  gist  and  substance  of  the  act  is  contained 
in  the  second  section,  where  it  provides  that  "  when  a  textbook  shall  have  been 
adopted  for  use  ...  it  shall  not  be  lawful  to  supercede  the  textbook  so 
adopted  by  any  other  book  within  a  period  of  five  years  from  the  time  of  such 
adoption  except  upon  a  three-fourths  vote  of  the  board  of  education."  The 
book  here  in  controversy  is  not  in  use  in  the  schools  of  Binghamton.  It  is, 
therefore,  not  superseded.  No  one  has,  by  the  action  of  the  board,  been  oblici^ed 
to  buy  it  and,  .so  far  as  is  known,  no  one  has  bought  it.  No  one,  therefore, 
is  injured  and  no  one  is  in  posftion  to  invoke  the  protection  of  this  statute. 
Indepejident  of  this  statute  the  board  has  unlimited  power  in  the  premises  The 
statute  is  prohibitive  in  its  nature  and  must  be  construed  strictly  and  so  as  to 
leave  with  the  board  all  those  prerogatives  which  the  law  has  always  conferred 
upon  it,  and  which  are  not  specifically  taken  away  by  its  provisions.  Following 
this  view  I  arrive  at  the  conclusion  that  the  resolutions  appealed  from  did  not 
require  a  three-fourths  vote  in  order  to  give  them  force  and  effect,  provided 
the  board  was  not  inhibited  by  its  own  by-laws  from  taking  any  action  in  the 
premises  at  that  time. 

A  rule  of  order  of  the  respondent  in  force  at  the  time  of  the  adoption  of 
the  resolution  appealed  from  is  as  follows: 

Rule  21.  When  a  question  has  been  once  put  and  decided,  it  shall  be  in 
order  for  any  member  of  the  majority  to  move  a  reconsideration  thereof  at 
the  same  or  at  the  next  regular  meeting." 

It  is  said  by  the  counsel  for  the  appellant  that  the  board  of  education  of 
the  city  of  Binghamton  is  a  corporate  body  of  continuous  life;  that  the  members 
change,  but  not  the  board;  that  the  board  must  act  within  its  rules;  that  the 
resolutions  appealed  from  were  in  fact  and  effect,  so  far  as  Barnes's  Complete 
Geography  is  concerned,  a  reconsideration  of  the  action  of  December  last,  and 
that  It  was  taken  after  the  time  had  gone  by  when  a  reconsideration  could  be 
had  under  the  rules  of  the  board. 

This  view  impressed  me  with  considerable  force  upon  the  argument,  but 
after  full  consideration  I  am  led  to  the  following  conclusions : 

The  body  which  makes  a  rule  is  the  best  authority  to  construe  it.  It  may 
be  said  that  the  action  appealed  from  is  not  a  reconsideration  of  the  former 
action,  or  at  least  such  a  reconsideration  as  the  rule  refers  to  Again  the 
rule  could  have  been  annulled  by  a  majority  vote  of  the  board;  the  same' vote 
which  adopted  the  resolutions  appealed  from.  Furthermore,  as  has  already 
been  said,  the  board  can  not  today  take  action  which  will  prevent  the  board  in 
the  future  from  taking  any  lawful  action  which  it  mav  deem  best.  If  the  rule 
of  order  is  in  contravention  of  this,  it  can  not  be  upheld. 


JUDICIAL   DECISIONS  :       TEXTBOOKS  I23I 

It  is  perhaps  well  to  add  that  I  have  given  no  thought  to  the  question  of 
the  merits  of  the  respective  textbooks  involved,  for  the  reason  that  I  have  con- 
sidered that  subject  one  which  should  properly  be  left  to  the  judgment  and 
discretion  of  the  local  school  authorities. 

The  appeals  are  dismissed. 


3691 

In  the  matter  of  the  appeal  of  Daniel  W.  Hall  and  another  v.  David  Cordingly, 
trustee  of  school  district  no.  3,  town  of  Scriba,  Oswego  county. 

Where  a  teacher  and  trustee  have  changed  a  textbook,  which  had  been  designated  by  a 
district  meeting  more  than  five  years  previous  thereto,  and  it  is  made  to  appear  that 
the  change  has  been  beneficial,  the  action  will  not  be  disturbed.  The  spirit  of  the  act 
chapter  413,  Laws  of   1877,  was  not  violated  by  such  change. 

Decided  June  9,  1888 

Draper,  Superintendent 

The  appellants,  taxpayers  of  district  no.  3,  town  of  Scriba,  Oswego  county, 
complain  of  the  action  of  the  trustee  of  said  district  in  consenting  to  the  change 
of  certain  textbooks  which  had  for  a  nimiber  of  years  been  in  use  in  the 
school.  It  appears  from  the  appellants'  papers  that,  in  1877,  the  district  meeting 
selected  certain  textbooks,  conformably  to  the  provisions  of  chapter  413,  Laws 
of  1877.  In  1882  certain  of  the  textbooks  which  had  been  adopted  as  above 
stated,  were  changed  by  a  vote  of  the  inhabitants  and  since  that  time  no  change 
has  been  made  by  the  action  of  a  district  meeting.  The  teacher,  with  the 
approval  of  the  trustee,  has  now  made  a  change  in  reading  books,  which  he 
avers  was  needed  and  which  he  did  for  the  benefit  of  the  school. 

The  question  presented  is,  whether  the  trustee  exceeded  his  authority  in 
the  premises.  Before  the  act  of  1877,  chapter  413,  the  power  of  selecting  school 
textbooks  was  vested  in  the  trustees  of  the  several  districts.  The  act  of  1S77 
vested  certain  rights  in  the  inhabitants,  which  the  inhabitants  of  the  district 
in  question  exercised  in  1877,  and  again  in  1882.  The  law  was  intended,  as 
its  title  indicates,  to  prevent  frequent  changes  in  textbooks,  and  provides  that, 
when  a  designation  is  made  by  the  inhabitants,  the  same  shall  be  changed 
within  five  years  only  by  a  three-fourths  vote  of  the  legal  voters  present  and 
voting  at  an  annual  school  meeting. 

In  the  case  presented,  over  five  years  have  elapsed  since  any  action  relative 
to  textbooks  has  been  taken  by  a  district  meeting.  I  think  the  trustee  acted 
within  the  scope  of  his  authority.  It  is  not  claimed  that  a  beneficial  change 
was  not  made,  and  the  lapse  of  time  indicates  that  the  spirit  of  the  act  has  not 
been  violated  by  frequent  changes. 

The  appeal  is   overruled. 


123-2  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

3743 

In  the  matter  of  tlie  appeal  of  Henry  W.  Ellsworth  v.  the  board  of  education 

of  the  city  of  Dunkirk. 

A  textbook  which  has  been  adopted  for  use  in  a  union  free  school  district,  pursuant  to 
chapter  413  of  the  Laws  of  1877  can  not  be  changed  within  live  years,  except  by  a 
three-fourths  vote  of  the  board  of  education. 

Writing  books  held  to  be  textbooks,  within  the  meaning  of  the  statute. 

Decided  December  29,   1888 

Draper,  Superintendent 

This  appeal  is  taken  by  an  author  and  publisher  of  a  series  of  school 
writing  books  from  the  action  of  the  board  of  education  of  the  city  of  Dunkirk, 
in  adopting  a  resolution  to  change  the  writing  books  in  use,  contrary,  as  it  is 
claimed,  to  the  provisions  of  chapter  413  of  the  Laws  of  1877. 

The  appellant  shows  that  the  board  of  education  consists  of  six  persons; 
that  said  board,  in  August  1886,  adopted  as  a  textbook,  for  use  in  the  schools 
under  its  control,  the  Ellsworth  reversible  writing  books,  and  that  thereafter 
and  until  August  6th  last  the  same  were  used  in  the  schools  under  its  charge; 
that  on  or  about  August  6,  1888,  five  of  the  members  of  the  said  board  of 
education  met,  and,  by  an  affirmative  vote  of  three  only,  adopted  a  resolution 
to  supersede  the  Ellsworth  books  with  another  system  of  writing  books.  The 
appellant  claims  that  chapter  413  of  the  Laws  of  1877  has  been  violated  by 
this  action  of  the  board,  taken  August  6,  1888. 

No  answer  has  been  interposed  by  the  board.  The  delay  in  bringing 
the  appeal  has  been  sufficiently  excused. 

The  allegations  of  the  appellant  being  undisputed,  I  must  accept  the  state- 
ment of  facts  made  by  him. 

A  textbook  which  has  been  adopted  for  use  in  a  union  free  school  district 
can  not  be  changed  within  five  years,  except  by  a  three-fourths  vote  of  the  board 
of  education. 

A  question  as  to  whether  writing  books  should  be  considered  textbooks, 
within  the  meaning  of  the  statute,  has  addressed  itself  to  my  mind.  I  find 
upon  investigation,  however,  that  my  predecessor  in  office  considered  that  ques- 
tion, and  held  that  they  should,  and  I  deem  myself  justified  in  following  his 
determination. 

The  vote  by  which  the  resolution  of  August  6,  1888,  was  adopted,  was  less 
than  that  required  by  the  statute  to  eflfect  the  purpose  of  the  resolution,  and  I 
must,  therefore,  hold  that  it  was  inoperative  and  of  no  efifect. 

The  appeal  is,  therefore,  sustained. 


TRANSPORTATION 

5398 

In  the  matter  of  the  apphcation  of  Lucy  Loomis  for  an  order  directing  the 
trustees  etc.  of  union  free  school  district  no.  6,  town  of  Hartford,  Washing- 
ton county,  to  provide  conveyance  for  her  children  to  school. 

Transportation  of  children;  duty  of  parents.  An  order  compelling  school  authorities  to 
provide  transportation  for  children  remotely  situated  from  the  school  will  not  be  made 
unless  a  clear  case  of  hardship  is  shown.  If  the  petitioner  has  horses,  wagons  and 
sleighs,  used  by  him  in  his  business  as  a  farmer  the  district  will  not  be  compelled  to 
furnish  conveyance  for  his  children.  The  law  providing  for  transportation  was  not 
intended  to  relieve  parents  of  their  moral  and  legal  obHgations  to  provide  their  children 
with  a  suitable  education. 

Decided  December  8,  1908 

J.  B.  McCormick,  attorney  for  petitioner 
W.  W.  Norton,  attorney  for  respondent 

Draper,  C ommissioner 

The  appellant,  Lucy  Loomis,  complains  of  the  refusal  of  the  board  of  educa- 
tion of  union  free  school  district  no.  6,  town  of  Hartford,  county  of  Washing- 
ton, to  provide  conveyance  for  her  two  children  to  and  from  the  union  free  school 
in  such  district.  It  appears  from  the  papers  that  the  petitioner  and  her  husband 
are  farmers  living  on  their  own  farm  about  two  and  three-tenths  miles  from  the 
school  in  the  village  of  Hartford.  Their  farm  is  not  large  and  they  both  state  in 
their  affidavits  that  they  are  too  poor  to  hire  others  to  carry  their  children  to 
and  from  the  school.  They  have  two  horses  and  wagons  and  sleighs.  But  they 
assert  that  if  their  horses  are  used  for  conveying  their  children  the  business  of 
their  farm  will  be  seriously  inconvenienced  and  that  a  loss  will  be  sustained 
which  they  can  ill  afford. 

It  is  the  theory  of  the  law  that  where  children  of  school  age  reside  such  a 
distance  from  the  schoolhouse  in  the  district  that  they  are  unable  to  walk  and 
their  parents  are  so  poor  that  they  can  not  take  them  to  and  from  school,  the  dis- 
trict may,  at  a  meeting  of  the  qualified  electors  thereof,  vote  to  provide  such 
conveyance,  to  the  end  that  children  so  situated  shall  not  be  deprived  of  school 
advantages.  There  is  no  doubt  but  that  in  a  proper  case  an  order  may  be  granted 
directing  a  trustee  or  board  of  education  of  a  district  to  take  measures  to  provide 
for  such  conveyance.  Such  an  order  should  not,  however,  be  directed  against  a 
trustee  or  board  except  in  a  clear  case  of  hardship.  It  will  be  presumed  that 
the  school  authorities  have  dealt  fairly  with  an  application  for  such  assistance. 

I1233] 


Ijj4  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

It  has  been  held  that  transportation  will  not  be  ordered  where  the  petitioner 
has  horses,  wagons  and  sleighs  used  by  him  in  his  business  as  a  farmer.  In 
such  a  case  he  should  provide  conveyance  for  his  children,  even  if  by  so  doing 
he  suffers  financial  loss.  A  claim  that  he  needs  his  horses  for  farm  work  and 
that  he  can  not  spare  the  time  from  his  farm  work  will  not  be  considered.  Appeal 
of  Turner,  no.  5236,  1895.  The  law  was  not  intended  to  relieve  parents  of  their 
moral  and  legal  obligation  to  provide  their  children  with  suitable  education.  This 
obligation  is  coexistent  with  the  duty  to  provide  support  and  maintenance.  While 
public  conveyance  to  children  remotely  situated  from  a  school  will  be  frequently 
afforded  where  relief  would  not  be  granted  by  poor  officers  yet  it  must  be  clearly 
shown  that  such  children  will  be  practically  deprived  of  school  advantages  unless 
such  conveyance  be  provided,  before  this  Department  will  interfere.  The  peti- 
tioner herein  has  not  made  out  such  a  case.  She  relies  also  upon  the  fact  that 
the  respondents  are  already  providing  conveyance  for  two  children  living  a  mile 
beyond  her  on  the  same  road.  She  insists  that  the  board  shows  malice  against 
her  in  carrying  these  children  without  a  similar  provision  for  her  own.  It  appears 
that  the  mother  of  the  children  carried  is  poor,  supporting  herself  and  family  by 
days'  labor,  and  that  she  lives  over  3  miles  from  the  school  and  has  no  means  of 
conveyance  of  her  own.  This  is  a  very  reasonable  exercise  of  discretion  on 
the  part  of  the  board,  and  the  petitioner  may  not  be  heard  to  complain  thereof. 

The  petition  is  dismissed. 


5236 
In  the  matter  of  the  appeal  of  Augustus  Turner  from  the  action  or  proceeding 
taken  by  a  special  meeting  held  in  district  no.  1 1,  town  of  Broome,  county  of 
Schoharie,  on  October  3,  1905. 

Subdivision  19,  section  14,  title  7  of  the  Consolidated  School  Law  authorizing  a  district  to 
provide  £or  the  conveyance  of  pupils  who  reside  so  remote  from  the  schoolhouse  as  to 
practically  deprive  them  of  school  privileges  was  not  enacted  to  relieve  parents  from 
any  of  the  obligations  which  they  owe  their  children  in  providing  for  their  education 

A  parent  in  providing  for  the  education  of  his  children  as  well  as  in  providing  for  their 
other  necessities  must  first  discharge  his  parental  duties  and  obligations  before  he  can 
ask  the  community  to  aid  him. 

Decided  December  26,  1905 

M.  B.  Mann,  attorney  for  appellant 
W.  H.  Albro,  attorney  for  respondent 

Draper,  Commissioucr 

On  July  30,  1902,  the  school  commissioner  of  the  first  school  commissioner 
district  of  Schoharie  county  made  an  order  dissolving  school  district  no.  4  town 
of  Broome,  and  annexing  the  territory  thereof  to  adjoining  districts.    An  appeal 


JUDICIAL  DECISIONS :      TRANSPORTATION  I235 

from  such  order  was  taken  to  the  State  Superintendent  of  Public  Instruction  by 
Augustus  Turner  the  appellant  herein.  Such  appeal  was  dismissed  on  the  29th 
day  of  December  1902.  The  term  of  office  of  the  school  commissioner  who  made 
such  order  terminated  on  December  31,  1902.  On  January  i,  1903,  a  new  school 
commissioner,  chosen  at  the  preceding  general  election,  assumed  the  duties  of  his 
office.  On  July  30,  1903,  this  school  commissioner  made  an  order  reinstating 
the  old  district,  no.  4,  Broome.  This  order  was  made  one  year  from  the  date 
on  which  the  previous  school  commissioner  dissolved  the  district  and  seven 
months  after  the  State  Superintendent  had  decided  the  Turner  appeal,  sustain- 
ing the  order  of  dissolution  of  said  district  no.  4,  Broome.  Certain  aggrieved 
parties  under  the  order  by  which  district  no.  4  was  reinstated  brought  an  appeal 
to  the  State  Superintendent  of  Public  Instruction  and  on  March  30,  1904,  such 
appeal  was  sustained  and  the  order  of  the  school  commissioner  reinstating  said 
district  no.  4,  Broome,  was  vacated. 

The  appeal  herein  grows  out  of  the  controversy  resulting  in  the  two  appeals 
above  described.  Appellant  claims  that  he  lives  so  far  from  the  schoolhouse  of 
the  district  in  which  he  resides  and  that  the  roads  are  so  hilly  and  in  such  poor 
condition,  being  even  impassable  during  a  portion  of  the  winter,  that  it  is  impos- 
sible for  his  children  to  walk  to  and  from  school  daily.  He  also  claims  that 
he  is  unable  to  convey  his  children  to  school  and  that  they  are  therefore  practi- 
cally deprived  of  school  privileges.  He  therefore  petitioned  the  trustee  to  call 
a  special  meeting  of  the  district  to  make  provision  for  the  transportation  of  his 
children  in  accordance  with  the  provisions  of  subdivision  19,  section  14,  title  7 
of  the  Consolidated  School  Law.  Such  special  meeting  was  held  and  by  an 
almost  unanimous  vote  decided  that  the  children  of  appellant  were  not  by  reason 
of  conditions  alleged  deprived  of  school  privileges.  No  other  action  was  taken 
by  the  meeting. 

Respondent's  attorney  raises  several  technical  objections  on  which  he 
requests  that  this  appeal  be  dismissed.  I  do  not  consider  these  objections  of 
sufficient  force  to  warrant  such  action  and  deem  it  wiser  to  reach  a  determina- 
tion of  the  appeal  upon  its  merits. 

One  of  the  questions  determined  by  the  State  Superintendent  of  Public 
Instruction  in  the  appeal  brought  by  Turner  in  1902  was  the  school  privileges 
which  would  be  afforded  Turner's  children  by  annexing  his  property  to  the  dis- 
trict in  which  it  is  now  located.  The  State  Superintendent  in  that  appeal  speci- 
fically held:  "It  does  not  appear  from  the  proofs  established  herein  that  any 
of  the  appellants  who  have  children  of  school  age,  are  in  any  considerable  degree 
inconvenienced  by  the  orders  made  from  which  this  appeal  is  taken,  except  the 
appellant,  Augustus  Turner.  Although  the  children  of  Turner  will  be  required  to 
travel  a  greater  distance  to  attend  school  than  they  were  required  to  attend  the 
school  in  district  no.  4,  it  is  not  established  that  they  can  not,  at  nearly  all  times 
during  the  school  year,  and  without  serious  inconvenience,  attend  the  school  in 
district  no.  i."  One  of  the  principal  questions  to  be  determined  in  this  appeal 
was  determined  in  the  appeal  of  1902  and  should  not  be  raised  except  under  new 
conditions  or  supported  by  new  evidence. 


IJjO  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

Subdivision  19,  section  14,  title  7  of  the  Consolidated  School  Law  authorizes 
a  district  to  provide  for  the  conveyance  of  pupils  to  school  who  may  reside  so 
remote  from  the  schoolhouse  as  to  practically  deprive  them  of  school  privileges. 
It  can  not  be  successfully  contended  that  this  provision  of  law  was  enacted  for 
the  purpose  of  relieving  parents  from  any  of  the  obligations  which  they  owe 
their  children  in  the  matter  of  providing  for  their  education.  A  parent  in  pro- 
viding for  the  education  of  his  children  as  well  as  in  providing  for  their  other 
necessities  must  first  discharge  his  parental  duties  and  obligations  before  he  can 
ask  the  community  to  aid  him.  It  is  just  as  much  the  duty  of  appellant  to  edu- 
cate his  children  as  it  is  to  feed,  shelter  or  clothe  them  or  to  otherwise  provide 
for  their  health  and  comfort.  In  appeal  no.  5219,  decided  by  me  October  31, 
1905,  I  held  as  follows :  "  The  moral  and  legal  obligation  rests  upon  every  parent 
to  give  his  child  the  advantages  of  the  school  facilities  afforded  by  our  system 
of  public  education.  He  should  do  this  even  at  great  inconvenience  and  expense 
if  necessary.  He  should  not  expect  remuneration,  nor  should  it  be  given,  for 
such  trouble  as  may  reasonably  be  expected  of  a  parent  to  enable  his  children 
to  attend  school." 

The  pleadings  herein  show  that  during  some  portions  of  the  year  the  children 
of  appellant  are  unable  to  walk  to  and  from  school  daily.  At  such  times  it  is 
the  duty  of  appellant  to  convey  his  children  to  school.  Before  he  can  invoke  the 
aid  of  the  district  in  providing  transportation  he  must  show  that  he  is  unable  to 
provide  it  himself.  The  pleadings  show  him  to  be  a  successful  farmer  owning 
horses,  wagons  and  sleighs  and  financially  able  to  take  his  children  to  and  from 
school  when  they  are  unable  to  walk.  It  is  his  duty  to  do  this  even  if  by  so 
doing  he  suffers  financial  loss.  To  claim  that  he  needs  his  horses  to  work  on 
his  farm  and  that  he  can  not  spare  the  time  from  his  farm  work  is  not  sufficient 
reason  to  exempt  him  from  performing  this  duty  nor  is  it  sufficient  ground  upon 
which  to  base  a  demand  upon  the  district  to  do  that  which  is  clearly  his  parental 
duty  to  do. 

It  is  necessary  to  a  sound  administration  of  public  school  affairs  to  hold 
that  parents  shall  first  perform  their  full  duty  in  getting  their  children  to  and 
from  school  before  they  are  justified  in  asking  the  district  to  provide  transporta- 
tion. Such  transportation  is  to  be  provided  only  in  cases  where  children  are 
unable  to  walk  and  parents  are  not  able  to  take  them  to  and  from  school. 

The  appeal  herein  is  dismissed. 


TRUSTEES 

5355 

In  the  matter  of  the  appeal  of  William  H.  Dempsey  and  Walter  F.  Jeffers  from 
the  proceedings  of  the  annual  meeting  of  union  free  school  district  no.  i, 
town  of  Eastchester,  Westchester  county. 

The  act  of  deciding  to  increase  the  number  of  trustees  is  a  statutory  proceeding  and  it  is 
essential  to  the  validity  of  the  procedure  in  such  case  that  each  provision  of  the  law 
shall  be  satisfied.  This  Department  has  uniformly  ruled  that  where  the  vote  upon  this 
question  is  taken  by  ballot  instead  of  by  taking  and  recording  the  ayes  and  noes  the 
statute  is  not  complied  with. 

The  provision  of  the  statute  requiring  that  notice  of  the  intention  to  vote  upon  a  proposition 
to  increase  the  number  of  trustees  in  a  district  shall  be  given  in  the  notice  of  the 
annual  meeting  is  a  protection  to  the  right  of  every  voter  in  the  district. 

Decided  October  4,  1907 

Frederick  W.  Clark,  attorney  for  appellants 
Michael  J.  Tierney,  attorney  for  respondents 

Draper,  Commissioner 

School  district  no.  i,  Eastchester,  is  a  union  free  school  district  whose  boun- 
daries are  not  the  same  as  the  boundaries  of  an  incorporated  village.  Previous 
to  August  6,  1907,  the  date  of  the  last  annual  meeting,  the  board  of  education  of 
such  district  consisted  of  five  members.  The  annual  meeting  of  August  6th  last 
passed  a  resolution  to  increase  the  number  of  members  on  such  board  from  five 
to  nine.  Section  31,  title  8  of  the  Consolidated  School  Law  provided  previous 
to  1903  that  a  union  free  school  district  of  this  class  could  change  the  number 
of  its  trustees  at  any  annual  meeting  by  a  majority  vote  and  that  such  vote 
should  be  by  taking  and  recording  the  ayes  and  noes.  In  1903  the  Legislature 
amended  this  section  of  the  Consolidated  School  Law  by  specifically  providing 
that  a  district  of  this  class  could  not  change  the  number  of  its  trustees  unless 
the  notice  of  the  annual  meeting  given  by  the  board  of  education  contained  a 
notice  that  the  proposition  to  either  increase  or  decrease  the  number  of  trustees 
or  members  of  the  board  of  education  would  be  presented  to  the  annual  meeting 
for  determination  (see  chapter  463,  Laws  of  1903).  The  notice  of  the  annual 
meeting  given  by  the  board  of  education  did  not  contain  a  reference  of  any 
kind  to  the  effect  that  the  question  of  increasing  the  number  of  members  of  the 
board  of  education  would  be  presented  to  such  annual  meeting  for  determination. 
Without  having  given  this  notice  as  the  statutes  direct  the  annual  meeting  voted 
to  increase  the  number  of  trustees  from  five  to  nine.    The  meeting,  however,  did 

[1237] 


1238  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

not  proceed  to  the  election  of  such  additional  members  but  adjourned  for  three 
weeks  and  immediately  gave  notice  that  at  such  adjourned  meeting  the  additional 
members  of  the  board  would  be  elected.  The  regularity  or  the  fairness  of  the 
election  itself  is  not  an  issue  in  this  proceeding.  Great  stress  is  laid  upon  these 
points  by  the  attorney  for  respondents  but  the  only  question  in  this  appeal  is, 
did  the  action  of  the  annual  meeting  conform  to  the  statutes  in  deciding  to 
increase  the  number  of  trustees?  The  act  of  deciding  to  increase  the  number 
of  trustees  is  a  statutory  proceeding  and  it  is  essential  to  the  validity  of  the 
procedure  in  such  cases  that  each  provision  of  the  law  shall  be  fully  satisfied. 
Moreover,  courts  uniformly  hold  that  in  cases  involving  statutory  proceedings 
the  sfatutes  must  be  strictly  construed.  This  Department  has  uniformly  ruled 
that  even  where  the  vote  upon  this  question  was  taken  by  ballot  instead  of 
by  taking  and  recording  the  ayes  and  noes,  and  proper  notice  had  been  given, 
such  failure  to  comply  with  the  statutes  was  fatal  to  the  validity  of  the  action 
taken.     It  has  also  ruled  that  notice  of  such  intended  action  is  always  necessary. 

The  number  of  members  of  which  a  board  of  education  shall  consist  is  an 
important  question.  The  Legislature  evidently  believed  that  the  voters  of  a  dis- 
trict should  have  knowledge  of  the  fact  that  the  question  of  deciding  to  increase 
the  number  of  members  on  a  board  of  education  would  be  presented  to  an  annual 
meeting  before  such  meeting  could  legally  determine  that  question.  It  is  quite  as 
essential  to  the  rights  of  the  voters  of  a  district  that  they  shall  have  a  right  to 
express  their  wishes  upon  enlarging  a  board  of  education  as  it  is  that  they  shall 
have  the  right  to  express  their  wishes  upon  who  the  members  of  such  board 
shall  be.  Failure  to  strictly  observe  the  statutes  governing  this  question  is 
sufhcient  ground  for  vacating  the  action  of  the  annual  meeting  in  respect  to  the 
matter  herein  complained  of. 

It  is  claimed  by  respondents  that  appellants  knew  the  district  could  not 
legally  vote  to  increase  the  number  of  trustees  without  having  given  the  required 
notice  and  knowing  this  fact  and  having  joined  in  giving  notice  of  the  adjourned 
meeting  and  having  participated  in  all  the  proceedings  and  the  election  they  are 
now  estopped  from  raising  the  question  of  regularity  of  procedure.  It  is  also 
claimed  that  respondent  JefTers  knew  that  Mr  Bellew  had  written  this  Depart- 
ment and  received  in  reply  a  communication  from  the  Chief  of  the  Law  Division, 
advising  him  of  the  illegal  procedure  at  the  annual  meeting.  Appellant  Dempsey 
denies  this  claim  and  asserts  that  he  believed  the  procedure  was  regular  and  had 
he  received  or  possessed  knowledge  of  its  irregularity  he  would  have  protested 
against  the  action  taken.  The  claim  of  appellant  is  strengthened  by  the  state- 
ment that  he  consulted  the  edition  of  the  Consolidated  School  Law  printed  in 
1903.  Through  a  clerical  error  the  former  Department  of  Public  Instruction, 
in  publishing  the  1903  edition  of  the  Consolidated  School  Law.  failed  to  incorpo- 
rate therein  the  amendment  in  question  made  by  the  Legislature  of  1903  to  sec- 
tion 31  of  the  Consolidated  School  Law. 

The  fact  that  there  was  a  large  attendance  of  the  voters  of  the  district  at 
the  election  held  at  the  adjourned  meeting,  or  that  such  election  was  legally  and 


JUDICIAL  decisions:     trustees  1239 

honestly  conducted,  does  not  operate  as  an  excuse  of  the  default  of  the  meeting 
for  failing  to  observe  the  statutes  in  deciding  to  increase  the  number  of  trustees 
from  five  to  nine.  It  may  be  that  many  voters  opposed  to  having  a  board  of 
education  composed  of  such  a  large  number,  believing  the  action  in  increasing 
the  number  of  trustees  had  been  legally  taken,  attended  and  participated  in  the 
election.  It  may  be  that  many  of  those  who  were  at  the  election  and  voted  for 
trustees  and  who  were  not  at  the  annual  meeting  would  have  attended  such 
annual  meeting  and  opposed  the  action  to  increase  the  number  of  trustees  had 
they  known  that  such  question  would  be  considered.  The  provision  of  the 
statutes  requiring  such  notice  was  a  protection  to  this  right  of  every  voter  in 
the  district. 

The  experience  of  this  Department  in  the  administration  of  school  district 
afiFairs  shows  that  much  trouble  and  embarrassment  will  be  avoided  if  school  dis- 
trict officers  and  school  meetings  are  held  strictly  to  the  provisions  of  the  Con- 
solidated School  Law  which  defines  their  powers. 

Since  the  action  of  the  meeting  in  increasing  the  number  of  trustees  was 
illegal  an  election  legally  conducted  thereafter  could  not  give  validity  to  the 
former  illegal  acts.  (See  decisions  of  this  Department,  nos.  4465,  4481,  5017 
and  5162.) 

The  appeal  herein  is  sustained. 

It  is  ordered,  That  the  action  of  the  annual  meeting  of  union  free  school 
district  no.  i,  town  of  Eastchester,  held  on  the  6th  day  of  August  1907,  in  voting 
to  increase  the  number  of  members  of  the  board  of  education  from  five  to  nine 
be  and  the  same  hereby  is  vacated. 

It  is  also  ordered,  That  the  action  of  an  adjourned  meeting  of  the  annual 
meeting  of  said  union  free  school  district  no.  i,  Eastchester.  held  on  the  28th 
day  of  August  1907,  in  electing  four  additional  members  to  the  board  of  educa- 
tion of  said  district  be  and  the  same  hereby  is  vacated. 

It  is  also  ordered,  That  the  action  of  an  alleged  meeting  of  the  board  of 
education  of  said  union  free  school  district  no.  i,  town  of  Eastchester,  in  organ- 
izing said  board  of  education  by  the  election  of  a  president  thereof  and  by  the 
appointment  of  a  clerk  and  a  treasurer  be  and  the  same  hereby  is  vacated. 


3934 

In  the  matter  of  the  appeal  of  Charles  Palmer  from  certain  proceedings  of  the 
annual  meeting  held  August  5,  1890,  in  district  no.  4,  town  of  Bovina, 
county  of  Delaware. 

A  resolution  of  an  annual  school  meeting  to  change  from  one  to  three  trustees,  which 
requires  a  two-thirds  vote,  was  taken  by  acclamation  and  declared  adopted.  Held,  to 
be  irregular  and  inoperative.  The  vote  should  have  been  taken  either  by  ballot,  call- 
ing the  roll,  or  by  a  division  of  the  house,  in  order  that  the  result  might  have  been 
accurately  ascertained  and  recorded,  and  not  left  to  mere  conjecture. 

The  person  first  elected  trustee  (three  having  been  successively  voted  for  and  declared 
elected)  ;  held,  to  be  sole  trustee. 

Decided  December  3,  1890 


1240  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

Draper,  Superintendent 

This  appeal  is  taken  by  a  taxpayer  and  elector  of  school  district  no.  4, 
Bovina,  Delaware  county  from  certain  proceedings  of  the  annual  school  meeting 
of  1890,  as  follows,  namely : 

1  From  the  motion  declared  carried  that  the  district  elect  three  instead  of 
one  trustee,  on  the  ground  that  the  vote  was  taken  by  acclamation  and  without 
the  call  for  ayes  and  noes,  and  no  effort  was  made  to  ascertain  -hether  the 
resolution  was  adopted  by  a  two-lhirds  vote,  as  is  required  by  statute,  to  legally 
make  the  change. 

2  From  the  manner  in  which  three  trustees  were  chosen,  they  being  succes- 
sively chosen  without  any  designation  of  the  term  for  which  they  were  to  serve. 
The  following  persons  were  elected  trustees :  John  W.  Bromley,  Charles  Palmer, 
Wilson  Scott. 

The  appellant  asks  that  the  meeting  be  declared  illegal  and  that  a  new  meet- 
ing be  ordered.     No  answer  has  been  interposed. 

The  evidence  presented  would  not  justify  me  in  declaring  the  meeting  illegal, 
but  some  of  the  proceedings  were  clearly  irregular  and  inoperative.  The  vote 
upon  the  resolution  to  change  from  one  to  three  trustees  can  not  be  sustained. 
L  pon  a  vote  of  this  kind,  where  two-thirds  must  vote  in  favor  of  the  proposi- 
tion to  adopt  it,  the  vote  should  be  by  ballot,  calling  the  roll,  or  at  least  by  such 
a  division  of  the  votes  that  the  result  could  be  accurately  ascertained  and 
recorded.  It  can  not  be  left  to  mere  conjectures,  nor  by  calling  for  a  vote  upon 
one  side  only  of  the  question. 

It  follows,  therefore,  that  the  district  could  legally  elect  only  one  trustee  to 
serve  for  the  ensuing  year.  Three  persons  were,  however,  chosen,  not  simultane- 
ously nor  on  a  single  ballot,  but  by  successive  votes. 

John  M.  Bromley  was  the  first  person  chosen  trustee,  and  my  conclusion  is 
that  he  is  the  sole  trustee  of  the  district  for  the  ensuing  year.  The  action  of  the 
meeting  in  voting  to  elect  subsequently  two  other  persons  as  trustees  was  without 
authority  of  law  and  consequently  void. 

To  the  extent  above  stated  the  appeal  is  sustained. 


3845 

In  the  matter  of  the  appeal  of  Peter  E.  Davis  from  the  proceedings  of  the  annual 
meeting  held  August  6,  1889,  in  district  no.  6,  of  the  town  of  Colchester, 
county  of  Delaware. 

A  resolution  to  change  to  the  three-trustee  system,  adopted  by  less  than  a  two-thirds  vote 
at  an  annual  meeting,  is  void.  An  election  of  three  persons  as  trustees  in  a  district 
entitled  to  but  one.  the  one  first  chosen,  if  they  were  separately  voted  for,  is  the  sole 
trustee.  If  all  three  were  simultaneously  voted  for,  the  person  chosen  for  the  term 
of  one  year  is  the  trustee. 

Decided  December  9.  1889 


JUDICIAL  DECISIONS :      TRUSTEES  '  124] 

Draper,  Superintendent 

At  the  annual  meeting  held  August  6,  1889,  in  district  no.  6,  town  of  Col- 
chester, Delaware  county,  the  meeting,  by  a  vote  of  four  to  three,  decided  to 
change  from  one  to  three  trustees,  and  thereupon  elected  the  appellant  trustee 
for  one  year,  Arthur  S.  Shafer  for  two  years  and  A.  S.  Van  Steenburg  for  three 
years.    The  trustees  all  concur  in  the  above  statement  of  facts. 

The  resolution  to  change  to  three  trustees  not  having  been  adopted  by  a 
two-thirds  vote,  as  required  by  law,  must  be  declared  void  and  of  no  effect. 

If  the  trustees  were  elected  separately,  the  person  first  chosen  trustee  (irre- 
spective of  the  term  for  which  he  was  voted  for)  is  the  sole  trustee  of  the  dis- 
trict for  one  year;  but  if  they  were  elected  simultaneously  on  a  single  ballot, 
then  the  one  designated  for  a  single  year  is  the  sole  trustee. 

The  appeal  is  sustained. 


4887 

In  the  matter  of  the  appeal  of  Charles  D.  Loucks  and  others  from  proceedings 
of  annual  meeting,  held  August  7,  1900,  in  school  district  no.  i,  Blenheim, 
Schoharie  county. 

Tn  a  school  district,  having  but  one  trustee,  at  any  annual  meeting  therein,  if  such  meeting 
desires  to  increase  the  number  of  trustees  in  the  district  to  three,  a  resolution  that 
the  district  have  three  trustees  should  be  presented ;  and  the  vote  .taken  thereon  should 
be  by  ballot  or  ascertained  by  the  clerk  of  the  meeting  recording  the  name  of  each 
person  whose  vote  is  received  and  setting  opposite  his  name  whether  such  person 
voted  aye  or  no;  if  such  resolution  shall  receive  the  affirmative  vote  of  two-thirds 
of  the  qualified  voters  present  and  voting  thereon,  the  meeting  may  proceed  to  elect 
by  ballot  three  trustees,  namely,  one  for  one  year,  one  for  two  years,  and  one  for 
three  years.  The  district  has  no  legal  authority  to  elect  three  trustees  for  the  ensuing 
year. 

Decided  September  29,  1900 


E.  F.  Dyckman,  attorney  for  appellants 
C.  E.  Nichols,  attorney  for  respondents 


Skinner,  Superintendent 

This  is  an  appeal  from  the  proceedings  taken  at  the  annual  meeting  held 
August  7,  1900,  in  school  district  i,  Blenheim,  Schoharie  county. 

The  appellants,  upon  information  and  belief,  allege  in  substance  that  at  the 
proper  hour  on  August  7,  1900,  the  annual  meeting  of  such  school  district  was 
organized  and  a  chairman  and  clerk  of  the  meeting  elected;  a  resolution  was 
passed  that  three  trustees  be  elected  instead  of  one,  and  upon  a  vote  being  taken 
one  Henry  Hollenbeck  was  declared  to  be  elected ;  before  further  action  was 
taken  the  meeting  broke  up  by  disorder,  and  nearly  all  the  legal  voters,  including 
the  clerk  of  the  meeting,  William  H.  Duncan,  left,  supposing  no  further  action 


1242  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

would  be  taken;  some  of  the  voters  returned  to  the  niectin.e^  and  Jackson  Decker 
was  elected  clerk  of  the  meeting  and  Frederick  Mattice  and  Willard  Hugabone 
were  elected  trustees,  and  Decker  was  elected  district  clerk.  The  appellants  also 
allege  that  Messrs  Ilollenbeck,  Mattice  and  Decker  arc  not,  nor  is  cither  of  thcni. 
eligible  to  hold  any  district  office  for  the  reason  that  each  of  them  is  unable  to 
read  and  write  ordinary  English. 

They  also  allege  that  no  term  of  time  v^as  designated  that  the  persons  claimed 
to  have  been  elected  trustees  were  to  serve. 

Messrs  Decker,  Hollenbeck,  Hugabone  and  Mattice  have  answered  the  appeal 
and  deny  each  allegation  of  the  appeal  not  expressly  admitted  or  traversed. 

They  allege  that  each  of  them  can  read  and  write  the  English  language. 
They  admit  that  the  meeting  was  organized  by  the  election  of  Duncan  as  clerk, 
the  district  clerk  being  absent.  They  allege  that  a  resolution  "  that  the  said  dis- 
trict elect  three  trustees  for  the  ensuing  year"  was  introduced  and  adopted  by  a 
unanimous  vote ;  that  a  vote  was  taken  by  ballot  and  Henry  Hollenbeck  was 
elected  as  trustee,  receiving  20  votes  out  of  21  votes  cast;  that  thereupon  Duncan, 
the  clerk  of  the  meeting,  with  some  others  left  the  meeting,  and  that  the  persons 
remaining  elected  said  Decker  as  clerk  of  the  meeting,  and  ]\Iattice  and  Hugabone 
as  trustees  and  Decker  was  elected  district  clerk. 

It  does  not  appear  that  any  person  was  elected  as  collector  of  the  district. 

The  proofs  herein  do  not  show^  who  was  elected  as  chairman  of  the  meeting 
or  whether  such  person  continued  to  act  as  chairman  until  the  final  adjournment. 
It  does  not  appear  whether,  in  the  alleged  election  of  the  three  persons  as  trustees, 
and  of  Decker  as  district  clerk,  two  inspectors  of  election  were  appointed  who 
received  the  votes  cast  in  each  ballot  and  canvassed  the  same,  and  announced  the 
result  of  such  ballot  to  the  chairman,  and  such  results  were  announced  by  the 
chairman  to  the  meeting.  It  does  not  appear  that  Duncan  and  Decker  each  while 
acting  as  clerk  of  such  meeting  kept  a  poll  list  containing  the  name  of  each  person 
whose  vote  was  received  in  each  of  the  ballots  for  the  three  trustees,  and  for 
district  clerk.  It  does  not  appear  how  the  vote  was  taken  upon  the  resolution  that 
the  district  elect  three  trustees  for  the  ensuing  year. 

Section  26  of  article  3,  title  7  of  the  Consolidated  School  Law  of  1894, 
enacts  that  in  a  school  district  which  has  determined  to  have  but  one  trustee 
until  the  electors  of  such  district  shall  determine  at  an  annual  meeting,  by  a  two- 
thxrds  vote  of  the  legal  voters  present  and  voting  thereat  to  have  three  trustees, 
but  one  trustee  shall  be  elected. 

It  api)ears  that  at  the  annual  school  meeting,  held  in  August  1890.  in  such 
district,  but  one  trustee  was  elected,  namely,  Charles  D.  Loucks.  For  the  annual 
meeting  held  therein  August  7,  1900,  to  legally  elect  three  trustees,  a  resolution 
that  the  district  have  three  trustees  should  have  been  adopted  by  the  affirmative 
votes  of  two-thirds  of  the  qualified  voters  present  and  voting  thereon,  and  the 
vote  upon  such  resolution  should  have  been  taken  by  ballot,  or  ascertained  by  the 
clerk  recording  the  name  of  each  person  whose  vote  was  received,  and  setting 
opposite  each  name  whether  such  person  voted  aye  or  no.    If  such  resolution  had 


JUDICIAL  DECISIONS  :       TRUSTEES  1 243 

been  legally  adopted  the  meeting  should  have  elected  three  trustees,  one  for 
one  year,  one  for  two  years  and  one  for  three  years. 

The  meeting  did  not  have  the  legal  authority  to  adopt  a  resolution  to  elect 
three  trustees  for  the  ensuing  year. 

I  am  of  the  opinion  that  the  proceedings  taken  at  such  annual  meeting  in 
such  school  district  were  not  in  accordance  with  the  provisions  in  that  regard 
required  by  the  Consolidated  School  Law  of  1894. 

The  appeal  herein  is  sustained. 

It  is  ordered: 

That  all  proceedings  had  and  taken  at  such  meeting  or  meetings  held  August 
7,  1900,  at  which  William  H.  Duncan  or  Jackson  Decker  acted  as  clerk,  be,  and 
the  same  are,  hereby  vacated  and  set  aside. 

It  is  further  ordered : 

That  Charles  D.  Loucks,  without  unnecessary  delay,  call  a  special  meeting 
of  the  inhabitants  of  school  district  i,  Blenheim,  Schoharie  county,  qualified  to 
vote  at  school  meetings  therein,  for  the  purpose  of  electing  a  trustee,  a  clerk  and 
collector  of  such  district,  and  for  considering  and  acting  upon  the  question  of 
appropriating  money  and  the  levy  of  a  tax  for  school  purposes  for  the  present 
school  year.  That  the  notice  of  such  special  meeting  be  given  in  the  manner 
required  by  sections  2  and  6  of  article  i,  title  7  of  the  Consolidated  School  Law 
of  1894.  That  in  the  election  of  such  district  officers  the  proceedings  taken  shall 
conform  to  the  provisions  contained  in,  and  the  methods  prescribed  in,  subdivi- 
sion 4  of  section  14  of  article  i,  title  7  of  the  Consolidated  School  Law  of  1894 
relating  to  the  election  of  school  district  officers;  that  the  vote  appropriating 
money  or  authorizing  the  levy  of  a  tax  for  school  purposes,  must  be  taken  or 
ascertained  in  the  manner  required  by  subdivision  18  of  section  14  of  article  i, 
title  7  of  the  Consolidated  School  Law  of  1894. 


3849 

John  Crofoot,  Cornelius  Sullivan  and  William  Oakley  v.  I\Iichael  B.  O'Hara,  sole 
trustee  of  school  district  no.  5,  of  the  town  of  High   Market,  county  of 
Lewis. 
The  question  of  the  ineligibility  of  a  person  holding  a  district  office,  can  not  be  raised 

and  passed  upon  collaterally.     Legal  acts  of  a  de  facto  officer  will  be  sustained. 
An  item  voted  by  a  district  meeting  for  expenses  incurred  in  defending  an  action  brought 

against  the  district,  may  be  included  by  a  trustee  in  a  tax  list. 
Decided  December  31,  1889 

Draper,  Superintendent 

This  is  an  appeal  against  the  action  of  the  trustee  in  issuing  a  certain  tax  list 
and  warrant  on  or  about  the  ist  day  of  October  1889.  Two  grounds  are  alleged: 
first,  that  the  respondent  is  not  legally  the  trustee  of  the  district,  not  being  a 


1244  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

taxpayer  therein,  and  not  having  children  vvlio  have  attended  the  school ;  second 
that  there  was  no  authority  for  collecting  certain  moneys  included  in  the  tax  list. 
This  is  not  the  proper  way  to  test  the  validity  of  the  title  of  the  respondent.  That 
question  is  not  to  be  tried  collaterally.  Being  in  the  office,  he  is  presumed  to  be 
rightfully  in  it  until  the  contrary  is  shown.  If  he  is  not  eligible  to  the  office,  that 
fact  should  have  been  raised  earlier.  Whether  eligible  or  not,  is  not  material  in 
this  connection,  for  it  can  not  be  denied  that  he  is  in  the  office  and  is  exercising 
the  functions  thereof.  He  is  certainly  a  de  facto  officer  and  his  legal  acts  as  such 
are  to  be  upheld. 

As  to  the  allegation  that  he  has  included  certain  items  in  his  tax  list  improp- 
erly, it  is  shown  in  the  answer  that  the  items  referred  to  are  expenses  incurred  in 
defending  a  suit  brought  against  the  district.  The  respondent  alleges  that  these 
items  have  been  sunibitted  to  a  special  meeting  of  the  district  and  approved  and 
audited  at  such  meeting.  This  allegation  is  not  controverted.  If  it  be  true,  as 
I  am  obliged  to  assume  that  it  is,  then  the  respondent  was  justified  in  including 
the  same  in  his  tax  list. 

After  the  fullest  consideration  of  the  matter,  I  am  obliged  to  reach  the 
conclusion  that  it  is  not  possible  to  sustain  the  appeal. 

The  appeal  is  dismissed. 


3576 

Jn  the  matter  of  the  appeal  of  Seward  Baker  and  others  v.  the  board  of  educa- 
tion of  union  free  school  district  no.  i,  of  the  town  of  Westchester,  Westches- 
ter county. 

Chapter  36,  Laws  of  1886,  conferring  additional  powers  upon  the  board  of  education  of 
union  free  school  district  no.  i,  town  of  Westchester,  Westchester  county,  does  not 
abridge  or  take  away  the  right  of  appeal  to  the  State  Superintendent. 

Where  an  act  complained  of  is  a  continuing  one  an  appeal  may  be  taken  at  any  time  during 
such  continuance. 

When  a  duty  is  imposed  by  law  upon  a  board  of  trustees,  the  board  has  no  authority  to 
employ  other  persons  to  perform  such  duty  at  the  expense  of  the  district  in  the  absence 
of  special  statutory  provisions  to  that  effect. 

Decided  March  19,  1887 

Draper,  Superintendent 

Union  free  school  district  no.  i,  of  the  town  of  Westchester,  is  engaged  in 
the  erection  of  a  new  school  building.  The  board  of  education  of  the  district,  in 
charge  of  the  work,  is  proceeding  under  the  general  laws  governing  such  boards 
as  well  as  under  the  provisions  of  chapter  36  of  the  Laws  of  1886,  which  has 
special  reference  thereto.  While  the  work  of  erecting  the  new  building  was  in 
progress,  and  on  the  30th  day  of  September  1886,  the  board  adopted  a  resolution 
appomtmg  one  Thomas  S.  Ryan,  with  compensation  at  the  rate  of  $4  per  day, 


JUDICIAL  decisions:     trustees  1245 

"  to  superintend  the  work  that  is  being  done  on  the  new  school  building,  and  to 
look  after  the  interests  of  the  board  in  the  matter." 

From  this  act  of  the  board  this  appeal  is  taken.  The  appellants  set  forth 
that  they  are  residents  and  taxpayers  in  the  district.  As  the  grounds  of  their 
appeal  they  set  up  that,  prior  to  the  employment  of  Ryan,  the  board  employed 
one  John  E.  Kirby,  as  supervising  architect,  adopted  plans  submitted  by  him, 
and  agreed  to  pay  him  for  his  services  the  sum  of  5  per  cent  on  the  contract  price 
of  the  building.  They  set  up  the  written  contracts  entered  into  between  the  board 
and  the  other  parties  for  the  erection  of  the  building,  in  which  it  is  provided  that 
the  work  shall  be  performed  "  to  the  satisfaction  and  under  the  direction  of  said 
architect,"  and,  also,  that  "  should  any  dispute  arise  respecting  the  true  con- 
struction or  meaning  of  the  drawings  or  specifications,  the  same  shall  be  decided 
by  the  architect  and  his  decision  shall  be  final  and  conclusive."  In  view  of  this 
fact,  the  appellants  say  that  the  appointment  of  a  superintendent  of  the  work  was 
unnecessary  and  unlawful,  and  could  confer  no  authority  upon  the  person 
appointed  to  inspect  or  pass  upon  the  work  of  the  contractors. 

The  respondent  answering,  says:  (a)  that  the  Superintendent  of  Public 
Instruction  has  no  power  or  jurisdiction  over  the  matter,  for  the  reason  that 
chapter  36  of  the  Laws  of  1886  provided  that  the  erection  and  furnishing  of 
the  building  and  all  matters  connected  therewith  should  be  solely  under  the  control 
of  the  respondent;  (b)  that  the  appeal  was  not  taken  within  thirty  days  from  the 
time  of  the  passage  of  the  resolution  complained  of,  as  provided  by  the  rules  of 
the  Department;  (c)  that  the  appeal  is  not  verified,  as  required  by  the  rules  of 
the  Department.  For  either  of  these  reasons  the  respondent  insists  that  the 
appeal  should  be  dismissed. 

If  the  appeal  should  not  be  dismissed  for  either  of  the  reasons  above  set 
forth,  then  the  respondent  says  that  upon  its  merits,  the  act  of  the  board  was 
proper  and  that  there  was  ample  lawful  authority  for  it.  It  is  asserted  that  the 
contractor  for  the  mason  work  had  sublet  his  contract,  and  that  the  work  was  not 
being  performed  according  to  the  plans  and  specifications ;  that  the  architect  could 
not  visit  the  work  very  frequently  because  of  other  engagements ;  and  that  the 
work  was  being  so  badly  done  that  it  was  necessary  for  the  board  to  have  a 
representative  who  was  an  expert  builder  continually  on  the  ground  to  protect 
its  interests.  The  board  insists  that  the  continuance  of  the  inspector  is  essential 
"  as  the  only  means  of  insuring  safe  and  proper  work  upon  said  building,  and 
the  prevention  of  frauds  upon  said  district." 

I  will  consider  the  preliminary  objections  raised  by  the  respondent  in  the 
order  stated  in  the  answer. 

The  respondent  denies  the  jurisdiction  of  the  superintendent  to  hear  and 
determine  this  appeal. 

Title  12,  section  i,  subdivision  7  of  the  Consolidated  School  Act  of  1864 
provides  that  any  person  conceiving  himself  aggrieved  in  consequence  of  "  any 
other  official  act  or  decision  concerning  any  other  matter  under  this  act  or  any 
other  act  pertaining  to  common  schools"  may  appeal  to  the  Superintendent  of 


1246  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

Public  Instruction.  Chapter  36  of  the  Laws  of  1886,  which  appHes  only  to  the 
particular  district  here  interested,  certainly  enlarges  the  powers  of  the  board  of 
education  in  said  district  for  the  purpose  of  enabling  the  board  to  issue  bonds, 
raise  money  and  erect  a  nqw  school  building,  but  it  will  not  be  contended  that  such 
chapter  is  not  "  an  act  pertaining  to  common  schools."  That  chapter,  in  all  of 
its  provisions,  gives  evidence  of  having  been  enacted  for  the  purpose  of  enabling 
the  district  to  do  something  which  it  could  not  do  under  the  general  school  law, 
and  not  for  the  purpose  of  otherwise  taking  the  district  out  from  under  the 
operation  of  the  statutes  of  general  application.  In  the  face  of  the  explicit  and 
comprehensive  provisions  of  the  general  laws  conferring  the  right  upon  any 
aggrieved  party  to  appeal  to  this  Department  from  any  act  of  school  officers, 
there  must  be  something  in  the  special  act  showing,  with  clearness  and  distinct- 
ness, the  intention  of  the  Legislature  to  cut  off  that  right  as  to  this  particular  dis- 
trict, in  at  least  this  particular  matter,  or  the  views  of  the  respondent  can  not  be 
adopted.  I  have  examined  the  special  act  with  much  care.  It  expresses  no 
such  purpose  and,  in  my  judgment,  it  implies  none. 

In  the  next  place,  the  respondent  sets  up  that  the  appeal  should  be  barred 
because  of  the  fact  that  it  was  not  taken  within  thirty  days  of  the  occurrence  of 
the  act  complained  of.  But  the  act  complained  of  is  a  continuing  one.  If  it  is 
without  lawful  authority,  any  taxpayer  is  entitled  to  complain  each  day  of  the 
continuing  expense  involved  in  the  retention  of  the  inspector  or  superintendent. 
Again,  the  respondent  says  that  the  appeal  is  not  verified  as  required.  This 
objection  must  also  fail.  I  tind  in  the  appeal  papers,  a  copy  of  which  is  proved 
to  have  been  served  on  the  respondent,  an  affidavit  by  Mr  Seward  Baker,  the 
leading  appellant,  which  meets  all  of  the  essential  requirements  of  an  affidavit 
of  verification.  He  swears  that  he  "  has  read  the  foregoing  appeal  and  the  allega- 
tions thereof,  and  that  the  material  allegations  of  the  appeal  are  true  to  the 
knowledge  of  the  deponent."     This  must  be  held  to  be  sufficient. 

I  now  come  to  the  consideration  of  the  real  question  in  the  case,  namely, 
whether  there  was  authority  of  law  for  the  appointment  of  Ryan  as  an  inspector 
or  superintendent  of  the  new  building,  and  if  so,  whether  the  act  of  the  board 
was  a  proper  exercise  of  such  authority. 

When  a  law  imposes  a  duty  upon  school  trustees,  it  does  not  follow  that 
they  can  employ  some  one  to  perform  it  for  them.  They  must  perform  it  in 
person,  unless  some  provision  is  either  expressly  made  or  necessarily  implied  for 
the  employment  of  others  to  do  it.  There  must  either  be  express  authority  for 
the  employment  of  agents  or  the  work  must  be  of  such  a  nature  as  necessarily 
to  imply  that  it  is  not  to  be  done  by  the  trustees,  and  then  the  money  must  be 
provided  for  paying  others  for  their  work. 

The  act  of  the  Legislatuie  having  special  reference  to  the  construction  of 
a  new  school  building  in  the  district  under  consideration  (chapter  36,  Laws  of 
1886)  charges  the  board  with  the  supervision  of  the  work,  and  gives  numerous 
directions  in  the  premises.    It  does  not  provide  for  the  employment  of  an  expert 


JUDICIAL  decisions:     trustees  1247 

superintending  builder.  I  have  examined  the  act  with  care,  and  I  can  find  no 
clause  which  reasonably  implies  the  intention  of  the  Legislature  to  give  such  a 
power  to  the  board.  There  is  no  reason  which  I  am  able  to  discern  for  supposing 
that  the  Legislature  intended  to  absolve  this  board  from  personal  attention  to 
the  matter.  Trustees,  are,  ordinarily,  men  of  experience  in  such  matters  and 
entirely  able  to  protect  the  district  against  fraud.  This  is  a  part  of  their  general 
responsibility,  and  there  is  nothing  in  the  special  act  changing  the  rule  as  to  this 
particular  case. 

But  the  board  in  this  case  had  employed  an  architect  previous  to  the  appoint- 
ment of  Ryan,  and  had  adopted  his  plans  and  specifications,  and  had  made  the 
usual  agreement  with  him  for  an  architect's  supervision  of  the  erection  of  the 
building.  No  objection  is  raised  by  the  appellants  to  the  employment  of  the 
architect,  and  the  size  and  cost  of  the  new  building  would  seem  to  make  such 
action  necessary  and  proper.  It  had  also  entered  into  contracts  with  different 
builders  for  the  work  to  be  done.  The  ground  which  the  board  advances  as 
justification  for  the  appointment  of  the  inspector,  is  that  it  was  necessary  in  order 
to  secure  the  proper  fulfilment  of  these  builders'  contracts.  These  contracts  bind 
the  contractors  to  "erect  and  finish  the  new  building  (describing  it),  agreeably 
to  the  plans  and  specifications  made  by  John  E.  Kirby  (the  architect),  signed  by 
the  said  parties  and  hereto  annexed,  within  the  time  aforesaid,  in  a  good,  work- 
manlike and  substantial  manner,  to  the  satisfaction  and  under  the  direction  of 
the  said  architect."  They  provide  also  that  payments  for  the  materials  furnished 
and  work  performed,  shall  be  made  to  the  contractors  only  upon  the  certificates 
of  the  architect,  and  further  provide  that  if  "  any  dispute  arises  respecting  the 
true  construction  or  meaning  of  the  drawings  or  specifications,  the  same  shall  be 
decided  by  the  architect,  and  his  decision  shall  be  final  and  conclusive." 

In  view  of  these  agreements  between  the  board  and  the  builders,  it  is  diffi- 
cult to  see  any  practical  necessity  for  the  appointment  of  an  inspector,  or  what 
advantage  he  can  be  to  the  board.  The  contractors  are  not  obliged  to  submit 
to  his  dictation.  They  fulfil  their  contracts  when  they  satisfy  the  architect.  The 
architect  makes  an  affidavit  in  the  matter  and  says  that  the  inspector  has  reported 
to  him  matters  in  which  the  terms  of  the  contract  have  been  violated,  and  upon 
such  complaint  he  has  caused  the  same  to  be  remedied,  and  that  by  the  inspector's 
assistance,  he  has  been  enabled  to  prevent  frauds.  But  it  is  the  duty  of  the  archi- 
tect to  know  all  about  these  frauds  himself  and  to  protect  every  interest  of  the 
district,  and  for  this  he  is  amply  paid.  If  he  requires  assistance  in  the  discharge 
of  his  agreement  with  the  board,  he  should  pay  for  it  and  not  make  it  a  charge 
upon  the  district. 

For  these  reasons,  I  think  the  appellants  are  justified  in  their  complaint. 
As  there  was  delay  in  bringing  the  appeal,  I  do  not  think  that  the  effect  of  my 
conclusions  should  be  retroactive,  so  as  to  invalidate  payments  made  to  Ryan 
prior  to  the  issuance  of  the  injunction  order  granted  by  me  upon  the  19th  day 
of  February  1887.    But  that  order  must  be  made  perpetual,  and  it  is  so  ordered. 


I24S  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

3989 

In  the  matter  of  the  appeal  of  Ed.  P.  M.  Lynch  and  others  v.  James  Gibney, 

as  trustee  of  school  district  no.  3,  town  of  Minerva,  county  of  Essex. 
Election  of  a  scliool   district  trustee  upheld  where  the  proofs   fail   to  establish   the   fact 

alleged  that  the  unsuccessful  candidate  received  a  larger  number  of  legal  votes  than 

his  opponent. 
A  person,  a  citizen  of  full  age,  resident  of  a  district,  is  not  a  voter  simply  because  he  is 

the  possessor  of  more  than  fifty  dollars'  worth  of  personal  property,  unless  his  name 

appears  upon  the  town  assessment  roll,  assessed  for  personal  property  of  the  value  of 

over  fifty  dollars. 
A  contract  to  purchase  land  does  not  constitute  a  person  a  voter. 
An  unintentional  omission  to  give  notice  to  every  elector,  of  a  district  meeting  to  be  held, 

does  not  necessarily  render  the  proceedings  of  such  district  meeting  illegal. 
A  trustee  should  be  a  person  possessed  of  all  faculties  to  properly  discharge  the  duties 

of  the  office. 
Decided  July  31,  1891 

Draper,  Superintendent 

At  a  special  meeting  held  in  district  no.  3,  town  of  Minerva,  Essex  county, 
October  4,  1890,  for  the  purpose  of  choosing  a  trustee,  the  respondent  was 
declared  elected  by  a  vote  of  10  to  7,  one  Michael  Lynch  receiving  the  7  votes. 
From  such  election  this  appeal  was  brought.  It  is  alleged  by  the  appellants  that 
several  persons  who  voted  for  respondent  were  aliens,  two  not  of  full  age  and  not 
otherwise  qualified  if  of  age,  and  one  other  not  a  qualified  voter. 

I  have  carefully  considered  the  evidence  in  support  of  the  above  allegations, 
and  also  respondent's  proof  in  answer  thereto,  and  find  that  two  persons  —  John 
and  Michael  Mallon  —  who  voted  for  respondent,  although  of  full  age,  citizens 
and  residents  of  the  district,  were  not  otherwise  qualified.  They  claimed  the 
franchise  upon  the  ground  that  each  possessed  more  than  fifty  dollars  worth  of 
personal  property,  but  not  being  assessed  upon  the  town  assessment  roll  therefor, 
this  was  insufificient.  It  also  appears  that  James  Mallon  who  claims  to  own 
real  estate,  has  simply  a  contract  for  the  purchase  of  land,  which  is  not  a  qualifi- 
cation. The  respondent's  other  supporters  whose  right  to  vote  is  questioned,  I 
find  to  be  duly  qualified. 

This  finding  reduces  the  legal  vote  of  respondent  to  seven,  and  therefore, 
not  a  majority.  But  it  appears  that  the  right  of  several  of  those  who  voted  for 
Michael  Lynch,  the  opposing  candidate,  is  questioned  by  the  respondent,  and 
from  the  evidence  before  me,  I  am  not  satisfied  that  one  of  those,  William 
Stewart,  was  a  resident  of  the  district,  assuming  him  to  have  been  a  citizen, 
which  is  stoutly  denied ;  and  another,  Mary  Gates,  whose  right  to  vote  depends 
upon  the  ownership  of  real  property,  by  her  own  admission  is  not  the  owner  in 
fee,  but  simply  holds  a  contract  for  the  purchase  of  land.  This  finding  so  reduces 
the  number  of  legal  votes  cast  for  Michael  Lynch  as  to  still  leave  the  respondent 
a  clear  majority. 

The  appellants,  however,  allege  other  grounds  of  appeal,  namely  — that 
legal  notice  of  the  meeting  was  not  given,  and  that  the  respondent  is  physically 


JUDICIAL  DECISIONS :      TRUSTEES  I249 

incapacitated  from  properly  discharging  the  duties  pertaining  to  the  ofifice  of 
trustee. 

It  appears  that  several  electors  were  not  personally  notified  of  the  meeting, 
but  I  do  not  find  this  to  have  been  an  intentional  omission  or  that  any  voter  was 
absent  from  the  meeting  for  want  of  notice  thereof,  per  contra,  it  seems  that  so 
much  interest  centered  in  the  contest  that  the  adherents  of  each  side  were  active 
in  canvassing  the  district,  and  that  every  voter  who  chose  to  participate  in  the 
meeting  had  ample  opportunity  to  do  so. 

I  have  serious  doubt  about  the  ability  of  the  respondent  to  satisfactorily 
discharge  the  duties  of  trustee,  with  eyesight  impaired  as  his  is  shown  to  be. 
In  fact,  his  own  communications  with  this  Department  prove  that  he  may  be 
imposed  upon,  and  the  district  be  involved  in  loss  thereby.  It  is  especially 
desirable  that,  in  a  district  in  which  there  is  so  much  contention  as  there  is  in 
this,  the  trustee  should  be  in  the  possession  of  all  faculties. 

The  electors  of  the  district  will,  in  a  very  few  days,  have  an  opportunity  to 
choose  a  trustee  for  the  ensuing  year,  and  in  view  of  all  the  circumstances  pre- 
sented, I  have  concluded  to  overrule  the  appeal. 


3715 

In  the  matter  of  the  appeal  of  Hand  Taylor  from  the  proceedings  of  the  annual 
school  meeting  in  district  no.  3,  town  of  Moriah,  county  of  Essex. 

A  district  meeting  proceeded  by  a  viva  voce  vote  to  elect  a  trustee;  the  chair  declared  a 
person  elected,  but  as  there  were  two  candidates  the  declaration  of  the  chair  was 
unsatisfactory  and  a  ballot  was  called  for  and  proceeded  with  without  protest  upon 
the  part  of  the  person  first  declared  elected,  who  also  participated  in  it. 

As  a  result  of  the  ballot  another  person  was  chosen  trustee  by  a  vote  of  12  to  6. 

Held,  That  the  election  by  ballot  will  be  sustained. 

Decided  October  3,  1888 

Draper,  Superintendent 

This  appeal  is  brought  for  the  purpose  of  determining  who  was  elected 
sole  trustee  at  the  annual  school  meeting,  held  upon  the  28th  day  of  August 
1888,  in  district  no.  3  of  the  town  of  Moriah,  Essex  county. 

There  are  two  claimants  to  the  office,  the  appellant  and  one  Iliram  F.  Green. 
The  appellant  claims  that  after  the  annual  meeting  had  organized  and  transacted 
some  business  it  was  moved  and  seconded  that  he  be  elected  trustee,  and  that 
the  chairman  put  the  question  to  the  meeting,  and  that  a  majority  voted  in  favor 
of  the  adoption  of  the  motion,  and  that  the  chair  declared  the  motion  adopted. 
He  says  that  subsequently  to  this  it  was  agreed  in  the  meeting  to  proceed  to  take 
a  ballot,  and  that  such  ballot  resulted  in  favor  of  IMr  Green.  The  appellant 
claims  that  he  was  elected  upon  a  viva  voce  vote,  and  that  the  subsequent  action 
was  void.  He  admits  that  subsequent  to  the  taking  of  the  ballot  the  chair  declared 
Mr  Green  elected  trustee. 
40 


1250  THE    UNIVERSITY    OF   THE    STATE    OF    NEW    YORK 

Mr  Green,  on  the  other  hand,  insists  that  there  was  no  election  of  the  appel- 
lant, and  that  it  was  not  so  understood  by  the  meeting.  He  swears,  as  two  other 
persons  do  also,  that  both  candidates  were  named  for  the  office  of  trustee;  that 
the  chairman  put  the  question  whether  Mr  Taylor,  the  appellant,  should  be 
trustee,  and  hurriedly  declared  the  motion  adopted ;  that  thereupon  a  question 
was  raised  as  to  whether  or  not  it  was  in  fact  adopted ;  and  that  as  the  result  of 
this  controversy  it  was  agreed  to  take  a  ballot,  which  resulted  in  18  votes  being 
cast,  of  which  12  were  for  Mr  Green  and  6  for  Mr  Taylor. 

I  can  not  see  my  way  clear  to  sustain  the  appeal.  A  district  meeting  in  a 
district  having  less  than  300  children  of  school  age  can  elect  a  trustee  by  a  viva 
voce  vote;  but  it  is  clear  that  in  this  case  the  meeting  was  not  satisfied  with  the 
proceedings  of  the  clKiir,  and  that  without  admitting  that  the  election  had 
occurred,  it  at  once  determined  to  take  a  ballot. 

It  is  undisputed  that  Mr  Taylor  not  only  made  no  protest  against  this  pro- 
cedure at  the  time,  but  that  he  actually  participated  in  it.  I  think  that  the  meet- 
ing was  regularly  and  properly  held,  and  that  the  result  finally  attained  must  be 
upheld. 

The  appeal  is  therefore  dismissed. 


3970 

In  the  matter  of  the  appeal  of  James  Duffy  v.  Russell  F.  Hicks,  as  trustee  of 
school  district  no.  i,  of  the  town  of  Ulster,  Ulster  county. 

A  person  chosen  trustee  of  a  school  district  rests  his  claim  to  eligibility  upon  these  grounds : 
first,  that  being  a  citizen,  21  years  of  age,  and  a  resident  of  the  district,  owning  a 
house  situated  on  land  owned  by  his  wife;  second,  that  being  a  parent,  his  child  has 
attended  the  district  school  for  a  period  of  eight  weeks  in  a  preceding  year. 

Held,  that  he  does  not  show  qualifications  as  a  voter,  and  is  therefore  not  eligible  to  the 
office  of  trustee. 

Decided  April  20,  1891 


G.  D.  B.  Hasbrouck,  attorney  for  respondent 


Draper,  Superintendent 

The  above-named  respondent  was  chosen  a  trustee  of  school  district  no.  i, 
town  of  Ulster,  Ulster  county,  at  the  annual  school  meeting  held  in  said  district 
August  5,  1890,  for  the  term  of  three  years. 

Appellant,  an  elector  of  said  district,  now  brings  this  appeal  and  alleges 
that  the  respondent  is,  and  was  at  the  time  of  his  said  election  as  trustee  ineligible, 
not  possessing  either  of  the  qualifications  required  by  statute  to  constitute  a 
person  a  voter  at  school  meetings. 

The  respondent  answers  and  alleges  that  he  is  and  was  August  5,  1890.  a 
legal  voter. 


JUDICIAL  DECISIONS :      TRUSTEES  I251 

First.  That  he  is  and  was  a  citizen,  21  years  of  age,  and  a  resident  of  the 
district  and  the  owner  or  hirer  of  real  estate. 

Second.  That  he  is  the  parent  of  a  child  of  school  age,  which  in  a  preceding 
year  attended  the  district  school  for  a  period  of  at  least  eight  weeks. 

The  proof  shows  that  respondent's  claim  to  own  or  hire  real  estate  rests 
upon  the  fact  that  his  wife  has  the  title  to  certain  lands  in  said  district,  upon 
which  respondent  has  erected  a  building  with  his  wife's  permission,  with  the 
understanding  that  said  building  was  to  be  and  reinain  respondent's  property, 
and  is  respondent's  property. 

That  he  resides  with  his  wife  and  family  in  said  building. 

That  he  is  assessed  for  said  property,  has  always  paid  the  taxes  thereon, 
and  is  recognized  as  the  actual  owner,  he  having  paid  therefor,  and 

That  he  is  in  possession  of  the  property,  and  is  the  tenant  of  the  same. 

I  am  unable  to  find  authority  to  sustain  the  position  of  the  respondent. 
His  wife  is  the  owner  in  fee  of  the  premises  referred  to. 

It  was  held  by  the  Court  of  Appeals  in  Martin  v.  Rector  (loi  N.  Y.  yy), 
etc.,  that  since  the  passage  of  the  acts  in  relation  to  the  property  of  married 
women,  there  is  no  presumption  that  the  husband  is  in  occupation  of  his  wife's 
land. 

He  may  still  be  the  head  of  his  family  without  being  in  a  legal  sense  the 
possessor  or  actual  occupant  of  the  house  or  lands  in  or  upon  which  the  family 
resides.  A  tenant  for  life  may  not  remove  permanent  improvements  annexed 
to  the  freehold,  and  it  has  been  held  that  when  the  husband  of  a  tenant  in  fee 
erected  a  dwelling  house  upon  the  wife's  land,  he  could  not  remove  it  after  her 
death,     (i  Wash,  on  Real  Estate  134) 

There  is  no  sufficient  evidence  given  that  respondent  is  a  tenant. 

The  fact  that  real  property  is  assessed  in  his  name  does  not  qualify  him 
a  voter,  nor  does  the  fact  that  he  pays  taxes  upon  real  estate. 

Upon  the  second  ground,  that  of  being  a  parent,  etc.,  the  respondent's 
pleading  is,  that  the  child  has  attended  the  school  in  a  preceding  year. 

This  is  not  sufficient  and  does  not  overcome  the  appellant's  positive  aver- 
ment that  the  child  did  not  attend  school  for  eight  weeks  in  the  year  preceding 
the  annual  meeting. 

Respondent's  attorney  does  not  complain  that  appellant's  allegation  is  untrue, 
but  seeks  to  overcome  its  effect  by  showing  that  for  several  preceding  years,  the 
child  attended  the  district  school  and  insists  upon  a  liberal  construction  of  the 
statute  in  behalf  of  the  respondent. 

The  respondent  having  been  the  decided  choice  of  the  district  meeting,  and 
being  clearly  identified  with  the  success  of  the  school,  I  have  reached  the  con- 
clusion that  he  was  not  and  is  not  a  qualified  elector  and  therefore  ineligible  to 
the  office,  with  reluctance,  but  I  am  unable  to  find  otherwise.  The  a,ppeal  must 
be  and  is  sustained,  and  the  respondent  accordingly  removed  from  the  office  of 
trustee  of  the  before  mentioned  district. 


1252  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

5273 

In  the  matter  of  the  appeal  of  Theodore  Xicman  and  Henry  D.  Wellard  from 
the  acliun  of  the  trustee  of  school  district  no.  ii,  town  of  Ripley,  Chautau- 
qua county,  in  hiring  a  teacher. 
While  a  trustee,  as  a  general  rule,  should  respect,  so  far  as  possible,  the  wishes  of  the 
inhabitants   of   a   district    in   the   employment   of   a   teacher,   he   is   not   bound   by   any 
action  which  a  district  meeting  may  take  in  relation  to  the  teacher  to  be  employed. 
Decided  September  11,  1906 

Draper,  Commissioner 

The  annual  meeting  of  school  district  no.  ii,  Ripley,  Chautauqua  county, 
adopted  a  motion  directing  the  trustee  not  to  hire  Aliss  Carrie  Robinson  as 
teacher  in  said  district.  Appellants  do  not  allege  that  Miss  Robinson  is  not  a 
qualified  teacher,  nor  do  they  allege  that  she  is  not  a  suitable  person  to  be  in 
charge  of  a  public  school.  The  only  ground  upon  which  they  ask  that  the  con- 
tract of  the  trustee  with  Miss  Robinson  be  set  aside  is  that  the  annual  meeting 
directed  the  trustee  not  to  hire  her.  The  law  gives  a  trustee  discretionary 
power  in  emi)loying  a  teacher.  The  only  restriction  upon  a  trustee  in  employing 
a  teacher  is  that  he  shall  employ  one  who  is  legally  certified  and  who  is  not 
related  to  him.  While  a  trustee  as  a  general  rule  should  respect,  so  far  as 
possible,  the  wishes  of  the  inhabitants  of  a  district  in  the  employment  of  a 
teacher  he  is  not  bound  by  any  action  which  a  district  meeting  may  take  in  rela- 
tion to  the  teacher  to  be  employed.  This  appeal  must  therefore  be  dismissed 
on  the  moving  papers.    It  is  so  ordered. 


4894 

In  the  matter  of  the  appeal  of  P.arcnt  T.  Waldron  from  proceedings  of  annual 
meeting  held  August  7,   1900.  in  school  district  no.  4,  Coeymans,  Albany 
county,  relative  to  a  spring  of  water  outside  of  schoolhouse  site. 
The  trustee  or  trustees  of  a  school   district,  when  duly  authorized  by  a   school   district 
meeting,  have  the  authority  to  cause  a  well  to  be  dug  on  the  schoolhouse  site,  or 
to  provide  for  drinking  water  for  the  pupils  and  teachers  of  the  school  in  the  district, 
to  be  obtained  upon  premises  other  than  upon  such  school  site. 
Decided  October  15,  igoo 

C.  M.  Barlow,  attorney  for  respondent 

.Skinner,  Superintendent 

This  is  an  appeal  from  the  action  of  the  annual  meeting  held  August  7, 
1900,  in  school  district  4,  Coeymans,  Albany  county,  authorizing  the  trustee  of 
the  district  to  expend  a  sum  not  to  exceed  $15  for  digging  and  stoning  a  spring 
located  on  land  owned  by  one  Crum,  lying  northeast  of  the  schoolhouse,  to 
provide  water  for  the  scholars  attending  such  school. 


JUDICIAL  DECISIONS :      TRUSTEES  I253 

John  C.  Ten  Eyck,  the  sole  trustee  of  the  district,  has  answered  the  appeal. 

The  respondent  asks  that  the  appeal  be  dismissed  upon  the  grounds  that 
the  appeal  is  not  signed;  that  the  verifications  are  not  in  accordance  with  the 
rules  of  practice  regulating  appeals  to  the  State  Superintendent ;  that  the  appeal 
was  not  brought  within  the  time  required  by  said  rules ;  that  the  appeal  was  not 
served  upon  the  respondent  personally,  but  by  mail ;  also,  that  the  appeal  should 
be  dismissed  upon  the  merits. 

The  appeal  is  irregular  in  form,  and  a  copy  thereof  was  served  by  mail. 
The  appeal  was  not  brought  within  the  time  required  by  the  rules;  but  I  have 
the  power  of  extending  the  time  in  which  an  appeal  may  be  taken  to  me. 

I  have  decided  to  receive  the  appeal  and  render  a  decision  therein  upon  the 
facts  established. 

The  following  facts  are  established  by  the  pleadings  herein : 

That  the  schoolhouse  site  in  said  district  4  comprises  about  one-fourth  of 
an  acre  of  land  lying  along  the  westerly  boundary  of  what  is  commonly  known 
as  "  the  mountain  road  "  leading  from  Ravena  to  South  Bethlehem ;  that  lying 
along  the  westerly  boundary  of  such  site  is  a  ledge  or  mountain  of  rocks  about 
175  feet  high,  and  extending  for  miles  in  a  northerly  direction  and  forming  a 
part  of  the  Helderberg  range;  that  the  character  of  the  soil  comprising  such 
site  is  exceedingly  stony  and  rocky,  and  covered  largely  with  growing  trees, 
boulders  and  loose  rocks  of  many  tons'  weight;  that  there  is  no  well  or  spring 
upon  such  site;  that  one  Crum  resides  about  80  rods  southerly  from  such  site; 
that  upon  the  lands  of  Crum  there  is  a  spring  about  40  rods  northeasterly  from 
the  schoolhouse  in  such  district;  that  the  water  from  such  spring  has  been  used 
for  twenty  years  and  over  by  the  pupils  and  teachers  of  such  school,  and  is  the 
only  available  place  to  obtain  good  drinking  water  for  such  school  without  going 
a  long  distance,  and  at  much  inconvenience ;  that  at  the  annual  meeting  held  in 
such  district  on  August  7,  1900,  the  trustee  was  empowered  to  expend  not  to 
exceed  $15  for  digging  and  stoning  the  spring  located  on  the  lot  lying  northeast 
of  the  schoolhouse,  belonging  to  James  J.  Crum ;  that  on  August  8,  1900,  said 
Crum  executed  and  acknowledged  an  instrument  in  writing  whereby  he  granted, 
for  the  consideration  of  one  dollar,  to  trustee  Ten  Eyck  and  his  successors  in 
office,  for  the  term  of  five  years,  the  right  to  construct  and  maintain  a  well  of 
water  for  the  use  of  said  school,  on  his  premises  about  200  yards  distant  from 
such  schoolhouse,  with  the  privilege  of  going  to  and  from  said  well  in  the  path 
that  was  then  used ;  that  pursuant  to  the  aforesaid  action  of  the  annual  meeting 
the  respondent  has  caused  repairs  to  be  made  to  said  spring,  and  the  well  prop- 
erly dug,  etc.,  and  that  such  work  is  nearly  completed. 

The  trustee  of  a  school  district,  when  duly  authorized  by  a  school  district 
meeting,  has  the  authority  to  have  a  well  dug  on  a  school  site,  or  to  provide  for 
drinking  water  for  pupils  and  teachers  of  the  school  in  the  district,  to  be  obtained 
upon  premises  other  than  such  site. 

From  the  proofs  herein,  it  is  clear  that  it  was  impossible  to  obtain  drinking 
water  for  the  pupils  and  teachers  of  the  school  in  such  district  upon  the  school 


1254  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

site.     The  action  of  the  annual  school  meeting,  appealed  from,  and  the  acts  of 
Trustee  Ten  Eyck  in  carrying  into  effect  such  acts  are  approved. 
The  appeal  herein  is  dismissed. 


3897 

In  the  matter  of  the  appeal  of  Alonzo  Knowles  v.  DeWitt  A.  Marion,  trustee  of 

school  district  no.  13,  of  the  town  of  Van  Etten,  county  of  Chemung. 
It  is  not  only  against  public  policy,  but  it  is  a  direct  violation  of  law  for  a  school  district 

trustee  to  engage  in  district  work  for  which  he  is  to  receive  compensation.     A  claim 

for  such  service  can  not  be  allowed. 
Decided  July  29,  1890 

Draper,  Superintendent 

The  school  commissioner  of  Chemung  county  made  an  order,  as  he  was 
empowered  to  do  by  statute,  directing  the  respondent,  the  trustee  of  school  dis- 
trict no.  13,  town  of  Van  Etten,  county  of  Chemung,  to  make  certain  repairs, 
specified  therein,  to  the  schoolhouse  in  said  district.  The  trustee  procured  the 
materials  necessary  to  comply  with  such  order,  employed  mechanics  and  others  to 
do  the  work  and  labor  necessary,  and  caused  the  schoolhouse  to  be  repaired.  The 
appellant  asks  that  the  trustee  be  removed  from  the  office  he  holds,  upon  the 
following  grounds,  namely : 

1  That  the  work  above  mentioned  was  not  properly  done,  that  the  floor  was 
not  properly  laid,  the  siding  put  on  in  an  unworkmanlike  manner,  an  abutment 
was  not  laid  up  with  proper  material ;  that  the  main  door  is  so  hung  that  it  can 
not  be  closed ;  and  generally,  that  the  repairs  are  not  worth  the  sum  charged  — 
in  fact,  not  worth  the  cost  of  the  material  used. 

2  That  the  trustee  has  appropriated  to  his  own  use  several  pounds  of  nails 
purchased  for  the  district,  and  several  of  the  old  sashes  which  were  removed 
from  the  building. 

3  He  is  charged  with  doing  work  himself  upon  the  building  for  which  he  has 
made  a  charge  against  the  district. 

4  When  work  was  completed,  he  neglected  to  call  a  district  meeting  when 
requested  by  a  reasonable  number  of  inhabitants. 

Numerous  affidavits  are  presented  of  residents  and  others  to  substantiate 
the  charges. 

The  trustee,  in  answer  to  these  charges,  insists  that  the  work  has  been 
properly  and  expeditiously  done,  and  the  material  furnished  and  the  work  done 
was  reasonably  worth  the  sum  charged  therefor,  namely,  $125.  The  trustee  is 
supported  in  his  defense  by  affidavits  of  residents  of  the  district  and  neighbor- 
hood, including  the  principal  contractor. 

The  respondent  denies  that  he  has  appropriated  any  property  of  the  district 
to  his  own  use.     He  alleges  that  several  pounds  of  nails,  which  were  not  used 


JUDICIAL  decisions:     trustees  1255 

upon  the  work,  were  sold  to  another  at  the  cost  price  and  the  district  credited 
therefor  by  the  person  from  whom  they  were  purchased.  The  sashes,  he  states, 
were  not  of  any  particular  value,  having  been  in  use  in  the  schoolhouse  thirty 
years,  and  that  the  commissioner  valued  all  seven  at  one  dollar;  that  he  sold 
three  of  the  seven  to  his  mother  for  one  dollar  and  five  cents,  who  used  them 
in  a  barn. 

He  admits  that  he  worked  upon  the  building  three  days  of  ten  hours  each,  at 
the  request  of  the  workman  in  charge,  for  which  he  charged  at  the  rate  of  nine 
shillings  per  day,  and  was  not  then  aware  that  he  was  committing  any  impro- 
priety, or  violating  any  law  by  so  doing,  and  is  now  ready  and  willing  to  make 
any  restitution  the  Department  may  direct. 

The  respondent  admits  that  he  did  not  call  a  special  meeting  of  the  district 
as  requested,  and  in  justification  states  that  he  consulted  the  school  commissioner, 
and  was  advised  by  him  that  a  meeting  for  the  purpose  requested  was  unneces- 
sary, as  the  liability  of  the  district  was  already  established. 

The  value  of  the  evidence  of  at  least  two  of  the  appellant's  witnesses  is 
considerably  shaken  by  affidavits  presented  by  the  respondent,  and  the  allegation 
that  the  repairs  made  are  not  worth  as  much  as  the  material  used,  actually  cost 
is,  to  say  the  least,  quite  remarkable.  The  proof  shows  that  the  man  who  had 
charge  of  the  work  was  an  experienced  carpenter,  and  had  done  similar  work 
and  given  satisfaction.  I  am  not  able  to  find,  from  the  conflicting  evidence 
before  me,  that  the  work  was  not  done  in  a  substantial  and  skilful  manner,  I 
am  convinced,  from  the  proof  before  me,  that  the  trustee  has  acted  in  good  faith 
in  carrying  out  the  directions  of  the  commissioner. 

The  charge  of  appropriating  nails  and  sashes  is  sufficiently  answered  and 
disproved.  The  trustee,  however,  is  at  fault  for  becoming  interested  in  the 
work  as  an  employee  and  making  a  charge  therefor,  however  small.  I  do  not 
consider  his  charge  at  all  unreasonable,  but  he  being  the  representative  of  the 
district,  and  the  officer  to  pass  upon  the  work  done  and  its  sufficiency,  it  is  not 
only  against  public  policy,  but  a  direct  violation  of  law,  for  such  an  officer  to 
receive  compensation  from  his  district.  This  claim  the  trustee  must  waive,  or. 
if  he  has  been  compensated,  he  must  refund  the  same  to  the  district,  or  he  will 
be  liable  to  prosecution  therefor. 

The  most  serious  charge,  to  my  mind,  is  the  refusal  to  call  a  special  meet- 
ing, as  requested  by  a  reasonable  number  of  the  inhabitants,  to  consider  the  work 
done  for  the  district.  Although  the  order  of  the  commissioner  made  it  obligatory 
upon  the  trustee  to  make  the  repairs,  and  when  made  the  district  became  liable 
for  the  expense  thereof,  still  the  legal  voters  of  the  district  were  entitled  to  a 
report  from  the  trustee,  both  as  to  the  nature  of  the  repairs  and  cost  thereof, 
and  to  a  meeting  to  secure  the  same. 

However,  the  advice  of  the  commissioner  that  a  meeting  was  unnecessary 
was  some  justification  of  the  trustee's  refusal.  The  trustee  is  directed  to  make 
a  complete  and  detailed  report  of  the  work  done  upon  the  schoolhouse,  the  cost 


1256  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

of  material  used  and  labor  performed,  at  the  annual  meeting  to  be  held  on  the 
5th  proximo. 

I  do  not  deem  the  charges  established  sufficient  upon  which  to  grant  the 
relief  asked  for,  and  the  appeal  is  therefore  overruled. 


3783 

In  the  matter  of  the  appeal  of  William  R.  Kinne  v.  William  Stetson,  trustee  of 
school  district  no.  9,  of  the  town  of  Butternuts,  Otsego  county. 

Appeal  by  a  former  trustee  from  the  refusal  of  the  present  trustee  of  a  school  district 
to  levy  a  tax  for  the  purpose  of  raising  the  money  to  pay  a  claim  of  the  former  for 
work  done  upon  district  property  during  the  time  he  was  trustee  of  the  district,  dis- 
missed upon  the  ground  that  it  is  a  violation  of  law  for  a  trustee  to  charge  for 
work  of  this  character. 

Decided  April  1889 

Draper,  Superintendent 

This  appeal  is  taken  by  a  taxable  inhabitant  of  school  district  no.  9,  of  the 
town  of  Butternuts,  Otsego  county,  N.  Y.,  from  the  refusal  of  the  respondent, 
the  trustee  of  said  district,  to  pay  or  levy  a  tax  for  the  purpose  of  raising  money 
to  pay  a  certain  claim  of  the  appellant  for  work  done  in  erecting  outhouses  and 
privies  for  the  use  of  said  district,  while  the  appellant  was  trustee  thereof. 

It  is  alleged  by  the  respondent,  in  his  answer,  that  the  work  has  not  been 
done  in  accordance  with  the  directions  of  the  district  meeting,  and  that  the  district 
meeting  has  refused  to  accept  the  same ;  that  the  work  has  not  been  done  in  a 
workmanlike  manner,  nor  in  compliance  with  the  provisions  of  chapter  538  of 
the  Laws  of  1887,  known  as  the  "  health  and  decency  "  act. 

A  trustee  of  a  school  district  has  no  authority  to  do  work  of  this  kind  for 
a  district.  He  is  the  officer  who  is  to  represent  the  district  and  see  that  the  work 
is  properly  done  and  the  district  protected.  It  is  unnecessary  for  me  to  pass  upon 
the  question  of  the  unsuitableness  of  the  work  done,  but  must  dismiss  the  appeal 
upon  the  ground  that  it  is  a  violation  of  the  law  for  a  trustee  to  charge  for 
work  of  this  character. 


3846 

In  the  matter  of  the  appeal  of  Charles  McCarthy  v.  I.  N.  Webb  and  Joseph  W. 

Shipway. 
A  trustee  had  no  right  to  sell  lumber  to  himself,  nor  to  employ  his  own  team  upon  school 

work,  or  otherwise  to  perform  labor  for  the  district,  for  which  he  expected  to  be  paid 

while  acting  as  trustee. 
Decided  December  24,  1889 

James  Young,  attorney  for  appellant 
Barnum  Bros.,  attorneys  for  respondents 


JUDICIAL  decisions:    trustees  1257 

Draper,  Superintendent 

The  parties  hereto  are  residents  and  taxpayers  in  school  district  no.  11,  towns 
of  Middlefield  and  Cherry  Valley,  in  the  county  of  Otsego.  Mr  McCarthy  was 
the  trustee  during  the  last  year.  Mr  Webb  is  the  present  collector,  and  Mr  Ship- 
way  the  present  trustee  of  the  district.  While  the  appellant  was  trustee  of  the 
district,  he  was  directed  by  the  school  commissioner  to  make  certain  repairs  to 
the  school  building,  and  to  make  necessary  additions  to  the  furniture  thereof, 
which  he  did.  He  presented  his  bill  to  the  annual  school  meeting,  held  August 
6th,  last.  Touching  the  action  of  the  meeting  upon  the  same,  there  is  a  dispute. 
The  appellant  alleges  that  the  bill  was  approved  by  the  meeting,  and  so  declared 
by  the  chairman,  although  the  clerk's  record  fails  to  show  the  fact.  The  respond- 
ents allege  that  the  meeting  determined  to  act  upon  each  item  of  the  bill  separately. 
The  bill,  in  the  aggregate,  amounted  to  the  sum  of  $447.84.  One  of  the  items 
was  in  favor  of  the  appellant  himself  for  lumber  furnished,  labor  performed 
and  moneys  otherwise  paid  out.  The  respondents  allege  that  all  of  the  items  of 
the  bill  were  allowed  except  that  in  favor  of  the  appellant  and  that  such  item 
was  rejected  by  a  vote  of  5  to  12.  They  insist  that  the  bill  of  the  appellant  is 
excessive  in  some  particulars,  and  that  he  either  exceeded  the  authority  conferred 
upon  him  by  the  order  of  the  school  commissioner,  or  the  school  commissioner 
assumed  to  exercise  an  authority  in  excess  of  that  conferred  upon  him  by  statute. 

It  is  impossible  for  me  to  arrive  at  any  confident  conclusion  as  to  the  real 
facts  in  the  case;  but  the  burden  of  establishing  his  case  is  upon  the  appellant. 
There  is  presented  no  preponderance  of  evidence  which  sustains  his  claim,  and  I 
am  forced  to  the  conclusion  that  I  can  not  sustain  his  appeal  and  direct  the  officers 
of  the  district  to  levy  the  tax  which  he  insists  upon.  It  seems  more  than  likely 
that  the  district  is  fairly  indebted  to  him,  but  in  just  what  sum  I  can  not  say.  He 
had  no  authority  to  sell  lumber  to  himself  as  trustee,  nor  to  employ  his  own  team 
upon  the  work,  or  otherwise  to  perform  labor  for  the  district  for  which  he 
expected  to  be  paid  while  acting  as  trustee.  I  am  not  sure  that  this  was  done, 
and  yet  there  are  some  things  to  indicate  it.  The  appellant  has  his  remedy  against 
the  district  by  an  action  at  law,  and  while  I  am  forced  to  the  conclusion  that  I 
must  dismiss  his  appeal,  it  is  done  without  prejudice  to  his  right  to  bring  such 
action. 

The  appeal  is  dismissed. 


3753 

In  the  matter  of  the  appeal  of  Edwin  W.  Smith  and  others  v.  Harley  Wood,  as 
trustee  of  school  district  no.  13,  of  the  town  of  \^irgil,  county  of  Cortland. 

A  school  district  trustee  wlio  becomes  a  subcontractor  upon  district  work,  and  thereby 
places  himself  in  a  position  which  destroys  his  power  to  act  as  an  official  for  the 
district  independently  and  without  bias  or  self-interest,  removed  from  office. 


1258  TUE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

A  tax  list  issued  by  a  trustee  for  the  purpose  of  raising  money  to  pay  for  work  done 
under  these  circumstances  should  be  set  aside.  The  contractor  must  enforce  his  remedy, 
if  any,  by  an  action  at  law  against  the  district. 

Decided  January  19,  1889 

William  D.  Tuttle,  attorney  for  appellants 
Henry  M.  Dickinson,  attorney  for  respondent 

Draper,  Superintendent 

This  is  an  appeal  from  a  tax  list  issued  by  the  respondent  on  or  about  the 
27th  day  of  November  1888.  for  the  collection  of  the  sum  of  $308.06.  The  prin- 
cipal item  of  this  sum  is  that  of  $285,  for  building  a  new  schoolhouse.  At  an 
adjourned  annual  meeting  held  upon  the  i8th  day  of  September  1888.  it  was  voted 
that  the  schoolhouse  should  be  erected  pursuant  to  detailed  specifications  as  to 
the  quality  and  quantity  of  materials  to  be  used.  It  was  also  voted  that  the  meet- 
ing should  adjourn  to  the  22d  day  of  September  1888,  to  receive  bids  for  build- 
ing, according  to  the  specifications,  the  contract  to  be  let  to  the  lowest  bidder. 
A  meeting  was  held  on  the  22d  day  of  September  1888,  and  bids  were  received, 
ranging  from  $400  down  to  $300.  For  some  reason,  about  which  there  is  some 
controversy,  no  contract  was  awarded  at  that  meeting.  The  trustee  claims  that 
the  meeting  directed  him  to  let  the  contract  to  the  lowest  bidder.  He  received 
several  other  bids  subsequent  to  this  meeting  and  finally  let  the  contract  to  his 
brother,  Farnham  Wood,  for  the  sum  of  $285.  It  is  admitted  that  the  trustee 
worked  for  his  brother  in  the  performance  of  the  contract. 

It  seems  to  be  conclusively  shown  by  the  appellants  that  the  contract  has 
not  been  performed  in  a  workmanlike  manner.  They  allege  that  neither  the 
contractor  nor  the  trustee  are  builders  or  carpenters.  They  produce  the  affidavits 
of  a  large  number  of  persons  who  first  show  their  long  experience  as  builders,  and 
then  impeach  the  character  of  the  work  done  upon  the  building  in  question.  This 
arraignment  of  the  trustee  and  the  contractor  is  so  overwhelming  in  the  evidence, 
as  to  leave  no  room  for  reasonable  question  as  to  the  character  of  the  work.  I 
have  not  lost  sight  of  the  fact,  however,  that  the  contract  price  is  apparently  an 
exceedingly  low  one.  There  is  small  reason  to  expect  much  of  a  schoolhouse  to 
be  built  for  the  sum  of  $285 ;  but  the  contractor  is  bound  to  keep  his  agreement 
after  he  has  made  it.  It  is  the  business  of  a  trustee  to  protect  his  district,  and  it 
is  an  impropriety  for  him  to  enter  into  any  business  relations  which  are  not  com- 
patible with  his  doing  so  thoroughly  and  effectually.  I  can  not  say  that  the  trustee 
was  guilty  of  fraud  when  he  let  the  contract  to  his  brother,  although  that  fact  is 
strongly  charged  by  the  appellants ;  but  I  must  say,  that  when  he  let  the  contract 
to  his  brother,  and  then  worked  for  his  brother  in  fulfilling  the  same,  he  thereby 
made  it  impossible  for  him  to  represent  the  district  in  passing  upon  the  character 
of  the  work  done,  and  in  determining  whether  the  whole  contract  was  properly 
fulfilled  or  not.  This  fact  taken  in  connection  with  another,  that  he  refused  to 
recognize  any  right  on  the  part  of  a  committee  appointed  by  the  district  meeting  to 
mquire  into  the  matter  and  protect  the  interests  of  the  district,  and  with  the  over- 


JUDICIAL  decisions:     trustees  1259 

whelming  proof  that  the  work  has  been  very  defectively  and  unskilfully  per- 
formed, makes  a  strong  showing  against  him. 

It  is  true  that  the  trustee  was  clothed  with  the  official  power  to  control  the 
erection  of  the  schoolhouse,  but  he  was  bound  to  do  it  in  the  manner  directed  by 
the  district  meeting,  and  in  a  way  which  would  thoroughly  and  effectually  protect 
the  interests  of  the  district.  Instead  of  doing  this,  he  has  either  wilfully  or 
thoughtlessly  entered  into  relations  which  are  inconsistent  with  his  official  duty 
as  trustee. 

The  district  is  in  some  way  entitled  to  protection.  It  is  not  spending  a  large 
amount  of  money  for  a  schoolhouse,  but  it  is  entitled  to  get  the  worth  of  its 
money.  At  all  events,  it  is  entitled  to  have  the  contractor  carry  out  his  agree- 
ment. The  officer,  whose  duty  it  has  been  to  see  that  this  was  done,  has  volun- 
tarily entered  into  relations  which  have  destroyed  his  power  to  do  so  independ- 
ently and  without  bias  or  self-interest.  I  can  not  uphold  this  proceeding,  and 
therefore  I  can  not  sustain  the  tax  list  from  which  this  appeal  is  taken. 

I  have  considered  what  the  result  of  this  conclusion  may  be.  It  may  leave 
the  district  without  a  schoolhouse;  it  may  leave  the  contractor  without  any  pay 
for  his  work,  when  he  may  fairly  be  entitled  to  something.  It  is  possible  that 
the  defects  in  the  work  might  be  remedied.  It  is  apparent  that  there  can  be  no 
adjustment  of  the  matter  so  long  as  he  remains  trustee,  and  there  is  good  reason 
for  his  retirement  from  the  office  of  trustee.  Indeed,  both  the  interests  of  the 
district  and  his  own  personal  interest,  and  that  of  the  contractor  would  be  best 
promoted  by  his  retirement,  as  thereby  an  opportunity  may  be  afforded  for  an 
adjustment  of  existing  complications  and  difficulties. 

I  have  therefore  concluded  to  sustain  the  appeal,  set  aside  the  tax  list  and 
remove  the  trustee  from  office.  The  district  will  hold  a  special  meeting  within 
fifteen  days  from  this  date  and  elect  a  trustee,  whose  duty  it  will  be  to  pass  upon 
the  character  of  the  work  performed  and  determine  what  it  may  be  necessary  for 
the  contractor  to  do  in  order  to  fulfil  the  terms  of  his  agreement.  If  an  adjust- 
ment can  be  effected  in  that  way,  a  tax  list  to  carry  the  same  into  effect  will  be 
upheld.  If  it  can  not  be,  the  remedy  of  the  contractor  will  be  to  bring  an  action 
at  law  against  the  district. 

The  appeal  is  sustained,  and  the  taK  list  appealed  from  set  aside,  and  the 
trustee  removed  from  office. 


The  statute  directing  town  superintendents  (supervisors)  to  pay  out  public  money  only 
to  qualified  teachers,  duly  employed,  upon  the  order  of  the  trustees  employing  them, 
was  enacted  for  the  purpose  of  preventing  embezzlement  by  trustees,  and  if  they  pay 
the  public  money  to  a  trustee  or  other  person  than  the  teacher,  without  his  order, 
they  do  it  at  their  peril. 

Decided  November  11,  1854 

Rice,  Superintendent 

The  provision  of  the  law  which  directs  town  superintendents  (supervisors) 
to  pay  out  public  money  only  to  qualified  teachers  duly  employed,  upon  the  order 


I26o  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

of  the  trustees  employing  them,  was  enacted  for  the  express  purpose  of  prevent- 
ing the  opportunity  of  embezzlement  by  trustees.  If  in  the  face  of  this  fact  pub- 
lic money  is  paid  to  a  trustee,  in  the  name  of  a  teacher  or  otherwise  without  a 
properly  attested  order  from  the  person  to  whom  it  is  due,  the  town  superintend- 
ent (supervisor)  does  it  upon  his  own  responsibility.  In  the  case  in  controversy, 
the  trustee,  Reed,  is  liable  for  the  means  by  which  he  obtained  the  money,  and 
the  town  superintendent  of  Otto  is  responsible  to  school  district  no.  9  for  the 
amount  paid  by  him  to  Reed,  and  he  must  make  good  the  deficiency,  looking  to 
Reed  for  reimbursement. 

This  appeal  is  accordingly  sustained,  and  the  town  superintendent  of  Otto 
is  hereby  ordered  by  pay  to  said  Hosea  Edwards,  teacher  aforesaid,  the  sum  of 
$15.86  claimed  by  him,  and  to  preserve  district  no.  9  good  in  that  amount,  not 
charging  said  district  for  the  amount  paid  illegally  by  him  to  said  Isaac  Reed. 


3868 

E.  D.  Curtis  and  another  v.  Charles  G.  Gillett,  trustee  of  school  district  no.  2, 
towns  of  Barre  and  Elba,  in  the  counties  of  Orleans  and  Genesee. 

Appeal  will  be  dismissed  when  charges  against  a  trustee  are  too  general,  and  the  matters 

which  are  the  subject  of  the  appeal  are  trivial. 
Decided  April  10,  1890 

Church  &  Kirby.  attorneys  for  respondents 

Draper,  Superintendent 

This  appeal  is  by  alleged  taxpayers  and  voters  of  joint  district  no.  2,  towns 
of  Barre  and  Elba,  from  the  action  of  the  trustee  in  issuing  a  tax  list  for  $35748, 
bearing  date  October  25,  1889,  for  the  purpose  of  meeting  the  expense  incurred 
in  repairing  the  schoolhouse,  furnishing  the  same,  and  constructing  necessary 
outbuildings.  The  charges  against  the  trustee  are  too  general  to  be  considered 
upon  a  proceeding  of  this  nature.  From  the  respondent's  answer,  which  is  more 
specific,  it  appears  that  the  trustee  has  made  necessary  repairs  by  general  author- 
ity of  the  annual  meeting,  and  upon  the  specific  order  of  the  school  commissioner, 
and  that  he  has  furnished  the  schoolhouse  with  suitable  desks  by  direction  of  the 
commissioner.  It  is  charged  that  the  trustee  personally  furnished  goods  to  the 
district,  and  sold  other  property  without  the  authority  of  the  district.  It  appears 
from  the  respondent's  answer  that  the  trustee  did  furnish  two  doors  to  the  district 
at  the  i)rice  of  one  dollar,  and  that  he  sold  some  material  which  had  been  left 
upon  the  ground  after  the  repairs  were  made,  for  from  two  to  three  dollars,  with 
which  sum  he  credited  the  district.  These  items  are  too  trivial  to  be  made  the 
subject  of  an  appeal. 

I  fail  to  discover  any  sufficient  ground  irom  the  appellant's  pleading  for 
sustaining  the  appeal,  and  an  examination  of  the  respondent's  answer  satisfies 
me  that  there  is  no  merit  in  it,  and  that  the  appeal  should  be  dismissed. 

The  appeal  is  therefore  dismissed. 


JUDICIAL   DECISIONS  :      TRUSTEES  1 26 1 

3580 

In  the  matter  of  the  appeal  of  Aaron  L.  Hill  and  Otis  S.  Lewis  v.  E.  O.  Dean, 
trustee  of  school  district  no.    15,  town  of  Ridgway,   Orleans  county. 

It  is  one  of  the  powers  of  a  district  meeting  to  advise  and  direct  the  trustee  as  to  what 
the  people  desire  him  to  do  in  regard  to  the  erection  of  a  school  building. 

It  is  a  duty  of  the  trustee  to  carry  out  the  directions  of  a  district  meeting,  relative  to  a 
new  school  building. 

Decided  April  18,  1887 

Wheden  &  Ryan,  attorneys  for  appellants 
John  Cunneen,  attorney  for  respondent 

Draper,  Superintendent 

This  is  an  appeal  taken  by  legal  electors  of  school  district  no.  15,  town  of 
Ridgeway,  Orleans  county,  from  the  alleged  refusal  of  the  sole  trustee  of  said 
district  to  call  a  special  meeting  of  the  qualified  electors  when  requested  by  a 
sufficient  number  to  do  so,  and  from  his  alleged  neglect  to  carry  out  the  direc- 
tions of  a  district  meeting,  relative  to  the  erection  of  a  school  building. 

It  appears  from  the  evidence  presented  that  there  is  a  dispute  in  the  dis- 
trict as  to  the  plan  to  be  followed  in  building,  and  it  clearly  appears  that  a  very 
large  majority  prefer  a  plan  which  the  trustee  does  not  approve  of. 

Since  this  appeal  was  taken,  a  special  meeting  has  been  held,  and  the  wishes 
of  the  district  made  sufficiently  clear  to  fully  advise  the  trustee  just  what  the 
people  desire  him  to  do  in  regard  to  the  building.  The  law  does  not  confer  upon 
a  trustee  the  power  to  either  approve  or  disapprove  of  the  plan  selected  by  the 
people.  The  duties  of  his  office  are  to  carry  out  their  desires  as  legally  expressed, 
subject  only  to  the  approval  of  the  school  commissioner  so  far  as  heating,  light- 
ing and  ventilation  are  concerned.  When  the  district  meeting  has  adopted  this 
plan  and  approval  is  obtained,  it  is  the  duty  of  the  trustee  to  proceed  with  the 
work  in  hand. 

In  view  of  the  facts  presented,  I  have  reached  the  conclusion  that  the  appel- 
lants had  grounds  for  this  appeal.  The  trustee  will  forthwith  present  the  plans 
decided  upon  to  the  school  commissioner,  and  if  he  approves  of  the  same  as 
required  by  law,  the  said  trustee  will  proceed  at  once  to  secure  proposals  for  the 
construction  of  the  schoolhouse,  and  enter  into  the  necessary  contracts  to  secure 
its  erection. 

The  stay,  heretofore  granted  herein,  is  set  aside. 


3413 

It  is  clearly  the  duty  to  make  repairs  in  obedience  to  the  order  of  the  school  commissioner. 
When  such  repairs  have  been  made,  the  district  becomes  liable  therefor,  and  the 
trustee  must  issue  a  tax  list  and  warrant  to  raise  the  necessary  amount  to  pay  for 
the  same. 

Instance  where  claim  had  been  assigned. 

Decided  April  2,  1885 


1262  THE    UNIVERSITY    OF   THE    STATE    OF    NEW    YORK 

Ruggles,  Superintendent 

On  the  i6th  day  of  June  1884,  the  school  commissioner  of  the  second  dis- 
trict of  Schoharie  county,  made  an  order  directing  the  trustee  of  school  district 
no.  2,  Fulton,  Schoharie  county,  to  make  certain  repairs  upon  the  schoolhouse  of 
the  district  in  the  form  of  an  addition  thereto.  This  order  was  made  under  and 
in  accordance  with  the  provisions  of  subdivision  3,  section  13,  title  2  of  the  Con- 
solidated School  Act  of  1864.  This  appellant,  Jacob  Feek,  at  the  date  of  said 
order,  was  the  trustee  of  the  district,  and  made  or  caused  to  be  made  the  repairs 
or  additions  to  the  schoolhouse  in  obedience  to  such  order.  By  so  doing  he  con- 
tracted a  liability  on  the  part  of  the  district  of  the  sum  of  $188.58  for  material 
and  labor.  The  district,  at  the  annual  meeting,  refused  to  order  a  tax  for  the 
payment  of  this  amount  or  any  part  thereof.  Two  appeals  have  been  brought 
to  this  Department,  and  decisions  rendered  sustaining  the  claims  of  two  per- 
sons who  furnished  material  and  labor  for  the  repairs  upon  its  schoolhouse.  The 
remaining  claims  for  materials  and  labor,  amounting  to  $165.47,  since  the  expira- 
tion of  said  Jacob  Feek's  term  of  office  as  trustee  of  said  district,  have  been 
a6signed  to  this  appellant,  who  on  the  nth  day  of  March,  1885,  presented  said 
claim  to  George  L.  Hancr,  the  trustee  of  said  district,  and  requested  him  to  pay 
the  same  to  this  appellant.  Thereupon  the  trustee  refused  and  still  refuses  to 
pay  this  claim,  or  to  issue  a  tax  list  and  warrant  for  the  same. 

Assuming  that  the  order  of  the  school  commissioner  was  regularly  and  legally 
made,  and  no  appeal  having  been  taken  therefrom,  it  can  not  now  be  questioned ; 
it  was  clearly  the  duty  of  the  trustee  to  make  the  repairs  in  obedience  thereto. 
This  done,  the  district  became  liable  therefor,  and  must  pay  for  the  benefits  which 
it  has  legally  received,  and  is  now  enjoying.  Trustee  ordered  to  issue  tax  list  and 
pay  claim. 


3927 

In  the  matter  of  the  appeal  of  Aaron  A.  Harder  from  the  proceedings  of  a 
special  school  meeting,  held  in  district  no.  5,  town  of  Herkimer,  county  of 
Herkimer.   September  6,   1890. 

An  annual  meeting  was  held,  but  without  electing  district  officers  adjourned  sine  die. 

A  special  meeting  to  transact  the  business  which  should  have  been  attended  to  at  the 
annual  meeting,  was  held  and  a  trustee  chosen. 

The  trustee  who  held  over  after  the  time  of  the  annual  meeting  claims  to  be  entitled  to 
the  office  until  the  election  of  a  trustee  at  the  next  annual  meeting.  Held  otherwise, 
the  person  chosen  trustee  at  the  special  meeting  succeeds  to  the  office. 

Decided  December  i,  1890 

Draper,  Superintendent 

Appellant,  who  was  chosen  trustee  at  the  annual  school  meeting  of  1889, 
and  who  acted  as  such  trustee  thereafter,  brings  this  appeal  from  the  proceedings 
of  a  special  meeting  called  by  the  district  clerk,  and  held  December  6,  1890,  at 
which  meeting  it  is  alleged  one  Irving  P.  Harder  was  declared  elected  trustee  of 
the  district.     It  appears  that  on  the  fifth  day  of  August  last,  an  annual  meeting 


JUDICIAL  DECISIONS  :      TRUSTEES  I263 

was  held,  which  was  duly  organized  by  the  election  of  a  chairman  and  secre- 
tary, and  adjourned  sine  die  without  proceeding  to  the  election  of  district  officers. 
Subsequently,  the  district  clerk  called  a  special  meeting  as  stated.  The  appellant 
claims  that  an  annual  district  meeting  having  been  held  at  the  time  fixed  by  law, 
and  no  election  of  district  officers  having  been  attempted  thereat,  he,  as  trustee 
elected  at  the  previous  annual  meeting,  would  continue  to  hold  over  until  the 
next  annual  meeting. 

No  answer  has  been  interposed,  the  respondent  seemingly  acquiesces  in  the 
appellant's  statement  of  the  facts. 

In  determining  this  appeal,  I  am  aware  that  a  note  of  the  editor  in  the  last 
edition  of  the  Code  of  Public  Instruction,  would  lead  to  the  conclusion  that  the 
appellant,  upon  the  facts  submitted,  would  be  entitled  to  hold  over  as  trustee 
until  the  next  annual  meeting  but  I  am  compelled  to  dissent  therefrom. 

The  appellant  was  entitled  to  hold  over  as  trustee  until  a  duly  called  special 
meeting  of  the  electors  of  the  district  should  choose  his  successor.  This  having 
been  done  at  a  meeting  held  September  6,  1890,  I  decide  Irving  P.  Harder  the 
person  there  elected  as  trustee  to  be  the  trustee  of  the  district,  succeeding  the 
appellant  in  said  office. 

The  appeal  is  dismissed. 


3870 

Cornelius  Slattery  v.  George  Flack,  trustee  of  school  district  no.  17,  of  the  town 
of  Hartland,  county  of  Niagara. 

The  removal  of  a  trustee  from  office  is  sought  by  this  appeal  for  general  neglect  of  duty, 
failing  to  carry  out  directions  of  a  commissioner's  order,  and  to  provide  by  tax  for 
teachers'  wages,  etc.  An  appeal  pending  brought  by  the  trustee  from  the  order  referred 
to,  is  assigned  as  the  cause  for  the  apparent  neglect  of  the  trustee.  Held,  that  the 
former  appeal  having  been  dismissed,  the  trustee  will  now  be  given  an  opportunity 
to  comply  with  the  commissioner's  order  and  the  law. 

Decided  April  14,  1890 

Millar  &  Moyer,  attorneys  for  respondent 

Draper,  Superintendent 

The  removal  from  office  of  the  respondent,  George  Flack,  trustee  of  school 
district  no.  17,  of  the  town  of  Hartland,  county  of  Niagara,  is  sought  by  this 
appeal.  The  grounds  upon  which  the  application  is  based  are  that  the  respond- 
ent has  neglected  the  duties  of  his  office,  having  failed  to  carry  out  the  provi- 
sions of  an  order  of  School  Commissioner  Robert  G.  Woods,  condemning  the 
school  building  in  said  district,  and  directing  the  erection  of  a  new  schoolhouse ; 
that  he  has  neglected  to  raise  sums  necessary  for  teachers'  wages  long  past  due ; 
that  he  has  not  observed  the  requirements  of  the  health  and  decency  act,  and, 
as  a  further  ground,  that  not  being  a  taxpayer  in  said  district,  and  having  no 
children  of  school  age  attending  school  therein,  he  is  not  eligible  to  hold  a  dis- 
trict office. 


1204  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

The  respondent,  in  answer  to  the  foregoing  charges  alleges,  that  before  the 
order  of  condemnation  was  received  by  him,  a  district  meeting  had  voted  to 
repair  the  schoolhouse,  and  the  trustee  thereupon  proceeded  to  prepare  a  tax 
list  to  raise  the  amount  deemed  necessary  for  repairs,  and  to  pay  teachers'  wages, 
and  place  said  tax  list  with  the  warrant  attached,  in  the  hands  of  the  collector 
who  did  not  enforce  the  same,  having  been  advised  that  the  tax  to  repair  was 
illegal  because  of  the  issuance  of  the  commissioner's  order  condemning  the  school- 
house.  The  respondent,  in  the  meantime,  had  taken  an  appeal  to  this  Department 
from  the  order  of  the  commissioner,  and  states  as  an  excuse  for  neglecting  to 
raise  the  amount  needed  for  teachers'  wages,  that  he  delayed,  awaiting  the 
decision  of  such  appeal.  He  insists  that  he  has  complied  with  the  requirements 
of  the  health  and  decency  act,  and  has  constructed  suitable  and  separate  out- 
houses and  erected  a  division  fence.  The  respondent  admits  that  he  is  not  now 
the  owner  of  real  estate.  He  alleges  that  he  was  an  owner  of  real  estate  at 
the  time  of  his  election  to  the  office  of  trustee,  and  had  been  for  many  years. 
Upon  a  careful  examination  of  the  proofs  submitted,  I  do  not  feel  warranted 
in  sustaining  this  appeal.  Upon  the  appeal  referred  to  from  the  commissioner's 
order  condemning  the  school  building,  I  have  sustained  the  commissioner's  order, 
and  I  feel  that  the  trustee  should  have  an  opportunity  to  carry  out  the  directions 
of  such  order.  There  is  not  sufficient  proof  before  me  that  the  respondent  is  not 
eligible  to  the  office  of  trustee.  A  person  may  be  qualified  to  hold  the  office  who 
is  neither  a  taxpayer  nor  the  parent  of  children. 

I  therefore  dismiss  the  appeal. 


4008 

In  the  matter  of  the  application  for  the  removal  of  Samuel  Penfold  and  F, 
Finkbeiner  from  the  office  of  trustees  of  school  district  no.  6,  in  the  towns 
of  Cheektowaga  and  West  Seneca,  county  of  Erie. 

Application  for  the  removal  of  school  district  trustees  from  office  for  neglect  to  carry  out 

the  directions  of  a  school  district  meeting. 
The  proof  submitted  disclosed  the  fact  that  the  people  of  the  district  were  much  agitated 

over  the  selection  of  a  site  and  the  construction  of  a  school  building;  and  also  over 

a  proposition  to  divide  the  district,  steps  for  the  accomplishment  of  which  had  been 

taken. 
Application  denied. 
Decided  September  22,  1891 

Draper.  Superintendent 

This  is  an  application  for  the  removal  of  the  trustees  of  the  above-named 
district,  on  the  ground  that  they  have  wilfully  refused  to  carry  out  the  directions 
of  a  district  meeting  in  relation  to  the  selection  of  a  new  schoolhouse  site.  It 
is  shown  that  the  district,  by  a  majority  vote,  determined  to  accept  a  certain 
new  site  donated  to  it  by  a  corporation  known  as  the  "  Bishop  Land  Company." 
The  two  trustees  above  named  have  been  strongly  opposed  to  the  acceptance  of 


JUDICIAL   DECISIONS  :      TRUSTEES  1 265 

this  site.  They  allege  that  it  was  given  for  the  purpose  of  enhancing  other 
lands  controlled  by  the  land  company,  and  that  it  was  not  advantageous  to  the 
district  to  accept  it.  One  of  the  trustees  swears  that  he  was  ofifered  $50  by  the 
land  company  if  he  would  accept  the  site.  The  school  district  lies  in  two  com- 
missioner districts.  One  of  the  school  commissioners  favors  the  proposition,  and 
the  other  strongly  opposes  it.  The  school  district  is  in  the  neighborhood  of  the 
city  of  Buffalo,  and  the  territory  is  rapidly  becoming  more  thickly  populated. 
The  boundaries  of  the  school  district  have  been  altered  recently,  which  fact  led 
to  the  consideration  of  the  necessity  of  a  new  site.  The  necessity  for  still  fur- 
ther alterations  in  the  district  is  becoming  manifest,  and  steps  have  been  taken 
to  accomplish  this. 

The  papers  submitted  disclose  the  further  fact  that  an  agreement  is 
demanded  of  the  two  trustees  against  whom  charges  have  been  preferred,  the 
nature  of  which  agreement  has  not  been  disclosed  by  the  pleadings.  If  the  land 
in  question  is  to  be  donated  by  the  Bishop  Land  Company,  I  can  not  understand 
why  an  agreement  from  the  trustees  should  be  required.  All  that  would  be 
necessary  would  be  for  the  land  company  to  execute  the  deed  and  tender  it  to 
the  trustees. 

From  a  reading  of  the  papers,  I  conclude  that  the  trustees  whose  removal 
is  sought,  have  failed  to  act  upon  the  directions  of  the  district  meeting.  They 
have  thought  that  they  had  good  reasons  for  this.  If  other  changes  are  to  be 
made  in  the  territory  of  the  school  district,  they  should  be  effected  before  the 
location  of  the  new  site  is  finally  determined.  In  any  event,  I  do  not  feel 
justified  in  granting  the  application  for  the  removal  of  the  trustees  at  present, 
or  until  it  shall  be  settled  whether  there  is  to  be  a  further  change  in  tlie  bounda- 
ries of  the  district,  at  an  early  day. 

The  school  commissioners  having  jurisdiction  are  directed  to  advise  together 
about  the  matter,  and  determine  it  so  far  as  they  have  power  to  do  so.  It  is 
possible  that  when  such  determination  is  reached  the  ground  for  controversy  will 
have  been  removed. 

In  the  meantime,  the  application  is  denied,  but  without  prejudice  to  the 
appellants  to  renew  it  at  some  future  time,  if  in  their  judgment  the  circum- 
stances shall  seem  to  justify  such  action. 


4010 

In  the  matter  of  John  Clingan,  trustee  of  school  district  no.  i,  of  the  town  of 
New  Paltz.  in  the  county  of  Ulster. 

A  school  district  trustee  persistently  and  wilfully  disobeyed  and  violated  the  orders  and 
directions  of  the  State  Superintendent  of  Public  Instruction,  and  the  laws  of  the 
State,  to  which  his  attention  had  been  repeatedly  called;  hdd^  sufficient  cause  for  his 
removal  from  office. 

Decided  October  27,   1891 

Linson  &  Van  Burcn,  attorneys  for  appellant 
D.  M.  De\\'itt,  attorney  for  respondent 


1266  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

Draper,  Superintendent 

Two  appeals  have  heretofore  been  taken  by  Abraham  ]\I.  Hasbrouck  a  tax- 
payer in  the  district  above  named,  from  the  action  of  John  CUngan  as  trustee 
of  said  district.  The  first  was  in  December  1890,  from  the  action  of  the  trustee 
in  expending  the  moneys  of  the  district  and  levying  a  tax  upon  the  same  for  the 
payment  of  teacher's  wages  and  other  alleged  expenses  of  the  district,  in  dis- 
regard of  an  agreement  entered  into  between  the  district  and  the  local  board  of 
managers  of  the  State  normal  and  training  school  at  New  Paltz.  The  second 
appeal  was  against  the  action  of  the  trustee  in  calling  a  school  meeting  in  the 
district  on  the  4th  and  5lh  days  of  August  1891,  for  the  purpose  of  transacting 
district  business  and  electing  district  officers,  in  disregard  of  chapter  54  of  the 
Laws  of  1891,  and  against  his  action  in  attempting  to  carry  out  the  alleged  action 
of  the  district  meeting  and  otherwise  in  disregard  of  said  act. 

In  the  consideration  of  these  appeals  it  appeared  to  my  satisfaction,  from 
the  evidence  and  papers  submitted,  that  said  John  Clingan  as  said  trustee  had 
been  guilty  of  a  wilful  violation  and  neglect  of  his  duties  as  such  trustee,  and 
of  the  provisions  of  the  Consolidated  School  Act,  and  of  other  acts  pertaining 
to  public  schools,  and  that  he  had  unreasonably  delayed  the  collection  of  taxes 
necessary  to  pay  the  indebtedness  of  said  district;  that  he  had  issued  a  tax  list 
in  which  he  had  included  sums  which  he  had  no  right  to  collect  or  charge  against 
said  district;  that  he  had  even  attempted  to  raise  money  to  pay  himself  for 
services,  and  had  refused  and  neglected  to  obey  the  directions  and  orders  of  the 
State  Superintendent  of  Public  Instruction  in  the  premises.  In  the  disposition 
of  said  appeals^  the  trustee  was  restrained  and  forbidden  from  acting  as  trustee 
of  said  school  district,  except  so  far  as  it  might  be  necessary  for  him  to  act  for 
the  purpose  of  paying  the  indebtedness  of  said  district,  as  the  same  existed  or 
had  been  incurred  on  March  10,  1891.  The  trustee  was  alsc.  directed  to  proceed 
to  determine  the  amount  of  the  indebtedness  of  the  district,  due  or  incurred  on 
the  loth  day  of  March  1891 ;  to  apply  any  moneys  now  standing  to  the  credit 
of  the  district  to  the  payment  of  such  indebtedness,  so  far  as  the  same  may  be 
legally  applicable  thereto ;  and  if  there  were  not  sufficient  moneys  on  hand  for 
that  purpose,  to  forthwith  issue  his  tax  list  and  warrant  for  the  collection  of  the 
deficiency,  and  as  soon  as  collected  to  pay  and  discharge  the  indebtedness  of  the 
district.  He  was  directed  to  withdraw  the  old  tax  list  appealed  from;  restore 
any  moneys  collected  thereunder  to  the  persons  from  whom  collected;  cancel 
and  destroy  the  same,  and  issue  a  new  tax  list  and  warrant  for  the  sum  neces- 
sary to  liquidate  the  said  indebtedness  of  the  district. 

The  said  trustee  was  also  ordered  to  show  before  me,  at  the  Department  of 
Pub  he  Instruction,  on  Tuesday,  the  29th  day  of  September  1891,  at  10  o'clock 
in  the  forenoon  of  that  day,  what  proceedings  he  had  taken  in  fulfilment  of 
the  terms  and  directions  of  said  orders  and  decisions  in  said  appeals;  and  in 
the  event  of  his  failure  to  show  that  he  had  proceeded  to  comply  with  said 
orders  and  decisions,  with  intelligence  and  in  good  faith,  he  was  ordered  to  show 
cause  why  he  should  not  be  removed  from  his  said  office  of  trustee. 


JUDICIAL  decisions:    trustees  1267 

At  the  time  and  place  named,  the  said  trustee  appeared  by  D.  M.  DeWitt, 
Esq.,  his  attorney,  and  filed  a  return  to  said  order.  Said  return  failed  to 
show  what  proceedings  he  had  taken  in  fulfilment  of  the  terms  and  directions 
of  said  orders  and  decisions,  and  admitted  that  he  had  not  complied  with  said 
terms  and  directions.  The  return  of  the  said  trustee  and  the  attorney  appearing 
for  him  admitted  that  said  trustee  had,  in  violation  of  the  terms  of  said  orders 
and  without  any  authority  on  the  part  of  said  district,  commenced  a  litigation  in 
the  Supreme  Court,  in  his  official  capacity  as  trustee  of  said  district;  and  also 
that  he  had  advised  teachers,  procured  and  employed  by  him  during  the  last 
preceding  school  year,  to  commence  suits  against  the  district  for  their  wages, 
instead  of  levying  taxes  for  the  payment  of  said  wages,  as  he  was  directed  to 
do  in  said  order  of  the  Superintendent;  and  that  he  had  otherwise  neglected 
and  refused  to  comply  with  the  terms  of  said  orders. 

It  therefore  appearing  before  me,  upon  the  papers  submitted  in  the  pro- 
ceedings above  mentioned,  that  said  John  Clingan  has  been  guilty  of  a  wilful 
violation  and  neglect  of  duty,  under  chapter  555  of  the  Laws  of  1864,  and  the 
acts  amending  the  same,  and  the  acts  pertaining  to  common  schools,  and  par- 
ticularly the  act,  chapter  54  of  the  Laws  of  1891,  and  that  he  has  wilfully  dis- 
obeyed the  orders  and  decisions  of  the  Superintendent. 

Now,  therefore,  it  is  ordered  and  adjudged,  that  John  Clingan  be  and  he 
hereby  is  removed  from  the  office  of  trustee  of  school  district  no.  i,  of  the  town 
of  New  Paltz,  in  the  county  of  Ulster. 


3956 

In  the  matter  of  the  appeal  of  James  Gormly,  Owen  Mathews  and  John  R. 
Mathews  v.  Howard  T.  Montgomery  and  John  A.  Biggs,  trustees  of  union 
free  school  district  no.  2,  town  of  Flatbush,  county  of  Kings. 

The  practice  of  trustees  of  reporting  a  less  balaace  of  moneys  on  hand  at  the  annual 
meetings,  than  they  really  had  or  should  have  had,  in  continuance  of  a  custom  of  the 
trustees,  which  was  to  deduct  from  amount  of  funds  on  hand  an  amount  equal  to  tlie 
outstanding  indebtedness  of  the  district.  Held,  to  be  a  reprehensible  and  pernicious 
custom,  and  inexcusable.  Duty  of  school  officers  relative  to  the  care  and  management 
of  school  moneys  pointed  out. 

Decided  January  26,  1891 

F.  L.  Backus,  attorney  for  respondents 

Draper,  Superintendent 

This  is  an  application  for  the  removal  of  the  respondents  from  the  office  of 
trustee  in  the  district  above  named.  The  charges  alleged  against  the  respondents 
are,  that  they  have  not  only  been  derelict  in  managing  the  business  of  the  district, 
but  that  they  have  misappropriated  moneys. 

The  papers  are  exceedingly  voluminous.  The  allegations  are  serious  and 
are  met  by  flat  denials.     Being  unable  to  come  to  any  satisfactory  conclusion 


1268  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

upon  the  pleadings,  I  directed  an  investigation  to  be  made  by  the  school  com- 
missioner, and  he  has  taken  a  vast  amount  of  testimony  which  has  been  returned. 
Upon  the  oral  argmnents  before  me,  the  counsel  for  the  appellants  substantially 
witiidrew  the  allegation  of  personal  dishonesty  on  the  part  of  the  respondents. 
Since  the  argument,  I  have  come  to  know  that  the  respondents  have  removed 
from  the  district  and  vacated  their  ofhces.  These  facts  simplify  matters  some- 
what. The  main  fact  still  remaining  is  that  the  trustees  have  for  several  years 
been  accustomed  to  report  to  the  annual  school  meeting  a  balance  of  moneys  on 
hand,  which  was  much  less  than  what  they  really  had  or  should  have  had.  This 
fact  is  not  disputed.  It  is  attempted  to  explain  it  by  saying  that  it  was  the 
custom  of  the  trustees  to  take  out  of  the  funds  to  the  credit  of  the  district  an 
amount  equal  to  the  outstanding  indebtedness  of  the  district.  Without  claiming 
that  this  was  proper,  they  attempt  to  excuse  themselves  on  the  ground  that  it  was 
a  custom  which  had  been  practised  for  many  years.  It  is  very  clear  to  me  that 
it  was  a  reprehensible  and  vicious  custom,  and  that  there  is  nothing  to  excuse 
it.  It  is  the  business  of  school  ofiicers  to  keep  school  funds  separate  and  by 
themselves,  and  not  to  mingle  such  moneys  with  any  other  moneys,  as  it  is  also 
their  business  to  report  to  the  district  meeting  each  year  the  precise  amount  of 
money  coming  into  their  hands,  the  precise  amount  of  money  paid  out  by  them, 
and  to  show  for  what  purpose  such  moneys  were  paid  out,  and  to  indicate  with 
precision  and  exactness  the  amount  of  money  remaining  in  their  hands.  It 
would  be  well  for  them  to  also  report  the  outstanding  liabilities  of  the  district, 
but  it  is  a  grave  error  to  fail  to  report  moneys  on  hand  which  have  not  already 
been  actually  and  properly  paid  in  the  discharge  of  a  liability  of  the  district. 

I  am  relieved  of  the  duty  of  determining  whether  I  should  remove  the 
respondents  from  office,  by  reason  of  the  fact  that  they  have  voluntarily  abdi- 
cated their  positions,  but  I  have  deemed  it  proper  to  make  the  foregoing  charac- 
terization of  the  methods  shown  to  have  been  practised  in  this  district,  for  the 
benefit  of   others. 


3755 

In  the  matter  of  the  appeal  of  James  R.  Warner  v.  Ezra  C.  Clemence. 

A  school  district  trustee  will  not  be  removed  from  office  upon  the  ground  of  his  ineligiblity, 

unless  the  charge  is  clearly  established. 
Decided  January  19,  1889 

Draper,  Superintendent 

The  respondent  was  elected  a  trustee  in  district  no.  23,  town  of  Brookhaven, 
m  the  county  of  Suffolk,  at  the  last  annual  school  meeting.  The  appellant  claims 
that  he  is  not  eligible  to  the  office,  by  reason  of  the  fact,  as  he  alleges,  that  the 
respondent  neither  holds  nor  hires  real  estate  in  the  district  liable  to  taxation  for 
school  purposes;  that  he  is  not  the  parent  of  a  child  or  children  of  school  age 


JUDICIAL  decisions:    trustees  1269 

who  has  attended  school;  that  he  has  residing  with  him  no  child  of  school  age 
who  has  attended  school,  and  that  he  has  not  been  assessed  for  personal  property. 

No  proofs  of  the  allegations  of  the  appellant  are  submitted. 

The  respondent,  in  his  answer,  swears  that  he  owns  certain  real  estate  lying 
in  district  no.  23  of  the  town  of  Brookhaven. 

The  nature  of  the  title  which  the  respondent  claims  in  the  real  estate 
described  is  not  disclosed,  but  there  certainly  is  no  proof  submitted  by  the 
appellant  which  will  justify  me  in  holding  that  the  respondent  is  not  eligible  to 
the  office. 

The  appeal  is  dismissed. 


3701 

In  the  matter  of  the  appeal  of  Isaiah  AI.  Merrill,  for  reinstatement  as  trustee 
of  school  district  no.  8,  town  of  Northtield,  Richmond  county. 

The  office  of  trustee  does  not  become  vacant  by  reason  of  the  neglect  or  malfeasance  of 
the  officer,  until  charges  have  been  preferred  and  an  opportunity  afforded  the  accused 
person  to  be  heard  in  answer  to  them,  and  he  is  removed  from  office  b>  competent 
authority. 

Decided  July  26,  1888 

T.  W.  Fitzgerald,  attorney  for  the  petitioners 
Lot  C.  Alston,  attorney  for  the  respondent 

Draper,  Superintendent 

The  petitioner  has  heretofore  been  a  trustee  of  school  district  no.  8  of  the 
town  of  Northfield.  Richmond  county.  It  is  alleged  that  he  has  been  guilty  of 
neglect  and  malfeasance  in  office.  Other  trustees  and  interested  persons  have 
taken  the  view  that,  under  section  58  of  title  7  of  the  Consolidated  School  Act, 
the  office  held  by  Merrill  had  become  vacant.  Acting  upon  that  supposition, 
they  procured  from  Edward  P.  Doyle,  supervisor  of  the  town  of  Northfield,  in 
June  last,  an  order  appointing  one  Decker  as  trustee  in  the  place  of  the  petitioner. 
This  is  an  application  on  the  part  of  the  petitioner  to  be  reinstated. 

The  case  may  be  very  easily  disposed  of.  I  am  clearly  of  the  opinion  that 
no  vacancy  existed.  Whether  or  not  the  petitioner  had  forfeited  the  office  by 
reason  of  the  things  complained  of,  no  vacancy  would  arise  until  charges  were 
made  against  him,  and  he  could  be  aflforded  an  opportunity  to  be  heard  in  answer 
to  them,  and  should  be  removed  by  competent  authority.  It  may  be  added  also, 
though  not  material,  that  the  supervisor  had  no  power  to  appoint  a  trustee  even 
if  a  vacancy  had  existed,  for  the  power  of  appointment  had  been  vested  in  the 
school  commissioner,  by  operation  of  chapter  331  of  the  Laws  of  1888.  It  is 
therefore  held  that  the  petitioner  is  still  the  trustee  and  entitled  to  exercise  the 
powers  of  his  office  as  such. 


1270  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

3894 

In  the  matter  of  the  appeal  of  H.  B.  Harrison,  school  commissioner  of  the 
second  commissioner  district  of  Steuben  county,  v.  DeVoy  Bailey,  trustee 
of  school  district  no.  2,  of  the  town  of  Troupsburg,  Steuben  county. 
A  trustee  who  pcrsistuiuly  neglects  to  make  repairs  to  the  school  building,  which  are  neces- 
sary,  and   whicli    have   been   directed   by   the   commissioner's   order;    hcldj  a   sufficient 
cause  for  his  removal  from  office. 
Decided  July  24,  i8yo 

Draper,  Superintendent 

The  connnissioner,  the  above-named  appellant,  on  or  about  August  6,  1889, 
made  and  issued  an  order  directing  certain  repairs  to  be  made  to  the  school- 
house  in  school  district  no.  i,  Troupsburg,  Steuben  county.  The  order  was 
duly  delivered  to  the  respondent,  the  trustee  of  said  district.  The  order  has 
not  been  obeyed  and  its  requirements  complied  with. 

The  Department  has  been  very  lenient  with  the  trustee.  No  answer  to 
the  appeal  having  been  received,  an  order  to  show  cause  why  the  order  had  not 
been  obeyed  was  issued  and  caused  to  be  served  upon  the  trustee.  No  sufficient 
answer  has  been  made  thereto. 

The  respondent  states  that  a  district  meeting  will  not  authorize  the  repairs 
directed  by  the  order.  The  trustee  has  been  repeatedly  advised  that  no  such 
authorization  was  necessary ;  that  the  commissioner  was  acting  within  the  scope 
of  his  authority,  and  that  the  statute  makes  it  the  duty  of  the  trustee  to  obey 
his  order.  The  repairs  are  necessary  for  the  comfort  of  the  pupils  of  the  school 
and  the  teacher  employed  to  instruct  them. 

The  appeal  is  sustained.  The  respondent,  DeVoy  Bailey,  is  hereby  removed 
from  the  office  of  trustee.  If  the  district  and  the  person  who  may  be  chosen 
trustee  continue  to  ignore  the  commissioner's  order  public  money  will  be  with- 
held from  the  district.    The  order  of  the  commissioner  must  be  obeyed. 


3960 

In  the  matter  of  the  appeal  of  Eldorado  and  Ruth  Frasier  v.  George  W. 
Houghton,  as  trustee  of  school  district  no.  7,  town  of  Day,  county  of 
Saratoga. 

A  school  trustee  charged  with  being  ineligible  to  the  office,  not  being  a  voter  at  school 
meetmgs  answers  the  charge  by  swearing  to  the  qualifications  of  a  voter.  Charge 
dismissed. 

A  school  trustee  included  in  a  tax  list  a  charge  for  personal  services  rendered  the  district; 

held,  illegal,  and  the  item  directed  to  be  eliminated   from  the  tax  list 
Upon  an  appeal  appellant  obtained  leave  to  serve  and  file  a  reply,  and  in  such  reply  filed 

Zul  '"  ^';;"^'^.,"^"  t"^  ^''^''■'"'  "'"^^  °^  complaint;  held,  not  permissible,  and 
such  new  matter  will  not  be  considered. 
Decided  February  9,  1891 

S.  M.  Richards,  attorney  for  respondent 


JUDICIAL   DECISIONS  :      TRUSTEES  12/1 

Draper,  Superintendent 

This  appeal  is  brought  by  electors  of  school  district  no.  7,  town  of  Day, 
county  of  Saratoga.  Appellants  allege  that,  although  the  respondent  was  chosen 
trustee  at  the  annual  district  meeting  of  1890,  he  was  not  and  is  not  eligible  to 
the  office,  not  being  a  qualified  voter  at  school  meetings  in  the  district;  that  that 
fact  was  unknown  to  the  appellants  until  a  few  days  prior  to  the  bringing  of 
this  appeal,  and  that  such  respondent  has  included  in  a  tax  list  recently  placed  in 
the  collector's  hands  an  item  for  personal  services  rendered,  the  charge  for 
which  is  exorbitant. 

An  order  to  enjoin  the  enforcement  of  the  tax  warrant  issued  by  the 
respondent  as  trustee  was  applied  for  and  a  temporary  stay  granted.  The 
appellants  further  allege  that  respondent  neglected  to  render  any  report  to  the 
last  annual  meeting,  but  nowhere  allege  that  he  was  trustee  prior  to  August  6, 
1890. 

The  respondent  answers  and  alleges  that  he  is  a  qualified  voter,  being  a 
citizen  over  21  years  of  age,  a  resident  of  the  district,  the  lessee  of  land,  and 
in  fact  a  taxpayer.  He  admits  that  he  has  charged  the  district  $1.50  for  four- 
teen hours'  work. 

The  appellants  obtained  leave  to  serve  and  file  a  reply  and  now  come  in 
with  an  entirely  new  charge  —  that  of  permitting  the  teacher  to  punish  pupils 
with  severity,  and  to  an  unnecessary  and  inhuman  degree.  To  this  new  cause 
of  complaint  the  trustee  has  not  answered,  and  I  have  not  required  him  to  do 
so.  The  appellants  should  have  made  this  a  ground  of  appeal  in  their  initiatory 
pleading  if  they  wished  to  raise  this  issue  at  this  time. 

The  charge  that  the  respondent  is  ineligible  is  clearly  not  established  by  the 
evidence. 

The  cliarge  for  personal  services  by  the  trustee  is  an  illegal  item  in  the  tax 
list,  and  the  trustee  is  hereby  directed  to  withdraw  and  correct  the  tax  list  by 
eliminating  that  item  therefrom. 

If  this  order  be  complied  with  the  order  staying  the  enforcement  of  the 
warrant  will  be  revoked  and  this  appeal  overruled. 


3834 

In  the  matter  of  the  appeal  of  Thomas  T.  Powell  v.  Thomas  E.  Butler,  as 
trustee  of  school  district  no.  13,  of  the  town  of  Coeymans,  county  of 
Albany. 

A  qualified  elector  duly  chosen  a  school  officer  was,  by  a  misrepresentation  of  the  law, 
induced  to  state  to  the  meeting  at  which  he  was  chosen,  "  that  he  wanted  no  fuss  about 
the  matter,  and  did  not  care  for  the  office;"  held,  not  to  be  a  refusal  to  serve.  The 
subsequent  election  of  another  person  to  the  same  office  at  the  same  meeting;  held, 
void. 

Decided  December  2,  1889 

■     O'Brien  &  Addington,  attorneys  for  appellant 
Barlow  &  Greene,  attorneys  for  respondent 


1272  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

Draper,  Superintendent 

Thomas  T.  Powell,  a  resident  elector  of  school  district  no.  13,  town  of 
Coeymans,  Albany  county,  who  claims  that  he  was  duly  chosen  sole  trustee  of 
said  district  at  the  last  annual  meeting,  asks  that  he  be  declared  trustee  and  that 
the  respondent  be  removed  from  the  oftice  of  trustee  for  neglect  of  duty  and 
upon  other  grounds. 

A  singular  state  of  facts  is  presented.  The  proofs  show  that  the  annual 
meeting  was  attended  by  thirteen  electors,  and  that  appellant  was  chosen  trustee 
without  dissent,  and  so  declared  by  the  chairman.  Subsequently  the  respondent 
stated  to  the  meeting  that  the  appellant  was  not  eligible  to  the  office,  not  being 
a  taxpayer.  Whereupon  appellant  stated  "  that  he  wanted  no  fuss  about  it, 
and  did  not  care  for  the  office."  Some  one  thereupon  nominated  respondent  for 
trustee,  and  two  or  three  voted  for  the  proposition,  and  respondent  was  declared 
elected;  not,  however,  without  objection  by  one  of  the  electors,  who  stated  that 
no  vacancy  existed. 

There  is  no  question  about  the  election  of  the  appellant  as  trustee,  and  it 
appears  he  is  and  was  eligible  to  the  office.  The  only  point  in  the  case  is  this: 
Did  the  appellant  at  the  annual  meeting  or  since,  refuse  to  serve  as  trustee? 
Acting  upon  the  erroneous  information  given  to  the  meeting  by  the  respondent, 
appellant  stated  he  "  did  not  care  for  the  office  and  wanted  no  fuss  about  it."  It 
appears  he  does  want  the  office,  and  docs  not  refuse  to  serve  therein. 

I  do  not  consider  the  language  used  at  the  annual  meeting  by  the  appellant, 
based  upon  the  unwarranted  remark  of  respondent,  a  refusal  to  serve,  and  I 
therefore  declare  Thomas  T.  Powell  to  have  been  duly  chosen  sole  trustee  of 
district  no.  13,  town  of  Coeymans,  Albany  county,  at  the  annual  meeting  last 
held,  to  be  entitled  to  perform  the  duties  of  said  office,  and,  until  his  term 
expires,  or  he  vacates  the  office,  it  is  incumbent  upon  him  to  discharge  the  duties 
of  trustee. 

There  was  no  warrant  for  the  second  election  of  trustee  at  the  annual  meet- 
ing. The  respondent  clearly  had  no  title  to  the  office,  there  existing  at  the  time 
of  the  election  no  vacancy  in  the  office  of  trustee ;  consequently,  the  assumed 
election  of  respondent  was  void. 

In  accordance  with  the  above  findings  of  facts,  the  appeal  is  sustained. 


3725 

In  the  matter  of  the  application  for  the  removal  of  Marquis  Lewis,  sole  trustee 
of  school  district  no.  i,  town  of  Kortright,  county  of  Delaware. 

A  trustee,  incapal)le  of  transacting  business  by  reason  of  advanced  age,  and  who  is  wholly 
irresponsible  and  living  on  charity,  and  who  has  refused  or  neglected  to  carry  out 
the  directions  of  the  district  meeting  for  a  long  time,  is  unfit  to  hold  the  responsible 
office  of  trustee. 

Decided  November  14,  1888 


JUDICIAL   decisions:      trustees  12/3 

Draper,  Superintendent 

It  seems  that,  at  a  special  meeting  held  in  the  above-named  district  on  the 
14th  day  of  September  1886,  a  resolution  was  adopted  in  the  manner  provided  bj' 
statute,  to  change  the  schoolhouse  site  and  purchase  a  certain  plot  of  land  owned 
by  one  Hiram  Every.  The  vote  was  very  close,  standing  23  in  the  affirmative 
and  22  in  the  negative.  By  the  action  referred  to,  the  trustee  of  the  district  was 
directed  to  purchase  the  said  plot  of  ground  for  the  sum  of  $175.  It  is  alleged, 
and  not  controverted  in  the  papers  before  me,  that  Mr  Lewis,  the  trustee,  has 
neglected  to  carry  out  this  determination  of  the  district  meeting.  In  subsequent 
meetings  held  in  the  district  he  has  been  called  upon  to  state  what,  if  anything, 
he  had  done  to  comply  with  the  action  of  the  district  meeting;  and  stated  that 
he  had  done  nothing.  Beyond  this,  it  is  alleged  that  the  trustee  is  advanced  in 
age,  wholly  irresponsible,  incapable  of  transacting  business  and  living  upon  char- 
ity. There  seems  to  be  a  very  grave  question  about  his  eligibility  to  the  office 
of  trustee.  It  is  shown  that  he  is  occupying  a  certain  tenement  house  on  prem- 
ises belonging  to  one  Emeline  Foreman,  who  swears  that  he  does  not  pay  any 
rent,  and  that  she  expects  none  from  him,  and  that  she  permits  him  to  remain 
there  only  at  sufferance  and  as  a  deed  of  charity.  If  this  is  so,  then  he  is  not 
eligible  to  the  office  of  trustee.  But  whether  it  is  or  not,  it  seems  to  be  well 
established  by  the  papers  that  he  is  a  man  entirely  unfit  for  the  responsible  duties 
of  school  trustee,  and  particularly  so  in  a  district  about  to  engage  in  the  erection 
of  a  new  school  building  upon  a  new  site.  I  find  nothing  involving  the  personal 
integrity  of  the  trustee.  No  such  charge  is  made  against  him.  But  it  seems  clear 
to  me  that  a  man  of  advanced  age,  without  any  visible  means  of  support,  and 
who  has,  for  a  long  time,  wholly  refused  or  neglected  to  comply  with  the  direc- 
tions of  the  district  meeting  at  which  a  matter  of  so  much  importance  as  the 
erection  of  a  new  schoolhouse  was  ordered  (even  after  the  old  one  had  been  con- 
demned bv  the  school  commissioner),  should  not  continue  to  hold  the  office  of 
school  trustee,  I  have,  therefore,  reluctantly  come  to  the  conclusion  that  it  is  my 
duty  to  remove  him  and  direct  a  new  election. 

It  is  therefore  ordered  that  Marquis  Lewis  be,  and  he  is  hereby  removed 
from  the  office  of  trustee  in  school  district  no.  i  of  the  town  of  Kortright,  Dela- 
ware county,  and  the  district  clerk  is  hereby  ordered  to  call  a  special  meeting  of 
the  district  for  the  purpose  of  filling  the  vacancy  hereby  created. 


3939 

In  the  matter  of  the  appeal  of  R.  B.  Luckcnbach  v.  John  W.  Hill,  as  trustee  of 

school  district  no.  5,  Perry,  Wyoming  county. 
A  person  chosen   trustee  of  a  school  district   was   subsequently  chosen   district   collector, 

which  latter  office  he  accepted;  held,  to  have  vacated  the  office  of  trustee. 
Decided  December  3,  1890 


1274  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

Draper,  Superintendent 

The  appellant,  a  taxable  elector  of  school  district  no.  5,  Perry,  county  of 
Wyoming,  states  the  following  as  the  grounds  for  his  appeal : 

That,  at  the  annual  school  meeting,  held  August  5,  1890,  the  respondent  acted 
as  chairman  and  the  appellant  as  secretary  pro  tem.  and  one  Charles  H.  Damon 
was  appointed  teller;  that  an  informal  ballot  for  trustee  was  had,  and  7  votes 
cast,  resulting  in  no  choice ;  that  a  formal  ballot  was  then  taken,  with  this  result : 
for  appellant  4  votes,  and  for  respondent  3 ;  that  thereupon,  some  one  announced 
that  a  two-thirds  vote  was  necessary  to  elect,  and  successive  ballots  were  taken 
until  the  respondent  Hill  received  5  votes  and  the  appellant  2,  and  the  chairman 
thereupon  declared  himself  elected  trustee. 

The  respondent  answers  and  avers  that  upon  the  first  formal  ballot,  there 
was  no  choice,  appellant  and  respondent  herein  each  receiving  three  votes,  and 
one  ballot  cast  contained  the  name  or  word  "  Vial,"  which  latter  ballot  respondent 
asserts  he  voted  himself;  that  upon  a  subsequent  ballot,  he  was  elected  trustee 
by  a  vote  of  5  to  2  for  appellant;  that  appellant  was  subsequently  elected  district 
collector. 

The  first  question  which  presents  itself,  and  upon  which  there  is  a  direct  con- 
flict of  testimony,  is  the  result  of  the  first  formal  ballot.  The  appellant  submits 
the  joint  affidavit  of  four  electors  of  the  district  that  they  voted  upon  that  ballot 
for  the  appellant,  and  that  the  result  of  the  ballot  was  4  for  appellant  and  3  for 
respondent.  The  person  who  acted  as  teller  also  swears  to  the  same  result,  and 
it  does  not  appear  that  he  voted.  He  also  states  that  no  other  vote  was  cast 
upon  this  ballot,  and  that  he  did  not  declare  the  vote  was  a  tie. 

The  respondent  is  supported  in  his  statement  as  to  the  result  of  the  first  for- 
mal ballot  by  two  electors. 

The  respondent  alleges  that  he  has  endeavored  to  discover  the  ballots  which 
were  left  in  the  schoolhouse,  but  has  been  unable  upon  a  search,  to  find  them, 
and  asserts  that  he  believes  some  one  has  destroyed  them.  It  is  admitted  by  the 
respondent  that  he  received  from  the  former  trustee  the  key  to  the  schoolhouse, 
and  the  district  property. 

I  am  brought  squarely,  then,  to  the  issue.  Does  the  appellant  affirmatively 
show,  by  a  preponderance  of  proof,  that  he  received  a  majority  of  the  votes 
upon  the  first  formal  ballot  for  the  election  of  trustee?  For  the  appellant,  we 
have  the  affidavits  of  himself,  Patrick  Sullivan,  Martin  Mclntyre  and  William 
Morgan,  all  voters,  supported  by  Charles  H.  Damon,  teller.  Opposed  thereto, 
we  have  the  evidence  of  the  respondent  himself,  who  swears  he  voted  a  ballot 
marked  "  \'ial,"  and  Davton  P.  Stowell  and  A.  Wilbur  Watson,  the  two  latter 
corroborating  the  respondent's  statement  of  the  vote.  Here  we  have  seven  per- 
sons who  voted,  four  who  swear  that  they  voted  for  the  appellant,  one  who 
swears  that  he  voted  "  Vial,"  and  two  others  who  do  not  declare  how  they  voted, 
but  presumably  for  the  respondent.  The  teller,  in  addition,  swears  that  the  vote 
was  4  to  3  in  favor  of  appellant,  and  as  alleged  by  him,  thus  corroborating  the 
appellant  and  his  witnesses. 


JUDICIAL   DECISIONS  :      TRUSTEES  12/5 

Respondent  insists  that  the  vote  was  3  for  appellant,  3  for  him,  and  his  own 
vote  for  "  Vial."  Who  then  cast  the  third  vote  for  respondent?  The  proof  fails 
to  disclose  the  voter.  The  case  thus  far  is  clearly  with  the  appellant.  His  evi- 
dence preponderates.  His  proof  is  clear,  and  his  witnesses  unimpeached.  I  am 
satisfied  that  appellant  was  chosen  trustee  on  the  first  formal  ballot,  and  should 
have  been  so  declared.  It  is  admitted  that  some  one  at  the  close  of  this  ballot 
stated  that  a  two-thirds  vote  was  necessary  to  elect,  and  that  balloting  was  con- 
tinued until  a  two-thirds  vote  was  cast  for  respondent  for  trustee.  This  state- 
ment was  without  warrant.  A  trustee  having  been  chosen,  there  was  no  vacancy, 
and  the  subsequent  vote  for  a  trustee  was  a  nullity. 

This  brings  me  to  the  second  proposition  which  is  disclosed  by  respondent's 
proof  and  not  denied  by  appellant,  that  subsequently  appellant  was  elected  dis- 
trict collector.  This  occurred  while  appellant  was  yet  present.  He  did  not  decline 
the  office,  nor  did  he  refuse  to  serve  therein,  and  must,  therefore,  be  presumed  to 
have  accepted  the  office  of  collector.  Further,  it  appears  that  appellant  entered 
the  record  of  his  election  as  district  collector  upon  the  minutes  of  the  meeting 
which  he  kept  as  its  secretary.  The  appellant  could  not  hold  both  the  office  of 
trustee  and  collector  at  the  same  time.  Section  23  of  title  8  of  the  Consolidated 
School  Act  prohibits  this. 

I  am,  therefore,  compelled  to  hold  that  the  appellant,  by  accepting  the  office 
of  district  collector,  vacated  that  of  trustee,  and  a  vacancy  was  created  which 
was  not  filled.  The  district  is.  therefore,  without  a  trustee,  and  the  district  clerk 
is  hereby  ordered  and  directed  to  forthwith  give  notice  of  a  special  meeting  to 
choose  a  trustee  to  fill  the  vacancy. 

The  appeal  is  sustained. 


4028 

In  the  matter  of  the  appeal  of  James  Bucroft,  David  Myers  and  others  v.  Thomas 
H.  Betts,  school  commissioner  of  the  first  district  of  Rensselaer  county. 

Where  a  trustee  of  a  school  district  resigns,  no  notice  of  such  resignation  being  given  to 
the  district  clerk  and  the  district  having  no  notice  of  such  vacancy,  an  order  of  the 
school  commissioner,  made  upon  the  supposition  that  the  district  had  knowledge  of  such 
vacancy  and  that  it  did  not  intend  to  elect  a  trustee,  after  such  vacancy  had  existed 
for  thirty  days,  vacated  and  a  special  meeting  directed  to  be  held  to  till  such  vacancy. 

Decided  December  15,  1891 

Draper,  Superintendent 

The  object  of  this  appeal  is  to  test  the  legality  of  the  appointment  of  Fred- 
erick Wiley  as  a  trustee  in  school  district  no.  i  of  the  town  of  Schaghticoke. 

It  appears  that  William  C.  Cromby  held  the  office  of  trustee  in  said  district. 
He  sent  his  resignation  as  such  to  the  school  commissioner,  under  date  of 
October  3,  1891.  On  the  i6th  day  of  October  1891,  the  school  commissioner 
appointed  Mr  Wiley  as  his  successor.     Proof  is  offered  that  the  district  had 


12/6  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

no  knowledge  of  the  vacancy.  The  district  clerk  swears  that  Mr  Cromby,  the 
former  trustee,  is  a  landowner  in  the  district  and  still  a  resident  there,  and 
that  nothing  had  occurred  to  lead  him  or  others  in  the  district  to  suppose  that 
he  intended  to  vacate  the  office.  No  notice  of  his  resignation  was  given  the 
district  clerk.  The  school  commissioner  acted  in  the  supposition  that  the  vacancy 
was  known  to  exist,  and  that  the  district  was  inactive  about  the  matter. 

He  appears  to  have  appointed  a  worthy  man  as  trustee.  Nevertheless, 
there  seems  to  be  now  a  general  desire  in  the  district  to  proceed  to  an  election, 
and  there  is  some  complaint  because  the  opportunity  was  not  afforded.  The 
school  commissioner  is  apparently  anxious  to  have  the  district  settle  the  matter, 
but  feels  that  he  has  no  authority  to  vacate  his  own  order,  which  would  have 
the  effect  of  removing  his  appointee.  In  this  he  is  perhaps  correct.  It  was 
unquestionably  the  intention  of  the  statute  that  districts  should  have  the  oppor- 
tunity to  fill  a  vacancy  in  the  office  of  trustee.  Authority  was  given  the  school 
commissioner  to  appoint  only  after  a  vacancy  had  existed  for  thirty  days  and 
when  there  would  be  reason  to  suppose  that  the  district  did  not  intend  to  elect. 
In  a  case  where  no  notice  of  the  vacancy  was  given  to  the  district,  the  reason 
disappears. 

I  have  therefore  concluded  to  vacate  the  order  of  the  school  commissioner 
appointing  Mr  Wiley,  and  of  directing  that  a  special  meeting  be  held  for  the 
purpose  of  an  election  to  fill  the  vacancy. 

The  appeal  is  sustained  and  it  is  so  ordered. 


3921 

In  the  matter  of  the  appeal  of  Chauncey  M.  Soule  and  Elmer  E.  Mogg  v.  school 

district  no.  4,  town  of  Clay,  county  of  Onondaga. 
A  trustee  announced  to  his  associate  members  that  he  would  resign  his  position  as  trustee, 

and  then  left  a  meeting  of  the  board.     He  also  publicly  announced  his  abandonment 
of  the  office;   held,  that  a  vacancy  in  the  office  of  trustee   was  created  which  a  district 

meeting  could  fill. 
Action  of  a  special  meeting  at  which  a  trustee  was  chosen  to  fill  a  vacancy,  when  a  very 

close  vote  was  had  between  rival  candidates,  where  it  appears  that  many  voters  failed 

to  receive  notice  of  the  meeting,  and  at  which  meeting  illegal  votes  were  cast,  set  aside 

and  special  meeting  directed  to  be  called. 
Decided  October  31,  1890 

Lewis  &  Wilson,  attorneys  for  appellant 

Draper,  Superintendent 

It  seems  that,  on  the  6th  day  of  September  1890,  Chauncey  M.  Soule, 
Elmer  E.  Mogg  and  Arthur  Hall  were  the  trustees  in  the  district  above  named. 
At  a  meeting  of  said  trustees  held  upon  said  date,  Mr  Soule  announced  that 
he  would  resign  his  position  as  trustee,  and  left  the  meeting.     Subsequently  Mr 


JUDICIAL  decisions:    trustees  1277 

Smith  Soule  visited  the  remaining  trustees,  they  still  being  in  session,  and 
notified  them  that  Mr  Chauncey  M.  Soule  had  resigned  his  position,  and  that 
there  was  a  vacancy  in  the  board.  The  two  remaining  trustees  then  decided 
to  call  a  special  meeting  of  the  district  on  the  13th  day  of  September  for  the 
purpose  of  filling  such  vacancy.  Subsequent  to  this,  and  up  to  the  time  of  the 
special  meeting,  Mr  Soule  announced  in  conversation,  that  he  had  resigned.  When 
the  special  meeting  convened  it  witnessed  a  strenuous  contest  between  the  contend- 
ing elements  in  the  district.  A  protest  was  presented  to  this  meeting  against  any 
action  on  its  part,  on  the  ground  that  Mr  Soule  had  not  resigned,  inasmuch  as 
he  had  not  filed  a  written  resignation  with  the  school  commissioner.  The  meet- 
ing, however,  proceeded  to  hold  an  election.  Upon  a  ballot  being  taken,  47 
votes  were  found  to  be  cast  for  Charles  DeLong,  and  48  votes  for  Eugene 
DeLong,  and  the  latter  was  declared  to  be  elected.  The  appellants  now  ask 
the  determination  of  the  Department  that  Mr  Soule  has  not  resigned  his  office, 
and  that  accordingly  there  was  no  vacancy.  In  the  event  that  it  shall  be 
determined  that  a  vacancy  did  exist,  then  the  appellants  seek  to  avoid  the  result 
of  the  special  meeting,  on  the  ground  that  it  was  not  duly  called,  that  all 
qualified  electors  were  not  notified,  and  that  five  or  six  persons  who  voted  for 
Eugene  DeLong  were  not  qualified  electors.  The  respondents  seek  to  uphold 
the  action  of  the  district  meeting,  claiming  that  all  who  voted  for  Eugene  DeLong 
were  entitled  to  vote,  and  naming  several  persons  who  voted  for  Charles  DeLong 
without  being  entitled  to  do  so. 

I  think  it  must  be  said  that  there  was  a  vacancy  in  the  office  of  trustee. 
Mr  Soule  had  announced  to  his  associates  that  he  would  resign,  and  thereupon 
left  the  meeting,  and  he  had  caused  it  to  be  stated  to  the  other  trustees  while 
still  in  session,  that  he  had  resigned,  and  that  there  was  a  vacancy  in  their 
board.  They  had  taken  immediate  steps  to  call  a  meeting  to  fill  such  vacancy. 
In  the  meantime,  he  had  publicly  announced  his  abandonment  of  the  office. 

While  the  statute  does  provide  that  a  trustee  may  vacate  his  position  by 
filing  his  resignation  with  the  school  commissioner,  it  by  no  means  forbids  or 
prevents  a  trustee  from  abandoning  such  position  in  any  other  way.  It  has 
been  repeatedly  held  that  a  public  announcement  and  determination  not  to  act 
in  such  a  capacity,  might  be  deemed  a  resignation  or  abandonment  of  the  same. 
I  think  Mr  Soule  did  all  that  was  necessary  to  do  in  this  case  to  justify  the 
district  in  proceeding  to  elect  some  one  in  his  stead. 

I  have  carefully  considered  the  question  as  to  whether  the  action  of  the 
district  meeting  should  be  upheld.  In  view  of  the  fact,  which  is  undeniable, 
that  some  of  the  qualified  electors  in  the  district  failed  to  receive  notice  of  the 
meeting,  and  that  the  vote  in  the  election  of  a  trustee  was  so  exceedingly  close, 
and  of  the  farther  fact  that  allegations  are  raised  on  each  side  against  the  right 
of  persons  on  the  other  side  to  vote,  I  have  come  to  the  conclusion  that  the 
result  of  the  meeting  must  be  set  aside.  It  is  very  clear  to  me  that  the  best 
interests  of  the  district  will  be  promoted  by  ordering  a  special  election. 


12/8  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

It  is  therefore  determined  that  there  is  a  vacancy  in  the  office  of  trustee 
in  said  district,  and  that  the  proceedings  of  the  special  district  meeting  held 
September  13th  must  be  set  aside  and  held  to  be  of  no  effect.  The  remaining 
trustees  will  give  notice  of  a  special  meeting  to  be  held  not  more  than  fifteen 
days  distant,  and  will  exercise  care  to  give  such  notice  in  the  way  provided  by 
the  statute,  to  the  end  that  all  electors  in  the  district  may  participate  therein, 
if  they  desire  to,  and  that  the  right  of  all  persons  to  vote  may  be  inquired  into. 


4286 

In  the  matter  of  the  appeal  of  John  Bliven,  as  trustee  of  joint  school  district 
no.  3,  towns  of  Bridgewater  and  Sangerfield,  Oneida  county,  and  Brook- 
field,  Madison  county,  v.  Oscar  W.  Helmer. 

A  person  elected  to  the  office  of  trustee  of  a  school  district  who  publicly  expresses  his  doubts 
of  his  eligibility  to  hold  the  office  and  that  he  would  not  serve  as  trustee  and  who  cir- 
culates a  petition  to  the  school  commissioner  to  appoint  a  person  as  trustee  and  afterward 
calls  a  special  meeting  of  the  district  for  the  election  of  a  trustee  will  be  deemed  to 
have  vacated  the  office  to  which  he  was  elected,  and  the  person  elected  as  trustee  at  such 
meeting  to  fill  such  vacancy  will  be  held  to  be  the  legally  elected  trustee  of  such  district. 

Decided  October  23,  1894 


J.  D.  Senn,  attorney  for  appellant 

N.  A.  Crumb,  attorney  for  respondent 


Crooker,  Superintendent 

On  August  7,  1894,  the  annual  school  meeting  in  joint  school  district  no.  3, 
towns  of  Bridgewater  and  Sangerfield,  Oneida  county,  and  Brookfield,  Madison 
county,  was  duly  held,  and  at  said  meeting  Oscar  W.  Helmer  was  legally  elected 
trustee  and  R.  Sherman  Langworthy  was  legally  elected  collector  of  said  district ; 
that  one  A.  C.  Sisson  was  elected  district  clerk,  but  not  by  ballot;  that  soon 
after  said  annual  school  meeting  the  question  as  to  the  eligibility  of  the  said 
Helmer  to  hold  the  said  office  of  trustee  was  discussed  by  the  qualified  voters 
of  said  district,  it  being  claimed  that  he  was  a  single  man  and  not  a  taxpayer 
in  said  district  and  did  not  own  or  hire,  nor  was  he  in  the  possession,  under 
a  contract  of  purchase,  of  real  property  in  said  school  district  liable  to  taxation 
for  school  purposes  and  was  not  the  parent  of  a  child  or  children  of  school  age 
who  had  attended  the  school  in  said  district  for  at  least  eight  weeks  in  the 
year  preceding  said  school  meeting,  and  not  being  such  parent  did  not  have 
residing  with  him  a  child  or  children  of  school  age  who  had  attended  the 
school  in  said  district  for  at  least  eight  weeks  during  the  year  preceding  said 
meeting,  and  was  not  assessed  for  any  personal  property  on  the  last  preceding 
roll  of  the  town  in  which  he  resides.  That  the  said  Helmer  publicly  expressed 
to  various  qualified  voters  of  said  district  his  doubts  as  to  his  eligibility  to 
hold  the  said  office  of  trustee  and  also  expressed  fears  that  said  district  might 


JUDICIAL  decisions:     trustees  1279 

lose  the  public  money  if  he  should  hold  such  office,  and  also  publicly  stated  that 
he  would  not  serve  as  trustee  of  said  district.  That  a  special  meeting  was  held 
in  said  district  on  August  28,  1894,  but  no  action  relative  to  the  office  of  trustee 
was  taken  thereat;  but  the  question  of  the  eligibility  of  said  Helmer  to  said 
office  was  discussed,  and  the  statement  was  there  made  that  School  Commis- 
sioner Francis  had  stated  that  after  thirty  days  from  the  annual  meeting  a 
vacancy  occurring  as  alleged,  he  (Francis)  would  appoint  a  trustee.  That  said 
Helmer  circulated  a  petition  asking  that  the  said  commissioner  appoint  one 
Charles  Drumgoole  as  trustee  of  said  district.  That  Irving  Cook,  the  trustee 
of  said  district  at  said  annual  meeting,  believing  from  the  action  and  state- 
ments of  said  Helmer,  that  the  office  of  trustee  was  vacant  and  that  he  (Cook) 
had  authority,  called  a  special  meeting  of  said  district  to  be  held  on  September 
4,  1894,  for  the  purpose  of  electing  a  trustee  for  said  district.  That  said  meet- 
ing assembled  on  September  4th,  at  which  said  Helmer  was  present  and  did 
publicly  announce  that  the  meeting  was  not  legally  called,  but  that  on  September 
II,  1894,  there  would  be  a  special  meeting  at  the  schoolhouse  for  the  purpose 
of  electing  a  trustee,  at  which  meeting  he  (Helmer)  would  give  his  reasons  for 
resigning.  That  at  said  meeting  of  September  4,  1894,  said  Helmer  served  notice 
upon  all  the  qualified  voters  then  present  that  a  special  meeting  of  the  qualified 
voters  of  said  district  would  be  held  at  the  schoolhouse  in  said  district  on  Septem- 
ber II,  1894,  at  7  o'clock,  p.  m.,  for  the  purpose  of  electing  officers,  as  follows:  a 
chairman,  clerk,  trustee  and  collector.  That  on  September  11,  1894,  pursuant 
to  the  aforesaid  notice  of  said  Helmer,  a  special  meeting  of  said  district  was 
held.  The  meeting  was  called  to  order  by  Helmer,  and  Albert  Beebe  was  nom- 
inated as  chairman  and  elected,  said  Helmer  seconding  said  nomination.  That 
Charles  Drumgoole  was  elected  by  ballot  as  district  clerk.  That  the  chairman 
then  announced  that  a  ballot  for  trustee  was  in  order,  when  Helmer  stated  to 
the  meeting  that  he  (Helmer)  was  trustee  and  decided  to  hold  the  office,  and 
said  "  The  meeting  is  adjourned."  That  the  chairman  declared  said  Helmer 
out  of  order.  Whereupon  said  Helmer  and  Drumgoole,  the  clerk,  took  the 
books  of  the  district  and  left  the  meeting.  That  the  meeting  then  proceeded 
to  ballot  for  trustee,  and  John  Bliven  received  a  majority  of  the  votes  cast 
for  said  office.  That  immediately  after  said  meeting  said  Bliven  demanded  of 
said  Helmer  the  key  of  the  schoolhouse,  and  the  possession  of  the  books  and 
property  of  the  district;  but  said  Helmer  refused  to  deliver  said  property  or 
the  possession  thereof  to  said  Bliven  or  to  recognize  said  Bliven  as  the  trustee 
of  said  district.  The  said  Bliven  is  a  qualified  voter  of  said  district  and  eligible 
to  hold  the  office  of  trustee  of  said  district.  The  appellant,  John  Bliven,  thereupon 
brought  an  appeal  from  the  action  and  decision  of  said  Helmer,  and  asks  that  said 
Helmer,  be  ordered  and  directed  to  deliver  to  the  appellant,  as  trustee  of  said 
district,  the  property  of  the  district  and  the  possession  of  the  schoolhouse  and 
appurtenances  of  said  district. 

The  respondent,   Helmer,  in  his  answer  to  the  appeal  herein   states   that 
he  is  35  years  of  age,  a  native-born  citizen  of  the  United  States,  a  resident  of 


I280  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

the  town  of  Brookfield,  Madison  county,  and  for  the  past  twenty  years  a 
resident  of  joint  school  district  no.  3  of  the  towns  of  Bridgewater  and  Sanger- 
field,  Oneida  county,  and  Brookfield,  Madison  county,  and  that  he  can  read  and 
write.  That  he  is  one  of  the  ten  heirs  of  Philip  Helnier,  deceased,  who  died 
intestate  on  or  about  November  27,  1891,  who  at  his  decease  was  the  owner  in 
fee  simple  by  deed  duly  recorded,  of  about  200  acres  of  land  in  said  town  of 
Brookfield,  subject  only  to  a  certain  mortgage  thereon;  that  the  wife  of  the 
said  Philip  Helnier  was  appointed  the  sole  administratrix  of  the  estate  of  said 
deceased,  and  has  discharged  all  known  obligations  against  the  estate  of  said 
deceased  except  said  mortgage;  that  said  respondent  and  his  brothers  and 
sisters  are  the  joint  owners  and  tenants  in  common  of  the  lands,  real  property 
and  estate  formerly  owned  by  their  father,  now  deceased,  subject  only  to  right 
of  dower  therein  of  their  mother,  Angeline  Helmer,  which  has  never  been 
admeasured ;  that  the  respondent  and  his  brothers  and  sisters  are  now  in  posses- 
sion of  said  real  property,  as  aforesaid,  which  real  property  is  situated  in  said 
joint  school  district  no.  3.  The  appellant  does  not  controvert  said  statements, 
as  aforesaid,  of  said  Helmer,  and  I  hold  that  the  respondent,  Helmer,  owns 
real  property  in  said  school  district  subject  to  taxation  for  school  purposes, 
and  is  eligible  to  hold  any  district  school  office  in  said  district. 

The  respondent  having  been  legally  elected  trustee  of  said  school  district  at 
said  annual  school  meeting,  and  being  eligible  to  hold  said  office  the  only 
question  for  my  consideration  appears  to  be  whether  said .  respondent  has,  by 
his  acts  and  declarations,  created  a  vacancy  in  the  office  of  trustee  of  said 
district,  that  the  special  meeting  of  said  district,  held  on  September  11,  1894, 
had  the  legal  right  to  supply. 

By  section  30,  article  3,  title  7  of  the  Consolidated  School  Law  of  1894, 
it  is  enacted  that  a  trustee  who  publicly  declares  that  he  will  not  accept  or  serve 
in  the  office  of  trustee     .     .     .     vacates  his  office  by  a  refusal  to  serve. 

It  appears  from  the  proofs  presented  that  the  respondent  had  doubts  of 
his  eligibility  to  hold  the  office  of  trustee  in  said  district;  that  he  publicly 
expressed  said  doubts  and  his  fears  that  if  he  acted  as  trustee  the  district  would 
lose  the  public  moneys;  and  he  might  be  liable  pecuniarily  for  such  loss;  that 
he  publicly  declared  he  would  not  serve  as  trustee ;  that  he  circulated  a  petition 
to  the  school  commissioner  to  appoint  one  Drumgoole  as  trustee;  that  he  publicly 
announced  to  the  voters  assembled  at  the  meeting  of  September  4th  and  then 
and  there  gave  notice  of  a  special  meeting  to  be  held  on  September  11,  1894, 
for  the  purpose  of  electing,  among  other  district  officers,  a  trustee,  and  that 
he  would  at  said  meeting  announce  his  reasons  for  resigning.  It  clearly  appears 
that  the  voters  of  the  district  believed  the  respondent  was  ineligible  to  hold 
the  office,  and  understood,  from  the  public  declarations  and  acts  of  the  re- 
spondent, up  to  the  time  of  the  special  meeting  of  September  nth  were  about 
to  ballot  for  a  trustee,  that  the  respondent  so  believed  and  had  refused  to  serve  as 
trustee. 


JUDICIAL   DECISIONS  :      TRUSTEES 


I281 


The  respondent  admits  in  his  affidavit  filed  herein  that  up  to  September 
4th,  nearly  a  month  after  the  annual  meeting,  and  at  the  time  he  served  notice 
of  the  special  meeting  for  September  nth,  he  had  not  taken  counsel  as  to  his 
eligibility  to  hold  said  office.  It  was  the  duty  of  the  respondent  as  soon  as  doubts 
as  to  his  eligibility  to  hold  the  office  of  trustee  were  raised  to  have  submitted  the 
facts  to  competent  counsel,  and  have  promptly  notified  the  voters  of  the  district 
his  decision  therein  after  taking  such  counsel. 

I  find  and  decide,  That  a  vacancy  occurred  in  the  office  of  trustee  of  said 
joint  school  district  no.  3,  towns  of  Bridgewater  and  Sangerficld,  Cncida  county, 
and  Brookfield,  Madison  county,  by  the  public  declarations  and  acts  of  said  Oscar 
W.  Helmer,  who  was  elected  such  trustee  at  said  annual  meeting  of  said  district. 
That  John  Blivcn,  the  appellant  herein,  was  legally  elected  trustee  of  said  district 
to  supply  such  vacancy. 

The  appeal  herein  is  sustained. 

It  is  ordered,  That  Oscar  W.  Helmer,  late  trustee  of  said  joint  school  dis- 
trict no.  3,  do  forthwith  deliver  to  said  John  Bliven,  the  present  trustee  of  said 
district,  the  books,  records  and  property  of  said  district  in  the  possession  of  said 
Helmer,  and  that  said  Helmer  forthwith  deliver  to  said  Bliven  the  possession  of 
the  schoolhouse  of  said  district  and  the  appurtenances  thereof. 


3957 

In  the  matter  of  the  appeal  of  Adelbert  F.  Bronson  v.  school  district  no.  9, 
town  of  Vernon,  county  of  Oneida. 

A  trustee  advised  the  school  commissioner  that  he  would  resign  his  office.  The  commis- 
sioner in  turn  advised  the  district  clerk  of  the  trustee's  action,  and  directed  the  calling 
of  a  special  meeting  for  the  purpose  of  filling  the  vacancy. 

In  the  meantime  the  first  mentioned  trustee  concluded  he  did  not  care  to  resign  and  virould 
continue  to  serve,  which  he  attempted  to  do;  held,  that  the  action  of  the  trustee  was 
a  resignation  and  a  vacancy  was  created. 

The  special  meeting  not  having  been  properly  noticed,  in  consequence  of  which  but  few 
electors  attended;  held,  that  the  election  of  the  succeeding  trustee  was  irregular,  and 
is  set  aside,  and  a  new  election  ordered. 

Decided  February  3,  1891 

Draper,  Superintendent 

The  appellant  was  elected  trustee  in  the  district  above  named  at  the  last 
annual  school  meeting.  Afterwards  he  was  absent  from  the  district  for  some 
weeks  upon  private  business.  In  the  meantime  he  had  caused  a  special  meeting 
of  the  district  to  be  held  for  the  purpose  of  having  such  meeting  consent  to  the 
employment  of  his  daughter  as  a  teacher  in  the  district  school.  The  special 
meeting  was  held  and  refused  to  consent  to  such  employment.  It  seems  that 
41 


1282  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

he  made  some  efforts  to  employ  another  teacher.  In  the  meantime  complica- 
tions accumulated  which  led  him  to  contemplate  resigning  as  trustee.  On  the 
13th  of  October  appellant  wrote  to  Fred  E.  Payne,  school  commissioner,  saying 
that  he  would  resign  his  office,  and  the  school  commissioner  advised  the  district 
clerk  that  the  appellant  had  resigned,  and  directed  the  calling  of  a  special  meet- 
ing for  the  purpose  of  electing  his  successor.  Such  meeting  was  held  and  elected 
one  A.  T.  Blair  as  trustee  to  fill  the  alleged  vacancy.  In  the  meantime  the  appel- 
lant had  concluded  that  he  did  not  want  to  resign,  and  it  has  since  been  claimed 
that  his  letter  did  not  amount  to  a  resignation.  He  has  insisted  upon  his  right 
to  exercise  the  functions  of  trustee,  and  consequently  there  have  been  rival 
claimants  to  the  office. 

The  papers  relating  to  the  matter  are  exceedingly  voluminous.  The  state- 
ments and  counterstatements  are  highly  contradictory,  and  it  is  almost  impossible 
to  eliminate  the  mass  of  irrelevant  matter  which  has  been  injected  into  the  case, 
sufficiently  to  get  at  the  facts  and  determine  the  truth.  I  am  of  the  opinion 
that  the  appellant  must  be  held  to  have  resigned  his  position.  The  school  com- 
missioner certainly  thought  so  when  he  wrote  the  district  clerk  to  call  a  special 
meeting  to  elect  a  successor.  That  such  a  meeting  was  held  and  was  allowed  to 
elect  a  successor  without  such  action  being  contested,  or  without  being  served 
with  legal  notice  that  there  was  no  vacancy,  is  of  itself  very  suggestive  of  the 
fact  that  the  trustee  who  had  been  elected  at  the  annual  meeting  desired  to 
vacate  the  position.  On  the  other  hand,  I  am  of  the  opinion  that  the  special 
meeting  which  assumed  to  elect  a  trustee,  was  held  inconsiderately  and  without 
proper  notice  throughout  the  district.  I  am  confident  that  the  best  interests  of 
the  district  will  be  promoted  by  holding  that  there  is  a  vacancy  in  the  office  of 
trustee,  and  directing  that  a  special  meeting  be  held  to  elect  a  person  to  fill  such 
office.  The  majority  of  qualified  electors  in  the  district  ought  to  have  their  way 
as  to  the  person  who  shall  fill  the  office  of  trustee.  The  fact  that  only  a  small 
portion  of  the  children  in  the  district  are  attending  school  under  the  present 
management,  which  seems  to  be  revealed  in  the  papers,  of  itself,  indicates  that 
a  majority  of  the  district  are  opposed  to  the  action  of  the  special  meeting. 

I  have  no  difficulty  in  concluding  that  there  is  a  vacancy  in  the  office,  and 
that  the  best  interests  of  the  district  will  be  promoted  by  ordering  a  special 
election  to  fill  it. 

The  school  commissioner  having  jurisdiction  will  therefore  see  that  notices 
of  a  special  meeting  for  the  purpose  of  filling  the  office  of  trustee,  which  meeting 
shall  be  held  not  more  than  fifteen  days  from  date,  be  at  once  issued  by  the 
district  clerk  or  by  some  qualified  elector  in  the  district. 

The  appeal  is  dismissed. 


JUDICIAL   DECISIONS  :      TRUSTEES  1283 

3871 

T.  G.  Knights,  trustee  of  school  district  no.  8,  towns  of  Burns  and  Ahnond, 
Allegany  county,  from  the  proceedings  of  special  district  meeting  of  said 

district,  held  February  12,  1890. 

A  trustee's  public  announcement  of  his  intention  to  remove  from  the  district,  his  public 
refusal  to  longer  serve  in  the  office,  and  his  notice  to  such  effect  to  the  district  clerk, 
accompanied  by  his  resignation ;  held,  sufficient  to  create  a  vacancy  in  office  of  trustee, 
and  a  special  meeting  could  fill  the  vacancy. 

Decided  April  17,  1890 

W.  C.  Windsor,  attorney  for  appellant 

Draper,  Superintendent 

Appeal  by  a  resident  elector  of  school  district  no.  8,  towns  of  Burns  and 
Almond,  county  of  Allegany,  from  the  proceedings  of  district  meeting  held 
February  12,  1890,  at  which  one  E.  S.  Gilbert  was  elected  as  trustee  of  said 
district.  It  appears  from  the  evidence  presented,  that  at  the  annual  meeting 
held  August  6,  1889,  one  Clark  Crawford  was  duly  elected  trustee,  and  there- 
upon entered  upon  the  discharge  of  the  duties  of  the  office;  that  on  or  about 
November  22,  1889,  said  Crawford  who  was  about  to  remove  from  the  district 
to  an  adjoining  State,  publicly  stated  that  he  could  not  longer  act  as  trustee, 
refused  to  serve  any  longer  and  went  to  the  district  clerk  of  said  district,  to 
whom  he  declared  that  he  resigned  the  office  and  refused  longer  to  serve,  and 
delivered  the  books  and  papers  pertaining  to  his  office;  that  on  the  3d  day  of 
December  18S9,  at  a  special  meeting  regularly  called  by  the  district  clerk  for  the 
purpose  of  electing  a  trustee  to  fill  the  vacancy,  the  appellant  was  elected  as 
trustee,  and  thereupon  he  accepted  the  office,  and  the  district  clerk  delivered  to 
him  the  books  and  papers  pertaining  to  the  office.  Subsequently,  the  former 
trustee  returned  to  the  district,  and  on  the  30th  day  of  January  1890,  by  an 
instrument  in  writing,  addressed  to  the  commissioner,  resigned  the  office  of 
trustee;  that,  on  the  12th  day  of  February  1890,  at  a  meeting  called  by  the  dis- 
trict clerk,  the  above-named  E.  S.  Gilbert,  against  the  public  protest  of  the  appel- 
lant, who  was  present  at  the  meeting,  was  chosen  such  trustee. 

No  appeal  from  the  proceedings  of  the  meeting  held  December  3d,  for  the 
election  of  the  appellant  thereat,  has  been  taken.  On  behalf  of  the  appellant, 
the  affidavit  of  the  former  trustee  is  furnished,  showing  that  he  did  in  fact  give 
up  the  office  of  trustee  for  the  purpose  of  going  to  an  adjoining  State,  and  on 
or  about  November  22,  1889,  publicly  announced  that  he  would  no  longer  serve 
as  trustee,  and  that  he  filed  his  resignation  with  the  district  clerk,  and  that 
subsequently,  upon  his  return  to  the  district  because  of  ill  health,  to  avoid  any 
question  as  to  his  intention,  formally  tendered  his  resignation  in  writing  to  the 
school  commissioner. 

Upon  the  part  of  the  respondent,  it  is  claimed  that  there  was  no  vacancy 
in  the  office   of   trustee   at   the   time   the   appellant   was   elected,   and    that   the 


1-^4  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

vacancy  was  only  created  when  the  former  trustee  tendered  his  resignation  to 
the  school  commissioner,  and  consequently  that  E.  S.  Gilbert  is  the  duly  elected 
trustee  of  the  district.  Other  matters  are  alleged  by  the  respondent  which  may 
possibly  form  grounds  of  appeal  from  the  action  of  the  appellant  as  trustee,  bur 
do  not  raise  an  issue  to  be  determined  upon  this  appeal. 

It  is  clear  to  me  that  the  trustee  of  the  district  chosen  at  the  annual  meeting, 
by  his  announcement  of  his  intention  to  remove  from  the  district,  his  public 
refusal  to  serve  in  the  office,  and  his  communication  of  those  facts  to  the  district 
clerk,  together  with  his  resignation,  created  a  vacancy  in  the  office,  as  provided 
by  sections  30  and  31  of  title  7  of  the  general  school  laws,  and  that  the  district 
meeting  regularly  called  and  held  on  the  3d  day  of  December  1889,  possessed 
the  power  to  elect  a  trustee  to  fill  the  vacancy. 

The  appeal  is  therefore  sustained,  and  the  appellant,  T.  G.  Knights,  is 
declared  to  be  the  trustee  of  school  district  no.  8,  towns  of  Burns  and  Almond, 
county  of  Allegany,  for  the  unexpired  term  caused  by  the  refusal  to  serve  and 
resignation  of  Clark  Crawford,  who  was  duly  elected  trustee  at  the  last  annual 
meeting. 


3630 

Application  of  Charles  Chase  and  others  for  the  removal  of  Martin  V.  Brown 
from  the  office  of  trustee  of  district  no.  5,  of  the  town  of  Cameron,  county 
of  Steuben. 

It  is  alleged,  as  grounds  for  the  removal  of  a  trustee  from  office,  that  unnecessary  repairs 
have  been  made,  outhouses  built  when  the  district  meeting  voted  down  the  proposition 
to  do  so,  and  that  he  has  involved  the  district  in  needless  litigation  and  expense; 
held,  not  sufficient.  The  allegations  are  too  general.  A  trustee  can  repair  to  a  certain 
limit.  It  is  not  shown  he  has  exceeded  it.  He  is  required  to  build  outhouses,  and  in 
litigations  the  district  is  not  bound  to  pay  unless  the  district  meeting,  or  a  county 
judge,  upon  an  appeal,  authorizes  it. 

Decided  August  16,  1887 

Draper,  Superintendent 

This  is  an  application  for  the  removal  of  the  respondent  from  office.  No 
answer  has  been  interposed.  The  allegations  are  that  the  trustee  has  made 
unnecessary  repairs  upon  the  school  building  and  that  he  has  built  two  new 
outhouses  after  the  district  meeting  voted  dovvu  a  proposition  so  to  do.  It  is 
also  said  that  he  has  involved  the  district  in  needless  litigation  and  subjected  the 
taxpayers  to  unnecessary  expense. 

The  law  confers  upon  the  trustee  the  power  to  make  certain  repairs  and  to 
include  the  expense  thereof  in  his  tax  lists  without  the  vote,  or  even  against 
the  vote,  of  the  district  meeting.  The  law  also  requires  two  outhouses  in  con- 
nection with  each  schoolhouse.  It  is  not  shown  that  the  repairs  complained  of 
were  beyond  those  which  the  law  authorizes  the  trustee  to  make.  If  the  tax 
lists  included  improper  items  the  remedy  was  to  appeal  from  the  tax  lists  rather 


JUDICIAL   DECISIONS  :      TRUSTEES  I285 

than  to  demand  the  removal  of  the  trustee.  If  the  trustee  has  involved  the  dis- 
trict in  litigation  it  need  not  pay  the  bills  incurred  until  after  settlement  before 
the  county  judge,  as  the  statute  provides. 

Again,  the  respondent  is  a  sole  trustee,  whose  term  expires  in  two  weeks. 
The  whole  matter  can  come  before  the  annual  meeting,  soon  to  occur,  and  be 
disposed  of  there. 

The  application  is,  therefore,  denied. 


4338 

In  the  matter  of  the  appeal  of  E.  W.  Watkins  from  proceedings  of  annual  school 
meeting  held  in  school  district  no.  8,  towns  of  Portville  and  Olean,  Cattarau- 
gus county,  in  August  1894,  in  election  of  district  officers. 

The  supervisors  of  towns  have  no  authority  to  accept  the  resignation  of  a  trustee  of  a  school 
district.  The  acceptance  of  a  resignation  of  a  trustee  being  void,  there  is  no  vacancy  in 
the  office  of  trustee  and  a  special  meeting  held  in  said  district  and  the  election  of  a 
trustee  to  fill  such  assumed  vacancy  is  null  and  void. 

Decided  March  13,  1895 

Crooker,  Superintendent 

The  appellant  in  the  above-entitled  matter  appeals  from  the  election  of  the 
trustees,  district  clerk  and  collector  of  school  district  no.  8,  towns  of  Portville  and 
Olean,  Cattaraugus  county,  at  a  meeting  of  said  district,  held  August  14,  1894,  and 
from  the  official  acts  of  John  Mohan  as  trustee  and  William  Baxter  as  collector  of 
said  district.  In  the  appeal,  eight  grounds  upon  which  the  appeal  is  taken,  are 
stated. 

An  answer  to  the  appeal  by  John  Mohan  has  been  made. 

The  appellant  appeals  from  a  tax  list  and  assessment  made  by  Mohan  as 
trustee,  but  he  has  failed  to  show  by  proofs  in  what  respect  it  is  irregular  or  void 
and  no  copy  of  said  tax  list  is  annexed  to  his  appeal,  and  therefore  I  am  unable 
to  decide  as  to  its  legality  or  validity. 

There  appear  to  be  only  two  questions  presented  to  me  by  this  appeal  for 
decision,  namely,  first,  was  the  annual  school  meeting  held  in  said  district  on  the 
first  Tuesday  of  August  1894,  and.  second,  was  Mary  Patterson  on  September  i, 
1894,  at  the  time  of  her  employment  as  teacher  in  said  school  district  by  said 
Mohan  as  trustee,  related  by  blood  or  marriage  in  any  degree  to  said  Mohan. 

It  is  alleged  by  the  appellant  that  the  annual  school  meeting  in  said  district 
was  not  held  on  the  first  Tuesday  of  August  1894  (that  is,  August  7th),  but  that 
a  school  meeting  in  said  district  was  held  on  August  14,  1894.  In  support  of  this 
allegation  he  produces  a  sworn  copy  of  an  extract  from  the  records  of  the  clerk 
of  the  district  giving  the  proceedings  of  an  annual  school  meeting  held  in  said 
district,  on  the  second  Tuesday  of  August  1894,  and  also  the  affidavits  of  himself 
and  eight  others,  that  the  said  meeting  was  held  on  August  14,  1894.  The  respond- 


1286  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

ent,  Mohan,  produces  his  own  affidavit  and  the  affidavits  of  five  others  tliat  the 
said  meeting  was  held  on  August  7,  1894  (that  is,  the  first  Tuesday  of  August), 
and  also  the  affidavit  of  one  E.  Jerolds  that  said  meeting  was  held  on  the  same 
night  in  August  1894,  that  the  school  meetings  in  the  adjoining  school  districts 
were  held,  but  he  can  not  remember  the  day  of  the  month.  The  respondent, 
Mohan,  also  annexed  to  his  answer  a  sworn  copy  of  the  records  of  the  annual 
meeting  upon  the  book  of  the  clerk  of  the  district,  stating  that  the  annual  meeting 
in  said  district  was  held  on  the  second  Tuesday  of  August  1894. 

It  is  established  that  at  the  school  meeting  held  in  said  district  on  either 
August  7  or  14,  1894,  that  John  Mohan  was  elected  trustee,  William  Baxter, 
collector,  and  D.  Dunning,  clerk.  The  appellant  contends  that  the  records  of  the 
district  clerk,  that  said  meeting  was  held  on  August  14,  1894,  are  conclusive  as  to 
the  date  such  meeting  was  held.  In  this  he  is  in  error.  Superintendent  Ruggles, 
in  a  decision  in  appeal  no.  3415,  decided  April  13,  1885,  held  that  he  was  not 
bound  by  the  clerk's  minutes;  that  were  such  record  conclusive,  a  careless  or 
ignorant  clerk  could  easily  undo  or  annul  the  proceedings  of  any  meeting;  that 
he  could  go  behind  such  records  and  inquire  as  to  the  actual  facts.  I  concur  with 
Superintendent  Ruggles,  and  hold  that  the  records  of  the  district  clerk  that  said 
meeting  in  said  school  district  was  held  on  August  14,  1894,  is  not  conclusive,  and 
that  I  will  go  behind  the  records  and  inquire  into  the  actual  facts. 

It  is  not  alleged  nor  proven  that  said  ]\Iohan,  prior  to  the  school  meeting  held 
either  August  7  or  14,  1894,  was  a  trustee  of  said  district,  and  the  claim  to  be 
such  trustee  was  by  virtue  of  an  election  had  at  the  meeting  held  in  said  district 
either  on  said  7th  or  14th  of  August  1894.  It  is  proved  that  on  August  10,  1894, 
said  Mohan  went  to  W.  B.  Mersereau,  supervisor  of  the  town  of  Portville,  and 
resigned  said  office  of  trustee  of  said  district,  and  then  and  there  signed  a  written 
resignation  of  said  office  of  trustee,  and  said  Alersereau  mailed  said  resignation  to 
D.  Dunning  as  clerk  of  said  district.  That  on  said  August  10,  1894,  said  Mer- 
sereau wrote  to  School  Commissioner  Chapin,  informing  him  of  such  resignation 
and  inquiring  whether  another  school  meeting  had  better  be  called  or  whether 
said  Chapin  would  appoint  a  trustee  to  fill  the  vacancy.  That  on  August  ii, 
1894,  School  Commissioner  Chapin  wrote  to  said  ]\Iersereau,  acknowledging  the 
receipt  of  his  letter  of  the  loth,  and  advised  a  special  meeting  of  the  district. 
That  on  August  28,  1894,  a  special  meeting  of  said  district  was  held  at  which  the 
respondent  Alohan  was  elected  trustee  of  the  district. 

The  resignation  of  Mohan  as  trustee  to  said  Supervisor  Mersereau,  and  his 
acceptance  thereof,  were  without  the  authority  of  the  school  law,  and  the  special 
meeting  of  said  district  to  elect  a  trustee  in  place  of  ]\rohan  was  invalid  and  void ; 
but  the  fact  that  on  August  10,  1894,  said  Mohan  resigned  the  office  of  trustee, 
is  controlling  with  me  upon  the  question  as  to  whether  a  school  meeting  in  said 
district  was  held  on  August  7th  or  14th.  It  is  clear  to  me  that  the  annual  school 
meeting  in  said  district  was  held  on  the  first  Tuesday  of  August  1894,  to  wit, 
August  7,  1894,  and  not  on  August  14,  1894,  as  Mohan  could  not  on  August  loth 
resign  an  office  to  which  he  had  not  been  elected,  or  to  which  he  was  not  elected 
until  August  14,  1894. 


JUDICIAL   DECISIONS  :      TRUSTEES 


1287 


On  September  i,  1894,  the  respondent  Mohan  as  trustee  of  said  district  con- 
tracted with  one  Mary  Patterson  to  teach  the  school  in  said  district  for  thirty-two 
weeks,  commencing  September  3,  1894,  at  $7  per  week.  The  appellant  alleges 
that  said  ]\Iary  Patterson  was  a  sister  of  the  wife  of  Mohan.  Miss  Patterson 
and  said  Alohan  each  swear  that  at  the  time  of  said  employment  Miss  Patterson 
was  not  related  to  said  ^lohan  in  any  manner.  The  burden  is  upon  the  appellant 
to  establish  his  appeal  by  a  preponderance  of  proof,  and  in  that  he  has  failed. 

I  find  and  decide  that  the  annual  school  meeting  in  school  district  no.  8, 
towns  of  Portville  and  Olean,  Cattaraugus  county,  was  duly  held  on  the  first 
Tuesday  of  August  1894,  and  that  at  said  annual  school  meeting  John  Mohan 
was  duly  elected  as  trustee  of  said  district;  that  D.  Dunning  was  duly  elected 
as  district  clerk  and  that  William  Baxter  was  duly  elected  as  collector.  That 
the  attempted  resignation  of  said  Mohan  to  Supervisor  Mersereau  of  said  office 
of  trustee,  and  the  acceptance  there  by  the  supervisor,  Mersereau,  was  without 
authority  of  law,  and  null  and  void.  That  the  special  meeting  held  in  said  dis- 
trict on  August  28,  1894,  in  the  election  of  a  trustee  to  fill  an  assumed  vacancy 
in  said  office  was  null  and  void.  That  at  the  time  of  the  contract  of  employment 
of  Mary  Patterson  as  a  teacher  in  said  school  district  by  said  Trustee  Mohan, 
appellant  has  failed  to  show  she  was  related  to  said  Mohan  by  blood  or  marriage 
in  any  degree  whatever. 

It  is  ordered,  That  so  much  of  the  action  and  proceedings  of  the  special 
meeting  in  said  district  held  on  August  28,  1894,  as  relates  to  the  election  of  a 
trustee  of  said  district  in  place  of  John  Mohan  be,  and  the  sanie  is,  hereby  vacated 
and  set  aside  as  illegal  and  void. 

The  appeal  herein  is  dismissed. 


3873 

John  Near,  trustee  of  school  district  no.  9,  towns  of  ElUcott  and  Ellery,  Chautau- 
qua county  V.  Myron  Clark  and  G.  Vetter. 
Supervisor  has  no  authority  to  appoint  to  fill  a  vacancy  in  the  office  of  trustee.    An  appeal 

will  not  be  considered  unless  seasonably  taken. 
Decided  April   17,   1890 

Draper,  Superintendent 

This  appeal  was  brought  by  the  service  of  the  appellant's  petition  upon  the 
respondents  on  the  31st  day  of  January  1890,  and  the  ist  day  of  February  1890, 
respectively.  The  appellant  was  duly  elected  trustee  of  the  district  at  the  last 
annual  school  meeting.  It  appears  that  there  were  three  trustees  in  this  district. 
Soine  time  after  the  annual  meeting,  the  time  not  being  given,  one,  Richard  Lee, 
then  a  trustee  of  said  district,  moved  from  the  district,  and  a  vacancy  was  created. 
Subsequently,  one  G.  Vetter  was  appointed  by  the  supervisor  to  fill  such  vacancy. 
Thereupon  Myron  Clark  who  was  then  a  trustee,  together  with  said  G.  Vetter, 


1288  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

employed  a  teacher  against  the  protest  of  the  appellant,  and  school  was  com- 
menced on  the  1 6th  of  September  last.  A  tax  list  was  prepared  by  Myron  Qark 
and  G.  Vetter,  and  delivered  to  the  collector,  and  it  appears,  the  money  was 
collected  and  the  teacher  paid  by  the  collector.  On  the  9th  of  November,  the 
above-named  Myron  Clark  moved  from  the  district  to  an  adjoining  state,  and 
on  the  i6th  of  December  last,  the  school  commissioner  appointed  G.  Vetter 
trustee,  and  one  Ambrose  Rhodes  trustee,  to  fill  the  vacancy  caused  by  the 
removal  of  Myron  Clark  from  the  district. 

No  answer  has  been  interposed,  and  if  this  appeal  had  been  taken  promptly 
and  at  the  time  the  act  complained  of  took  place,  I  should  sustain  the  appeal. 
The  appointment  of  G.  Vetter  by  the  supervisor,  was  without  authority  of  law. 
The  action  of  Myron  Clark  and  G.  Vetter  in  employing  a  teacher  without  con- 
sulting the  appellant,  was  illegal.  The  preparation  of  a  tax  list  by  Messrs  Clark 
and  Vetter  was  also  illegal,  but  the  appellant  having  delayed  his  appeal  for 
months  after  the  acts  complained  of  took  place,  and  after  the  teacher  had  been 
employed,  a  tax  collected  and  the  teacher  paid,  it  is  too  late  for  me  to  apply  a 
remedy. 

I  therefore  dismiss  the  appeal. 


3581  and  3582 

In  the  matter  of  the  appeal  of  Alice  D.  LaFarge  v.  the  board  of  education  of 
union  free  school  district  no.  2,  of  the  town  of  Mount  Pleasant,  West- 
chester county. 

When  a  member  of  a  board  of  trustees  is  chosen  clerk  of  the  board,  he  can  not  be  re- 
moved from  membership  in  the  board  because  of  neglect  of  duty  as  its  clerk. 

A  supervisor  of  a  town  has  no  authority  to  appoint  to  fill  a  vacancy  existing  in  a  board 
of  trustees  in  a  union  free  school  district. 

Employment  of  a  person  to  teach,  not  sustained,  when  no  regular  meeting  of  the  board 
is  held  at  which  such  action  is  taken,  and  the  board  at  no  time  recognized  the 
employment. 

Decided  March  26,    1887 

E.  T.  Lovatt,  attorney  for  appellant 
George  S.  Rice,  attorney  for  respondents 

Draper,  Superintendent 

These  two  appeals  arising  in  the  same  family,  at  nearly  the  same  time,  and 
against  the  same  respondent,  may  be  considered  together.  Martin  LaFarge 
appeals  from  the  action  of  the  respondent  in  removing  him  as  a  member  of  the 
board,  and  his  daughter,  Alice  D.  LaFarge,  appeals  from  the  action  of  the 
respondent  in  refusing  to  permit  her  to  teach  the  school  in  the  district  after  an 
alleged  engagement  with  her,  and  in  refusing  to  pay  her  wages  for  the  first 
month  of  the  term  of  such  alleged  employment. 


JUDICIAL   DECISIONS  :      TRUSTEES  1 289 

From  the  voluminous  papers  in  the  case,  I  gather  that  the  facts,  so  far  as 
the  appeal  of  Martin  LaFarge  is  concerned,  are  as  follows:  He  was  elected  a 
member  of  the  board  in  August  1884,  for  the  term  of  three  years.  On  the  28th 
or  29th  of  September  1886,  a  paper  signed  by  George  S.  Rice,  William  L.  Carle, 
John  A.  Minnerly  and  Gilbert  DeRevere,  the  other  members  of  the  board, 
making  charges  against  LaFarge  for  alleged  official  misconduct,  was  left  at  the 
house  of  appellant  during  his  absence  from  home.  The  charges  were  (a)  that 
he  had  refused  to  permit  one  of  the  other  members  of  the  board  to  take  the  book 
containing"  the  records  of  the  board;  (b)  that  he  had  refused  to  bring  or  send 
the  book  of  records  to  a  trustees"  meeting  held  at  the  schoolhouse  on  the  20th 
day  of  September  1886;  (c)  for  refusing  to  bring  or  send  the  book  of  records  to 
a  special  meeting  of  the  inhabitants  of  the  district  on  the  27th  day  of  September 
1886.  This  paper  required  LaFarge  to  answer  these  charges  before  the  board  at 
a  meeting  to  be  held  October  9,  1886.  At  that  time  LaFarge  appeared  and  pre- 
sented his  answer  to  the  charges,  and,  claiming  that  he  had  only  reached  home 
two  or  three  days  before,  asked  for  a  week's  delay  in  the  determination  of  the 
matter.  He  then  withdrew,  and  the  board  took  action  removing  him  from  mem- 
bership. 

I  do  not  think  that  this  action  can  be  sustained.  The  charges  against 
LaFarge  were  not  of  a  serious  character.  At  the  most,  they  only  affected  his  acts 
as  clerk  and  not  as  a  member  of  the  board.  He  had  been  elected  as  a  trustee  by 
the  people.  He  could  not  be  removed  except  for  causes  affecting  his  character  or 
his  administration  of  the  office  of  trustee.  The  retention  of  a  book  of  records 
which  had  come  into  his  hands  as  clerk,  was  not  such  a  cause.  Then,  too,  his 
answer  to  the  charges  seems  to  me  very  reasonable  and  effectual.  Beyond  this 
there  are  some  evident  irregularities  in  the  proceedings  of  the  board  which 
could  not  be  overlooked  if  they  were  to  become  material  to  the  determination 
of  the  appeal.  Taking  all  these  things  into  consideration,  I  am  obliged  to  sustain 
the  appeal  of  Martin  LaFarge. 

Alice  D.  LaFarge  claims  that  she  was  appointed  a  teacher  by  the  board  of 
education  on  the  30th  day  of  August  1886,  the  board  at  the  time  of  such  appoint- 
ment consisting,  as  she  says,  of  four  members,  namely :  George  S.  Rice,  ]\Iartin 
LaFarge,  Thomas  Birdsall  and  William  L.  Carle,  there  being  one  vacancy  caused 
by  the  death  of  James  S.  See.  On  the  30th  day  of  August  1886,  she  received  a 
letter  signed  by  George  S.  Rice,  Martin  LaFarge  and  Thomas  Birdsall,  notifying 
her  of  her  employment  for  a  term  of  ten  months,  commencing  September  6, 
1886,  at  $45  per  month.  When  she  undertook  to  commence  the  school,  she  was 
forcibly  prevented  from  doing  so,  and  when  her  first  month's  pay  was  due,  she 
demanded  the  same  and  was  refused. 

Of  the  three  men  who  signed  the  letter  to  the  appellant,  Mr.  Rice  claims 
that  he  did  not  sign  it,  but  placed  his  name  upon  the  margin,  and  that  he  was 
induced  to  do  this  by  the  misrepresentation  of  Birdsall  and  LaFarge.  It  is  also 
insisted  by  the  respondent  that  Birdsall  was  not  a  member  of  the  board.     It 


1290  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

seems  that  a  member  of  the  board  by  the  name  of  Babcock  removed  from  the 
district  and  created  a  vacancy ;  that  LaFarge,  as  clerk,  addressed  a  communica- 
tion to  jMoses  W.  Taylor,  supervisor  of  the  town,  asking  him  to  appoint  a 
person  to  fill  the  vacancy,  and  that  Taylor  assumed  to  appoint  Birdsall.  It  is 
conceded  that  Taylor  had  no  power  to  appoint  a  member  of  the  board.  That 
could  be  aone  only  by  the  board  itself.  It  is  claimed,  however,  on  behalf  of 
the  appellant,  that  the  board  approved  of  the  appointment  of  Birdsall  and  recog- 
nized him  as  a  trustee,  and  that  the  people  of  the  district  so  recognized  him, 
and  that,  consequently,  he  was  such  so  far  as  Miss  LaFarge  is  concerned.  There 
arc  many  troublesome  and  suspicious  circumstances  surrounding  the  claims  of 
the  appellant. 

1  The  appointment  of  Birdsall  by  the  supervisor  was  void. 

2  It  is  disputed  that  there  was  any  pretense  of  a  meeting  of  the  board  held 
at  the  time  when  it  is  claimed  that  the  board  approved  of  the  appointment, 
except  that  a  record  of  a  meeting  appears  in  the  record  book,  which  record 
was  made  by  the  father  of  the  appellant. 

3  Even  if  the  record  is  true,  the  only  members  of  the  board  present  at  the 
time  were  LaFarge  and  Carle.  This  did  not  make  a  quorum.  The  alleged 
meeting  is  claimed  to  have  been  held  at  Carle's  house,  but  Carle  says  there  was 
no  meeting.  He  says  LaFarge  and  Birdsall  came  to  his  house,  but  that  there 
was  no  pretense  of  a  meeting  of  the  board  there.  Birdsall  could  not  have  made 
one  of  a  quorum  to  approve  of  his  own  appointment. 

4  Formal  action  of  the  board  at  a  meeting  regularly  convened  was  necessary 
to  the  employment  of  a  teacher,  and  it  seems  lacking  in  this  case. 

5  The  girl's  father  was  one  of  three  who  signed  the  letter  upon  which  she 
relies,  as  the  basis  of  her  employment.  He  had  a  personal  interest  not  identical 
with  the  interest  of  the  board.  Birdsall  was  another  of  the  three,  and  it  seems 
very  doubtful  if  he  was  a  member  at  all.  The  third  swears  he  was  induced  to 
put  his  name  on  the  margin  of  the  paper  by  misrepresentation. 

6  The  letter  bears  date  the  day  before  the  two  new  members  were  elected 
to  the  board. 

Taking  all  these  circumstances  in  connection  with  the  fact  that  the  board 
has  from  the  first  repudiated  the  communication  and  denied  any  obligation 
because  of  it,  and  has  refused  to  permit  Miss  LaFarge  to  teach  the  school,  it 
must  be  concluded  that  her  appeal  can  not  be  sustained. 

It  is  therefore,  ordered: 

1  That  the  appeal  of  Martin  LaFarge  be  sustained  and  that  the  action  of 
the  respondents  in  removing  him  as  a  trustee  be  set  aside  and  held  to  be  of  no 
effect. 

2  That  the  appeal  of  Alice  D.  LaFarge  be  dismissed. 


JUDICIAL   DECISIONS  :      TRUSTEES  I29I 

3805 

In  the  matter  of  the  appeal  of  Charles  Robbins  v.  Hiram  P.  Moore,  trustee  of 

school  district  no.   i6,  town  of  Orleans,  Jefferson  county. 
In  a  school  district  having  two  schools,   it  rests  with  the  trustees  to  determine  primarily 

which  of  the  schools  children  of  the  district  shall  attend. 
Their  decision  may  be  reversed  upon  appeal. 
Decided  August  2,  1889 

George  E.  Morse,  attorney  for  appellant 
W.  T.  Ford,  attorney  for  respondent 

Draper,  Superintendent 

This  appeal  is  by  a  resident  taxpayer  and  parent  of  children  of  school  age 
of  school  district  no.  i6,  town  of  Orleans,  Jefferson  county,  from  the  refusal  of 
the  trustee  of  said  district  to  permit  two  children  of  appellant,  aged  respectively 
II  and  8  years,  to  attend  a  branch  school  established  in  said  district.  The  facts 
of  the  case,  which  are  substantially  agreed  upon  by  the  parties  to  the  appeal,  are 
that  the  district  possesses  one  main  schoolhouse,  and  that  a  branch  school  has 
been  established  which  the  appellant  claims  is  nearer  to  his  residence  than  the 
main  schoolhouse. 

It  is  admitted  that  the  children  of  appellant  who  have  heretofore  attended 
the  main  school,  have  been  denied  admission  to  the  branch  school. 

The  connecting  circumstances,  as  alleged  by  the  respondent,  are  that  the 
branch  school  was  established  temporarily  in  a  section  of  the  district  known  as 
Thousand  Island  Park,  and  that  it  was  established  for  the  accommodation  of 
children  resident  at  the  park.  A  teacher  was  employed  and  is  teaching,  upon 
the  condition  that  only  the  children  at  the  park  would  be  received  as  pupils. 
The  branch  school  is  held  in  a  building  which  is  also  used  for  post  office  purposes. 

It  is  true  that  the  appellant  resides  something  more  than  one-third  of  a  mile 
nearer  the  branch  school  than  the  main  house,  but  the  distance  to  the  main  house 
is  less  than  one  mile  and  one-third  by  actual  measurement.  The  determination 
as  to  which  of  two  schools  in  a  district  the  children  shall  attend  rests  with  the 
trustee.  From  an  unreasonable  decision  an  appeal  to  this  Department  is  proper, 
but  I  do  not  find  this  element  in  the  case  before  me,  and  believe  it  my  duty  to 
sustain  the  trustee. 

The  appeal  is  overruled.  

4005 

In  the  matter  of  the  appeal  of  Ira  Austin  and  others  v.  Lewis  G.  Humphrey,  as 

sole  trustee  of  school  district  no.  i,  Lowville,  Lewis  county. 
The  wisdom  of  the  action  of  a  trustee  in  establishing  two  departments  in  a  school,  in 
which  the  school  attendance  is  not  large,  questioned,  but  an  appeal  from  his  action  in 
employing  an  additional  teacher  overruled.  The  district  having  become  liable  under  the 
contract  with  the  teacher,  a  decision  by  the  State  Superintendent  sustaining  the  appeal 
would  not  affect  vested  rights  thereunder. 
Decided  September   16,   1891 

W.  B.  Breen,  attorney  for  appellants 


1292  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

Draper,  Superintendent 

Appellants  are  electors  of  school  district  no.  i,  town  of  Lowville,  county 
of  Lewis.  It  is  charged  that  the  respondent  as  trustee  of  said  district,  has 
employed  two  teachers  for  a  term  of  forty  weeks,  at  a  weekly  compensation  of 
$8  and  $7  respectively,  and  that  the  number  of  children  in  attendance  at  the 
school  the  past  year  —  but  fifty-five  with  a  daily  average  of  but  thirty-four  and 
one-half  —  does  not  warrant  the  employment  of  but  one  teacher. 

The  respondent]  alleges  that  the  schoolhouse  has  been  prepared  for  two 
departments;  that  there  are  119  children  of  school  age  in  the  district,  and  that 
by  grading  the  school  and  the  establishment  of  a  second  department,  the  attend- 
ance will  increase  and  better  results  will  be  secured. 

While  it  is  a  serious  question  to  me,  whether  the  trustee  has  acted  wisely 
or  not  in  anticipating  a  large  increase  in  pupils'  attendance,  yet  I  am  not  prepared 
to  assert  that  he  did  not  soundly  exercise  his  discretion.  It  is  also  alleged  by 
appellants  that  the  schoolhouse  is  difficult  of  approach  and  badly  located,  and 
for  these  reasons,  children  will  not  attend  school  in  the  district.  If  this  is  a 
fact,  which  I  have  no  reason  to  question,  this  difficulty  can  be  remedied  by  the 
electors  through  a  change  of  site. 

It  is  conceded  by  both  appellants  and  respondent,  that  two  teachers  have 
been  hired  by  the  trustee  who  had  the  legal  authority  to  enter  into  the  contracts. 
The  district  by  the  action  of  the  trustee,  has  become  liable  for  the  wages  agreed 
upon  to  the  persons  employed.  Any  conclusion  upon  the  facts  presented  that 
I  might  reach,  would  not  affect  their  vested  rights.  For  .wilful  misconduct  in 
office,  the  trustee  could  be  removed  from  office,  but  this  is  not  charged. 

Whether  or  not  the  anticipations  of  the  trustee  as  to  the  growth  of  the 
school  are  to  be  realized,  will  soon  be  determined.  If  his  judgment  is  shown 
to  have  been  erroneous,  a  future  annual  meeting  will  have  authority  and  power 
to  choose  a  successor  who  will  reflect  its  views. 

As  relief  can  not  be  afforded  the  appellants,  I  dismiss  the  appeal. 


4044 

In  the  matter  of  the  appeal  of  John  T.  Bradshaw  v.  John  H.  Albright,  of  school 
district  no.  3  of  the  town  of  Ontario,  county  of  Wayne. 

The  respondent,  assuming  to  be  trustee,  issued  a  district  tax  list.  At  the  annual  meeting,  on 
a  ballot  for  trustee,  15  votes  were  cast,  no  person  voted  for  receiving  a  majority.  Upon 
a  second  ballot  one  J.  H.  Riker  received  a  majority.  Eight  of  the  voters  declined  to 
vote  on  the  second  ballot  because  of  the  unauthorized  announcement  by  the  chair- 
man that  the  vote  must  be  confined  to  two  of  the  persons  who  were  candidates  upon  the 
first  ballot.  No  appeal  was  taken  and  the  electors  have  acquiesced  in  the  election 
of  said  Riker  as  trustee.  The  respondent,  not  having  the  color  of  an  election,  and 
being  neither  a  de  facto  nor  a  de  jure  ofEcer,  the  tax  list  issued  by  him  is  void. 

Decided  December  30,   1891 


JUDICIAL  decisions:    trustees  1293 

Draper,  Superintendent 

This  is  an  appeal  from  the  action  of  the  respondent,  who,  assuming  to  be 
trustee  of  school  district  no.  3  of  the  town  of  Ontario,  Wayne  county,  has  issued 
a  district  tax  list. 

The  appellant  alleges  that  the  respondent  is  not  the  trustee  of  the  district. 
It  is  shown  that  at  the  annual  meeting  15  voters  participated  in  the  first  ballot 
for  a  trustee.  From  the  vote,  as  announced,  no  person  voted  for  received  a 
majority  and,  in  consequence,  no  election  occurred.  The  chairman  directed 
another  ballot,  when  but  7  votes  were  cast,  and  one  J.  H.  Riker  received  a 
majority.  Eight  of  the  voters  present  declined  to  vote  upon  the  second  ballot 
because  of  the  unauthorized  announcement  by  the  chairman  that  the  vote  must 
be  confined  to  two  of  the  persons  who  were  candidates  upon  the  first  ballot. 

Had  an  appeal  from  the  proceedings  of  the  meeting  been  promptly  taken, 
its  action  would  have  been  set  aside  and  a  new  election  ordered,  in  order  that 
the  majority  might  have  had  an  opportunity  to  express  its  choice. 

But  the  electors  have  acquiesced  in  the  decision  that  John  H.  Riker  was 
chosen  trustee,  as  he  was  on  the  second  ballot,  receiving  a  majority  of  all  the 
votes  cast. 

In  any  event,  the  respondent  had  not  the  color  of  an  election  and  he  is 
neither  a  de  facto  nor  a  de  jure  officer.  The  tax  list  issued  by  the  respondent 
is  void. 

Appeal  sustained. 


3575 

Trustee  can   not  be  custodian   of   the  public  money. 

Teachers  can  not  be  compelled  to  board  with  trustee.     A  contract  to  that  effect  is  illegal 

and  void. 
Decided  May  25,  1887 

Draper,  Superintendent 

The  first  ground  of  appeal  is  that  the  trustee  took  from  the  collector  all 
the  district  funds  and  retained  them  himself.  This  the  trustee  admits,  but 
attempts  to  justify  his  action  on  the  ground  that  the  collector  had  never  given 
a  bond  and  was  not  responsible,  while  he,  the  trustee,  was  responsible  for  the 
safe-keeping  of  the  same. 

The  second  ground  of  appeal  is  from  the  refusal  of  the  trustee  to  pay  the 
teacher  the  amount  of  wages  claimed  to  be  due  her.  It  seems  to  have  been 
stipulated  in  the  contract  of  hiring  that  the  teacher  should  board  with  the  trustee 
and  pay  for  such  board  $2.50  per  week.  During  Christmas  week  the  appellant 
ceased  to  board  with  the  trustee  and  a  bitter  feeling  sprang  up  between  the 
parties.  Held,  That  the  trustee  has  been  guilty  of  gross  neglect  of  duty  in 
delivering  a  tax  list  and  warrant  to  a  collector  before  a  satisfactory  bond  had 


1294  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

been  executed  and  delivered  to  him  as  required  by  law,  and  a  person  who  has 
held  the  office  of  trustee  for  three  successive  years,  can  have  no  reasonable 
excuse  for  such  neglect.  The  collector  rendered  himself  personally  liable  when 
he  voluntarily  paid  over  the  district  moneys  to  the  trustee,  as  the  trustee  was 
blamable  when  he  received  them.  Held,  also,  that  the  teacher  has  a  perfect  right 
to  change  her  boarding  place  at  any  time.  An  agreement  with  the  trustee  to 
the  contrary  is  illegal  and  void.  While  a  teacher  may  board  with  a  trustee  it 
can  not  be  made  obligatory  upon  the  teacher  so  to  do.  Order,  The  trustee  is 
hereby  directed  to  pay  over  all  the  district  moneys  in  his  hands  to  the  collector, 
first  requiring  such  collector  to  give  a  sufficient  bond  to  protect  the  district  from 
loss,  and  take  his  receipt  therefor.  Also,  to  deliver  to  the  appellant  an  order 
upon  the  collector  for  the  full  amount  due  her  for  teacher's  wages. 


2979 

Advanced  studies  in  the  common  schools. 
Decided  May  27,   1880 

Gilmour,  Superintendent 

The  appeal  is  brought  from  the  action  of  the  trustees  excluding  from  the 
district  school  certain  advanced  studies. 

This  Department  will  neither  insist  upon,  nor  prohibit,  the  introduction  and 
the  teaching  of  branches  not  usually  taught  in  the  common  schools  of  the  State, 
unless  it  is  clearly  shown  that  there  is  a  great  abuse  of  discretion  in  such  matter, 
believing  that  the  teaching  of  such  studies  constitutes  a  matter  that  should  be 
left  to  the  discretion  of  the  district,  and  one  which  the  district,  through  the 
election  of  trustees,  can  effectually  regulate. 


Trustees  can  not  impose,  by  contract,  a  duty  upon  a  teacher  which  the  law  makes  it  the 

duty  of  the  trustees  to  perform. 
Decided  January  20,  1836 

Dix,  Superintendent 

Trustees  of  school  districts  can  not  transfer  to  teachers  the  right  of  prose- 
cuting individuals  for  their  tuition  bills.  The  trustees  are  responsible  for  the 
payment  of  their  wages,  and  the  teachers  should  look  to  them  alone.  If  the 
teacher  agrees  to  collect  his  own  dues,  it  is  right  that  he  should  do  so  to  the 
extent  of  his  ability ;  but  I  have  always  held  that,  in  case  of  a  refusal  on  the 
part  of  the  individuals  indebted  to  him  to  pay  their  dues,  the  trustees  should 
issue  a  rate  bill,  and  direct  the  amount  so  due  to  be  collected,  notwithstanding 


JUDICIAL   DECISIONS  :      TRUSTEES  1295 

any  agreement  with  the  teacher  to  the  contrary.  The  justice  of  such  a  decision 
is  manifest.  The  teacher  contracts  with  the  trustees  to  teach  the  district  school, 
and  he  is  entitled  to  the  aid  of  the  authority  which  the  law  has  deposited  with 
them,  for  the  purpose  of  enforcing  the  payment  of  his  dues  from  the  inhabitants 
of  the  district.  They  will  not  be  allowed  to  make  a  contract  with  a  view  to 
transfer  this  responsibility  to  the  teacher,  and  deprive  the  latter  of  the  legal 
remedies  which  the  law  has  provided  for  him.  If  those  who  are  indebted  to 
the  teacher  do  not  pay  him  voluntarily,  the  sums  due  him  must  be  collected  in 
the  mode  prescribed  by  law. 


TUITION 

Where  children  whose  home  has  been  broken  up  are  brought  to  the  residence  of  a  grand- 
father to  find  care  and  protection,  for  an  indefinite  period,  they  become  residents  of 
the  district  in  which  such  grandparent  lives. 

Decided  September  28,  1857 

Van  Dyck,  Superintendent 

An  appeal  is  taken  from  the  decision  of  the  trustees  of  a  district  refusing 
to  admit  certain  children  into  the  district  school,  or  to  share  in  the  public  moneys 
thereof. 

The  children  whose  admission  is  thus  refused  are  within  the  age  prescribed 
to  entitle  them  to  the  privileges  of  the  school,  and  are  residing  with  their  grand- 
father, an  inhabitant  of  the  district.  It  also  appears  that  the  home  of  the  parents 
of  these  children  has  been  entirely  broken  up,  and  that  they  are  brought  to 
the  residence  of  their  grandfather  to  find  the  care,  protection  and  privileges  of 
a  home. 

The  ground  of  objection  to  their  admission  is,  that  they  are  not  residents 
of  the  district. 

Held,  that  they  are  residents  of  the  district  in  the  fullest  sense,  as  implied 
by  the  statute,  and,  as  such,  entitled  to  a  share  in  the  public  moneys  apportioned 
to  the  district  in  which  they  reside. 


Where  a  child  goes  into  a  district  to  get  employment,  and  not  for  the  purpose  expressly 
of  attending  the  school,  he  is  a  resident  of  such  district,  and  entitled  to  a  portion  of 
the  public  money,  apportioned  to  district,  as  also  to  share  in  the  privileges  of  the 
school. 

Decided  December  14,  1865 

Earr,  Deputy  Superintendent 

What  constitutes  a  child  a  resident  of  a  district  depend?  upon  circumstances. 
If  the  child  removes  to  a  district  for  the  sole  purpose  of  attending  school  in  such 
district,  the  parents  or  guardian  meanwhile  residing  elsewhere,  such  child  does 
not  become  a  resident  of  the  district,  so  as  to  be  entitled  to  share  in  the  distribu- 
tion of  the  public  money.  But  where  the  child  goes  into  a  district  for  the  pur- 
pose of  obtaining  employment,  and  of  remaining  in  such  district,  the  employ- 
ment, and  not  the  school,  drawing  him  to  such  district,  in  such  case,  he  would 
be  entitled  to  the  privilege  of  the  school,  and  to  share  in  the  public  money  appor- 
tioned to  the  district. 


General  guardian  may  constitute  his  own  district  the  residence  of  his  ward  by  removing 

him  thereto. 
Decided  July  8,  1871 

[1296] 


JUDICIAL  decisions:    tuition  1297 

Weaver,  Superintendent 

Appeal  by  a  general  guardian  under  appointment  of  surrogate,  from  the 
refusal  of  the  trustees  of  the  district  in  which  appellant  resides,  to  permit  his 
ward  to  attend  the  school  in  said  district,  except  upon  payment  tor  tuition  therein. 
The  residence  of  the  deceased  father  of  the  ward  was,  at  the  time  of  his  decease, 
in  a  county  adjoining  that  of  the  guardian  and  appellant.  The  trustees  seem  to 
base  their  refusal  upon  the  ground  that  the  residence  of  the  ward  is  that  of 
the  deceased  father.  The  Superintendent  holds  as  toUows;  "While  it  is  true 
as  a  general  rule,  that  the  last  domicile  of  a  deceased  father  continues  to  be  that 
of  his  minor  child,  yet  this  rule,  in  my  judgment,  has  an  exception  in  case  such 
child  becomes  the  ward  of  a  guardian,  who  takes  him  to  live  in  the  district  of 
his  own  residence ;  at  least,  to  the  extent  of  entitling  the  ward  to  attend  gratui- 
tously the  public  school  of  the  district  in  which  he  may  thus  be  placed.  If  this 
were  not  so,  a  minor  of  lawful  school  age,  if  under  the  charge  of  a  general 
guardian,  who  may,  if  he  chooses,  remove  him  from  the  last  place  of  residence 
of  his  deceased  father,  might  be  wholly  deprived  of  the  right  to  gratuitous 
instruction  which  it  is  the  object  of  the  common  school  system  of  the  State  to 
afford  to  all  residents  of  the  prescribed  age."  Trustees  directed  to  admit  the 
said  ward  to  the  privileges  of  the  school  in  common  with  other  pupils  of  the 
district. 


Children  residing  with  their  grandmother  as  part  of  her  family  and  for  her  convenience 

and  support,  entitled  to  attend  school  in  the  district  as  resident  pupils. 
Decided  July  4,  1875 

Gilmour,  Superintendent 

Two  minor  children  of  M.,  who  resides  in  district  no.  9,  town  of  W.,  were, 
by  the  desire  of  their  grandmother,  Mrs  D.,  permitted  to  live  with  her  at  her  home 
in  district  no.  29  of  the  same  town.  The  trustees  of  the  latter  district  refused 
to  allow  these  children  to  attend  the  school  in  district  no.  29,  except  upon  con- 
dition of  paying  a  tuition  fee,  claiming  that  their  residence  is  in  no.  9  where 
their  father  resides. 

In  support  of  the  claim  on  behalf  of  the  children,  it  is  shown  that  ^Irs.  D. 
is  aged  and  infirm  in  health,  and  needs  the  companionship  and  the  aid  to  some 
exte^nt  of  her  said  grandchildren  in  her  household  affairs.  That  the  said  chil- 
dren are  a  part  of  her  family,  that  they  have  been  placed  with  her  to  assist  her 
and  make  companionship  for  her,  and  that  they  have  not  gone  to  reside  in  no.  29 
for  the  purpose  of  attending  its  school.  It  was  decided  by  my  immediate  prede- 
cessor that  where  a  person  of  school  age  had  left  the  residence  of  his  father,  and 
gone  into  another  school  district  for  the  purpose  of  earning  his  own  support, 
he  was  entitled  to  attend  the  school  of  the  latter  district  free  of  charge.  I  con- 
cur in  the  correctness  of  this  decision,  and  deem  the  principle  upon  which  it  is 
ba'^ed  well  founded,  and  that  it  is  sufficient  to  meet  the  present  case. 

The  right  of  the  children  in  question  to  attend  the  school  in  no.  29  upon 
the  same  tenns  as  other  pupils  of  the  district,  upheld. 


1298  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

3386 
Decided  November  28,  1884 

Ruggles,  Superintendent 

The  appeal  is  brought  from  the  refusal  of  the  board  of  education  of  union 
free  school  district  no.  3,  Sinclairville,  Chautauqua  county,  to  allow  the  grand- 
niece  of  appellant  to  attend  the  public  school  without  paying  tuition  therefor. 

The  appellant  is  a  resident  and  taxpayer  in  said  district,  and  Katie  is  the 
grandniece  of  the  appellant.  The  mother  of  the  child  is  dead  and  the  father, 
who  has  married  again,  resides  in  Dakota.  Previous  to  her  death,  Katie's  mother 
requested  that  Katie  might  live  with  the  appellant  and  his  wife.  The  appellant 
says:  "We  gladly  responded  to  the  request  of  her  now  dead  mother,  and,  on  or 
about  March  12,  1884,  we  received  Katie,  aged  14  years,  into  our  family  with 
the  intention  of  not  only  furnishing  a  home  for  Katie  but  of  caring  for  her  as 
our  own  child." 

The  facts  in  this  case  fully  establish  such  a  substantial  adoption  of  the  pupil 
as  to  make  her  a  resident  of  the  district  and  entitled  to  the  privileges  of  the  school. 
It  has  been  the  uniform  ruling  of  this  Department  that  where  children,  whose 
home  has  been  broken  up,  are  brought  to  the  residence  of  one  who  stands  in 
the  place  of  the  parent,  to  find  care  and  protection  for  an  indefinite  period,  they 
become  residents  of  the  district  in  which  said  person  lives.  Board  ordered  to 
admit  the  child  to  the  free  privileges  of  the  school. 


3877 

Mary  Moore  v.  the  board  of  education  of  union  free  school  district  no.  6,  town 
of  Manlius,  Onondaga  county. 

A  minor  child,  whose  parents  reside  in  one  district,  and  who  have  permitted  her  to  live 
in  another  district  with  a  grandparent,  for  the  purpose  of  securing  better  school  accom- 
modations than  the  district  in  which  the  parents  reside  affords;  held  to  be  a  nonresident, 
and  if  permitted  to  attend  the  school,  liable  for  tuition. 

Decided  May  12,  1890 

Draper,  Superintendent 

Appellant  is  the  grandmother  of  Helen  Moore,  a  pupil  in  attendance  at  the 
public  school  in  union  free  school  district  no.  6,  of  Manlius.  Assuming  that 
the  pupil  is  a  nonresident  of  the  district,  the  board  has  treated  her  as  a  foreign 
pupil,  and  made  a  charge  for  her  tuition.  From  the  evidence  submitted,  it  appears 
that  the  pupil  has  parents  who  are  residents  of  an  adjoining  district,  but  that  they 
deem  the  school  facilities  of  said  district  no.  6  greater  than  those  of  their  own 
district.  They  have  consented  to  her  living  with  her  grandmother  in  said  dis- 
trict no.  6,  for  the  purpose  of  deriving  the  benefit  of  such  school  facilities.  The 
girl  commenced  school  in  this  district  at  the  beginning  of  the  last  fall  tenn.     It 


JUDICIAL  DECISIONS :      TUITION  I299 

is  alleged  by  the  appellant  that  she  has  cared  for  several  sisters  of  the  pupil  in  the 
past,  and  given  them  an  opportunity  to  secure  an  education.  It  is  alleged  by  the 
respondent  that  the  child  has  come  into  the  district  solely  for  the  purpose  of 
securing  the  advantages  afforded  by  the  school  of  this  district,  and  that  her 
parents,  who  reside  in  an  adjoining  district,  are  able  to  furnish  her  with  an 
education. 

It  is  often  difficult  to  determine  the  question  of  one's  residence.  In  the  case 
of  a  minor,  the  residence  of  the  parents  will  be  presumed  to  be  its  place  of 
residence,  unless  the  contrary  is  clearly  established.  It  seems  clear  to  me  that 
however  meritorious  the  desire  of  the  appellant  may  be,  the  case  is  one  where  a 
foreign  pupil  is  temporarily  sojourning  in  the  district  solely  for  school  purposes, 
and  that  the  evidence  presented  on  the  part  of  the  appellant  does  not  satisfy  me 
that  any  change  of  residence  was  intended,  or  did  in  fact  occur  by  the  act  of  the 
pupil  in  coming  into  the  district. 

I  must  dismiss  the  appeal,  and  hold  that  the  board  was  justified  in  making  a 
charge  for  tuition. 


3878 

In  the  matter  of  the  appeal  of  S.  F.  Snow  v.  the  board  of  education  of  union  free 
school  district  no.  10,  town  of  Skaneateles,  county  of  Onondaga. 

A  boy  14  years  of  age  residing  in  the  district  with  a  brother  by  whom  he  is  supported  and 
cared  for,  his  parents  living  without  the  district  and  separate,  neither  furnishing  the 
other  support,  and  neither  possessed  of  means  to  support  the  boy;  held,  that  the  boy 
is  entitled  to  free  tuition,  and  entitled  to  be  enumerated  as  a  resident  of  the  district. 

Decided  May  12,  1890 

Draper,  Superintendent 

Appeal  from  the  decision  of  the  respondent,  the  board  of  education  of  union 
free  school  district  no.  10,  town  of  Skaneateles,  in  determining  that  Corry  L. 
Snow  was  not  a  resident  of  the  district,  and  therefore  not  entitled  to  free  tuition 
in  the  district.  The  appellant  alleges  that  he  is  a  resident  householder  and  elector 
in  the  above-mentioned  district;  that  he  has  residing  with  him  a  brother  of  the 
age  of  14  years ;  that  the  parents  of  the  boy,  although  living,  do  not  live  together, 
and  neither  furnishes  the  other  means  of  support;  that  neither  of  said  parents 
has  means  to  support  said  boy,  and  that  since  the  separation  of  the  father  from 
the  mother,  which  occurred  in  1886.  he  has  been  supported  largely  by  deponent  or 
by  his  own  work  in  several  districts,  where  he  has  since  resided;  that  prior  to 
1889  the  appellant  sent  said  Corry  to  the  Dundee  Academy,  at  Dundee.  N.  Y.. 
paid  his  expenses  and  supported  him  there ;  that  during  the  past  year  the  appel- 
lant married  and  commenced  housekeeping  in  this  district,  and  soon  after  brought 
sdid  boy  to  his  home  to  live  with  him.  and  that  he  has  since  resided  in  said  dis- 
trict, wholly  cared  for  and  supported  by  llie  appellant  as  a  part  of  his  familv. 


1300  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

Appellant  alleges  that  he  believes  he  will  have  to  care  for  and  support  said  Corry 
in  the  future,  and  that  said  Corry  has  no  other  place  of  residence  than  with  him. 

The  respondents  allege  that  the  appellant  is  not  a  taxpayer  of  the  district  and 
that  if  he  is  a  voter,  it  is  solely  by  reason  of  his  being  a  householder.  They 
allege  that  the  said  Corry  is  in  the  employ  of  appellant  in  caring  for  his  horse  or 
horses  and  otherwise  rendering  services,  the  value  of  which  is  equal  to  the 
value  of  the  support,  care  and  schooling  of  said  boy.  It  is  further  alleged  that 
appellant's  parents  and  the  parents  of  Corry,  pay  no  taxes  in  the  district  and 
that  neither  of  them  are  residents  thereof,  but  that  the  appellant  is  able  to  pay 
for  the  boy's  tuition. 

There  is  but  one  question  involved  in  this  case,  that  of  residence,  and  it 
is  often  a  difficult  one  to  decide.  The  facts  alleged  by  the  respondent,  that  neither 
the  boy's  parents  nor  his  brother,  with  whom  he  is  residing,  are  taxpayers  in  the 
district  or  that  the  appellant  is  able  to  pay  for  the  tuition  of  the  boy,  can  have 
no  bearing.  If  he  is  a  non-resident,  tuition  must  be  paid,  if  required  by  the  board. 
If  a  resident,  he  is  entitled  to  tuition  free  of  charge. 

In  a  case  of  this  nature,  while  the  boy  whose  place  of  residence  is  in  ques- 
tion, has  been  deprived  of  a  home  with  his  parents  for  several  years,  through  no 
fault  of  his  own,  and  where  in  fact  there  is  no  home  because  of  the  separation  of 
the  parents,  the  law  should  be  as  liberally  construed  as  possible  in  favor  of  the 
boy.  It  is  clear  to  me  that,  after  going  from  one  district  to  another,  he  has 
become,  through  the  favor  of  the  appellant,  his  brother,  a  member  of  his  family 
and  a  resident  of  the  district  to  which  this  appeal  relates,  and  I  so  hold. 

The  appeal  is  sustained,  and  the  board  of  education  of  union  free  school  dis- 
trict no.  10,  of  the  town  of  Skaneateles,  is  hereby  directed  to  admit  Corry  L. 
Snow  to  the  privileges  of  the  school  in  said  district,  as  a  resident  thereof. 


3876 

Arthur  C.  Watkins  v.  the  board  of  education  of   Sandy  Creek  High  School, 

Oswego  county. 

Residence  of  a  ward  not  necessarily  the  same  as  that  of  his  guardian.  A  minor  born  in 
a  district  and  living  there,  whose  parents  resided  there  until  their  decease,  who  owns 
real  and  personal  property  in  the  district,  and  whose  intention  it  is  to  make  the  district 
his  home,  held  to  be  a  resident  thereof. 

Decided  May  12,  1890 

Draper,  Superintendent 

This  appeal  comes  before  the  Department  by  a  statement  of  the  facts  agreed 
to  and  signed  by  the  respective  parties.  The  respondents  claim  that  the  appellant 
is  a  nonresident  of  the  district,  and  therefore,  liable  to  a  charge  for  tuition.  The 
facts  appear  from  the  statement  to  be  as  follows:  That  the  appellant  is  now  16 
years  of  age;  that  he  was  born  in  the  district,  and  resided  there  with  his  father 


JUDICIAL  DECISIONS :      TUITION  I3OI 

until  August  1888,  when  his  father  died.  Soon  thereafter  his  stepmother  was 
appointed  his  guardian,  and  in  December  1888,  the  appellant  removed  with  said 
guardian  to  the  state  of  Ohio,  having  in  his  own  mind  no  fixed  determination 
as  to  his  future  place  of  residence. 

The  appellant  owns  real  estate  in  the  district  which  is  in  charge  of  an  admin- 
istrator who  represents  his  guardian.  He  is  also  the  owner  of  personal  property 
which  is  in  the  possession  of  the  guardian.  About  three  months  after  removing 
from  the  State,  he  returned  to  the  district,  with  the  intent  of  making  said  district 
his  home,  and  entered  the  school  for  the  purpose  of  completing  his  education. 

Considering  the  appellant  a  nonresident  of  the  district,  the  board  of  educa- 
tion exacted  from  him  payment  for  tuition.  Giving  the  above  statement  of  facts 
full  consideration,  I  am  satisfied  that  the  appellant  is  a  resident  of  the  district  and 
entitled  to  the  rights  which  pertain  thereto.  The  residence  of  a  ward  does  not 
follow  that  of  a  guardian  as  does  that  of  a  child  its  parents.  If  the  appellant  had 
lost  his  residence  in  the  district  when  he  removed  from  the  State  with  his 
guardian,  he  again  acquired  residence  in  the  district  when  he  returned  to  the  same, 
with  the  intent  of  making  it  his  home. 

The  appeal  is  sustained,  and  the  board  of  education  of  the  Sandy  Creek  High 
School  is  hereby  directed  to  admit  the  appellant  to  the  privileges  of  the  school 
as  a  resident  of  the  district. 


3843 
In  the  matter  of  the  appeal  of  Lena  Marzolf  v.  C.  Hyman,  jr,  trustee  of  school 

district  no.  10,  of  the  town  of  Sheldon,  county  of  Wyoming. 
A  minor  residing  with  a  sister,  who  is  a  resident  of  a  school  district,  by  whom  she  is 
supported;   held,  entitled   to  the  privileges   of   the   school,   although   parents   are  non- 
residents. 
Decided  December  9,  1889 

Draper,  Superintendent  .      ,.  .   .  ,  ^, 

The  appellant  has  a  minor  sister  living  with  her  m  district  no.  lo,  of  the 
town  of  Sheldon,  Wvoming  county.  The  parents  reside  in  another  district.  The 
girl  assists  the  appellant  in  the  millinery  business  carried  on  in  said  district,  and 
is  cared  for  by  appellant.  Appellant  asks  that  her  sister  Anme  be  admitted  to 
the  district  school  of  district  no.  10.  ,  .    , 

No  answer  has  been  interposed  by  the  trustee.     From  the  nncontroverted 
evidence  before  me,  I  find  that  Annie  has  a  residence  in  the  district,  and  is  there- 
fore entitled  to  the  privileges  of  the  school. 
The  appeal  is  sustained. 


1302  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

3704 

In  the  matter  of  the  appeal  of  Frank  E.  Losee  and  Sarah  D.  Losee  v.  school 
district  no.   2,  town  of  Alexander,   Genesee  county. 

A  residence  of  a  minor  child  is  held  to  be  with  its  parents  unless  the  contrary  is  clearly 

established. 
The  burden  is  upon  the  parents  to  establish  the  fact  to  be  otherwise. 
Decided  August  22,  1S88 

Draper,  Superintendent 

The  appellants  reside  in  district  no.  5  of  the  town  of  Darien,  Genesee  county. 
They  have  a  child  of  school  age  who  has  for  a  considerable  portion  of  the  time 
been  staying  with  her  grandmother,  who  resides  in  district  no.  2  of  the  town  of 
Alexander.  It  is  desired  that  such  child  shall  attend  the  district  school  in  the 
district  where  her  grandmother  resides.  The  trustees  exact  pay  for  tuition,  which 
is  resisted  on  the  part  of  the  parents. 

The  question  involved  is  one  of  residence.  This  is  always  a  difficult  question 
to  determine,  inasmuch  as  it  ordinarily  depends  upon  many  facts.  If  the  home 
of  this  child  is  with  her  grandmother  by  the  concurrence  of  her  parents,  then 
she  would  be  entitled  to  school  privileges  in  the  district  where  the  grandmother 
resides.  If  she  is  sent  to  the  grandmother's  only  for  the  purpose  of  getting  the 
benefit  of  superior  school  facilities,  then  the  parents  should  pay  for  tuition. 
The  facts  upon  which  to  determine  the  question  in  this  case  are  very  meager. 
Inasmuch,  however,  as  the  residence  of  a  minor  child  must  be  held  to  be  with 
the  parents,  unless  the  contrary  is  clearly  established,  and  as  the  burden  is  upon 
the  parents  to  establish  the  fact  to  be  otherwise,  if  that  be  the  case,  and  inas- 
much as  they  fail  to  show  it  to  be  so  in  this  instance,  I  am  obliged  to  dismiss  the 
appeal,  and  held  that  the  trustees  are  justified  in  collecting  pay  for  tuition. 


3769 

In  the  matter  of  the  appeal  of  Alfred  C.  Thayer  v.  the  board  of  education  of 
union  free  school  district  no.  i,  of  the  town  of  Chateaugay,  county  of 
Franklin. 

A  minor  child  having  parents  living  outside  of  a  school  district,  who,  in  good  faith, 
came  into  the  district  to  reside  permanently  with  a  family  who  are  residents  thereof, 
for  the  purpose  of  having  a  home  with  them,  and  who  has  been  included  in  the  enumer- 
ation of  a  preceding  year  as  one  of  the  resident  children  of  the  district;  held,  entitled 
to  the  privileges  of  the  school. 

Upon  questions  of  this  nature,  the  decisions  of  the  Department  have  always  inclined  to 
the  side  of  liberality.  It  is  to  be  observed,  however,  that  a  child  of  school  age  who 
moves  into  a  district  for  the  sole  purpose  of  securing  the  benefits  of  the  school,  and 
intends  to  remain  there  only  temporarily,  is  to  be  deemed  a  nonresident.  The  resi- 
dence of  a  minor  child  is  presumed  to  be  with  its  parents,  but  this  presumption  may 
be  overcome  by  proof. 

In  a  union  free  school  district,  the  rule  concerning  residence  is  the  same  as  in  a  common 
school  district. 

Decided  March  23,   18S9 


JUDICIAL  DECISIONS  :      TUITION  I303 

Draper,  Superintendent 

This  is  an  appeal  from  the  action  of  the  trustees  of  union  free  school  dis- 
trict no.  I,  of  the  town  of  Chateaugay,  Franklin  .county,  in  refusing  the  privi- 
leges of  the  school  under  their  charge  to  one  Bertie  ]\Iitchell,  a  minor  16  years 
of  age,  living  with  the  appellant,  on  the  ground  that  she  is  not  a  resident  of  the 
district.  The  girl  swears  that  she  came  to  live  in  the  family  of  the  appellant  on 
the  25th  day  of  March  1888,  under  an  agreement  that  she  should  live  with  him 
and  his  wife;  that  she  has  ever  since  continued  to  reside  with  appellant,  and  that 
she  in  good  faith,  intends  to  continue  to  reside  with  him  permanently;  that  the 
principal  reason  or  inducement  which  led  her  to  come  and  live  with  him  was  that 
she  might  have  a  home.  She  admits  that  she  has  parents  living,  but  says  that 
they  are  unable  to  support  her,  and  that  consequently,  she  accepted  a  home  with 
the  appellant.  The  appellant  swears  to  the  same  state  of  facts  substantially,  and 
says  that  he  verily  believes  that  it  is  the  purpose  and  intent  of  the  girl  to  per- 
manently remain  a  member  of  his  family,  and  that  it  is  his  purpose  and  intent  to 
keep  her  and  make  a  home  for  her.  He  also  swears  that  he  is  an  actual  resident 
of  the  district  and  intends  to  remain  such  resident.  He  says  also  that  Bertie 
Mitchell  was  included  in  the  enumeration  of  1888  of  the  children  of  school  age 
in  said  district,  as  a  resident  member  of  the  appellant's  family,  and  that  an 
examination  of  the  enumeration  shows  that  fact. 

The  respondents  allege  that  the  child  is  not  in  good  faith  a  resident  of  the 
district,  and,  therefore,  not  entitled  to  the  privileges  of  the  school,  and  justified 
themselves  in  excluding  her  therefrom. 

I  think  the  facts  as  sworn  to  by  the  appellant  and  the  girl,  and  which  are 
not  successfully  controverted,  bring  the  case  within  numerous  decisions  of  the 
Department  and  entitle  her  to  the  privileges  of  the  school.  The  decisions  have 
always  inclined  to  the  side  of  liberality.  If  a  child  of  school  age  moves  into  a 
district  for  the  sole  purpose  of  securing  the  benefits  of  the  school  in  the  district, 
and  intends  to  remain  there  only  temporarily,  it  is  to  be  deemed  a  nonresident  and 
required  to  pay  tuition  fees.  But  when  it  comes  into  the  district  to  take  up  its 
abode  permanently  therein,  even  though  its  parents  may  be  living,  it  is  entitled  to 
the  school  accommodations  of  the  district.  The  residence  of  a  minor  child  is 
presumed  to  be  with  its  parents,  but  it  may  be  elsewhere  by  their  consent.  It  is 
shown  that,  in  the  present  case,  the  child  is  living  with  the  appellant  by  and  with 
the  consent  of  her  parents,  and  the  proof  is  strong  that  it  is  not  a  mere  tem- 
porary arrangement  in  order  to  secure  the  advantages  of  the  school ;  but,  on  the 
other  hand,  is  intended  to  be  permanant.  This  clearly  brings  the  case  within 
a  long  line  of  decisions  which  would  give  her  the  right  to  attend  the  school. 

The  respondents  claim  that  the  decisions  referred  to  apply  only  to  common 
school  districts,  while  the  district  now  under  consideration  is  a  union  free  school 
district.  I  know  of  no  distinction  in  the  law.  The  discretion  on  the  part  of 
a  board  of  education  in  a  union  free  school  district,  upon  such  a  matter  as  this, 
is  no  greater  than  that  vested  in  a  trustee  in  an  ordinary  common  school  district, 
and  the  rule  concerning  residence  would  be  the  same  in  both  cases. 

The  appeal  is  sustained  and  the  respondents  directed  to  admit  the  said 
Bertie  Mitchell  to  the  privileges  of  the  school  under  their  charge. 


1304  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

4344 
In  the  matter  of  the  appeal  of  Elizabeth  Ostrander  and  IMargaret  E.  Campbell  v. 
board  of  education  of  union  free  school  district  no.  4,  Johnstown,  Fulton 
county. 

A  lad}',  residing  in  a  union  free  school  district,  of  the  age  of  ^2  years,  in  feeble  condition 
and  in  need  of  a  companion,  receives  into  her  family  her  granddaughter  who  continues 
to  reside  with  her  at  her  request  and  with  the  consent  of  the  parents  of  the  grand- 
daughter and  is  under  the  care  of  and  supported  by  her  grandmother,  the  parents  of 
the  grandchild  not  exercising  any  control  or  contributing  to  the  support  or  maintenance 
of  their  said  daughter;  held,  that  said  grandchild  was  adopted  into  the  family  of  her 
grandmother  and  for  school  purposes  said  granddaughter  became  a  resident  of  the 
union  free  school  district  in  which  said  grandmother  resided  and  entitled  to  attend 
the  schools  therein  free. 

Decided  March  20,  1895 

Philip  Keck,  attorney  for  appellants 
Harwood  Dudley,  attorney  for  respondent 

Crooker,  Superintendent 

This  appeal  is  taken  from  the  action  and  decision  of  the  respondent,  made 
on  April  9,  1894,  that  the  appellant,  Elizabeth  Ostrander,  is  not  entitled  to  tuition 
in  the  school  under  its  charge  except  upon  payment  therefor,  and  excluding  her 
from  said  school  until  tuition  is  paid,  or  until  my  decision  reversing  said  decision 
of  the  respondent. 

An  answer  to  the  appeal  has  been  received,  and  also  a  reply  to  the  answer. 

The  question  presented  by  this  appeal  is  as  to  the  residence  of  the  appellant, 
Elizabeth  Ostrander. 

It  appears  that  the  appellant.  Elizabeth  Ostrander,  is  a  minor  and  of  the 
age  of  13  years  on  April  24,  1894;  that  the  parents  of  said  appellant  are  living 
and  reside  in  school  district  no.  3,  town  of  Johnstown,  Fulton  county,  about  two 
miles  from  the  village  of  Johnstown,  and  have  so  resided  therein  for  many  years, 
and  are  able  to  educate  and  support  their  said  daughter  Elizabeth;  that  the 
appellant  Margaret  E.  Campbell  is  the  grandmother  of  said  Elizabeth  Ostrander, 
and  resides  in  and  is  a  qualified  voter  and  taxable  inhabitant  of  union  free  school 
district  no.  4,  Johnstown ;  that  her  husband  died  in  the  year  1891 ;  that  she  was 
72  years  of  age  on  March  11,  1895;  that  she  is  and  has  been  for  many  years 
afflicted  with  heart  trouble,  and  is  enfeebled  and  in  infirm  health,  and  it  is  not 
now,  and  has  not  been  for  many  years,  safe  for  her  to  live  alone  and  without 
the  care  and  watchfulness  of  some  suitable  companion;  that  said  Elizabeth 
Ostrander  has  since  the  years  1884  resided  with  and  been  a  part  of  the  family 
of  her  said  grandmother,  and  her  said  grandmother  has  furnished  the  said  Eliza- 
beth with  all  her  necessary  wearing  apparel  and  has  boarded,  kept  and  maintained 
the  said  Elizabeth  Ostrander  at  her  own  cost  and  expense  and  has  had  the  care, 
control  and  custody  over  her,  the  same  as  if  she  were  her  own  daughter;  that 
the  parents  of  the  said  Elizabeth  have  not  had  or  exercised  any  control  over  or 


JUDICIAL  decisions:     tuition  1305 

contributed  to  the  support  or  maintenance  of  the  said  EHzabeth  during  all  said 
years ;  that  said  Elizabeth  Ostrander  attended  the  school  in  union  free  school  dis- 
trict no.  4  without  payment  of  tuition,  and  with  the  acquiescence  of  the  board  of 
education  of  said  district,  until  the  fall  term  in  1893 ;  that  in  November  1893,  the 
appellant,  Margaret  E.  Campbell,  paid,  under  protest,  to  the  treasurer  of  said 
union  free  school  district  no.  4,  the  sum  of  $9,  being  for  tuition  of  said  Elizabeth 
Ostrander  for  the  fall  term  of  said  school  of  twenty  weeks,  the  claim  of  the 
appellants  Ostrander  and  Campbell  being  that  said  Elizabeth  Ostrander  was  a 
resident  of  said  school  district  no.  4;  that  on  April  9,  1894,  the  respondent  herein 
adopted  a  resolution,  in  substance,  that  said  Elizabeth  Ostrander  was  not  entitled 
to  tuition  free  of  charge  in  said  school  district  no.  4,  and  that  she  be  excluded 
from  the  schools  of  the  district  until  tuition  is  paid,  or  until  I  shall  decide  against 
the  said  decision  of  the  respondent;  that  from  said  decision  of  said  respondent 
of  April  9,  1894,  this  appeal  is  brought. 

Under  the  decisions  of  the  courts  of  the  State  the  residence  of  a  minor  is 
usually  that  of  the  parents  until  said  minor  has  been  emancipated  from  parental 
control  or  adopted  into  a  new  family,  and  the  residence  of  a  minor  may  be  else- 
where than  that  of  the  parents  with  their  consent. 

The  question  involved  in  this  appeal  is  one  of  residence,  and  it  is  usually 
a  difficult  question  to  determine.  In  the  decision  of  such  questions  this  Depart- 
ment has  always  inclined  to  the  side  of  liberality. 

The  proofs  herein  show  that  Mrs  Campbell  is  a  qualified  voter  of,  and  an 
inhabitant  in,  said  union  free  school  district;  that  she  is  72  years  of  age  and  has 
heart  disease,  in  feeble  condition  and  in  need  of  a  companion ;  that  in  1884  her 
granddaughter,  Elizabeth  Ostrander,  came  to  reside  with  her  at  her  request  and 
with  the  consent  of  the  parents  of  the  said  Elizabeth  Ostrander,  and  has  had 
the  care  and  control  of,  and  supported,  the  said  Elizabeth  with  the  consent  of  her 
parents,  said  parents  not  having  exercised  any  control  of  or  contributed  to  the 
support  or  maintenance  of  their  said  daughter. 

I  find  and  decide  that  said  Elizabeth  Ostrander  has  been  adopted  by  the  said 
Margaret  E.  Campbell  into  her  family,  and  that  for  school  purposes  the  said 
Elizabeth  Ostrander  is  a  resident  of  union  free  school  district  no.  4,  Johnstown, 
Fulton  county,  and  as  such  resident  is  entitled  to  attend  the  schools  in  said  district 
free. 

The  appeal  herein  is  sustained. 


4264 

In  the  matter  of  the  appeal  of  William  L.  Fowler  v.  board  of  education  of  union 

free  school  district  no.  2,  town  of  Trenton,  Oneida  county. 
Where  a  board  of  education  of  a  union  free  school  district  establishes  a  department  in  the 
schools  therein,  to  teach  stenography,  typewriting  etc.,  and  requires  as  a  condition  for 
admission  of  a  resident  pupil  of  the  district  into  such  class  or  department,  that  he  or 
■  she  should  pay  tuition  at  the  rale  of  $8  for  a  term  for  instruction*  in  stenography  etc., 
such  action  of  said  board  is  without  authority  of  law  and  void. 
Decided  September  21,  1894 


1306  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

Crooker,  Superintendent 

The  appeal  in  the  above-entitled  matter  is  taken  by  the  appellant  from 
the  action  and  proceedings  of  the  respondent  in  requiring  from  the  appellant 
the  payment  of  a  sum  of  money  for  the  admission  of  his  daughter  E.  Mae 
Fowler,  a  resident  of  said  school  district,  of  school  age,  into  a  class  or  depart- 
ment in  the  schools  conducted  by  the  respondents,  in  which  was  taught  stenog- 
raphy, typewriting  etc. 

From  the  papers  presented  upon  this  appeal  the  following  facts  are  estab- 
lished :  That  union  free  school  district  no.  2,  town  of  Trenton,  Oneida  county, 
was  organized  under  the  school  laws  of  the  State,  and  the  respondent  is  the 
board  of  education  of  said  district ;  that  the  appellant  is  a  resident  in  and  quali- 
fied voter  of  said  district,  and  that  he  is  the  father  of  E.  Mae  Fowler,  a  girl 
of  school  age  residing  with  her  father  in  said  district,  and  said  daughter  of  the 
appellant  attended  the  said  school  during  the  school  year,  commencing  on  August 
I,  1893;  that  prior  to  December  24,  1893,  the  respondent,  pursuant  to  vote  to 
that  effect,  passed  at  annual  school  meeting  in  said  district  in  August  1893, 
established  a  class  or  department  in  the  school  under  their  charge,  in  which 
stenography,  typewriting  etc.,  were  to  be  taught,  and  passed  two  resolutions 
relative  to  said  class  or  the  admission  therein,  to  wit :  first,  that  no  resident  pupil 
should  be  allowed  to  enter  said  class  except  those  who  had  passed  the  preliminary 
course  of  said  school;  and  second,  that  resident  pupils  not  eligible  by  reason  of 
qualifications,  but  of  suitable  age,  should  be  allowed  to  enter  said  class  by  paying 
the  sum  of  $8  per  term;  that  under  and  pursuant  to  the  said  second  resolution, 
the  said  daughter  of  appellant  entered  said  class,  and  on  or  about  December  20, 
1893,  the  appellant,  by  his  said  daughter,  paid  to  one  John  C.  Chase,  the  prin- 
cipal of  the  school  of  said  district,  the  sum  of  $8  for  instruction  in  stenography, 
typewriting  etc.,  in  said  class  for  the  winter  term  ending  March  16,  1894,  and 
received  from  said  Chase  a  receipt,  as  follows :  "  December  20,  1893.  Received 
of  William  L.  Fowler  $8,  as  tuition  fees  for  Mae  Fowler  for  the  present  term  of 
school.  John  C.  Chase,  Prin."  That  said  daughter  of  the  appellant  continued 
in  said  class  during  the  spring  term  of  school,  and  graduated  therefrom  on  or 
about  June  22,  1894;  that  on  or  about  May  15,  1894,  the  respondent  demanded 
of  appellant  the  sum  of  $8  for  permitting  his  said  daughter  to  continue  in  said 
class  for  the  term  of  school  commencing  March  26th,  and  ending  June  22,  1894, 
which  sum  the  appellant  refused  to  pay. 

It  further  appears  that  the  appellant,  in  conversation  with  three  members 
of  said  board  of  education,  had  at  different  times  in  December  1893,  informed 
said  members  respectively  that  they  had  no  right  to  charge  or  receive  tuition 
from  a  resident  pupil  of  said  school  district. 

Under  the  school  laws  of  the  State,  the  common  schools  in  the  several 
school  districts  therein  are  free  to  all  persons  over  5  and  under  21  years  of  age 
residing  in  the  school  district.  The  boards  of  education  of  union  free  schools 
have  power  to  receive  into  said  union  free  school  any  pupils  residing  out  of  said 
districts,  and  to  regulate  and  establish  the  tuition  fees  of  such  nonresident  pupils 


JUDICIAL  decisions:     tuition  1307 

in  the  several  departments  of  said  schools.  The  board  of  education  of  every 
union  free  school  district  severally  have  power,  and  it  shall  be  their  duty  "  to 
prescribe  the  course  of  study  by  which  the  pupils  of  the  school  or  schools  shall 
be  graded  and  classified,  and  to  regulate  the  admission  of  pupils  and  their  trans- 
fer from  one  class  or  department  to  another,  as  their  scholarship  shall  warrant." 
See  subdivision  4,  section  15,  article  4,  title  8  of  the  Consolidated  School  Law 
of  1894. 

The  school  in  union  free  school  district  no.  2,  of  Trenton,  during  the  year 
1893-94,  was  free  to  the  said  daughter  of  the  appellant  herein,  and  the  several 
classes  and  departments  thereof  open  to  her  admission  therein  as  her  scholarship 
should  warrant,  without  the  payment,  by  her  or  the  appellant,  of  any  sum  of 
money  as  a  condition  for  her  admission  into  any  class  or  department. 

The  respondent  has  the  legal  right  to  establish  a  class  or  department  in  the 
school  under  their  control  in  which  stenography,  typewriting,  etc.,  should  be  taught, 
and  adopt  regulations  for  the  admission  of  pupils  therein  who  had  passed  the 
preliminary  course  of  said  school,  or  possessed  the  necessary  mental  qualifica- 
tions; but  said  respondent  had  no  legal  authority  to  adopt  as  a  resolution,  rule 
or  regulation,  that  resident  pupils,  not  eligible  by  reason  of  qualification,  but 
of  suitable  age,  should  be  allowed  to  enter  said  class  or  department  by  paying 
the  sum  of  $8  per  term.  The  respondent,  in  answering  the  appeal  herein,  claims 
that  the  special  agreement  or  concession  (that  is,  admitting  resident  pupils  not 
eligible  by  reason  of  qualifications,  but  of  suitable  age)  into  said  class  or  depart- 
ment was  not  intended  to  be  in  the  nature  of  a  tax  or  tuition;  but  in  the  reply 
of  respondent  to  the  answer  of  the  appellant,  it  is  admitted  that  in  the  conversa- 
tions between  appellant  and  Messrs  Nolton,  Park  and  Pride  it  was  stated  to 
appellant  that  the  payment  of  $8  per  term  was  a  condition  which  the  parent  must 
agree  to,  or  the  pupil  would  not  be  allowed  to  attend  the  special  course.  I  am 
of  the  opinion  that  the  condition  made  by  respondent  that  the  appellant  or  his 
daughter  should  pay  the  sum  of  $8  per  term  for  the  admission  of  the  daughter 
into  the  class  or  department  of  a  school  under  the  control  of  respondent,  in 
which  stenography  etc.,  was  taught,  was  the  exacting  of  tuition  fees  for  instruc- 
tion given  to  a  resident  pupil  in  a  public  school  of  the  State,  and  was  without 
authority  of  law. 

The  appeal  herein  is  sustained. 

I  find  and  decide,  that  the  resolution,  rule  or  regulation  of  the  board  of 
education  of  union  free  school  district  no.  2,  town  of  Trenton,  Oneida  county, 
that  resident  pupils  not  eligible  by  reason  of  qualifications  but  of  suitable  age 
should  be  allowed  to  enter  the  class  or  department  in  the  school  in  said  district 
in  which  stenography,  typewriting  etc.,  are  taught  by  paying  the  sum  of  $8  per 
term,  was  and  is  without  authority  of  law,  and  the  same  is  hereby  vacated  and 

set  aside. 

That  the  board  of  education  of  said  school  district  can  not  lawfully  exact 
or  receive  any  sum  of  m.oncy  whatever  as  a  condition  for  the  admission  of  a 
resident  pupil  into  any  class  or  department  of  the  school  in  said  district. 


I30<^  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

That  the  exaction  by,  and  payment  to,  the  said  board  of  education  from 
and  by  the  appellant  herein  of  the  sum  of  $8  as  a  condition  for  the  admission 
of  the  said  daughter  of  appellant  into  the  class,  and  her  instruction  in  stenogra- 
phy etc.,  for  the  term  of  school  in  said  district,  commencing  on  December  20, 
1S93,  and  ending  on  March  16,  1894,  was  without  authority  of  law  on  the  part 
of  said  board  of  education. 

It  is  ordered,  That  said  board  of  education  of  union  free  school  district 
r-o.  2,  town  of  Trenton,  Oneida  county,  without  unnecessary  delay,  pay  and 
refund  to  William  L.  Fowler,  the  appellant  herein,  the  sum  of  $8  paid  by  said 
Fowler  to  said  board  on  December  20,  1893,  as  a  condition  of  the  admission  of 
the  daughter  of  said  Fowler  into  the  class  or  department  of  the  school  in  said 
district  in  which  stenography  etc.,  was  taught,  and  the  instruction  of  said 
daughter  of  appellant  in  stenography,  typewriting  etc. 


4226 

In  the  matter  of  the  appeal  of  Maria  L.  Ellis  v.  board  of  education  of  union 
free  school  district  no.  8,  Clayton,  Jefferson  county. 

Where  a  minor  whose  parents  reside  in  the  state  of  Arizona  comes  to  live  with  a  resident 
of  a  school  district  within  this  State,  but  such  residence  is  not  in  any  respect  per- 
manent, but  may  be  terminated  at  the  option  of  the  minor  or  her  parents,  or  the 
person  with  whom  she  is  so  residing  in  this  State,  and  the  parents  and  brother  of  the 
minor  contribute  to  her  support;  held,  that  such  minor  is  not  a  resident  in  the  school 
district  in  this  State  in  which  she  is  so  temporarily  residing,  within  the  school  laws 
of  this  State. 

Decided  March  22,  1894 

H.  E.  &  E.  Morse,  attorneys  for  appellant 

Crooker,  Superintendent 

The  above-named  appellant  appeals  from  the  action  and  decision  of  the 
respondent  in  excluding  one  Mary  R,  Moore,  a  pupil  of  school  age,  from  the 
schools  of  union  free  school  district  no.  8,  Clayton,  Jefferson  county,  without 
payment  of  tuition  for  such  pupil. 

The  appellant  alleges,  as  ground  of  appeal,  that  such  pupil  is  a  resident  of 
said  school  district.  The  respondents  deny  that  such  pupil  is  a  resident  of  such 
district. 

From  the  proofs  presented  upon  this  appeal  it  appears:  That  the  appellant 
is  a  single  woman,  residing  with  her  sister  in  Clayton,  Jefferson  county,  and  is  a 
qualified  voter  residing  in  union  free  school  district  no.  8,  in  Clayton ;  that  on  or 
about  March  1888,  the  appellant  went  to  the  state  of  Arizona  for  the  benefit  of 
her  health,  returning  to  her  residence  in  Clayton  in  August  1891 ;  that  the  appel- 
lant was  accompanied  on  her  return  from  Arizona  by  a  cousin,  one  Mary  R. 
Moore,  a  young  girl  then  about  the  age  of  12  years,  whose  parents  then  resided, 


JUDICIAL  DECISIONS :      TUITION  I30g 

and  ever  since  have  resided,  and  still  do  reside,  in  the  state  of  Arizona;  that 
while  in  Arizona  the  appellant  offered  to  the  parents  of  said  Mary  R.  Moore  to 
take  her  (said  Mary)  into  her  care,  charge  and  keeping,  and  give  her  mora! 
instruction  and  training  in  the  matters  of  household  duties,  and  such  school 
advantages  as  she  would  be  entitled  to  as  a  resident  of  the  district,  in  considera- 
tion of  the  society,  companionship  and  service  of  said  Mary,  and  that  thereupon 
the  parents  of  said  Mary  confided  her  to  the  care  and  keeping  of  the  appellant 
for  an  indefinite  period;  that  said  Mary  commenced  in  the  month  of  September 
1891,  to  attend  school  in  said  school  district  no.  8,  and  continued  to  attend  school 
until  the  end  of  the  school  year  of  1892,  and  was  registered  by  the  respondent 
as  a  resident  pupil  of  said  school  district;  that  the  said  Mary  continued  to  attend 
said  school  down  to  about  January  i,  1894,  and  was  continued  upon  the  register 
as  a  resident  pupil  until,  by  investigation  by  respondents,  it  was  decided  that 
she  was  a  nonresident,  but  at  what  time  said  decision  was  arrived  at  does  not 
appear;  that  in  I\Iay  1893,  two  bills  for  tuition  of  said  Alary,  from  September 
7,  1891,  to  March  3,  1893,  were  received  by  appellant  from  respondents,  and  in 
June  1893,  the  appellant  and  the  president  of  the  board  of  education  had  a  con- 
versation in  relation  to  said  bills  for  tuition ;  that  said  Alary  heard  the  said  conver- 
sation between  appellant  and  the  president  of  the  board  relative  to  the  claim  for 
tuition,  and  believing  she  would  have  to  pay  such  tuition  wrote  to  her  parents 
for  money  for  that  purpose,  and  thereafter  in  September  1893,  when  she  resumed 
her  attendance  in  school,  informed  Mr  Johnson,  the  president  of  the  board,  that 
she  had  written  to  her  parents  for  money  to  pay  her  tuition,  and  that  when  she 
received  the  money  she  would  pay  such  tuition ;  that  at  a  meeting  of  respondents 
on  January  2,  1894,  it  was  resolved  that  the  said  Alary  R.  Moore  be  expelled 
from  the  public  school,  in  view  of  the  fact  that  the  fee  charged  for  tuition  had 
not  been  paid,  and  on  January  3,  1894,  the  said  Mary  received  a  letter  from 
the  clerk  of  respondents  that  she  had  been  excluded  from  the  public  school  for 
nonpayment  of  tuition;  that  no  tuition  of  the  said  Mary  had  been  paid  to 
respondents  by  her  nor  by  the  appellant,  nor  by  any  one  on  behalf  of  the  said 
Mary  or  the  appellant;  that  the  appeal  herein  was  brought  on  January  5,  1894. 
It  also  appears  from  the  proofs  that  the  parents  of  the  said  Alary  R.  Aloore 
are  willing  to  contribute  as  far  as  they  are  able  toward  clothing,  school  books 
and  such  incidental  expenses  as  are  necessary  for  her,  and  sent  to  her  prior  to 
January  i,  1893,  an  aggregate  of  $97;  and  that  the  brother  of  said  Alary,  during 
the  year  1893,  has  contributed  money  to  assist  his  sister  in  supporting  her;  that 
during  the  summer  of  1893,  while  the  sister  of  appellant  was  absent  from  Clay- 
ton, the  appellant  took  her  meals  out,  and  that  the  said  Alary  also  took  her  meals 
out  and  paid  toward  the  same  the  sum  of  $36  out  of  money  sent  to  her  by  her 
said   brother. 

No  proof  has  been  presented  herein  that  the  parents  of  the  said  Alary  have 
emancipated  her  from  their  parental  control,  nor  that  the  appellant  herein  has 
adopted  the  said  Alary  into  her  family,  nor  that  the  appellant  occupies  the  rela- 
tions of  a  parent  to  the  said  Alary.     It  clearly  appears  that  the  domicile  of  the 


I3IO  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

said  Mary  with  the  appellant  is  not  in  any  respect  permanent,  but  temporary, 
to  be  terminated  at  the  option  of  the  said  Mary  or  her  parents  or  the  appellant. 

The  residence  of  a  minor  is  presumed  to  be  that  of  the  parents  of  such 
minor.  A  minor  is  generally  deemed  incapable  of  changing  his  or  her  domicile, 
but  if  the  parents  change  their  domicile  that  of  the  minor  follows  it.  This  rule 
is  subject  to  qualification  if  the  minor  has  been  emancipated  from  parental  con- 
trol or  adopted  into  a  new  family. 

It  is  conceded  that  the  residence  of  the  parents  of  Mary  R.  Moore  is  in  the 
state  of  Arizona.  That  being  so,  the  residence  of  their  minor  daughter,  said 
Mary  R.  Moore,  is  in  the  state  of  Arizonia  unless  it  is  proved  that  the  parents 
of  said  Mary  have  emancipated  her  from  their  parental  control,  or  that  she  has 
been  legally  adopted  into  a  new  family.  No  such  proof  has  been  given  in  the 
appeal  herein.  The  burden  is  upon  the  appellant  to  establish  by  a  preponderance 
of  proof  that  said  Mary  R.  Moore  is  a  resident  of  union  free  school  district 
no.  8,  Clayton,  Jefferson  county.     In  that  she  has  failed. 

It  appears  that  upon  said  Mary  R.  Moore  applying  for  admission  into  the 
school  in  said  district  in  September  1891,  said  board  of  education  neglected  to 
investigate  as  to  whether  or  not  she  was  a  resident  of  the  district  and  permitted 
her  to  attend  the  school  free  and  carried  her  name  upon  the  school  register  and 
their  reports  as  a  resident  pupil,  and  the  school  district  has  received  public 
moneys  pursuant  to  such  registration  and  reports.  It  does  not  appear  that  prior 
to  May  or  June  1893,  it  was  brought  to  the  personal  knowledge  of  the  appellant 
or  the  said  Mary  R,  Moore  that  it  was  claimed  by  such  board  of  education  that 
said  Mary  was  not  a  resident  of  such  district  and  that  payment  of  tuition  fees 
for  her  attendance  at  school  was  demanded. 

I  am  of  the  opinion  that  owing  to  the  said  neglect  of  board  of  education  to 
properly  investigate  such  question  of  residence  of  the  said  Mary,  said  board 
is  not  entitled  to  demand  or  receive  any  tuition  fees  for  the  attendance  of  said 
Mary  in  the  schools  of  their  district  prior  to  the  commencement  of  the  school 
year  for  1893,  to  wit,  August  i,  1893. 

I  find  and  decide  that  the  said  ]\Iary  R.  Moore  is  not,  nor  has  she  been, 
since  she  came  with  the  appellant  from  the  state  of  Arizona  to  Clayton,  Jeffer- 
son county,  a  resident  of  union  free  school  district  no.  8,  Clayton,  Jefferson 
county,  within  the  meaning  and  intent  of  the  school  laws  of  this  State;  and 
that  she  is  not  entitled  to  be  received  into  the  school  in  said  district  free,  but  only 
upon  the  payment  of  such  tuition  fees  as  the  board  of  education  of  such  school 
district  has  regulated  or  may  regulate  and  establish  for  nonresident  pupils;  but 
the  board  of  education  of  said  union  free  school  district  shall  not  demand  or 
receive  any  sum  or  sums  whatever  for  tuition  for  such  Mary  R.  Moore  for  any 
period  of  time  in  which  she  attended  the  school  in  said  district  prior  to  the 
commencement  of  the  school  year  for  1893,  to  wit,  August  i,  1893. 

The  appeal  herein  is  dismissed. 


JUDICIAL  decisions:    tuition  131 1 

4167 

In  the  matter  of  the  appeal  of  C.  A.  Patterson  v.  board  of  education  of  the 
union  free  school  of  Honeoye,  Ontario  county. 

Where  a  statute  prescribes  "  residence  "  as  a  qualification  for  the  enjoyment  of  a  privilege 
or  the  exercise  of  a  franchise  the  word  is  equivalent  to  the  place  of  domicile  of  the 
person  who  clanns  the  benefit.  To  acquire  a  domicile  two  things  are  necessary  — 
the  fact  of  residence  in  a  place  and  the  intent  to  make  it  a  home.  To  retain  a  domicile 
once  acquired,  actual  resistance,  however,  is  not  indispensable,  but  it  is  retained  by  the 
mere  intention  not  to  change  it  or  adopt  another,  or  rather,  by  the  absence  of  any 
present  intention  of  removing  therefrom.  Held,  that  the  appellant  was  a  resident  of 
Honeoye,  Ontario  county,  and  his  children  were  entitled  to  attend  the  union  free  school 
therein  without  payment  of  tuition. 

Decided  March  3,  1893 

Crooker,  Superintendent 

This  is  an  appeal  from  the  action  of  the  board  of  education  of  union  free 
school  of  Honeoye,  Ontario  county,  in  refusing  to  permit  two  daughters  of  the 
appellant  to  attend  said  school,  without  payment  of  tuition,  on  the  ground  that 
their  father,  the  appellant,  was  not  a  resident  of  said  school  district. 

The  main  question  to  be  considered  upon  this  appeal  is,  as  to  the  residence 
of  the  appellant  at  the  time  of  the  action  and  decision  of  the  board  of  education 
of  the  union  free  school  of  Honeoye,  from  which  action  and  decision  this  appeal 
is  brought. 

A  large  number  of  affidavits  on  behalf  of  the  appellant  and  respondent  have 
been  filed,  in  many  of  which  the  matters  stated  are  not  material  or  relevant  to 
the  question  of  the  residence  of  the  appellant.  After  a  careful  examination  and 
consideration  of  the  papers  presented,  it  appears : 

That  in  the  year  1866,  the  appellant  became  a  resident  of  Honeoye,  Ontario 
county,  and  continued  to  reside  there  until  the  year  1883,  when  he  purchased 
a  farm  in  the  town  of  Conesus,  Livingston  county,  and  removed  to,  and  became 
a  resident  of,  said  town  of  Conesus ;  that  he  continued  to  reside  in  said  town  of 
Conesus,  until  the  fall  of  the  year  1890,  when  he  removed  to  Honeoye,  and  ever 
since  has  been,  and  still  is,  a  resident  of  Honeoye.  That  his  wife  and  two  minor 
daughters  reside  with  him  in  Honeoye,  and  that  he  and  his  said  family  occupy 
a  house  or  part  of  a  house  therein  rented  by  him  for  such  residence.  That  the 
appellant  has  voted  in  Honeoye  at  the  general  election  of  this  State  held  in  the 
years  1891  and  1892,  and  that  his  vote  thereat  has  never  been  challenged.  That 
the  appellant  has,  during  his  residence  in  Honeoye,  frequently  been  to  his  farm 
in  Conesus  on  business  connected  with  said  farm,  and  spent  considerable  portions 
of  time  at  said  farm,  and  that  his  wife  and  daughters  have  frequently  accom- 
panied him  to  said  farm  and  remained  with  him  during  his  stay  thereat.  That 
when  not  engaged  in  any  business  upon  his  said  farm  the  appellant  has  worked  in 
different  employments  in  Honeoye. 

It  is  not  affirmatively  shown  that  since  the  removal  of  the  appellant  to 
Honeoye  in  the  fall  of  1890,  he  has  attempted  to  exercise  or  has  exercised  any 
rio-hts  and  duties  of  a  citizen  in  the  said  town  of  Conesus. 


I312  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

Under  the  laws,  the  words  residence,  domicile  and  inhabitancy  mean  gen- 
erally the  same  thing.  "  Inhabitancy  and  residence  mean  a  fixed  and  permanent 
abode  or  dwelling  place  for  the  time  being,  as  distinguished  from  a  mere  tem- 
porary locality  of  existence."  (8  Wendell  140.)  To  acquire  a  domicile  two 
things  are  necessary,  the  fact  of  residence  in  a  place,  and  the  intent  to  make  it 
a  home.  To  retain  a  domicile  once  acquired,  actual  residence,  however,  is  not 
indispensable,  but  it  is  retained  by  the  mere  intention  not  to  change  it  or  adopt 
another,  or  rather,  by  the  absence  of  any  present  intention  of  removing 
therefrom. 

The  appellant,  in  the  fall  of  1S90,  removed  from  Conesus  to'  Honeoye, 
intending  to  make  Honeoye  his  residence,  and  he  acquired  a  residence  or  domicile 
in  Honeoye,  by  the  fact  of  such  residence  therein,  and  intent  to  make  it  his 
residence.  Having  acquired  such  domicile,  actual  residence  all  the  time  in 
Honeoye  was  not  indispensable  to  retain  such  residence,  and  his  frequent  visits 
to  his  farm  in  Conesus  without  the  intent  on  his  part  to  remove  from  Honeoye 
to  Conesus,  retained  his  residence  in  Honeoye.  A  domicile  once  acquired 
remains  until  a  new  one  is  acquired.  In  legal  contemplation  every  person  must 
have  a  domicile  somewhere,  and  he  can  have  only  one  domicile  at  one  and  the 
same  time.  Alere  intention  to  remove,  without  the  fact  of  removing,  will  not 
change  the  domicile,  nor  will  the  fact  of  removal  without  intention  to  change 
the  residence,  ciiange  such  residence. 

Where  a  statute  prescribes  "  residence"  as  a  qualification  for  the  enjoyment 
of  a  privilege  or  the  exercise  of  a  franchise,  the  word  is  equivalent  to  the  place 
of  domicile  of  the  person  who  claims  the  benefit.  The  People,  etc.,  v.  Thomas 
C.  Piatt,  117  N.  Y.  159. 

Upon  the  facts  established  herein,  I  am  of  the  opinion  that  the  appellant, 
in  the  fall  of  1890,  became  a  resident  of,  and  domiciled  in,  Honeoye,  and  in  the 
union  free  school  district  of  Honeoye,  and  was,  at  the  time  of  the  action  and 
decision  of  the  board  of  education  of  such  union  free  school  appealed  from, 
a  resident  of  such  district,  and  still  is  a  resident  of  said  district.  That  the  chil- 
dren of  said  appellant  between  the  ages  of  5  and  21  years  of  age,  residing  with 
him  at  Honeoye,  in  said  district,  are  entitled,  under  the  school  laws,  to  admission 
free  in  said  union  free  school  in  said  district,  and  the  said  board  of  education 
of  said  union  free  school  had  no  legal  right  or  authority  to  refuse  to  admit  the 
two  daughters  of  the  appellant  to  said  school  without  the  payment  of  tuition 
therefor. 

The  appeal  herein  is  sustained. 

It  is  ordered,  That  the  board  of  education  of  the  union  free  school  of 
Honeoye,  Ontario  county,  are  hereby  directed  to  forthwith  admit  to  said  school 
the  said  two  daughters  of  the  appellant,  C.  A.  Patterson,  as  resident  pupils  in 
said  school  district,  and  without  demanding  or  receiving  any  tuition  therefor; 
and  said  board  of  education  are  hereby  enjoined  and  restrained  from  demanding 
or  receiving  any  tuition  by  reason  of  the  attendance  of  said  pupils  in  said  school 
since  the  fall  of  the  year  1890. 


JUDICIAL  decisions:     tuition  1313 

3596 

In  the  matter  of  the  appeal  of  John  H.  Clark  and  Harriet  M.  Clark  v.  the  board 
of  education  of  Lyons  union  free  school  district  no.  6. 

The  residence  of  a  minor,  naturally,  is  identical  with  that  of  his  parents;  but  it  may  be 

elsewhere  by  their  consent. 
Trustees  have  the   right  to  suspend  pupils  from  the  privileges  of  the   school  where  their 

conduct  is  so  wilfully  insubordinate  as  to  be  destructive  of  the  discipline  and  efficiency 

of  the  school,  and  to  continue  to  deprive  pupils  of  such  privilege  until  they  unequivocally 

submit  to  the  discipline. 
Decided   May  5,   1887 

Draper,  Superintendent 

The  appellants  are  husband  and  wife.  The  appellant,  John  H.  Clark,  is  the 
principal  of  the  Lyons  union  school.  Henry  Merrill  is  a  brother  of  Mrs  Clark, 
and  has  resided  with  the  appellants  in  the  village  of  Lyons  since  August  1886. 
He  is  17  years  of  age.  His  parents,  who  formerly  resided  in  the  city  of  Roches- 
ter, removed  to  Colorado  in  the  summer  of  1886.  Merrill  had  been  a  pupil  in 
the  Lyons  Union  School  from  the  30th  day  of  August  1886,  up  to  the  latter 
part  of  January  1887,  when  he  was  suspended  from  the  privileges  of  the  school 
by  the  board  of  education,  by  the  adoption  of  the  following  resolution,  namely: 

Resolved,  That  the  board  deems  the  conduct  for  the  past  few  days  of  Henry 
Merrill,  a  nonresident  pupil,  highly  disorganizing  and  injurious  to  the  govern- 
m.ent  of  the  school,  and  feel  it  their  duty  to  sever  his  connection  with  the  school 
until  the  further  pleasure  of  the  board. 

The  cause  of  this  action  of  the  board  was  the  misconduct  of  Merrill  towards 
John  H.  Patterson,  who,  from  the  12th  day  of  January  had  been  temporarily  act- 
ing as  principal  of  the  school  during  the  illness  of  Principal  Clark.  The  facts 
in  relation  to  such  misconduct  are  stated  somewhat  differently  by  different  per- 
sons. It  certainly  amounted  to  an  assault  on  the  25th  of  January,  in  the  presence 
of  the  school  upon  the  acting  principal,  when  he  was  engaged  in  disciplining  other 
pupils.  Upon  the  next  day  Merrill  used  grossly  insulting  and  abusive  language 
to  the  acting  principal  in  the  school  building,  and  while  the  school  was  in  session, 
charging  him  with  lying,  and  offering  to  fight  him.  Merrill  admitted  all  this  in 
the  presence  of  the  board,  and  aggravated  his  conduct  by  justifying  it.  His 
statements  before  the  board  were  reduced  to  writing  and  read  over  to  him,  and 
pronounced  by  him  correct.    He  said: 

"  I  first  laid  hands  on  Mr  Patterson  on  the  morning  of  the  25th;  I  was  tak- 
ing the  part  of  the  smaller  boys ;  I  did  not  think  he  had  any  right  to  act  as  princi- 
pal ;  I  did  not  know  what  he  was ;  I  think  I  did  right  in  taking  hold  of  him ;  if 
Mr.  Gardner  had  not  interfered  I  do  not  know  who  would  have  come  out  ahead, 
he  or  me;  this  was  in  the  morning  during  school  hours. 

"  I  met  Mr  Patterson  in  the  hall;  I  asked  him  if  he  wrote  the  jiiece  in  the 
Democratic  Press  of  the  26th ;  he  said,  "  No  " ;  I  said  it  looked  like  his  work 
and  as  if  he  had  a  hand  in  it ;  I  said  if  he  told  about  town  that  he  blackened  my 
42 


I314  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

eye,  he  lied;  I  told  him  I  could  whip  him  and  if  he  wished  to  try  it  I  was  ready,  he 
could  come  on ;  I  offered  to  fight  him  several  times  there  in  the  hall ;  this  was 
during  school,  January  26,  1887.'" 

After  hearing  these  statements  the  board  then  passed  the  resolution  of  sus- 
pension. Upon  subsequent  application,  it  refused  to  rescind  the  same,  and  from 
this  action  this  appeal  is  taken. 

The  board  of  education  in  their  answer  say: 

1  That  Merrill  was  a  nonresident  pupil,  and  in  consequence  was  in  the  school 
only  at  the  suft'erance  of  the  board,  regardless  of  the  matters  here  under 
discussion. 

2  That  the  appeal  was  not  taken  within  the  thirty  days  required  by  the  rules 
of  this  Department 

3  That  the  board  in  this  matter  exercised  the  discretion  which  the  law  gives 
it,  properly  and  wisely. 

The  question  of  residence  is  always  one  difficult  of  determination.  It  depends 
upon  the  intent  of  the  party  whose  place  of  residence  is  disputed.  The  residence 
of  a  minor  undoubtedly  follows  that  of  his  parents,  but  it  may  be  elsewhere  by 
tlieir  consent.  In  the  present  case,  the  appellant,  John  H.  Clark,  swears  that 
"  after  consultations  upon  the  subject  with  them  (Merrill's  parents),  and  deponent 
and  deponent's  wife,  it  was  agreed  upon  by  all  of  said  parties  that  Henry  should 
not  continue  to  reside  with  his  parents  and  that  he  should  make  his  home  in 
Lyons  with  deponent.  This  is  his  home,  and  he  is  here  for  the  purpose  of  mak- 
ing it  his  home  and  not  for  the  sole  purpose  of  attending  school,  and  he  is  wholly 
supported  by  this  deponent,  and  deponent  and  deponent's  wife  control  him  in  the 
place  and  stead  of  his  parents  and  as  their  own  son."  I  think  we  must  accept 
this  testimony  of  an  unimpeachable  witness,  occupying  the  relations  which  he 
does  to  tlie  pupil  and  to  the  school,  as  determining  the  question  of  Henry  Mer- 
rill's residence,  and  must  hold  that  he  is  a  resident  pupil  of  the  village  of  Lyons. 

The  papers  on  appeal  were  served  on  one  of  the  respondents  on  March  30th, 
and  on  another  on  March  31st.  The  action  appealed  from  was  taken  March  ist. 
I  think  service  upon  one  member  of  the  board  would  have  been  sufficient  and 
have  no  hesitancy  in  holding  that  the  appeal  was  taken  in  time. 

We  come  now  to  the  real  question  in  the  case,  namely,  Had  the  board  of 
education  the  power  to  deprive  Henry  Merrill  of  the  privileges  of  the  school, 
and  if  so,  was  the  power  wisely  and  properly  exercised? 

There  can  be  no  doubt  of  the  power  of  local  school  authorities  to  suspend 
pupils  from  school  privileges  when  their  conduct  is  so  wilfully  insubordinate  as 
to  be  destructive  of  the  good  order  and  efficiency  of  the  schools.  There  are 
undoubtedly  some  cases  which  would  justify  an  entire  and  perpetual  taking  away 
of  school  privileges.  There  are  many  more  cases  which  call  for  a  temporary 
taking  away  of  such  privileges,  to  continue  until  such  time  as  the  pupil  gives 
satisfactory  evidence  of  his  willingness  to  submit  himself  to  the  discipline  of  the 
school.  The  suspension  of  the  privileges  of  the  school  should  not  be  imposed 
for  slight  cause.     The  privilege  is  a  sacred  one.    The  common  schools  belong  to 


JUDICIAL  decisions:     tuition  1315 

all  alike  and  are  for  the  benefit  of  all.  All  have  rights  in  them.  But  one  can  not 
be  allowed  to  so  conduct  himself  as  to  trample  upon  the  rights  of  others  by 
destroying  the  schools.  If  he  does,  he  is  liable  to  have  his  right  taken  away  in 
deference  to  the  general  and  common  good. 

The  conduct  of  the  boy  Merrill,  in  the  present  case,  was  very  bad  and  inex- 
cusable. He  is  17  years  of  age,  almost  at  man's  estate,  and  is  shown  to  be  large 
for  his  age.  His  relations  to  the  permanent  principal  of  the  school  placed  a 
special  responsibility  upon  him.  Notwithstanding  this,  he  deliberately  undertook 
to  overthrow  the  government  of  the  school.  It  may  be  that  the  temporary  or 
acting  principal  lacked  experience  in  managing  a  school;  perhaps  he  dropped  an 
indiscreet  expression  or  acted  unwisely.  Even  in  that  case,  the  proper  course 
v/as  to  bring  the  matter  to  the  attention  of  the  board.  It  was  not  the  business  of 
this  pupil  to  take  the  matter  in  hand.  If  it  was  possible  to  overlook  or  mitigate 
the  attack  of  the  pupil  upon  the  teacher  which  occurred  on  the  25th  of  January, 
on  the  ground  that  he  had  acted  impulsively,  it  would  not  be  so  as  to  the  language 
of  the  boy  to  the  teacher  on  the  succeeding  day,  nor  of  his  subsequent  justification 
of  his  conduct  in  the  presence  of  the  board. 

It  was  necessar)'  that  the  board  should  reduce  the  school  to  a  state  of  dis- 
cipline and  control,  promptly  and  thoroughly,  and  I  have  had  no  difficulty  in 
reaching  the  conclusion  that  the  board  had  ample  justification  for  its  action  in 
reference  to  Merrill.    I  do  not  see  how  it  could  have  done  less. 

I  have  not  lost  sight  of  the  evidence  in  relation  to  an  apologj'  from  the  pupil 
to  the  teacher.  From  Mr  Patterson's  statement,  it  does  not,  however,  seem  to 
have  given  much  evidence  of  regret  or  contrition.  Going  through  the  form  of 
an  apology  is  of  small  consequence.  The  board  of  education  is  the  best  judge 
of  the  circumstances  of  the  school,  the  disposition  of  the  pupil  and  the  necessities 
of  the  case.  This  Department  will  not  be  inclined  to  overrule  the  action  of  the 
board  in  this  case,  at  least  before  it  is  shown  that  it  refuses  to  readmit  Merrill 
to  the  privileges  of  the  school  after  he  has  given  abundant  proof  of  regret  for 
his  misconduct  and  of  readiness  to  submit  unreservedly  to  the  discipline  of  the 
school.  When  such  evidence  shall  be  adduced,  it  is  assumed  that  the  board  will 
rescind  its  own  action. 

For  these  considerations  1  feel  compelled  to  dismiss  the  appeal. 


3984 

In  the  matter  of  the  appeal  of  Earnest  C.  Nichols  v.  the  board  of  education  of 

the  city  of  Elmira. 
The  school  laws  provide  that  public  schools  shall  he  free  to  all  resident  pupils  between 

the  ages  of  5  and  21  years;  held,  that  a  rule  of  a  local  board  intended  to  modify  the 

law  is  of  no  effect. 
Decided  July  2,  1891 


13 16  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

Draper,  Superintendent 

This  appeal  is  brought  by  a  resident  of  the  city  of  Elniira,  from  the  action 
of  the  board  of  education  of  said  city  in  refusing  to  admit  to  the  privileges  of 
the  school  as  a  pupil,  the  daughter  of  the  appellant.  It  is  shown  that  the  child 
was  more  than  5  years  of  age  (having  been  born  November  22,  1885),  when  its 
admission  to  the  school  under  the  control  of  the  respondent,  was  demanded. 

No  answer  has  been  interposed  by  the  board,  but  from  correspondence  which 
has  been  carried  on  with  the  Department,  the  ground  upon  which  the  board  would 
seek  to  justify  its  refusal  to  admit  the  child,  is  apparent,  and  I  shall,  therefore, 
refer  to  it. 

The  present  system  of  common  schools  in  the  city  of  Elmira  is  controlled 
by  a  special  act  of  the  Legislature.  The  act  provides  for  a  board  of  education, 
and  by  subdivision  9  of  section  20  of  the  act,  this  board  is  authorized  to  establish 
rules  and  regulations  for  the  reception  of  pupils  in  the  schools.  Under  this  pro- 
vision a  rule  has  been  adopted  prohibiting  the  admission  of  pupils  to  school  priv- 
ileges except  at  the  commencement  of  the  term  in  September  of  each  year. 

It  is  insisted  by  the  board  that  the  rule  referred  to  is  not  an  unreasonable 
one,  and  that  in  proper  cases  the  rule  is  relaxed.  The  arginnent  of  the  board  in 
support  of  the  justice  of  the  rule  is  that  the  entrance  of  pupils  at  other  periods 
of  the  school  year  would  materially  interfere  with  the  success  of  the  class  work 
and  the  advancement  of  pupils. 

In  considering  the  question  presented,  I  am  free  to  admit  that  the  reception 
of  pupils  at  irregular  times  during  the  school  year  may  cause  some  embarrass- 
ment, but  I  am  confronted  by  the  provision  of  the  general  act  which  provides  that 
common  schools  shall  be  free  to  all  pupils  between  the  ages  of  5  and  21  A^ears, 
who  are  actual  residents  of  the  district.  A  like  provision  was  incorporated  in  the 
special  act  relating  to  the  schools  of  Elmira. 

I  am  of  the  opinion  that  the  board  of  education  has  exceeded  its  power  in 
the  adoption  of  the  rule  objected  to  by  the  appellant.  The  statute  authorizes  the 
board  to  establish  rules  for  the  reception  of  pupils,  but  not  to  prohibit  the  admis- 
sion of  resident  pupils  within  the  prescribed  ages. 

The  rigid  enforcement  of  this  rule  would,  in  some  cases,  deprive  eligible  per- 
sons of  school  privileges  for  nearly  an  entire  year.  If  the  board  possessed  the 
power  in  the  respect  claimed,  it  might  enforce  a  rule  to  admit  pupils  otherwise 
eligible,  biennially.  The  evil  effects  resultant  from  the  enforcement  of  this  rule 
would,  without  doubt,  largely  exceed  any  disadvantages  the  rule  is  intended  to 
prevent. 

But  the  appeal  must  be  sustained  upon  the  broad  ground  that  the  common 
schools  are  free  to  resident  pupils  between  the  ages  of  5  and  21  years  and  that 
the  act  referred  to  does  not  empower  the  board  to  adopt  a  rule  to  modify  this 
provision  of  the  law. 

The  board  of  education  of  the  city  of  Elmira  is  hereby  ordered  to  admit  the 
daughter  of  the  appellant  to  the  school  as  a  pupil. 


JUDICIAL  decisions:     tuition  13 1 7 

37915^ 

In  the  matter  of  the  appeal  of  Lowen  E.  Ginn  v.  union  free  school  district  no.  i, 
of  the  town  of  Chateaugay,  county  of  Franklin. 

A  child  16  years  of  age  left  Potsdam,  where  she  had  attended  the  Potsdam  Normal  School, 
and  where  her  parents  reside,  with  the  consent  of  her  parents,  to  accept  a  home  with 
a  married  brother  residing  in  another  district.  The  brother  offered  the  girl  a  home 
with  him,  and  the  girl  accepted  the  same.  Tuition  fee  for  her  attendance  at  the 
public  school  has  been  demanded;  held,  under  the  ruling  in  the  case  of  Thayer  recently 
decided,  the  girl  has  become  a  resident  of  the  district  in  which  her  brother  resides, 
and  is  entitled  to  the  privileges  of  the  school  in  that  district  free  of  tuition. 

Decided  April  27,  1889 

Draper,  Superintendent 

This  is  an  appeal  from  the  action  of  the  respondent  in  refusing  to  permit 
a  sister  of  the  appellant  to  attend  school  in  said  district  without  the  payment  of 
tuition  fees.  The  appellant  is  a  taxpayer  in  the  district,  and  a  married  man  with 
an  infant  child.  The  sister  alluded  to  is  16  years  of  age.  Their  parents  reside 
at  Potsdam,  in  the  county  of  St  Lawrence.  The  girl  has,  until  recently,  been  an 
attendant  upon  the  Potsdam  Normal  vSchool.  With  the  consent  and  approval 
of  her  parents,  she  has  gone  to  reside  with  her  brother  at  Chateaugay.  The 
brother  swears  that  he  has  offered  her  a  home.  The  sister  swears  that  she  has 
accepted  the  same.  Their  mother  swears  that  the  arrangement  is  by  the  consent 
and  approval  of  their  parents. 

Nothing  is  offered  on  th.e  part  of  the  respondent  to  disprove  these  facts. 
Moreover,  it  is  not  likely  that  the  girl  left  Potsdam  to  live  in  Chateaugay  for  the 
purpose  of  getting  the  advantage  of  improved  school  facilities. 

I  think  the  circumstances  bring  this  case  within  the  rule  laid  down  in  the 
case  of  Thayer,  recently  decided  in  the  same  district,  and  must,  therefore,  sustain 
the  appeal  and  direct  the  board  of  education  to  extend  to  the  girl  the  advantages 
of  the  public  school  in  the  district. 


4850 

In  the  matter  of  the  appeal  of  George  L.  Abbott  v.  board  of  education  of  school 

district  no.  9  city  of  Coming.  Steuben  county. 
This  Department  holds  that  where  a  child  resides  in  a  city  of  school  district  other  than 
that  in  which  his  parents  reside,   for  the  purpose  of  finding  a  home  with   relatives, 
or  for  any  other  sufficient  cause,  and  the  school  in  the  city  or  district  is  but  an  incident 
of  such  residence,  such  child  is  entitled  to  attend  the  school  in  such  city  or  district 
without   payment    of   tuition;    but    when    such    residence    is    for   the    main    purpose   of 
enabling  the  child  to  enjoy  the  advantages  of  the  school  in  that  locality,  them  the  right 
of   such  child  to   attend   such   school   is  a   matter   within   the   discretion   of   the   school 
officers,  and  under  section  36  of  title  7  of   the  Consolidated   School   Law   of   1894,  is 
subject  to  the  payment  of  such  tuition  as  such  school  officers  may  impose. 
Decided  April  9,  1900 
■     Sebring  &  Cheney,  attorneys  for  appellant 

Page,  TuUy  &  Ferris,  attorneys  for  respondent 


'd 


1 8  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 


Draper,  Superintendent 

This  is  an  appeal  from  the  decision  of  the  board  of  education  of  school  dis- 
trict 9,  city  of  Corning,  Steuben  county,  in  excluding  one  Nellie  M.  Clayton  from 
the  schools  of  such  district  unless  tuition  for  her  attendance  therein  shall  be  paid. 
The  usual  pleadings  have  been  filed  in  this  case  by  both  parties. 

It  is  contended  by  the  appellant  that  said  Nellie  M.  Clayton  is  entitled  to 
attend  the  public  school  of  such  district  without  the  payment  of  tuition  on  the 
ground  that  she  is,  and  since  September  1899,  has  been  a  member  of  his  family 
residing  with  him  in  said  district,  while  on  the  part  of  the  respondent  it  is  con- 
tended that  said  Nellie  M.  Clayton  is  not  a  resident  of  the  school  district  and  is 
therefore  not  entitled  to  attend  the  public  school  therein  without  payment  of 
tuition. 

The  proofs  in  this  case  show  that  the  said  Nellie  M.  Clayton  is  15  years  of 
age,  is  the  child  of  a  deceased  sister  of  the  appellant,  who  died  about  ten  years 
ago  ;  that  the  father  of  said  child  now  resides  in  the  city  of  Denver,  Colorado  ;  that 
in  the  month  of  September  1899,  the  said  Nellie  took  up  her  residence  with  the 
appellant  herein  in  the  city  of  Corning  and  has  since  resided  with  him  and  is 
treated  in  all  respects  as  his  daughter,  and  that  the  appellant  receives  no  compen- 
sation for  furnishing  her  a  home  in  his  family,  but  that  the  same  is  provided 
solely  because  of  his  affection  for  the  daughter  of  his  deceased  sister. 

It  would  seem,  from  the  proofs,  that  at  some  time  since  the  said  Nellie  has 
resided  in  the  family  of  the  appellant  he  was  required  to  pay  tuition  for  her 
attendance  at  the  schools  in  the  city  of  Corning,  and  that  under  protest  and  still 
insisting  that  she  had  a  right  so  to  attend  without  payment  of  tuition,  he  did  pay 
a  small  sum  to  the  board  of  education  of  that  district,  but  I  am  of  the  opinion 
that  such  payment  does  not  stop  the  appellant  from  insisting  that  this  child  is 
entitled  to  attend  such  schools  free. 

This  Department  has  held  that  where  a  child  resides  in  a  city  or  district  other 
than  that  in  which  its  parents  reside  for  the  purpose  of  finding  a  home  with  rela- 
tives, or  for  any  other  sufficient  cause,  and  the  school  is  but  an  incident  of  such 
residence,  then  such  child  is  entitled  to  attend  the  school  in  that  city  or  district 
without  payment  of  tuition ;  but  where  such  residence  is  for  the  main  purpose  of 
enabling  such  child  to  enjoy  the  advantages  of  the  school  in  that  locality,  then  the 
right  of  such  child  to  attend  such  schools  is  a  matter  within  the  discretion  of  the 
board  of  education,  and  under  section  36  of  title  7  of  the  Consolidated  School 
Law  is  subject  to  the  payment  of  such  tuition  as  the  board  of  education  may 
impose. 

I  am  clearly  of  the  opinion,  from  the  proofs  presented  in  this  case,  that  this 
child  is  entitled  to  attend  the  public  schools  in  the  district  where  she  now  resides 
without  payment  of  tuition. 

The  appeal  herein  is  sustained. 

It  is  ordered : 

That  the  board  of  education  of  school  district  9,  city  of  Corning,  be,  and  it 
hereby  is,  directed  to  admit  the  said  Nellie  M.  Clayton  to  the  privileges  of  the 
school  under  its  charge  without  the  payment  of  tuition. 


JUDICIAL  decisions:    tuition  1319 

It  is  further  ordered : 

That  said  board  of  education,  without  unnecessary  delay,  refund  to  the  appel- 
lant herein  the  sum  of  $7,  which  the  proofs  herein  establish  was  paid  by  him  as 
tuition  for  the  said  Nellie  M.  Clayton  on  or  about  February  10,  1900. 


3977 

In  the  matter  of  the  appeal  of  Rosamond  L.  Houser  v.  the  board  of  education  of 
union  free  school  district  no.  6,  town  of  Manlius,  county  of  Onondaga. 

Appeal  from  the  action  of  local  school  authorities  requiring  tuition  to  be  paid  for  a 
minor  for  the  privilege  of  attending  a  public  school.  It  appears  that  the  child  had  for 
eight  years  resided  with  persons  other  than  its  parents,  in  the  district.  Held,  a  legal 
resident  of  the  district,  and  entitled  to  free  school  privileges. 

Decided  April  21,  iSgi 

Emmons  H.  San  ford,  attorney  for  appellant 

Draper,  Superintendent 

This  appeal  is  brought  from  the  action  of  the  board  of  education  of  union 
free  school  district  no.  6,  town  of  Manlius,  county  of  Onondaga,  in  refusing  to 
admit  Clarence  Hale,  a  minor  living  with  appellant,  to  the  privileges  of  the  school 
under  its  charge,  without  payment  for  tuition. 

The  evidence  shows  that  the  boy  is  now  10  years  of  age,  and  for  the  past 
eight  years  has  resided  with  appellant  in  district  no.  6.  He  has  been  cared  for 
by  appellant  and  her  husband,  and  they  have  had  exclusive  control  of  him.  The 
boy's  parents  were,  until  about  one  year  ago,  residents  of  this  district,  but  for 
the  past  eight  years  have  exercised  no  authority  or  control  over  him.  About  one 
year  ago,  the  boy's  parents  removed  to  another  district,  in  consequence  of  which 
the  board  now  claims  that  the  boy  has  become  a  nonresident  of  the  district  and, 
therefore,  properly  chargeable  for  tuition.  Tt  appears  that  the  appellant  expects 
to  retain  the  custody  of  the  boy  until  his  majority,  and  the  boy's  natural  parents 
so  understand  the  fact  to  be. 

Xo  answer  has  been  interposed.  It  seems  clear  to  my  mind  that  the  boy  has 
been  a  resident  of  the  district  for  the  past  eight  years,  and  continues  to  be.  His 
residence  has  not  been,  and  can  not  now  be  determined  by  that  of  his  parents,  but 
rather  by  the  fact  that  he  has  actually  become  a  member  of  the  appellant's  family 
by  adoption,  and  subsequent  maintenance  and  place  of  abode.  This  is  clearly  not 
a  case  where  the  child  has  been  brought  into  the  district  solely  for  the  purpose 
of  securing  school  advantages. 

The  appeal  is  sustained.  The  board  of  education  of  union  free  school  district 
no.  6,  town  of  Manlius.  county  of  Onondaga,  is  hereby  directed  to  admit  Clarence 
Hale  to  the  privileges  of  the  public  school,  free  of  charge  for  tuition. 


1320  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

3945 

In  the  matter  of  the  appeal  of  James  Brooks  and  Melvina  B.  Brooks  v.  the  board 
of  education  of  union  free  school  district  no.  2,  town  of  Ellington,  county  of 
Chautauqua. 

Where  the  local  school  authorities  determine  that  a  child  is  a  nonresident  of  the  district, 
their  decision  will  be  sustained  upon  an  appeal,  unless,  by  a  preponderance  of  evidence, 
the  contrary  is  shown  to  be  true. 

Decided  December  30,  1S90 

Draper,  Superintendent 

This  is  an  appeal  from  the  action  of  the  respondent  in  depriving  Kate  M. 
Brooks,  a  grandchild  of  the  appellants,  of  the  privileges  of  the  school  in  said  dis- 
trict, on  the  ground  that  she  was  not  a  resident  thereof,  and  because  the  appel- 
lants refused  to  pay  tuition. 

The  appellants  allege  that  the  parents  of  the  child  reside  out  of  the  State 
and  are  not  keeping  house,  and  that  she  is  living  with  them  for  an  indefinite 
period  with  the  consent  of  the  parents,  and  that  they  have  undertaken  to  provide 
her  with  board,  clothing  and  medical  attendance. 

The  respondent  insists  on  the  other  hand,  that  the  parents  of  the  child  are 
abundantly  able  to  provide  for  her,  and  that  she  is  only  staying  at  her  grand- 
father's temporarily  and  for  the  purpose  of  attending  the  school. 

The  papers  in  the  case  are  voluminous,  and  the  statements  of  the  parties  are 
very  conflicting.  I  have  read  all  that  has  been  said  on  each  side,  with-  care.  No 
question  is  more  difficult  to  determine  than  that  of  residence,  for  it  turns  upon  the 
intent  and  purposes  of  interested  parties.  The  determination  of  the  trustees  to 
the  effect  that  the  child  is  a  nonresident,  must  be  upheld  unless  it  is  shown  by  a 
preponderance  of  evidence  that  the  contrary  is  true. 

After  considering  all  that  the  appellants  say  in  this  case,  I  find  myself  unable 
to  believe  that  this  child  has  come  to  live  with  her  grandparents  permanently. 
There  are  numerous  indications  that  that  is  not  the  fact.  At  all  events  the  appel- 
lants fail  to  make  out  a  case  which  would  justify  me  in  overruling  the  action  of 
the  trustees. 

The  appeal  is,  therefore,  dismissed. 


4536 

in  the  matter  of  the  appeal  of  Joseph  S.  Tiernan  v.  board  of  education  of  union 
■free  school  district  no.  i  of  the  town  and  village  of  Camden,  Oneida  county. 

The  consent  by  parents  that  their  minor  son  may  be  employed  for  an  indefinite  term  of 
time  by  a  person  is  not  an  emancipation  of  such  minor  son  from  their  parental  control 
but  only  a  consent  revocable  at  their  pleasure  that  such  minor  may  perform  services 


JUDICIAL  DECISIONS  :       TUITION  I32I 

for  such   person.     The  residence  of  such  minor  with   such  person  in  a  school  district 
other  than  that  in  which  his  parents  reside   docs  not  entitle  him  to  attend  school  in 
the  district  in  which  his  employer  resides  free. 
Decided  March  9,  1897 

George  J.  Skinner,  attorney  for  appellant 
A.  C.  Woodruff,  attorney  for  respondent 

Skinner,  Superintendent 

This  is  an  appeal  by  the  appellant  in  the  above-entitled  matter  from  the 
decision  of  the  respondent  therein,  refusing  to  permit  one  Thomas  Rourke  to 
attend  the  school  in  union  free  school  district  no.  i  of  the  town  and  village  of 
Camden,  Oneida  county  without  the  payment  of  tuition. 

The  main  ground  of  this  appeal,  on  the  part  of  the  appellant,  is  that  said 
Kourke  resides  in  such  district  and  is  entitled  to  attend  the  school  therein  free. 

The  respondent  has  answered  the  appeal  and  alleges  that  said  Rourke  is 
not  a  resident  of  said  district  and,  under  its  rules,  is  required  to  pay  tuition. 

The  respondent  alleges  that  the  appellant  is  not  the  real  party  in  interest, 
and  is  not  injured  by  its  decision  in  refusing  to  permit  Rourke  to  attend  the 
school  without  payment  of  tuition,  and  the  appeal  herein  should  be  dismissed.  It 
also  contends  that  the  appeal  herein  should  be  dismissed  upon  tb.e  ground  that 
the  appeal  herein  was  not  brought  within  thirty  days  after  the  rendering  of  the 
decision  complained  of,  and  that  appellant  has  failed  to  state  in  his  appeal  any 
excuse  for  such  delay,  as  required  by  the  rules  of  practice  relating  to  appeals 
taken  to  the  State  Superintendent  of  Public  Instruction. 

It  appears  from  the  papers  filed  in  this  appeal,  that  the  appellant  is  the  pastor 
of  St  John's  church  in  the  village  of  Camden;  that  Thomas  Rourke  is  a  minor 
who  was  18  years  of  age  in  June  1896;  that  the  parents  of  said  Rourke  are  living 
and  reside  in  the  town  of  Amboy,  Oswego  county,  upon  a  farm;  that  said 
Rourke  was  somewhat  delicate  in  health  and  did  not  desire  to  work  on  the  farm, 
and  on  or  about  February  4,  1896,  an  arrangement  was  entered  into  between  the 
appellant  and  Rourke,  with  the  consent  of  the  parents  of  Rourke,  by  which 
Rourke  was  to  w^ork  for  the  appellant  in  Camden  and  receive  for  such  work  his 
board,  lodging,  clothing  and  v/ashing  from  appellant,  and  a  salary  for  services 
performed  by  Rourke  as  sexton.  It  does  not  appear  that  anything  was  stated  by 
any  of  the  parties  to  the  arrangement  in  relation  to  Rourke's  attending  school, 
and  it  is  not  alleged  by  the  appellant  that  he  ever  agreed  to  send  Rourke  to  school 
or  to  permit  him  to  attend  school,  or  to  furnish  Rourke  his  schooling,  or  to  educate 
Rourke. 

The  appellant  not  having  agreed  to  send  Rourke  to  school  or  to  educate  him, 
I  fail  to  see  how  he  is  injured  by  the  respondent  refusing  to  permit  Rourke  to 
attend  the  school  free,  on  the  ground  that  ho  was  not  residing  in  the  district,  and 
in  demanding  payment  of  tuition. 

Under  the  rulings  of  this  Department  no  person  can  sustain  an  appeal  unless 
he  is  aggrieved,  that  is,  injured  in  his  rights  by  the  act  or  decision  of  which  he 


1322  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

complains.  There  should  be  some  real  grievance,  some  positive  and  serious  injury 
sustained,  to  justify  a  resort  to  this  Department  for  redress.  Appeals  will  be 
dismissed  when  the  real  party  in  interest  is  not  represented. 

It  appears  that  the  appellant  is  not  the  real  party  in  interest.  Admitting,  for 
the  purpose  of  argument  only,  that  the  appellant  has  sustained  some  positive  and 
serious  injury,  the  contention  of  the  respondent  that  the  appeal  herein  was  not 
brought  within  the  time  required  by  the  rules  and  practice  relating  to  appeals  to 
the  State  Superintendent  of  Public  Instruction,  is  well  taken.  It  appears  that 
the  said  Rourke  commenced  to  attend  the  school  in  Camden  on  February  4,  1896; 
that  on  that  day  he  filled  a  registration  card  in  which  he  stated  his  name,  and  his 
age  as  17  years;  that  he  was  a  nonresident;  that  his  parent  or  guardian  was 
James  Rourke,  whose  post  office  address  was  Williamstown,  N.  Y.,  and  delivered 
the  card  to  the  acting  principal ;  that  a  short  time  after  such  delivery  of  the  card 
he  requested  the  acting  principal  for  permission  to  correct  the  statements  on  the 
card,  and  was  informed  by  such  principal  that  he  could  not  let  Rourke  have  the 
card,  and  that  he  would  have  to  report  it  to  the  school  board;  that  Rourke  was 
registered  as  a  nonresident  pupil  and  continued  to  attend  the  school  until  the 
close  of  the  school  year  1896-97;  that  during  such  term  the  question  of  whether 
Rourke  was  or  was  not  residing  in  said  district  was  discussed  by,  and  a  corre- 
spondence had  upon  the  subject  between,  the  appellant  herein  and  the  principal 
and  members  of  the  board,  and  bills  for  the  tuition  of  Rourke  were  sent  to  him, 
and  to  his  father  and  to  the  appellant,  but  none  of  said  bills  were  paid ;  that  when 
the  school  opened  for  the  school  year  of  1896-97  Rourke  again  attended  and 
continued  to  do  so  until  on  or  about  September  25,  1896,  when  the  board  of 
education  determined  and  directed,  in  substance,  that  he  should  no  longer  be  per- 
mitted to  attend  the  school  until  he  had  paid  tuition  therefor  to  that  date,  namely : 
for  all  prior  attendance  at  the  school,  and  for  the  first  half  of  the  then  term  of 
the  school,  and  such  determination  was  communicated  to  said  appellant  and  to 
Rourke;  that  at  a  meeting  of  the  board  of  education  held  on  October  5,  1896,  one 
Fitzgerald,  a  counselor  at  law,  appeared  on  behalf  of  said  Rourke  and  another 
pupil,  and  upon  an  affidavit  of  Rourke,  asked  the  board  to  admit  Rourke  to  the 
school  as  residing  in  the  district  and  without  payment  of  tuition ;  that  after  dis- 
cussing the  matter  such  board  decided  that  Rourke  should  not  be  admitted  to  the 
school  except  on  payment  of  all  tuition  in  arrears  and  for  the  then  present  term, 
and  not  otherwise ;  that  such  decision  of  such  board  was  promptly  cominunicated 
to  said  Fitzgerald ;  that  after  such  decision  of  such  board  Rourke  did  not  attend 
at  the  school  until  the  commencement  of  the  winter  term,  but  during  such  attend- 
ance he  was  not  received  as  a  pupil  but  as  a  visitor,  and  on  about  December  11, 
1896,  was  removed  from  said  school  by  a  constable  for  disturbing  the  school;  that 
a  copy  of  the  appeal  herein  was  served  upon  such  board  of  education  on  January 
7,  1897,  and  such  appeal,  with  proof  of  such  service  was  filed  in  this  Department 
on  January  9,  1897 ;  that  no  satisfactory  excuse  is  rendered  in  the  appeal  for  the 
delay  in  taking  such  appeal.  Admitting,  for  the  purpose  of  argument  only,  that 
the  appellant  herein  is  the  real  party  in  interest,  and  that  his  appeal  herein  was 


JUDICIAL  decisions:    tuition  1323 

taken  in  time,  I  am  of  the  opinion,  upon  the  facts  estabhshcd  by  the  proofs  filed 
herein,  that  said  appeal  should  be  dismissed  upon  the  merits. 

The  burden  is  upon  the  appellant  to  sustain  his  appeal  by  a  preponderance  of 
proof,  and  in  this  he  has  failed. 

I  rule  and  decide  that  said  Thomas  Rourke  was  not,  on  February  4,  1896, 
nor  at  any  time  between  February  4,  1896,  and  January  7,  1897,  residing  in  union 
free  school  district  no.  i,  town  and  village  of  Camden,  Oneida  county,  within  the 
meaning  of  the  provisions  of  the  Consolidated  School  Law. 

The  said  Rourke  was,  on  February  3,  1896,  and  on  January  7,  1897,  and  still 
is,  a  minor,  and  his  parents  are  living  and  residing  in  the  town  of  Amboy,  Oswego 
county,  and  for  anything  that  appears  in  the  proofs  herein,  are  able  and  willing  to 
support,  care  for  and  educate  their  son. 

Under  the  laws  of  this  State  and  the  decisions  of  its  courts,  parents  are 
under  obligation  to  support  their  children  and  are  entitled  to  their  services  during 
their  minority.  They  may  relinquish  this  right  and  authorize  those  who  employ 
their  children  to  pay  them,  and  such  payment  will  be  a  bar  to  a  recovery  by  the 
parents ;  but  they  may  revoke  such  license  and  receive  the  earnings  themselves. 
Residence,  domicile  and  inhabitancy,  though  not  in  all  respects  and  for  all  pur- 
poses convertible  terms,  mean  generally  the  same  thing.  The  domicile  of  a  minor 
follows  that  of  his  father,  and  remains  until  he  has  acquired  another,  which  he 
can  not  do  until  he  becomes  of  age.  This  rule,  however,  is  subject  to  qualifica- 
tions if  the  minor  has  been  emancipated  from  parental  control  or  adopted  into  a 
new  family.  The  law  will  sometimes  imply  an  emancipation  from  parental  con- 
trol, as  when  the  father  compels  his  minor  child  to  go  abroad  to  earn  his  own 
livelihood,  or  neglects  to  support  him,  or  consents  that  such  child  may  go  abroad 
and  earn  his  own  livelihood. 

The  affidavits  presented  on  the  part  of  appellant  allege  that  said  Rourke  "  is 
a  resident  "  of  union  free  school  district  no.  i  of  Camden ;  that  his  parents  have 
"  emancipated  "  him  from  their  parental  control,  etc.  These  statements  are  merely 
the  conclusions  of  the  respective  affiants  and  they  do  not  state  facts  that  authorize 
such  conclusions.  The  understanding  or  agreement  alleged  by  the  appellant  was 
made  between  the  appellant  and  said  Rourke  only,  and  is  one  of  hiring  for  an 
indefinite  term  of  time,  and  revocable  at  any  time  by  the  parties  thereto  or  any 
one  of  them.  The  consent  of  the  parents  thereto  was  simply  a  bar  to  recovery 
by  them  for  the  services  performed  by  their  minor  son  for  the  appellant,  unless 
their  consent  to  such  employment  should  be  revoked  by  them.  The  proofs  herein 
fail  to  show  that  the  parents  of  Rourke  have  emancipated  him  from  their  parental 
control,  that  is,  consented  that  he  may  go  abroad  generally,  and  earn  his  own 
livelihood,  or  in  the  common  phrase,  "  given  him  his  time  " ;  but  their  consent  was 
that  he  might  be  employed  by  the  appellant. 

The  proofs  herein  do  not  establish  an  adoption  of  said  Rourke  by  the  appel- 
lant, nor  that  the  appellant  stands  in  the  relation  of  either  a  parent  or  guardian 
to  Rourke;  on  the  contrary  their  relations  are  that  of  master  and  servant. 


1324  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

It  appears  from  the  affidavit  of  Mrs.  D.  D.  Van  Allen,  the  preceptress  in  said 
union  free  school,  that  in  the  month  of  January  1896,  said  Rourke  came  to  such 
school  to  try  the  Regents  examination;  that  in  conversations  had  between  the 
appellant  and  principal,  D.  D.  \  an  Allen,  in  January  1896,  which  Mrs  Van  Allen 
overheard  and  in  which  she  took  part,  the  appellant  stated  that  Rourke  was  com- 
ing to  Camden  to  attend  the  school  and  get  an  education,  and  asked  both  Mr  and 
Mrs  Van  Allen  to  look  after  him.  The  appellant  does  not  deny  such  allegations 
of  Mrs  Van  Allen. 

It  further  appears  that  Rourke  came  to  Camden  on  February  3,  1896,  and 
on  February  4,  1896,  entered  such  school  and  continued  to  attend  the  school  until 
the  close  of  the  school  year  1895-96  notwithstanding  his  agreement  to  perform 
labor  and  services  for  the  appellant ;  that  a  bill  for  the  tuition  of  Rourke  was  sent 
to  his  father,  and  his  mother,  as  stated  by  her  in  an  affidavit  filed  herein,  without 
the  knowledge  of  her  husband,  not  wishing  to  be  made  any  trouble  and  fearing 
that  there  would  be  trouble  if  the  bill  was  not  settled,  handed  $7  to  the  appel- 
lant herein  with  the  request  that  appellant  pay  said  bill  of  tuition,  and  she 
was  informed  by  appellant  that  it  was  not  necessary  to  pay  tuition  on  account 
of  Thomas,  as  he  was  a  resident  pupil,  and  thereupon  with  her  consent,  the 
$7  was  applied  by  appellant  upon  pew  rent;  that  at  several  times  in  the  fall 
and  winter  of  1895  the  father  of  said  Rourke,  in  conversation  with  one  Flenry 
S.  Owens,  stated  that  "  he  was  going  to  send  his  son  Thomas  away  and  give 
him  an  education  as  that  was  about  all  he  could  do  for  him."  It  does  not  appear 
that  the  father  of  Thomas  Rourke  was  iniable  pecuniarily  to  educate  his  son, 
and  it  does  appear  that  he  was  willing  to  give  him  an  education.  It  appears  that 
notwithstanding  the  services  to  be  performed  for  appellant,  said  Rourke  was 
able  to  attend  the  school  in  Camden,  substantially  as  regularly  as  though  he  was 
but  a  boarder  in  the  home  of  the  appellant. 

I  am  of  the  opinion  that  the  purpose  for  which  said  Rourke  came  to  Camden 
in  February  1896,  was  to  attend  the  school  in  union  free  school  district  no.  I 
of  the  town  and  village  of  Camden,  and  not  for  the  purpose  of  procuring 
employment  by  which  to  support  himself. 

The  appeal  herein  is  dismissed. 


4855 

In  the  matter  of  the  appeal  of  Fred  D.  Carr  v.  board  of  education  of  school 
district  no.  9,  city  of  Corning,  Steuben  county. 

Where  a  minor  has  been  emancipated  by  his  parent  or  parents  from  parental  control  or 
with  the  consent  of  his  parent  or  parents  has  been  adopted  into  a  new  family  such 
minor  may  elect  in  what  school  district  he  may  reside  and  thereby  becomes  entitled 
to  attend  the  school  in  such  district  without  payment  of  tuition. 

Decided  April  13,  1900 

E.  C.  English,  attorney  for  appellant 

Page,  Tully  &  Ferris,  attorneys  for  respondent 


JUDICIAL  decisions:     tuition  1325 

Skinner,  Superintendent 

This  is  an  appeal  from  the  decision  of  the  board  of  education  of  school 
district  9,  city  of  Corning,  Steuben  county,  in  refusing  to  permit  the  appellant 
to  attend  the  schools  of  such  district  without  the  payment  of  tuition. 

The  pleadings  herein  consist  of  the  appeal,  answer  of  the  board  of  educa- 
tion, and  reply  of  the  appellant. 

The  contention  of  the  appellant  is  that  since  September  i,  1898,  he  has 
resided  in  said  school  district,  and  is  entitled  to  attend  the  schools  therein 
without  payment  of  tuition.  The  contention  of  the  respondent  is  that  the  appel- 
lant, since  September  i,  1898,  has  not  resided  in  said  school  district  and,  there- 
fore, is  not  entitled  to  attend  the  schools  therein  without  payment  of  tuition. 

The  proofs  filed  herein  show  that  the  appellant  is  between  17  and  18 
years  of  age  and  his  father  is  now  residing  in  the  town  of  Southport,  Chemung 
county;  that  in  the  year  1898  the  father  of  the  appellant  resided  in  the  town 
of  Caton,  Steuben  county;  that  in  the  summer  of  1898  the  father  of  the  appellant 
emancipated  the  appellant  from  his  parental  control,  and  thereupon  the  appellant 
took  up  his  residence  with  his  uncle,  Charles  A.  Carr,  in  the  city  of  Corning, 
and  in  school  district  9  of  said  city;  that  in  the  fall  of  1898  the  said  Charles  A. 
Carr  was  appointed  by  the  surrogate  of  Steuben  county,  the  general  guardian 
of  the  appellant;  that  in  the  fall  of  1899.  by  reason  of  the  sickness  of  his  said 
uncle  and  aunt,  the  appellant  commenced  boarding  at  the  house  of  ^^Irs  H.  H. 
BVazee,  15  East  First  street  in  said  city  and  school  district;  that  the  appellant 
commenced  to  attend  the  school  in  such  district  on  or  about  December  6,  1896, 
and  on  December  5,  1899,  he  was  informed  by  the  superintendent  of  schools  of 
said  district  that  the  board  of  education  wished  him  to  say  to  appellant  that 
it  will  treat  the  appellant  as  a  nonresident,  and  payment  of  tuition  must  be 
made;  that  E.  C.  English,  the  attorney  of  the  appellant  herein,  on  December 
II,  1899,  paid  the  sum  of  U-S^,  and  on  February  5,  1900,  the  further  sum  of 
$4.50  for  tuition  of  appellant,  both  of  said  sums  being  paid  under  protest. 

The  courts  of  this  state  hold  that  the  residence  of  a  minor  is  that  of  his 
parents  or  parent,  if  Hving,  unless  such  minor  has  been  abandoned  by  his  or  her 
parents  and  compelled  to  support  himself  or  herself,  or  unless  such  minor  has  been 
emancipated  from  parental  control,  or,  with  the  consent  of  the  parents,  the 
minor  has  been  adopted  into  a  new  family. 

I  am  clearly  of  the  opinion,  from  the  proofs  established  in  this  appeal, 
that  the  appellant  was,  in  the  summer  of  1898.  emancipated  by  his  parents 
from  their  parental  control;  that  the  appellant  had  thereupon  the  legal  right 
to  elect  where  he  should  reside,  and  in  the  fall  of  1898  became  a  resident  within 
school  district  9.  of  the  citv  of  Corning,  and  is  still  a  resident  therein. 

I  am  also  of  the  opinion  that  the  payment,  under  protest,  to  the  respondent 
of  the  aggregate  sum  of  $9,  on  demand  of  the  respondent  for  tuition,  does 
not  estop  the\ppellant  from  insisting  that  he  is  entitled  to  attend  such  school 

free. 

The  appeal  herein  is  sustained. 


1326  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

It  is  ordered : 

That  the  board  of  education  of  school  district  9,  city  of  Corning,  be,  and 
hereby  is,  directed  to  admit  the  appellant,  Fred  D.  Carr  to  the  privileges  of 
the  schools  under  its  charge  without  the  payment  of  tuition. 

It  is  further  ordered : 

That  said  board  of  education,  without  unnecessary  delay,  refund  to  the 
appellant  herein,  or  to  his  attorney,  E.  C.  English,  the  sum  of  $9  which  the 
proofs  herein  establish  was  paid  to  it  as  tuition  for  the  appellant  in  December 
1899  and  February  1900. 


4460 

In  the  matter  of  the  appeal  of  Franklin  D.  Morgan  and  another  v.  board  of 
education  of  union  free  school  district  no.  4,  town  of  Winfield,  Herkimer 
county. 

Where  a  minor,  with  the  consent  of  her  father,  resides  with  a  family  in  a  school  district 
such  residence  with  such  family,  being  in  accordance  with  the  request  and  wish  of  her 
deceased  mother,  held  that  it  is  not  a  temporary  arrangement  in  order  to  secure  the 
advantages  of  the  school  in  the  district,  but  on  the  contrary  is  intended  to  be  per- 
manent, and,  under  a  long  line  of  decisions  of  this  Department,  such  minor  is  a 
resident  of  the  school  district  and  entitled  to  attend  the  school  therein  without  the 
payment  of  tuition. 

Decided  June  24,   1896 

J.  D.  Beckwith,  attorney  for  appellants 
Smith  &  Thomas,  attorneys  for  respondents 

Skinner,  Superintendent 

The  appellants  in  the  above-entitled  matter  appeal  from  the  action  and 
decision  of  the  respondents  in  refusing  to  admit  one  Mary  L.  Lane,  a  child  of 
school  age  residing  with  the  appellants,  into  the  school  of  imion  free  school  dis- 
trict no.  4,  town  of  Winfield,  Herkimer  county,  without  the  payment  of  tuition. 
From  the  papers  filed  herein  the  following  facts  are  established: 
That  the  appellant,  Franklin  D.  Morgan,  is  a  resident  of  union  free  school 
district  no.  4,  town  of  Winfield,  Herkimer  county,  and  a  freeholder  and  taxpayer 
therein,  and  the  appellant,  Rose  R.  Morgan,  is  his  wife ;  that  prior  to  August  28, 
1895,  there  resided  in  South  Framingham,  state  of  Massachusetts,  one  Charles 
D.  Lane  and  his  wife  Hulda  Lane  and  a  daughter  Mary  L.  Lane,  then  about  ii 
years  of  age,  and  another  daughter  older  than  said  Alary ;  that  prior  to  said 
August  28,  1895,  said  wife  of  Charles  D.  Lane  was  ill,  and  informed  the  appel- 
lants that  if  anything  happened  to  her,  and  her  little  girls  became  motherless, 
the  appellants  were  to  have  said  Mary  as  their  own ;  that  said  Hulda  Lane  there- 
after died,  and  on  August  29,  1895,  said  Mary  came  to  the  residence  of  the  appel- 
lants in  said  school  district  to  reside  with  them,  and  still  is  residing  with  them; 
that  on  August  28,  1895,  said  Charles  D.  Lane,  the  father  of  Mary  L.  Lane, 


JUDICIAL  decisions:     tuition  1327 

executed  and  delivered  to  the  appellants  herein  a  paper  of  which  the  following 
is  a  copy,  namely :  "  South  Framingham,  Mass.,  August  28,  i8i;5.  This  is  to 
certify  that  I,  Charles  D.  Lane,  father  of  Mary  L.  Lane,  do  give  to  F.  D.  Morgan 
and  wife  said  ]\Iary  L.  Lane,  for  the  sole  purpose  of  making  a  home  for  said 
child  so  long  as  it  may  be  satisfactory  to  all  parties  concerned;  said  F.  D.  Morgan 
and  wife  to  maintain,  support  and  care  for  her  as  their  own  child,  and  her 
relatives  not  to  interfere  at  all  in  regard  to  the  same.  Charles  D.  Lane."  That 
since  said  August  29,  1895,  the  said  Mary  L.  Lane  has  resided  with  the  appel- 
lants, and  has  made  her  home  with  them,  and  has  been  maintained,  supported 
and  cared  for  by  them  as  their  own  child,  and  they  intend  in  good  faith  to  main- 
tain, support  and  care  for  her  in  the  future  as  their  own  child ;  that  the  said 
Mary  did  not  come  into  said  district  for  the  purpose  of  attending  the  public  schools 
therein,  and  that  appellants  are  abundantly  able  to  properly  maintain,  support  and 
care  for  her;  that  during  the  most  of  the  time  the  said  Mary  has  so  resided  with 
the  appellants,  and  until  about  May  i,  1896,  she  has  attended  the  school  in  said 
district  free;  that  on  or  about  the  last  Saturday  of  April  1896,  the  respondent 
herein,  at  a  meeting,  passed  a  resolution  to  the  effect  that  said  Mary  L.  Lane 
be  refused  admission  to  the  public  schools  in  said  district  gratuitously,  and 
thereafter,  and  on  or  about  Wednesday  of  the  following  week  the  president 
of  the  respondent  notified  the  appellant  of  said  action  of  respondent,  and  that 
the  said  Mary  would  be  sent  home  from  school  the  next  morning  unless  her 
tuition  was  paid,  and  thereupon  the  appellants  kept  her  at  home  and  brought 
the  appeal  herein. 

Annexed  to  the  answer  of  the  respondent  are  the  affidavits  of  Z.  L  Downing 
and  Ann  Thomas.  The  said  Downing  alleges  that  in  or  about  the  month  of 
December  1895,  or  January  1896,  he  had  a  conversation  with  the  appellant.  Rose 
R.  Morgan,  in  which  she  said  to  him  that  she  and  her  husband  had  not  adopted 
the  said  Mar>'  L.  Lane  and  did  not  know  as  they  would  keep  her,  and  expected 
and  intended  to  return  her  to  her  father ;  that  the  said  Ann  Thomas  alleges  that 
on  or  about  the  month  of  February  1896,  she  had  a  conversation  with  the  said 
Rose  R.  Morgan  at  and  in  which  she  said  that  she  and  her  husband  did  not 
intend  to  keep  said  Mary  much  longer ;  did  not  know  how  much  longer  she  would 
stay,  and  did  not  know  whether  she  would  stay  a  day,  week  or  month,  and  they 
expected  and  intended  to  return  her  to  her  father.  The  appellants  in  their  reply 
to  said  answer  denv  that  they  do  not  intend  to  keep  said  Mary  with  them  or 
make  her  residence  there  permanent,  and  deny,  that  they  contemplate,  and  have 
for  some  time  contemplated,  returning  her  to  her  father,  and  alleged  that  they 
intend  in  good  faith  to  maintain,  support  and  care  for  the  said  Mary  in  future 
as  their  own  child,  and  make  a  home  for  her.  all  of  which  they  are  better  able  to 
do  than  is  her  father;  that  the  appellant.  Rose  R.  Morgan,  denies  that  she  said 
to  said  Downing  that  she  and  her  husband  did  not  know  as  they  would  keep 
said  ALary  and  expected  and  intended  to  return  her  to  her  father,  and  she  denies 
that  in  or  about  the  month  of  Febniary  1896,  she  stated  to  Ann  Thomas  that 
she  and  her  husband  did  not  intend  to  keep  said  Mar>'  much  longer,  but  expected 
and  intended  to  return  her  to  her  father. 


13-^3  THE    UNIVERSITY    OF    THE    STATE    OF    NEW  YORK 

Annexed  to  said  reply  is  an  affidavit  of  the  said  Mary  L.  Lane,  in  w^hich 
she  alleges,  in  substance,  that  she  is  12  years  of  age,  and  since  August  29,  1895, 
has  lived  and  made  her  home  with  the  appellants  herein;  that  during  all  that 
time  they  have  cared  and  provided  for  her  a  good,  comfortable  home  and  treated 
her  as  their  own  child,  and  that  she  came  to  them  with  the  intention  of  making 
her  home  with  them  and  not  for  the  purpose  of  attending  the  public  school  in 
West  Winfield;  that  neither  of  the  appellants  ever,  in  any  manner,  stated  to  her 
that  they  had  any  thought  or  intention  of  sending  her  back  to  her  father  or 
away  from  them ;  but  she  has  always  understood  from  both  of  the  appellants 
that  she  was  to  make  her  permanent  home  with  them,  and  that  they  regarded 
her  as  one  of  their  family  and  considered  her  as  though  she  was  their  own  child. 

In  the  appeal  of  Alfred  C.  Thayer  v.  board  of  education  of  union  free 
school  district  no.  i,  Chateaugay,  Franklin  county,  no.  3769,  decided  by  Super- 
intendent Draper  Alarch  23,  1889,  he  said :  "  I  think  the  facts  as  sworn  to  by 
the  appellant  and  the  girl,  and  which  are  not  successfully  controverted,  bring  the 
case  within  numerous  decisions  of  the  Department  and  entitle  her  to  the  privileges 
of  the  school.  The  decisions  have  always  inclined  to  the  side  of  liberality.  If 
a  child  of  school  age  moves  into  a  district  for  the  sole  purpose  of  securing  the 
benefits  of  the  school  in  the  district,  and  intends  to  remain  there  temporarily, 
it  is  to  be  deemed  a  nonresident  and  required  to  pay  tuition  fees.  But  when  it 
comes  into  the  district  to  take  up  its  abode  permanently  therein,  even  though 
its  parents  may  be  living,  it  is  entitled  to  the  school  accommodations  of  the  dis- 
trict. The  residence  of  a  minor  child  is  presumed  to  be  with  its  parents,  but  it 
may  be  elsewhere  with  their  consent.  It  is  shown  that  in  the  present  case  the 
child  is  living  with  the  appellant  by  and  with  the  consent  of  her  parents,  and 
the  proof  is  strong  that  it  is  not  a  mere  temporary  arrangement  in  order  to 
secure  the  advantages  of  the  school;  but,  on  the  other  hand,  is  intended  to  be 
permanent.  This  clearly  brings  the  case  within  a  long  line  of  decisions  which 
would  give  her  the  right  to  attend  the  school." 

In  the  case  at  bar  it  is  shown  that  the  said  Mary  L.  Lane,  a  minor,  took 
up  her  residence  permanently  on  August  29,  1895,  in  union  free  school  district 
no.  4,  town  of  Winfield,  with  the  appellants,  upon  the  consent  of  her  father, 
in  writing,  and  in  accordance  with  the  wish  and  request  of  her  mother,  now 
deceased ;  that  it  is  not  a  temporary  arrangement  in  order  to  secure  the  advan- 
tages of  the  school,  but,  on  the  contrary,  is  intended  to  be  permanent ;  that  under 
that  state  of  facts,  which  are  not  successfully  controverted  by  the  respondent, 
she  is  a  resident  of  said  school  district,  and  gives  her,  under  a  long  line  of 
decisions  of  this  Department,  the  right  to  attend  the  school  in  said  district. 

The  appeal  herein  is  sustained. 

It  is  ordered,  That  the  board  of  education  of  union  free  school  district  no. 
4,  town  of  Winfield,  Herkimer  county,  be  and  it  is  hereby  directed  to  receive 
into  the  school  of  said  district  the  said  Mary  L.  Lane,  a  resident  of  said  district, 
and  to  the  privileges  of  the  schools  under  the  charge  of  said  board  free,  as  other 
scholars  of  school  age,  residing  in  said  district,  are  received  therein  under  the 
school  law. 


JUDICIAL  decisions:     tuition  1329 

4526 

In  the  matter  of  the  appeal  of  Asa  L.  Orcutt  v.  board  of  education  of  union 
free  school  district  no.  i,  town  of  Bath,  Steuben  county. 

Where  a  minor,  for  the  purpose  of  attending  school  in  a  school  district  other  than  that 
in  which  his  or  her  parents  reside,  engages  to  perform  services  for  his  or  her  board 
while  attending  such  school,  such  minor  does  not  become  a  resident  of  such  school 
district  within  the  provisions  of  the  school  law,  so  as  to  entitle  him  or  her  to  attend 
the  school  in  such  district  free. 

Decided  December  31,  1896 

Francis  E.  Wood,  attorney  for  appellant 

Skinner,  Superintendent 

During  the  summer  of  1896  one  John  Bulkley,  a  resident  of  a  school  district 
adjoining  union  free  school  district  no.  i,  town  of  Bath,  Steuben  county,  asked 
the  appellant  herein,  Asa  L.  Orcutt,  a  resident  of  said  union  free  school  district 
no.  I,  if  he  (the  appellant)  wanted  the  services  of  a  girl  in  his  family  to  work 
for  her  board  and  to  go  to  school;  that  his  (Bulkley)  daughter,  Lizzie  Bulkley, 
desired  to  go  to  school,  but  that  he  had  a  large  family  and  could  not  afford 
to  board  her  and  permit  her  to  attend  school,  and  did  not  require  her  services 
in  his  family,  and  wished  to  find  some  place  where  she  could  enter  some  family 
that  did  need  her  services,  and  thus  be  able  to  further  educate  herself  as  she 
desired;  that  he  had  not  been  able  to  find  a  place  within  the  school  district  in 
which  he  resided  where  they  needed  a  girl,  and  would  like  to  have  the  appellant 
take  her;  that  the  appellant  did  need  the  services  of  a  girl  in  his  family,  and 
agreed  with  Bulkley  that  his  daughter  should  become  a  member  of  his  family 
and  render  such  services  as  she  could;  and  was  to  receive  support  and  be  per- 
mitted to  attend  school  in  the  district;  that  on  or  about  September  i,  1S96,  said 
Lizzie  Bulkley  came  to  the  family  of  the  appellant  under  the  aforesaid  arrange- 
ment; that  on  or  about  October  i,  1896,  the  principal  of  the  school  in  district 
no.  I  informed  the  respondent  herein  that  Lizzie  Bulkley.  a  nonresident  of  such 
district,  was  living  in  the  family  of  the  appellant,  and  the  appellant  claimed  that 
she  was  a  member  of  his  family,  and  that  the  respondent  had  no  authority  to 
charge  for  her  tuition;  that  on  November  14,  1896.  a  committee  consisting  of 
two  members  of  the  board  of  education  was  appointed  to  inquire  into  the  facts 
01  the  residence  of  said  Lizzie;  that  said  committee  had  interviews  with  tlie 
appellant,  and  John  Bulkley,  the  father,  and  Lizzie  Bulkley ;  that  it  was  agreed 
by  the  three  persons  that  there  was  no  time  specified  in  which  Lizzie  was  to 
stay  with  appellant,  but  only  so  long  as  the  parties  were  suited ;  that  the  father 
stated  he  could  take  his  daughter  away  from  the  family  of  appellant  at  any 
time,  and  that  his  daughter  could  leave  such  family  if  she  became  dissatisfied; 
that  the  appellant  stated  that  his  wife  did  not  like  to  stay  alone  evenings,  and 
that  he  had  to  keep  some  one  to  stay  with  her;  that  upon  a  report  of  such 
facts  being  made  by  the  committee  a  motion  was  adopted  by  the  board  of 
education,  the  respondent,  that  Lizzie  Bulkley  be  charged  tuition  as  a  nonresi- 


1330  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

dent  pupil  of  district  no.  i ;  that  the  sum  of  $2  was  fixed  for  tuition  of  said 
Lizzie  for  the  full  term  of  1896,  and  she  was  notified  that  on  default  of  the 
payment  of  such  tuition  she  would  be  excluded  from  the  school  of  the  district ; 
that  the  appellant  paid  said  sum,  protesting  against  the  authority  of  the 
respondents  to  require  such  payment  of  tuition. 

From  such  action  and  decision  of  the  respondents  the  appellant  has  appealed 
to  me.  The  respondents  have  answered  the  appeal.  It  is  conceded  that  Lizzie 
Bvilkley  is  a  minor  of  the  age  of  17  years. 

Under  the  laws  of  this  State  the  residence  of  a  minor  is  that  of  his  or  her 
parents,  if  living,  unless  such  minor  has  been  emancipated  from  parental  control 
or  adopted  into  a  new  family. 

It  is  not  claimed  that  John  Bulkley  has  emancipated  his  daughter  Lizzie 
from  his  parental  control,  nor  that  the  appellant  has  adopted  her  into  his  family. 

Cases  have  occurred  and  are  likely  to  occur,  in  which,  from  the  facts 
established,  a  minor  may,  for  school  purposes,  become  a  resident  in  a  school 
district  other  than  that  in  which  his  or  her  parents  reside,  without  any  legal 
emancipation  from  parental  control,  or  adoption  into  a  new  family,  but  this, 
under  the  facts  established,  is  not  one  of  such  cases. 

Under  the  school  law  the  trustees  of  school  districts  must  admit  into  schools 
of  their  district  all  persons  over  5  and  under  21  years  of  age  residing  in  their 
districts  respectively,  free,  and  that  they  may  admit  pupils  residing  out  of  their 
districts  upon  such  terms  as  they  may  prescribe. 

I  decide  that  Lizzie  Bulkley  was  not,  in  September,  October  and  November 
1896,  residing,  within  the  provisions  of  the  school  law,  in  union  free  school 
district  no.  i,  town  of  Bath,  Steuben  county. 

The  appeal  herein  is  dismissed. 


3764 

In  the  matter  of  the  appeal  of  Charles  S.  Baker  v.  the  board  of  education  of 

the  city  of  Jamestown. 

Public  schools  should  be  free  to  all  children  of  the  district  to  receive  any  branch  of 
instruction  therein  for  which  they  are  qualified.  A  practice  of  allowing  a  teacher 
in  the  school  building  to  furnish  instruction  to  certain  children  upon  the  payment  of 
tuition,   either  to   the  board  of   education  or  to  the   teacher   individually,   disapproved. 

Decided  February  16,  1889 

Draper,  Superintendent 

The  appellant  alleges  that,  for  many  years  heretofore,  the  board  of  educa- 
tion of  Jamestown  has  charged  tuition  fees  to  resident  pupils  in  the  academic 
department  of  the  public  schools;  that,  at  the  beginning  of  the  present  year, 
this  practice  was  discontinued  except  as  to  the  commercial  department,  and 
music,  drawing  and  painting;  that,  since  the  beginning  of  the  winter  term  of 


JUDICIAL  decisions:     tuition  1331 


1888-89,  the  board  has  furnished  instruction  in  bookkeeping  free  to  resident 
pupils  who  learn  their  lessons  and  do  their  writing  outside  of  the  commercial 
rooms,  going  to  said  rooms  for  recitation  only ;  but  that  to  pupils  who  have  the 
use  of  the  rooms,  the  supervision  of  the  teacher  and  all  the  facilities  of  the 
commercial  department,  a  tuition  fee  of  $5  per  term  is  charged.  He  then 
alleges  that  his  son,  Henry  S.  Baker,  a  boy  14  years  of  age,  applied  for  admis- 
sion to  the  commercial  department  on  or  about  the  4th  day  of  December 
1888,  and  was  denied  admission  unless  the  tuition  fee  for  the  previous  term 
was  first  paid.  He  thereupon  appeals  from  this  refusal  and  asks  that  the  board 
be  directed  to  admit  his  son  to  the  privileges  of  the  commercial  department  free 
of  cost. 

The  appellant  submits  a  pamphlet  containing  the  annual  report  of  the  board 
for  the  year  1887-88,  together  with  its  announcement  for  1888-89  which,  upon 
page  65,  announces  that  a  charge  for  tuition  will  be  made  against  resident 
pupils   for  certain   branches,   including  the   commercial   department. 

The  board  of  education,  in  answer,  admit  that  the  appellant  is  a  resident 
of  Jamestown  and  sends  children  to  school,  and  that  tuition  fees  have  been 
charged  to  residents  in  the  academic  department  previous  to  the  present  year, 
since  the  beginning  of  which  the  practice  has  been  discontinued.  They  deny 
that  they  have  charged  any  fees  against  resident  pupils  for  instruction  in  the 
commercial  department  or  in  music,  drawing  or  painting  during  the  present 
school  year.  They  allege  broadly  that  no  charge  is  now  made  against  resident 
pupils  for  instruction  in  any  of  the  departments  of  the  schools.  They  specifically 
deny  that  Henry  T.  Baker  has  been  refused  admission  in  the  commercial  depart- 
ment, and  allege  that  during  the  present  school  term  he  has  at  all  times  been 
free  to  avail  himself  of  all  the  privileges  of  said  department  without  charge  for 
tuition,  and  without  any  condition  imposing  the  payment  of  tuition  for  any 
previous  term. 

The  board  in  their  answer  furthermore  say  that,  since  1865,  it  has  been 
customary  to  charge  tuition  fees  against  all  pupils  in  the  academic  department; 
that  they  supposed  they  had  a  legal  right  to  do  so ;  that  the  practice  was  never 
questioned  until  the  last  summer;  that  they  have  since  investigated  the  matter 
and  have  been  advised  that  they  have  no  such  right,  and  that  accordingly  the 
practice  has  been  discontinued ;  and  that  the  announcements  for  the  year  1888-89 
were  made  before  that  conclusion  and  determination  was  arrived  at. 

The  board  also  say  that  they  have  allowed  the  teacher  in  bookkeeping  to 
receive  and  instruct  private  pupils  in  bookkeeping,  and  other  studies  pursued 
in  the  commercial  department,  and  that  this  has  been  done  in  the  school  building, 
and  that  they  have  allowed  said  teacher  to  collect  pay  for  such  special  services. 
I  have  been  particular  to  state  the  claims  of  the  parties  fully.  There  is 
really  no  conflict  among  them,  if  we  assume  that  Mr  Baker  believes  that  what 
the  board  says  is  private,  and  sj^ecial  instruction  in  bookkeeping  is  a  part 
of  the  regular  instruction  of  the  school.  T  have  no  doubt  of  the  bad  policy  of 
thus  permitting  the  use  of  schoolrooms  for  private  work,  and  have  but  hltle 


1332  TITF.    tTNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

doubt  of  it  being  an  exercise  of  power  by  the  board  in  excess  of  their  legal 
right.  Any  such  proceeding  must  inevitably  lead  to  misunderstandings  and 
complications,  of  which  the  one  now  presented  is  but  an  illustration.  The  board 
is  correctly  advised  and  has  acted  wisely  in  discontinuing  the  old  practice  of 
charging  tuition  fees  against  resident  pupils  in  certain  departments  or  branches 
of  study.  The  law  does  not  intend  that  public  school  officers  shall  maintain 
any  branches  of  study  not  free  to  all  resident  pupils  qualified  for  receiving 
instruction  therein.  It  will  be  well  to  remove  the  last  vestige  of  the  system 
which  has  heretofore  obtained  in  Jamestown  by  discontinuing  even  the  present 
practice,  to  which  allusion  is  made. 

The  allegations  of  the  board  fully  and  completely  deny  those  of  the  appellant. 
He  has  been  misled.  To  succeed  in  his  appeal  upon  the  state  of  facts  which 
he  now  presents,  it  would  be  necessary  for  him  to  show  that  the  special  instruc- 
tion to  ^^■hich  reference  is  made,  and  which  is  denied  to  his  son,  was  maintained 
at  public  expense.    This  he  does  not,  and  probably  can  not,  do. 

The  appeal  is  dismissed. 


UNION  FREE  SCHOOL  DISTRICTS 

DIVISION,  DISSOLUTION 

5193 

In  the  matter  of  the  appeal  of  Paul  King  a  resident  taxpayer  of  union  free 
school  district  no.  i  of  the  towns  of  Hadley  and  Luzerne,  Saratoga  and 
Warren  counties,  from  the  decision  of  the  board  of  education  of  said  district 
in  refusing  to  call  a  special  meeting. 

The  principle  that  a  majority  shall  rule  applies  to  school  district  affairs.  When  a  majority 
of  the  voters  of  a  school  district  have  fairly  and  legally  determined  the  course  to 
be  pursued  in  the  management  of  its  affairs  it  is  the  duty  of  the  minority  to  gracefully 
acquiesce  in  such  determination  and  to  render  such  assistance  as  shall  promote  the 
educational  interests  of  the  entire  district. 

The  state  is  directly  interested  in  every  school  within  its  borders.  It  can  not  consent  to 
the  destruction  of  a  strong  efficient  school,  meeting  fully  the  needs  of  a  community 
for  the  purpose  of  establishing  two  of  inferior  grade  neither  of  which  does  meet  such 
needs. 

Decided  July  17,  1905 

William  T.  Moore,  attorney   for  appellant 
Frank  Gick,  attorney  for  respondents 

Draper,  Commissioner 

On  June  13,  1905,  the  appellant  herein  and  fifteen  other  resident  taxpayers 
of  this  district  petitioned  the  board  of  education  to  call  a. special  meeting  of 
the  district  to  determine  whether  application  shall  be  made  as  provided  by  law 
for  the  dissolution  of  said  union  free  school  district.  The  board  of  education, 
at  a  meeting  held  June  25,  1905,  refused  to  call  the  special  meeting  prayed  for 
in  such  petition.  Section  32  of  title  8  of  the  Consolidated  School  Law  provides 
that  it  shall  be  the  duty  of  a  board  of  education  to  call  such  special  meeting 
when  application  therefor,  signed  by  fifteen  resident  taxpayers  of  the  district, 
is  presented.  At  such  meeting  the  proposition  to  dissolve  must  receive  a  two- 
thirds  vote  of  those  present  and  voting.  If  such  proposition  received  the  required 
two-thirds  vote  a  certified  copy  of  all  the  proceedings  must  be  filed  with  the 
school  commissioner  having  jurisdiction.  The  school  connnissioner  possesses 
discretionary  power  in  apprr)ving  such  proceedings.  If  he  refuses  to  approve 
the  proceedings  the  district  can  not  be  dissolved  and  another  meeting  of  the 
district  can  not  be  called  for  such  purpose  within  a  period  of  three  years.  If 
the  commissioner  ap])roves  such  proceedings  and  the  district  is  dissolved  the 
v.hole  matter,  on  api)cal.  may  be  reviewed  by  the  Commissioner  of  Education 
who  mav  affirm  the  action  taken  or  set  such  action  aside  and  restore  the  union 
free  school  district. 

[1333I 


1334  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

A  union  free  school  district  has  decided  advantages  over  a  common  school 
district.  A  union  free  school  district  may  establish  an  academic  department.  A 
common  school  district  can  not  establish  such  department.  A  union  free  school 
district  of  sufficient  school  population  and  sufficient  taxable  property  to  maintain 
an  academic  department  should  not  be  permitted  to  dissolve  unless  some  sub- 
stantial reason  exists  for  taking  such  action.  This  district  has  246  children 
of  school  age  according  to  its  report  for  the  year  ending  July  31,  1904.  During 
the  same  year  it  had  an  enrollment  in  its  schools  of  237  pupils.  Its  assessed 
valuation  is  $267,350. 

The  district,  therefore,  has  sufficient  strength  numerically  and  financially 
to  maintain  a  good  school  of  academic  grade.  During  the  past  year  the  district 
has  authorized  an  expenditure  of  $23,300  for  the  purchase  of  a  nev^  site  and  the 
erection  of  a  new  schoolhouse.  A  district  liability  has  been  incurred  in  the 
purchase  of  a  site  which  would  create  an  embarassing  condition  to  say  the  least 
if  the  district  should  be  dissolved.  The  truth  is  that  the  desire  to  dissolve  this 
district  is  of  recent  origin.  No  thought  of  such  action,  no  necessity  for  it, 
could  have  existed  until  recently  or  the  district  within  the  current  school  year 
would  not  have  appropriated  $23,300  for  a  new  site  and  a  new  building. 

This  union  free  school  district  was  organized  a  few  years  ago  by  the  consoli- 
dation of  two  common  school  districts.  The  Hudson  river  was  the  dividing 
line  between  these  two  districts  and  therefore  divides  the  present  union  free 
school  district  into  two  parts.  The  union  free  school  district  also  contains  two 
villages.  On  one  side  of  the  river  is  the  village  of  Hadley  and  on  the  other 
side  of  the  river  is  the  village  of  Luzerne.  The  board  of  trustees  consists  of 
seven  members.  Four  of  these  reside  in  Luzerne  and  three  in  Hadley.  The 
Luzerne  portion  of  the  district  has  the  greatest  population.  Each  of  these  two 
villages  wanted  th«  schoolhouse  site  located  within  its  boundaries.  A  site  was 
designated  by  a  special  meeting  on  the  Luzerne  side  of  the  river.  The  Hadley 
portion  of  the  district  was  dissatisfied  with  this  action.  A  long  and  bitter  con- 
troversy, detrimental  to  the  social  and  educational  interests  of  the  community, 
has  been  the  result.  Owing  to  this  controversy  five  appeals  have  been  brought 
to  this  Department  within  the  last  year. 

The  principle  that  a  majority  shall  rule  applies  to  school  district  affairs. 
When  a  majority  of  the  voters  of  a  school  district  have  fairly  and  legally  deter- 
mined the  course  to  be  pursued  in  the  management  of  its  affairs  it  is  the  duty  of 
the  minority  to  gracefully  acquiesce  in  such  determination  and  to  render  such 
assistance  as  shall  promote  the  educational  interests  of  the  entire  district. 

So  many  appeals  have  been  before  me  from*this  district  during  the  past 
year  that  all  phases  of  the  school  troubles  therein  are  thoroughly  understood. 
It  is  my  desire  to  settle  all  these  questions  without  delay  and  in  the  hope  that 
the  people  of  this  community  shall  work  harmoniously  to  build  up  a  strong 
school  instead  of  trying  to  destroy  the  efficiency  of  the  one  they  now  have. 

In  view  of  the  information  which  this  Department  possesses  we  may  reason- 
ably conclude  that  it  is  impossible  to  obtain  a  two-thirds  vote  in  favor  of  the 


JUDICIAL  decisions:     union  free  school  districts  1335 

dissolution  of  this  district.  It  is  quite  improbable  that  even  a  majority  vote 
can  be  obtained  in  favor  of  such  proposition.  If  a  two-thirds  vote  should  be 
obtained'  in  favor  of  dissolution  it  would  be  in  direct  opposition  to  the  best 
educational  interests  of  the  district  and  should  not  be  permitted.  In  the  man- 
agement of  their  local  affairs  school  districts  should  be  accorded  the  greatest 
independence  possible  and  consistent  with  sound  educational  policies.  The  State 
is  directly  interested  in  every  school  within  its  borders  and  it  encourages  every 
locality  to  maintain  a  school  of  the  highest  grade  possible.  It  can  not  consent 
to  the  destruction  of  a  strong  efficient  school,  meeting  fully  the  needs  of  a 
community,  for  the  purpose  of  establishing  two  of  inferior  grade,  neither  of 
which  does  meet  such  needs. 

The  contention  of  the  respondents  that  the  petition  for  a  special  meeting 
was  not  presented  in  good  faith  but  for  the  purpose  of  delaying  action  in  the 
erection  of  a  new  building  and  for  complicating  the  situation  as  much  as 
possible  appears  to  be  sustained.  Taking  all  the  conditions  prevailing  in  this 
district  into  consideration  I  think  the  board  of  education  acted  entirely  within 
their  legal  rights  and  in  accordance  with  the  best  educational  interests  of  the 
district  and  of  the  state,  in  refusing  to  call  the  special  meeting  for  which  petition 
was  filed.     The  board  should  be,  and  is,  sustained. 

The  appeal  herein  is  dismissed. 


3526 

Joseph  C.  Parks,  Edgar  Brown,  Amasa  Bates,  Richard  J.  Robinson  and  William 
J.  Cooper,  as  trustees  and  members  of  the  board  of  education  of  union  free 
school  district  no.  6,  of  the  town  of  North  Greenbush  v.  an  order  of  Lewis 
N.  S.  Miller,  school  commissioner,  dated  January  n,  1886.  and  from  an  order 
of  said  school  commissioner,  together  with  Thomas  J.  Neville,  supervisor, 
and  John  J.  Sullivan,  town  clerk  of  the  town  of  Greenbush,  dated  January 
30,  1886,  dividing  the  territory  and  altering  the  boundaries  of  said  district. 
A  school  commissioner  possesses  the  power  to  alter  or  change  the  boundaries  of  a  union 

free  school  district. 
In  the  absence  of  proof  to  the  contrary,  the  presumption  is  that  the  commissioner  acted 
with  sound  discretion  and   for  the  educational  interests  of  the  territory  affected,  by 
an  alteration  of  school  district  boundaries. 
Decided  September  2,  1886 

Draper,  Superintendent 

This  is  an  appeal  from  an  order  of  Txwis  N.  S.  Miller,  school  commissioner 
of  the  second  district  of  Rensselaer  county,  made  upon  the  nth  day  of  January 
1886,  whereby  a  portion  of  union  free  school  district  no.  6.  of  the  town  of  Xorth 
Greenbush,  was  set  off  from  said  district  no.  6,  and  attached  to  district  no.  2 
(which  is  a  common  school  district)  of  the  town  of  Greenbush,  and  also  from  an 


1336  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

order  of  the  said  school  commissioner  and  the  supcnasor  and  town  clerk  of  the 
town  of  Greenbush,  made  upon  the  30lh  day  of  Januar}^  1886,  to  the  same  effect 
as  the  first  mentioned  order. 

There  are  two  distinct  questions  in  this  case : 

1  Whether  a  school  commissioner  has  the  power  to  alter  or  change  the 
boundaries  of  a  union  f  re^  school  district ;  and 

2  If  he  has  the  power,  whether  it  was  properly  and  judiciously  exercised  in 
this  case,  so  as  to  promote  the  best  interests  of  education  in  the  locality  affected 

The  power  of  a  school  commissioner  to  alter  a  union  free  school  district  is 
earnestly  contested  by  the  appellants.  It  was  ably  urged  upon  the  argument  that 
by  enacting  the  legislation  providing  for  the  formation  and  organization  of  union 
free  schools,  and  for  the  government  thereof,  and  particularly  in  the  enactment 
of  chapter  210  of  the  Laws  of  1880,  providing  for  the  dissolution  of  union  free 
school  districts,  the  Legislature  showed  its  intention  to  leave  it  altogether  to  the 
residents  of  the  district,  to  determine  whether  or  not  they  would  have  a  union 
free  school  district,  and  also  to  deprive  school  commissioners  from  exercising 
over  these  districts  the  powers  which  they  possess  in  relation  to  common  school 
districts.  The  question  is  an  important  one.  Altliough  I  find  cases  where  the 
Department  has  sustained  commissioners  in  making  orders  affecting  the  bound- 
aries of  union  free  school  districts,  and  one  case,  at  least,  where  the  Department 
has  overruled  a  commissioner  in  refusing  to  make  such  an  order  and  directed  him 
to  make  it,  I  do  not  find  that  the  power  of  commissioners  to  make  the  order  has 
been  raised  before  the  Department,  or  that  it  has  ever  assumed  to  determine 
that  question. 

It  has  been  the  policy  of  the  State  from  its  earliest  history  to  confer  upon 
the  school  authorities  the  power  to  divide  the  territory  of  the  State  into  districts 
of  such  convenient  size  as  would  enable  the  inhabitants  of  each  district  to  manage 
tJieir  affairs  in  their  own  way,  subject  to  the  general  oversight  and  supervision  of 
the  State  Department,  and  also  to  alter  and  modify  districts  at  pleasure  accord- 
ing to  the  development  of  the  territory  or  changes  in  population.  By  section  i  of 
title  6  of  chapter  555  of  the  Laws  of  1-864,  the  duty  of  making  such  divisions  and 
alterations  is  imposed  upon  the  school  commissioners  in  their  respective  commis- 
sioner districts.  The  statutes,  providing  for  the  changing  of  common  school 
districts  into  union  free  school  districts,  leave  it  to  the  inhabitants  of  any  district 
so  laid  out,  or  of  adjoining  districts  cooperating  together,  to  determine  whether 
or  not  they  will  establish  a  union  free  school,  and  become  a  union  free  school 
district,  and,  upon  their  determining  to  do  so,  they  are  invested  with  certain 
enlarged  powers  and  privileges.  The  purpose  of  this  is  obvious.  The  union  free 
school  system  contemplates  and  provides  for  a  school  of  high  grade  with  an 
academic  department.  The  management  of  such  a  school  requires  a  system  more 
complex  than  that  of  a  common  school  district.  The  people  who  desire,  and 
set  up  such  a  school,  are  ordinarily  the  people  to  be  safely  intrusted  with  the 
complex  machinery  requisite  to  the  management  thereof.  It  evidently  was  the 
intention  of  the  Legislature  to  enable  the  inhabitants  of  any  locality  to  establish 


JUDICIAL  decisions:     union  free  school  districts  1337 

schools  of  a  grade  and  character  suited  to  their  circumstances  and  wants,  and  to 
invest  such  inhabitants  with  the  powers  necessary  to  the  government  of  such 
schools,  but  the  statutes  which  do  this  contain  no  suggestion  of  an  intention  to 
modify  the  general  and  long  settled  regulations  for  the  division  of  all  the  terri- 
tory of  the  State  into  districts  of  such  size  and  form  as  the  authorities  charged 
with  the  general  supervision  of  education  should  deem  best  adapted  to  promote 
the  interests  of  the  same. 

The  act  providing  for  the  dissolution  of  union  free  school  districts  is  urged 
by  the  appellants  as  a  legislative  construction  of  the  statutes  providing  for  the 
formation  of  such  districts.  It  is  said  that  if  school  commissioners  possess  the 
power  to  change  the  boundaries  of  union  free  school  districts,  then  there  was  no 
legislative  act  necessary  to  enable  them  to  dissolve  such  districts.  I  do  not  think 
so.  The  power  to  regulate  the  shape  and  size  of  a  district  is  distinct  from  the 
power  to  determine  the  grade  of  the  schools,  and  the  system  of  government  within 
the  district.  The  first  power  is  with  the  commissioner,  the  last  with  the  inhabit- 
ants of  the  district.  Of  course,  both  must  act  pursuant  to  law.  The  act  for  the 
dissolution  of  union  free  school  districts  is  only  to  enable  them  to  change  back 
from  a  union  free  school,  and  its  system  of  government  to  a  common  school 
district,  and  its  way  of  doing  business.  It  does  not  touch  the  subject  of  bound- 
aries. It  was  an  essential  element  in  the  general  plan  to  enable  any  district  to 
have  the  kind  of  school  government  it  wants.  Without  it  the  people  who  had 
voluntarily  determined  to  organize  a  union  free  school  would  be  enabled  to  get 
rid  of  such  system,  even  after  they  had  demonstrated,  by  experiment,  that  they 
could  not  successfully  maintain  it.  To  obviate  this  difficulty,  and  to  make  the 
plan  complete,  chapter  210  of  the  Laws  of  1880  was  enacted. 

To  hold  that  school  commissioners  have  not  the  power  to  divide  or  add  to 
a  union  free  school  district  would  be  to  change  the  entire  policy  of  the  State  from 
its  earliest  history,  in  reference  to  the  school  district  system.  It  is  not  conceivable 
that  the  Legislature  would  have  expressed  its  intention  to  do  this  by  the  use  of 
any  equivocal  language,  or  that  it  would  have  left  the  authority  for  so  important 
and  far-reaching  a  step  to  rest  only  upon  inference  or  implications;  I  am,  there- 
fore, constrained  to  hold  that  the  commissioner  making  the  order  appealed  from 
iai  this  case  had  the  power  to  make  it. 

This  precise  question  has  been  before  the  courts  in  this  State.  In  the  case 
of  The  People,  etc.,  ex  rel.  the  board  of  education  of  union  free  school  district 
no.  2,  town  of  Onondaga  v.  James  W.  Hooper,  school  commissioner,  etc.,  one  of 
the  ablest  of  our  general  terms  in  a  well-considered  opinion  delivered  by  the  pre- 
siding judge,  held  that  the  school  commissioner  possessed  the  power  to  alter  or 
divide  a  union  free  school  district. 

Having  arrived  at  the  conclusion  that  the  commissioner  had  the  power  to 
make  the  order  which  he  did.  and  knowing  of  no  objection  being  raised  as  to  the 
regularity  of  the  proceedings,  the  only  (luestion  remaining  is  as  to  whether  the 
commissioner  acted  with  sound  discretion  and  for  the  educational  interests  of  the 
territorv  affected.    It  is  to  be  presumed  that  he  did  so  act,  in  the  absence  of  proof 


1338  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

clherwise.  There  is  no  such  proof.  On  the  contrary,  a  careful  examination  of 
the  papers  and  exhibits  submitted,  makes  me  of  the  opinion  that  the  educational 
interests  of  the  district  affected  will  be  best  subserved  by  upholding  the  order 
of  the  commissioner  for  the  following  considerations : 

1  The  district  affected  lies  wholly  in  the  town  of  Greenbush.  Heretofore 
it  has  been  connected  with  a  district,  the  balance  of  which  lies  wholly  in  the  town 
of  North  Greenbush.  The  order  of  the  commissioner  attaches  this  portion  to  a 
district  lying  wholly  in  the  town  of  Greenbush.  The  best  results  have  not  been 
attained  in  districts  lying  in  different  towns,  and  it  has  always  been  the  policy 
of  the  State  to  encourage  the  formation  of  districts  so  far  as  may  be,  within  the 
limits  of  a  single  town.  A  marked  illustration  of  the  unwisdom  and  indeed  fre- 
quent injustice  of  disregarding  town  lines  in  the  formation  of  school  districts  is 
found  in  the  present  case.  The  assessed  valuation  of  real  estate  in  the  town  of 
Greenbush  is  shown  to  be  at  full  value,  while  in  North  Greenbush  such  valuation 
is  only  48  per  cent  of  the  real  value.  The  result  of  this  is  that  the  people  in  the 
territory  now  set  off  have  been  taxed  for  the  support  of  the  schools  more  than 
twice  as  much  as  their  neighbors  in  the  same  school  district. 

2  The  schoolhouse  in  the  district  to  which  the  territory  in  cjuestion  has  been 
annexed  is  nearer  and  more  conveniently  located  to  the  inhabitants  of  the  dis- 
trict than  is  the  schoolhouse  in  the  district  from  which  it  is  set  off. 

3  The  evidence  shows  that  the  people  in  the  district  affected  desire  to  be 
set  off  as  ordered,  and  it  is  the  duty  of  the  school  authorities  to  respect  such 
desire  so  far  as  reasonably  practicable. 

In  view  of  these  considerations,  the  appeal  must  be  dismissed,  the  stay  of 
proceedings  granted  by  me  upon  the  29th  day  of  April  1886,  must  be  revoked, 
and  the  orders  respectively  appealed  from  affirmed. 


5460 

In  the  matter  of  the  appeal  of  David  C.  Warner  and  another  from  the  acts  and 
decisions  of  the  board  of  trustees  of  the  village  of  Endicott  and  Erwin  B. 
Whitney,  school  commissioner  for  the  second  district  of  Broome  county. 

Division  of  union  free  school  district.  It  is  only  where  the  entire  territory  of  a  village 
is  within  a  union  free  school  district  that  the  board  of  trustees  of  such  village  is 
authorized  by  subdivision  i  of  section  130  of  the  Education  Law  of  1909  to  call  a 
special  meeting  of  the  electors  of  such  village  to  determine  whether  such  village  shall 
be  separated  from  another  village  and  established  as  a  union  free  school  district.  Such 
section  does  not  apply  to  the  village  of  Endicott. 

Decided  June  23,  1910 

Thomas  A.  McClary,  attorney  for  appellants 
Frank  M.  Hays,  attorney  for  respondents 

Draper,  Commissioner 

The  appellants  are  members  of  the  board  of  education  of  union  free  school 
district  no.  i,  town  of  Union.  Such  district  comprises  nearly  the  entire  portion  of 
the  territory  of  the  incorporated  villages  of  Union  and  Endicott.    The  trustees  of 


JUDICIAL  decisions:     union  free  school  districts  1339 

the  village  of  Endicott  called  a  special  meeting  of  the  voters  of  such  village  to 
determine  whether  that  portion  of  such  union  free  school  district  comprising  such 
village  should  not  be  separated  from  such  district  and  form  a  separate  union  free 
school  district  with  limits  corresponding  with  the  limits  of  such  village.  Such 
meeting  was  duly  held  and  a  proposition  in  favor  of  such  separation  was  adopted. 
The  school  commissioner  of  the  second  commissioner  district  of  the  county  of 
Broome  thereupon  called  a  special  meeting  of  the  new  district  to  elect  members 
of  a  board  of  education  for  such  district.  The  appellants  appealed  from  the 
action  of  the  trustees  in  calling  such  special  meeting  and  also  from  the  action  of 
the  school  commissioner  in  calling  a  special  meeting  for  the  election  of  members 
of  the  board  of  education  of  the  new  district. 

The  only  question  involved  in  this  appeal  is  as  to  the  interpretation  of  sub- 
division I  of  section  130  of  the  Education  Law  as  amended  by  chapter  140  of 
the  Laws  of  1910.  It  is  agreed  by  both  the  appellants  and  respondents  that  the 
entire  territory  of  the  village  of  Endicott  is  not  within  the  union  free  school 
district  no.  I.  A  small  portion  of  the  territory  of  the  village  is  within  school 
district  no.  2  of  the  town  of  Union.  The  respondents  contend  that  the  portion 
without  the  district  is  so  small  that  it  would  be  unjust  to  compel  a  strict  com- 
pliance with  the  terms  of  the  statute.  The  statute  provides  that  "'  the  board  of 
trustees  of  any  village  whose  entire  territory  is  within  such  district  may  call  a 
special  meeting  of  the  voters  "  to  determine  as  to  whether  such  village  shall  be 
separated.  It  is  only  where  the  entire  territory  of  the  village  is  within  a  school 
district  that  the  board  of  trustees  of  such  village  may  call  such  a  special  meeting. 
In  the  absence  of  a  compliance  with  these  requirements  the  board  of  trustees  has 
no  jurisdiction.  It  is  not  sufficient  to  show  that  there  has  been  a  substantial  com- 
pliance with  these  requirements.  It  must  be  held  that  the  section  referred  to 
does  not  apply  to  the  village  of  Endicott  and  that  therefore  the  action  taken  by 
the  trustees  of  such  village,  and  the  subsequent  action  by  the  school  commissioner, 
were  illegal.     The  appeal  is  therefore  sustained. 

It  is  hereby  ordered,  That  all  the  acts  of  the  board  of  trustees  of  the  village 
of  Endicott  in  calling  a  meeting  of  the  electors  of  such  village  to  determine 
whether  such  village  shall  withdraw  from  union  free  school  district  no.  i,  town  of 
Union,  and  form  a  separate  union  free  school  district  and  the  acts  of  the  special 
meeting  held  for  that  purpose  on  the  7th  day  of  May  1910  in  voting  upon  a 
proposition  to  separate  from  such  union  free  school  district  and  form  a  new 
union  free  school  district,  are  hereby  set  aside  and  declared  of  no  effect. 

It  is  hereby  further  ordered,  That  all  the  acts  of  Erwin  B.  Whitney  as 
school  commissioner  of  the  second  commissioner  district  of  Broome  county,  in 
designating  such  village  of  Endicott  as  a  union  free  school  district  no.  19  of  the 
town  of  Union,  and  in  calling  for  a  special  meeting  of  the  inhabitants  of  such 
union  free  school  district  no.  19,  town  of  Union,  for  the  purpose  of  electing  a 
board  of  education  for  such  district,  and  the  acts  of  the  meeting  of  the  electors 
of  such  district  held  on  the  2d  day  of  June  1910,  in  electing  members  of  a  board 
of 'education  of  such  district  and  in  transacting  other  business  at  such  meeting, 
are  hereby  set  aside  and  declared  of  no  effect. 


1340  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

4381 

In  the  matter  of  the  appeal  of  Charles  H.  Brown  v.  Walter  S.  AUerton,  school 
commissioner,  first  commissioner  district  Westchester  county. 

In  an  appeal  taken  from  the  action  of  a  school  commissioner  vacating  a  preliminary  order 
made  by  him  for  the  alteration  of  two  union  free  school  districts  by  setting  off  certain 
territory  from  one  of  the  districts  and  annexing  it  to  the  other,  it  appearing  that  one 
of  said  districts  had  an  outstanding  bonded  indeljtedness ;  held,  that  the  commissioner 
properly  vacated  his  preliminary  order,  the  school  law  prohiljiting  him  from  altering  or 
dividing  any  school  district  that  had  a  bonded  indebtedness  outstanding. 

Decided  October  2,  1895 

William  P.  Fiero,  attorney  for  appellant 
Jared  Sand  ford,  attorney  for  respondent 

Skinner,  Superintendent 

On  April  27,  1895,  Walter  S.  Allerton  as  school  commissioner  of  the  first 
commissioner  district  of  Westchester  county,  made  upon  application  by  petition, 
a  preliminary  order,  setting  off  certain  lands  and  territory  therein  described, 
from  union  free  school  district  no.  3,  town  of  East  Chester,  Westchester  county, 
annexing  the  same  to  union  free  school  district  no.  2,  town  of  East  Chester, 
Westchester  county ;  that  the  trustees  or  board  of  education  of  said  district  no.  3, 
refused  to  consent  to  said  alteration;  that  said  order  was  not  to  take  effect  as 
to  said  district  no.  3,  until  the  31st  day  of  July  1895;  that  on  May  20,  1895, 
after  a  hearing  had  been  had,  said  commissioner  vacated  said  preliminary  order 
made  by  him  on  said  April  27,  1895. 

The  main  ground  on  which  said  commissioner  set  aside  said  order  of  April 
~7>  i895>  was  that  as  said  district  no.  2  has  a  bonded  indebtedness  outstanding, 
amounting  to  several  thousand  dollars,  under  the  school  law  such  district  could 
not  be  altered  or  divided. 

The  appellant,  Brown,  appealed  from  said  order  of  May  20,  1895. 

John  Fisher  and  others,  members  of  the  board  of  education  of  union  free 
school  district  no.  3  have  answered  said  appeal. 

The  fact  is  established  by  the  papers  presented  in  this  appeal  that  said 
union  free  school  district  no.  2  had  on  April  27,  and  May  20,  1895,  a  bonded 
indebtedness  outstanding  amounting  to  $4000. 

By  section  30,  article  5,  title  8,  of  the  Consolidated  School  Law  of  1894, 
chapter  556  of  the  Laws  of  1894,  it  is  enacted  that  school  commissioners,  having 
jurisdiction,  may  alter  any  union  free  school  district  whose  limits  do  not  corre- 
spond to  those  of  any  incorporated  village  or  city,  in  the  manner  provided  by 
title  6  of  said  act;  but  no  such  district  shall  be  altered  or  divided  upon  which 
there  is  an  outstanding  bonded  indebtedness. 

Title  6  of  said  Consolidated  School  Law  of  1894,  relates  to  school  districts; 
the  formation,  alteration  and  dissolution  thereof. 

Section  6,  of  said  title  6,  enacts  that  a  school  commissioner,  having  juris- 
diction, may  alter  the  boundaries  of  any  union  free  school  district  whose  limits 


JUDICIAL  decisions:     union  free  school  districts  1341 

do  I'.-t  correspond  to  those  of  any  city  or  incorporated  village;  in  like  manner 
as  alteration  of  common  school  districts  may  be  made  as  therein  provided;  but 
no  school  district  shall  be  altered  or  divided  which  has  any  bonded  indebtedness 
outstanding. 

This  Department  has  uniformly  decided  that  the  slightest  change  of  the 
boundaries  of  a  school  district  is  an  alteration  of  said  district. 

Under  the  preliminary  order  of  April  27th  certain  territory  was  set  off  from 
said  union  free  school  district  no.  3,  and  annexed  to  union  free  school  district  no. 
2.  Said  order,  or  any  order  confirmatory  thereof,  would  alter  the  boundaries  of 
said  district  no.  3,  and  would  as  surely  alter  the  boundaries  of  said  district  no.  2. 
The  alteration  of  the  boundaries  of  said  district  no.  2  by  said  school  commis- 
sioner, is  prohibited  by  the  provisions  of  the  Consolidated  School  Law  of  1894, 
above  cited,  so  long  as  said  district  has  any  bonded  indebtedness  outstanding. 

Commissioner  Allerton  very  properly  vacated  his  preliminary  order  of 
April  2'],  1895. 

The  appeal  herein  is  dismissed,  and  the  order  of  said  commissioner  of  May 
20,  1895,  vacating  his  said  preliminary  order  of  April  27,  1895,  appealed  from, 
is  confirmed. 


4253 

In  the  matter  of  the  appeal  of  Andrew  J.  French  and  others,  board  of  educa- 
tion of  union  free  school  district  no.  25,  Lenox,  Madison  county  v.  Lincoln 
A.  Parkhurst,  school  commissioner,  second  commissioner  district  of  ]\Iadison 
county,  and  others. 

Where  a  school  commissioner  or  school  commissioners  make  a  preliminary  order  altering 
the  boundaries  of  certain  school  districts  without  the  consent  of  the  trustees  of  some 
one  or  more  of  the  districts,  and  a  local  board  is  held  and  a  hearing  had  by  the  parties 
interested  and  such  local  board  by  a  tie  vote  fails  to  confirm  the  preliminary  order, 
said  order  will  be  void  and  of  no  effect,  and  the  whole  proceedings  will  fall.  A  pre- 
liminary order  is  inchoate  and  of  no  effect  whatever  until  confirmed  by  the  local  board. 
The  remedy  of  the  parties  aggrieved  l)y  the  failure  of  the  local  board  to  confirm  the 
preliminary  order,  is  not  by  appeal  to  this  Department  but  by  commencing  the  pro- 
ceedings anew. 

Decided  June  27,  1894 

R.  J.  Fish,  attorney  for  appellants 

Crooker,  Superintendent 

On  r.nd  prior  to  December  26,  1893,  there  was  a  school  district  known  as 
union  free  school  district  no.  25,  situated  in  the  town  of  Lenox,  county  of  Madi- 
son, and  within  the  second  commissioner  district  of  Madison  county,  of  which 
Daniel  Keating  was  then  the  school  commissioner.  There  was  also  a  school 
district  known  as  joint  union  school  district  no.  8,  situated  in  the  town  of  \'ernon, 
Oneida  county,  and  town  of  Lenox,  Madison  county,  and  within  said  second 


1342  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

commissioner  district  of  Madison  county  and  the  second  commissioner  district 
of  Oneida  county ;  that  Fred.  E.  Payne  was  then  the  school  commissioner  in 
said  second  commissioner  district  of  Oneida  county. 

That  on  said  December  26,  1893,  the  said  school  commissioners,  Keating 
and  Payne,  made  a  first  or  preliminary  order  upon  the  consent  in  writing  of  the 
trustees  or  members  of  the  board  of  education  of  said  union  free  school  district 
no.  25,  town  of  Lenox,  Madison  county,  the  trustees  of  said  joint  union  school 
district  no.  8,  of  Vernon,  Oneida  county,  and  Lenox,  Madison  county,  having 
refused  to  consent,  altering  the  boundaries  of  said  school  district  by  setting  off 
certain  lands  described  in  said  order  from  said  joint  union  school  district  no.  8, 
and  annexing  the  same  to  said  union  free  school  district  no.  25,  said  order  to 
take  effect  on  March  27,  1894. 

That  said  school  commissioners,  by  a  paper  signed  by  them  and  dated 
December  28,  1893,  addressed  to  the  trustees  of  said  school  districts,  gave  notice 
to  such  trustees  of  said  order  made  by  them  on  December  26,  1893,  altering 
said  districts,  and  of  the  filing  of  said  order  in  the  offices  of  the  town  clerks  of 
the  towns  of  Vernon  and  Lenox,  respectively,  and  a  copy  of  which  order  was 
annexed  to  said  notice;  and  also  notified  said  trustees  that  on  January  10,  1894, 
at  ten  o'clock  in  the  forenoon  of  that  day,  at  the  office  of  R.  J.  Fish,  in  Oneida, 
in  said  town  of  Lenox,  they  (said  commissioners)  or  their  successors,  would 
attend  and  hear  objections  to  said  order  and  said  alterations;  said  trustees  were 
also  notified  that  they  might  request  the  supervisor  and  town  clerk  of  the  town 
or  towns  within  which  their  school  district  did  wholly  or  partly  lie,  to  be 
associated  with  said  commissioners  or  their  successors  at  such  time  and  place 
for  the  purpose  of  confirming  or  vacating  said  order. 

That  on  January  10,  1894,  Lincoln  A.  Parkhurst,  school  commissioner  for 
the  second  commissioner  district  of  Madison  county,  the  successor  in  office  of 
said  Keating,  one  of  the  commissioners  who  made  said  first  or  preliminary  order, 
and  Frederick  P.  Peirce,  school  commissioner  for  the  second  commissioner  dis- 
trict of  Oneida  county,  the  successor  in  office  of  said  Payne,  the  other  one  of 
the  commissioners  who  made  said  first  or  preliminary  order,  met  at  the  office  of 
said  R.  J.  Fish,  in  the  village  of  Oneida,  and  at  said  time  and  place  also  appeared 
Francis  Stafford,  supervisor,  and  R.  R.  Niles,  town  clerk  of  the  town  of  Lenox, 
Madison  county,  and  James  Brown,  supervisor,  and  Ora  Judson,  town  clerk  of 
the  town  of  Vernon,  Oneida  county,  who  were  associated  with  said  Commis- 
sioners Parkhurst  and  Peirce,  and  together  formed  a  local  board  to  hear  objec- 
tions to  the  said  alterations  of  said  school  district,  and  to  decide  upon  the  matter. 
That  said  local  board  heard  the  statements,  proofs  and  arguments  presented  upon 
both  sides  of  the  matter,  and  proceeded  to  vote  upon  a  motion  duly  made  and 
seconded,  that  said  first  or  preliminary  order  made  on  December  26,  1893,  by 
said  Commissioners  Keating  and  Payne  be  confirmed,  with  the  following  result, 
namely,  Messrs  Parkhurst,  Stafford  and  Niles  voted  to  confirm  said  order  and 
Messrs  Peirce,  Brown  and  Judson  voted  against  confirmation. 


JUDICIAL  decisions:     union  free  school  districts  1343 

The  appeal  herein  is  taken  by  the  board  of  education  of  union  free  school 
district  no.  25,  Lenox,  Madison  county,  from  said  action  and  decision  of  said 
local  board,  and  the  appellants  ask  that  said  first  or  preliminary  order  of  Decem- 
ber 26,  1893,  be  confirmed  by  me  and  that  the  alterations  of  said  school  districts 
as  described  in  said  order  be  made. 

By  title  6  of  the  Consolidated  School  Act  of  1864  and  the  amendments 
thereof  the  power  and  authority  to  form,  alter  and  dissolve  school  districts 
are  given  to  school  commissioners.  The  jurisdiction  of  a  school  commissioner 
to  form,  alter  or  dissolve  school  districts  extended  only  over  his  own  commis- 
sioner district.  When  it  becomes  necessary  for  him  to  act  in  this  matter  over 
territory  extending^  beyond  the  limits  of  his  conmiissioner  district  he  must  act 
jointly  whh  the  other  commissioner  or  commissioners. 

Section  2  of  title  6  provides  that  "  with  the  written  consent  of  the  trustees 
of  all  the  districts  to  be  afifected  thereby  he  may,  by  order,  alter  any  school 
district  within  his  jurisdiction  and  fix  by  said  order  a  day  when  the  alteration 
shall  take  efl:'cct." 

Under  this  section  a  school  commissioner  who  has  received  the  written 
consent  of  the  trustees  of  all  the  districts  to  be  afifected  may  proceed  to  alter 
any  school  district  or  districts  within  his  jurisdiction  by  drawing,  signing  and 
filing  his  order,  making  such  alteration  or  alterations  and  reciting  in  such  order 
that  such  consents  have  been  given,  and  such  written  consents  should  be 
attached  to  and  made  a  part  of  such  order.  The  order  made  under  this  section 
(2)  must  be  filed  in  the  oftice  of  the  clerk  of  the  town  or  towns  in  which  the 
school  district  or  districts  afifected  by  such  order  is  or  are  situated,  and  said 
order  when  so  made  may  take  eflfect  immediately,  or  at  some  future  day,  as  the 
school  commissioner  making  such  order  may,  in  his  judgment,  consider  the 
best  time  for  all  interested. 

When  such  an  order  is  made,  signed  and  filed  under  the  provisions  of  said 
section  2  the  alteration  of  the  school  district  or  districts,  as  stated  therein, 
becomes  operative,  fixed  and  completed  on  and  from  the  date  or  period  named 
in  said  order  when  it  should  take  eflfect,  and  said  district  or  districts  are  in 
fact  and  in  law  altered  and  changed  pursuant  to  the  terms  of  said  order  with- 
out any  further  order,  action  or  proceeding  in  said  matter  by  said  school  com- 
missioners or  any  other. 

A  joint  district  can  be  altered  under  said  section  2  by  the  joint  action  or 
order  of  the  school  commissioners,  or  a  majority  of  them,  in  whose  districts 
the  school  district  or  districts  to  be  altered  lie.  Any  person  conceiving  himself 
aggrieved  in  consequence  of  any  decision  made  by  any  school  commissioner 
by  such  order  as  aforesaid,  altering  any  school  district  or  districts,  or  school 
commissioners  altering  any  joint  school  district  or  districts,  under  the  pro- 
visions of  said  section  2,  may  appeal  to  the  Superintendent  of  Public  Instruc- 
tion from  said  order ;  and  said  Superintendent  may  dismiss  the  appeal  and 
confirm  the  order  or  sustain  the  appeal  and  vacate  the  order. 


1344  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

If  the  trustees  of  any  district  to  be  effected  refuse  to  consent  to  an  order 
by  any  school  commissioner,  or  of  the  school  commissioners,  or  a  majority  of 
them,  in  the  alteration  of  a  joint  district,  the  course  of  procedure  is  different 
from  that  under  said  section  2.     (See  sections  3  and  4  of  title  6,  school  laws.) 

Under  said  sections  3  and  4  the  school  commissioner  or  commissioners  or 
a  majority  of  them,  may,  although  the  trustees  of  any  such  district  refuse  to 
consent,  make  and  file  with  the  town  clerk  or  town  clerks,  his  or  their  order 
making  the  alteration,  but  reciting  such  refusal,  and  directing  that  the  order 
shall  not  take  effect,  as  to  the  dissenting  districts  or  district,  until  a  day  therein 
to  be  named,  and  not  less  than  three  months.  As  it  is  impossible,  in  a  great 
majority  of  cases,  to  make  the  same  order  take  eft'ect  at  different  times,  this 
Department  has  uniformly  held  that  the  commissioner  or  commissioners  should 
fix  a  date  when  the  whole  order  will  take  effect,  which  date  shall  not  be  less 
than  three  months  from  the  date  of  said  order.  It  will  be  seen  that  the  object 
of  filing  such  order  is  not  to  put  on  record  a  completed  act,  but  to  enable 
interested  persons  to  ascertain  the  character  of  the  proposed  alterations  in  time 
to  be  heard  concerning  them.  After  such  order  is  made  and  filed,  it  is  the  duty 
of  the  commissioner  or  commissioners,  making  such  order,  to  give  at  least  a 
week's  notice  in  writing  to  the  trustees  of  all  the  districts  affected  by  the  pro- 
posed alteration,  and  such  notice  must  state  that  he  has,  or  they  have,  made  an 
order  of  alteration  and  reciting  such  order,  and  that  at  a  stated  time  and  place 
within  the  town  in  which  either  of  the  districts  to  be  affected  lies,  he  or  they 
will  hear  the  objections  to  the  alteration.  Section  4  also  provides  that  the 
trustees  of  any  district  to  be  affected  by  such  order  may  request  the  supervisor 
and  town  clerk  of  the  town  or  towns  within  which  such  district  or  districts 
shall  wholly  or  partly  lie,  to  be  associated  with  the  said  commissioner  or 
commissioners.  Such  notice  of  the  time  and  place  of  hearing  should  also  inform 
such  trustees  that  they  may  request  such  supervisor  and  town  clerk  to  be  asso- 
ciated with  such  commissioner  or  commissioners.  The  trustees,  having  received 
such  notice,  may  request  the  supervisor  and  town  clerk  of  the  town  or  towns 
in  which  their  respective  districts  lie  to  be  associated  with  the  commissioner  or 
commissioners  at  the  time  and  place  mentioned  in  said  notice  for  the  hearing  of 
objections,  and  such  request  should  be  in  writing  and  each  supervisor  and 
town  clerk  should  present  such  request  with  proof  of  service  to  the  commis- 
sioner or  commissioners,  so  as  to  estabHsh  their  jurisdiction  to  act.  Such 
commissioner  or  commissioners  and  town  officers  attending  form  what  is  com- 
monly known  as  the  "  local  board."  The  absence  of  the  town  officers  from  the 
board  will  not  prevent  the  commissioner  or  commissioners  from  acting,  or 
invalidate  the  proceedings  taken  by  him  or  them  at  the  time  fixed  for  the  hear- 
ing of  objections,  otherwise  regular;  but  if  the  commissioner  or  commissioners 
do  not  attend,  the  town  officers  are  not  authorized  by  law  to  make  any  order  in 
the  premises,  and  the  preliminary  order  must  fall.  If  the  commissioner  or 
commissioners  fails  or  fail  to  attend  at  the  time  appointed  he  or  they  may  give 
notice,  specifying  another  day  and  place  of  meeting  not  later  than  three  months 


JUDICIAL   DECISIONS:       UNION    FREE    SCHOOL   DISTRICTS  1 345 

aftT  the  final  notice.  The  proofs  and  arguments  for  and  against  the  proposed 
alteration  are  to  be  made  before  the  board,  each  member  of  which  has  a  vote 
upon  the  question  of  confirming  or  vacating  the  preliminary  order  of  the  com- 
missioner or  commissioners,  and  if  they  decide  by  a  majority  vote  to  vacate 
such  order  the  whole  matter  terminates  with  such  decision,  the  whole  proceed- 
mgs  fall  and  such  preliminary  order  is  void  and  of  no  effect.  If  said  board, 
however,  decides  by  a  majority  vote  to  confirm  said  preliminary  order  it  becomes 
necessary  for  the  commissioner  or  commissioners  to  make  and  file  the  final  or 
confirmatory  order,  or  the  order  of  alteration.  The  hoard  does  not  make  the 
alteration;  this  the  commissioner  or  commissioners  must  do,  the  board  uniting 
with  them  in  the  order,  such  order  reciting  the  first  or  preliminary  order  and 
all  proceedings  taken  thereafter,  including  the  actions  of  the  local  board  and 
concluding  with  the  final  order  or  alteration  made  by  the  commissioner  or 
commissioners.  A  record  of  the  action  of  the  local  board  must  be  filed  with 
and  recorded  by  the  town  clerk  of  the  town  or  towns  in  which  the  district  or 
districts  to  be  aft'ected  shall  lie. 

It  clearly  appears  that  in  the  alteration  of  school  districts,  under  sections  3 
and  4  of  title  6  of  the  school  law  (that  is,  where  all  the  trustees  of  the  districts 
affected  do  not  consent)  that  the  first  or  preliminary  order  made  by  the  com- 
missioner or  commissioners  is  inchoate  and  of  no  effect  whatever  until  the  same 
has  been  duly  confirmed  by  the  local  board,  and  that  the  alteration  of  the  district 
or  districts  is  made  ^v  the  confiruiatory  order  only;  that  when  the  local  board 
fails  by  a  majority  vote  to  confirm  the  first  order,  the  first  order  will  be  void 
and  of  no  effect,  and  the  whole  proceedings  fall. 

Superintendent  Draper  said,  in  appeal  no.  3512,  decided  July  24,  1886, 
upon  the  presentation  of  the  question  as  to  when  or  by  which  order  the  altera- 
tion takes  eft'ect  (in  proceedings  under  sections  3  and  4,  title  7),  "A  long  line  of 
decisions  upon  this  point,  in  which  the  effect  of  the  two  orders,  provided  for 
in  cases  similar  to  the  one  here,  are  ably  discussed,  strengthens  me  in  the  con- 
clusion that  the  preliminary  order  provided  for' in  section  3  is  inchoate  and  of  no 
effect  whatever  until  the  same  has  been  duly  confirmed  as  provided  for  in  sec- 
tion 4.  .  .  .  The  confirmatory  order  is  the  one  by  which  the  alteration  of 
the  districts  is  affected,  and  the  first  order,  merely  preliminary,  being  in  fact  but 
one  step  in  the  procedure  for  the  alteration,  and  if  not  followed  by  the  subsequent 
statutory  rec|uirements,  it  is  void." 

I  concur  with  the  views  of  Superintendent  Draper. 

In  the  appeal  herein  there  is  no  dispute  as  to  the  fact  relative  to  the  pro- 
ceedings taken  by  Commissioners  Keating  and  Payne,  nor  is  there  any  claim 
but  that  their  proceedings  and  that  of  the  local  board  were  regular  and  in  con- 
formity to  the  provisions  of  the  school  law.  The  vote  of  the  members  consti- 
tuting such  local  board  upon  a  motion  that  the  first  or  preliminar}'  order  of 
said  Commissioner  Keating  and  Commissioner  Payne  be  confirmed,  was  a  tie,  three 
members  voting  for  and  three  against  the  motion,  and  hence  the  motion  was  lost, 
and  the  local  board  failed  to  confirm  said  first  or  preliminary  order;  no  con- 
43 


1346  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

firmatory  order,  or  any  order  making  said  alterations  was  or  could  be  made,  and 
said  first  or  preliminary  order  became  void  and  of  no  effect,  and  the  entire  pro- 
ceedings relative  to  the  alteration  of  said  school  districts  went  down.  The  tie 
vote  was  as  effective  in  defeating  the  motion  to  confirm  the  first  order  as  though 
a  clear  majority  of  the  members  of  said  local  board  had  voted  against  the  motion. 

The  contention  on  the  part  of  the  appellants  herein  is,  that  by  the  action 
of  the  local  board  it  was  practically  a  decision  refusing  to  confirm  the  order  of 
Commissioners  Keating  and  Payne,  and  that  under  section  i  of  title  12  of  the 
school  law,  an  appeal  would  lie  to  me  from  such  action,  and  that  otherwise 
there  would  be  no  remedy  in  such  a  case.  This  contention  is  not  well  taken. 
Had  the  local  board  made  a  confirmatory  order,  that  is,  an  order  altering  said 
districts  in  the  manner  stated  in  the  preliminary  order  of  Commissioner  Keat- 
ing and  Commissioner  Payne,  an  appeal  would  lie  to  me  under  section  i  of  title 
12  of  the  school  law.  The  failure  to  adopt  the  motion  to  confirm  such  prelimi- 
nary order  was  practically  the  adoption  of  a  motion  not  to  confirm,  or  to  vacate 
such  preliminary  order,  and  such  preliminary  order  thereby  became  void  and 
of  no  effect,  the  whole  proceedings  for  the  alteration  of  such  districts  went  down 
and  no  appeal  therefrom  to  me  would  lie.  The  parties  favoring  such  altera- 
tion have  a  remedy,  to  wit,  by  the  commencement  anew  of  proceedings  to  alter. 
Assuming,  however,  for  the  purpose  of  argument,  that  the  local  board  did  decide 
not  to  make  an  order  altering  said  district  and  that  an  appeal  would  lie  to  me 
from  such  decision,  I  am  of  the  opinion,  upon  the  facts  presented  in  this  appeal, 
that  there  was  no  undue  exercise  of  discretion  and  power  on  the  part  of  said 
board,  which  authorizes  the  interposition  of  this  Department. 

It  appears  that  joint  district  no.  8,  towns  of  Vernon,  Oneida  county,  and 
Lenox,  Aladison  county,  has  an  aggregate  assessed  valuation  of  about  $412,000 
with  220  children  of  school  age;  that  it  has  two  schoolhouses  and  that  although 
there  is  no  academic  department  in  the  school  conducted  in  said  district,  such 
schools  are  of  a  fair  grade;  that  said  district  is  abundantly  able  financially,  to 
furnish  ample  school  facilities  for  all  scholars  within  its  limits;  that  under  the 
school  law  the  voters  of  the  district  and  its  trustees  have  full  authority  to  fur- 
nish such  facilities,  and  it  does  not  affirmatively  appear  that  there  is  any  want 
of  disposition  on  their  part  to  do  so ;  that  there  is  in  said  district  a  tract  of  land 
known  as  the  "  Jenkins  farm  "  containing  about  eighty  acres,  of  the  aggregate 
assessed  valuation  of  about  $51,000,  and  upon  which  there  are  residing  about 
twenty-four  children  of  school  age;  that  it  was  proposed  by  the  order  of  Com- 
missioners Keating  and  Payne  to  set  off  from  said  district  and  annex  to  district 
no.  23,  of  Lenox,  Madison  county;  that  said  children,  if  said  territory  was  set 
off,  would  have  substantially  the  like  distance  to  travel  in  attending  school  that 
they  now  travel ;  that  if  such  transfer  should  be  made  it  would  reduce  the 
^ggi'egate  assessed  value  of  the  property  in  joint  district  no.  8,  by  one-eighth, 
and  leave  the  district  about  twenty  children  for  which  to  provide  school  facilities ; 
that  aside  from  the  persons  residing  on  said  Jenkins  farm,  no  other  residents 
of  the  district  are  in  favor  of  such  transfer.     It  appears  that  union  free  school 


JUDICIAL  decisions:     union  free  school  districts  1347 

district  no.  25,  of  Lenox,  has  an  aggregate  assessed  valuation  of  about  $1,400,000, 
with  about  900  children  of  school  age;  that  it  has  two  large  school  buildings, 
with  an  academic  department;  that  it  is  abundantly  able,  fniancially,  to  furnish 
ample  school  facilities  for  all  scholars  within  its  limits,  as  well  as  such  nonresi- 
dent pupils  as  may  desire  to  attend  the  schools  therein.  It  appears  that  the  pro- 
ceedings to  acquire  additional  territory  by  the  addition  of  the  Jenkins  farm 
were  instituted  by  the  board  of  education  of  said  district  no.  26.  It  is  apparent 
that  said  district  would  be  financially  benefited  by  the  proposed  alteration  of  the 
district,  and  that  said  joint  district  no.  8  be  financially  injured,  but  it  is  not 
apparent  that  the  educational  interests  of  cither  district  would  be  promoted 
thereby,  or  of  any  considerable  number  of  pupils  of  school  age  residing  in 
either  district. 

It  may  be  that  some  alteration  of  the  boundaries  of  said  districts  may 
be  made  that  would  be  advantageous  to  the  educational  interests  of  both  dis- 
tricts; but  I  am  convinced  that  the  alterations  as  proposed  in  the  preliminary 
order  of  Commissioners  Keating  and  Payne  would  not  produce  such  a  result. 
The  appeal  here  should  be  dismissed. 

Appeal  dismissed. 


4170 

In  the  matter  of  the  appeal  of  Charles  Kneale,  trustee,  school  district  no.  2,  Horse- 
heads,  Chemung  county,  v.  John  T.  Smith,  school  commissioner,  Chemung 
county. 

While  it  is  the  settled  policy  of  this  Department  to  favor  the  consolidation  of  weak  and 
inefficient  districts  it  is  not  its  policy  to  dissolve  a  strong  district  against  the  almost 
unanimous  wish  of  the  district,  such  district  hcing  able  to  maintain,  and  which  has 
maintained  and  is  ready  to  maintain  a  good  school,  and  consolidate  the  territory  with 
that  of  another  strong  district  requiring  the  taxable  property  of  the  dissolved  district 
to  bear  tlie  burden  of  three-tenths  of  a  bonded  indebtedness  of  $17,000  of  the  district 
to  which  the  territory  of  the  dissolved  district  is  annexed  and  in  the  creation  of  which 
indebtedness  the  dissolved  district  had  no  voice  and  in  addition  to  paying  three-tenths 
of  the  increased  annual  expense  incident  to  conducting  the  school;  held,  that  an  appeal 
from  an  order  of  a  school  commissioner,  dissolving  and  annulling  school  district  no.  2 
of  the  town  of  Horscheads  and  directing  that  the  territory  comprising  said  annulled 
and  dissolved  district  be  annexed  to  union  free  school  district  no.  10  of  the  town 
of  Horseheads,  be  sustained  and  the  order  of  the  commissioner  vacated. 

Decided  April  21,  1893 

Reynold,  Stanchfield  &  Collin,  attorneys  for  appclhint 
W.  L.  Daily,  attorney  for  respondent 

Crooker,  Superintendent 

This  is  an  appeal  from  the  order  of  John  T.  Smith,  school  commissioner 
of  the  only  school  commissioner  district  of  Chemung  county,  dissolving  and 
annulling  school  district  no.  2  of  the  town  of  Horseheads;  and  also  from  an 


1348  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

order  of  said  Smith  dissolving  and  annulling  said  school  district  no.  2,  and  direct- 
ing that  the  territory  comprising  said  annulled  and  dissolved  district  be  annexed 
to,  consolidated  with  and  made  a  part  of  union  free  school  district  no.  10,  of 
the  town  of  Horseheads ;  and  that  said  union  free  school  district  be  composed 
of  the  territory  described  in  said  order,  and  also  from  the  order  of  the  said 
Smith  and  the  supervisor  and  town  clerk  of  the  town  of  Horseheads,  confirming 
said  former  orders  of  said  Smith. 

From  the  proofs  presented  it  appears : 

That  in  January  1892,  there  existed  in  the  town  of  Horseheads,  Chemung 
county,  a  common  school  district  known  as  district  no.  2,  of  which  district  the 
appellant  herein  was  the  sole  trustee.  That  said  district  was  organized  many 
3'ears  since  and  comprises  within  its  boundaries  territory  within  and  without  the 
corporate  limits  of  the  village  of  Horseheads,  in  the  town  of  Horseheads.  That 
said  district  owns  a  schoolhouse  site  of  about  an  acre  and  one-half  in  extent,  well 
fenced,  the  surface  of  the  ground  well  cleaned  and  cared  for,  and  which  site  is 
situated  substantially  in  the  center  of  said  district.  That  upon  said  site  is  a 
wooden  schoolhouse,  erected  in  1863,  and  built  over  and  repaired  in  1883,  at  an 
expense  of  about  $1800;  said  schoolhouse  is  well  constructed,  in  good  repair,  and 
properly  painted,  and  of  sufficient  capacity  to  seat  seventy  scholars.  That  there 
are  70  children  of  school  age  residing  in  said  district,  and  the  average  attendance 
at  the  school  therein  is  about  50,  said  attendance  increasing  in  numbers  annually. 
That  the  teachers  employed  in  said  school  are  normal  school  graduates,  and  that 
a  school  has  been  maintained  in  said  district  each  year,  for  at  least  the  period 
prescribed  by  the  school  laws,  for  many  years.  That  the  total  assessed  valuation 
of  property  lialile  to  taxation  in  said  district  for  the  year  1891,  was  the  sum  of 
$184,298.94,  and  the  tax  levied  in  said  district  for  school  purposes  was  the  sum 
of  $1  per  thousand,  the  amount  of  tax  being  $186.37.  That  said  district  is  free 
from  debt. 

That  in  January  1892,  there  existed  in  said  town  of  Horseheads,  a  union 
free  school  district  known  as  district  no.  10.  That  said  district  was  constituted 
many  years  since  and  comprised  within  its  boundaries  territory  within  and  with- 
out the  corporate  limits  of  the  village  of  Horseheads,  in  the  town  of  Horseheads. 
That  in  1890,  said  district  purchased  a  lot  of  land  known  as  the  Sayer  lot  for 
a  school  site,  said  lot  being  situated  on  the  westerly  boundary  line  of  said  dis- 
trict, and  in  1891,  erected  a  schoolhouse  thereon  and  furnished  the  same.  That 
said  new  schoolhouse  was  occupied  for  school  purposes  on  January  i,  1892.  That 
the  sum  of  $20,000  was  voted  for  the  construction  and  furnishing  of  said  school- 
house  to  be  paid  in  ten  equal  annual  instalments,  with  interest  payable  annually. 
That  said  schoolhouse  contained  ample  accommodation  for  the  different  depart- 
ments of  said  school,  including  an  academic  department,  and  the  pupils  attending 
the  same,  and  said  school  building  was  sufficient  to  accommodate  pupils  of  the 
district  for  years  to  come.  That  in  January  1892,  the  bonded  indebtedness  of 
said  district  was  about  the  sum  of  $17,000.  That  the  total  assessed  valuation  of 
property  liable  to  taxation  in  said  district  for  the  year  1891,  was  the  sum  of 


JUDICIAL  decisions:     union  free  school  districts  1349 

$444'7'58>  and  the  rate  of  taxation  for  scliool  purposes  was  the  sum  of  $14.70 
per  thousand,  the  amount  of  tax  being  $653(S.74.  That  in  1891,  the  number  of 
children  of  school  age  residing  in  the  district  was  about  470,  and  the  average 
attendance  at  said  school  was  about  338  of  resident,  and  27  of  nonresident  pupils. 
I'hat  the  decrease  in  attendance  of  pupils  between  1873  and  i8yo  was  109.  That 
on  January  29,  1892,  John  T.  Smith,  school  commissioner  of  the  only  school 
commissioner  district  of  Chemung  county,  made  his  order  dissolving  said  district 
no.  2  of  the  town  of  Horseheads,  in  said  county,  and  declaring  the  same  dis- 
solved and  annulled,  said  order  to  take  effect  on  May  20,  1S92,  and  which  order 
was  made  without  the  consent  of  said  school  district;  and  which  order  was  filed 
with  the  town  clerk  of  the  town  of  Horseheads.  That  on  said  January  29,  1892, 
the  said  School  Commissioner  Smith  made  another  order  dissolving  and  annulling 
said  school  district  no.  2.  and  ordering  and  directing  that  the  territory  comprising 
said  annulled  and  dissolved  district  be  annexed  to,  and  consolidated  with,  and 
made  a  part  of,  union  free  school  district  no.  10,  of  said  town  of  Horseheads; 
and  that  said  union  free  school  district  be  composed  of  the  territory  described 
in  said  order ;  and  that  said  consolidated  and  altered  district  be  known  as  union 
free  school  district  no.  2  of  the  town  of  Horseheads,  said  order  to  take  efifect  on 
May  20,  1892;  and  which  order  was  filed  in  the  office  of  the  town  clerk  of  the 
town  of  Horseheads.  That  on  said  January  29,  1892,  said  Commissioner  Smith 
gave  notice,  in  writing,  to  the  trustees  of  di.'^trict  no.  2,  and  union  free  school  dis- 
trict no.  10,  that  on  February  11,  1892,  at  10  o'clock  a.  m.,  at  the  town  hall,  in 
the  town  of  Horseheads  he  would  attend  and  hear  the  objections  to  the  said  pro- 
posed dissolution,  alteration  and  consolidation;  and  that  said  trustees  were  at 
liberty  to  request  the  supervisor  and  town  clerk  to  be  associated  with  him  on 
such  hearing.  That  on  February  10,  1892,  the  said  school  commissioner,  the 
supervisor  and  town  clerk  of  the  town  of  Horseheads  met,  pursuant  to  notice, 
the  trustee  of  district  no.  2,  and  the  trustees  of  district  no.  10  being  present,  and 
said  hearing  was  adjourned  to  March  29,  1892,  and  on  that  day  further  adjourned 
to  April  6,  1892.  That  hearings  were  had  before  said  local  board  on  April  6th 
and  8th.  and  concluded  on  April  25,  1892.  That  at  said  hearing  the  trustees  of 
said  districts  were  present  and  represented  by  counsel  and  a  large  number  of 
witnesses  were  examined.  That  on  April  26,  1892,  said  local  board  made  its 
order  confirming  said  orders  of  said  Commissioner  Smith  and  said  order  was 
filed  with  the  town  clerk  of  the  town  of  Horseheads. 

That  on  May  7,  1892,  a  special  meeting  of  said  district  no.  2  was  held  and 
said  meeting  authorized  and  directed  its  trustee  to  appeal  from  said  orders  of 
Commissioner  Smith  and  said  confirmatory  order,  and  that  on  or  about  May  12, 
1892,  the  appeal  herein  was  brought. 

That  from  the  testimony  taken  in  the  said  hearing  before  the  local  board  it 
vras  established : 

That  the  schoolhouse  in  district  no.  2  is  one  mile  and  thirty-three-one- 
hundredths  from  the  schoolhouse  in  district  no.  10  and  that  the  scholars  residing 
ill  the  western  portion  of  the  district  no.  2  would  be  required  to  travel  from  two 


1350  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

to  two  and  one-half  and  three  miles  to  reach  the  schoolhousc  in  district  no.  lo. 
That  the  roads  scholars  would  be  required  to  travel  are,  in  the  spring  and  fall, 
wet  and  muddy,  and  in  the  winter  are  badly  drifted  with  snow;  that  there  is 
an  absence  of  sidewalk  thereby  rendering  it  necessary  to  use  the  roadway.  That 
such  scholars,  to  attend  said  schoolhouse  in  district  no.  lo,  would  be  required 
to  cross  three  railroads,  namely,  the  New  York,  Lake  Erie  and  Western  twice, 
in  one  place  there  being  three  tracks,  and  in  the  other  two;  the  Northern  Central 
with  four  tracks  at  the  place  where  the  highway  crosses  it;  and  the  Delaware, 
Lackawanna  and  Western  with  two  tracks.  That  said  roads  are  trunk  lines, 
doing  a  large  business,  with  numerous  trains  passing  and  repassing  daily.  That 
with  one  exception,  the  overhead  crossing  of  the  Delaware,  Lackawanna  and 
Western,  all  said  railroads  intersect  the  highway  at  grade,  but  such  overhead 
crossing  is  where  the  road  crosses  the  tracks  of  the  Northern  Central.  That 
the  three  roads  leading  from  various  portions  of  district  no.  2  to  the  schoolhouse 
in  district  no.  10  at  one  point  or  another  crosses  said  railroad  tracks.  That  for 
the  younger  and  smaller  scholars  of  district  no.  2  the  distance  to  reach  the  school 
in  district  no.  10  is  too  great  for  them  to  walk ;  that  it  would  be  to  a  great  degree 
dangerous  to  send  them  alone  across  the  railroad  tracks,  and  it  is  not  feasible  to 
arrange  conveyances  for  their  transportation. 

That  the  inhabitants  and  taxpayers  of  school  district  no.  2  are  practically  a 
unit  in  opposition  to  the  dissolution  of  said  district  and  its  consolidation  with 
district  no.  10  and  are  desirous  of  mantaining  their  district  organization  and 
the  school  therein  as  they  have  done  for  a  great  many  years.  That  no  meeting 
of  the  inhabitants  of  said  district  no.  2  was  called  or  held  to  take  into  considera- 
tion the  question  of  the  consolidation  of  said  district  with  said  district  no.  10, 
nor  does  it  appear  that  any  proposition  was  made  by  district  no.  10  to  district 
no.  2  for  such  consolidation,  at  least,  none  prior  to  January  1892,  and  before  said 
district  no.  10  had  purchased  its  new  school  site,  constructed  a  new  schoolhousc 
and  incurred  an  indebtedness,  of  which  some  $17,000  is  outstanding. 

The  question  presented  upon  the  appeal  is  whether  it  was  advisable  for 
the  respondent  to  make  the  orders  appealed  from,  and  in  making  such  orders 
he  exercised  a  wise  discretion. 

While  it  is  the  settled  policy  of  the  Department  of  Public  Instruction  to 
favor  the  consolidation  of  weak  and  inefficient  districts,  it  is  not  its  policy  to 
dissolve  strong  districts  abundantly  able  to  maintain,  and  which  have  maintained 
and  are  ready  to  maintain,  good  schools,  and  consolidate  the  territory  with"  that 
of  other  strong  districts.  Fifty  years  ago  Superintendent  Young  held:  "The 
Superintendent  of  Public  Instruction  will  reverse  an  order  of  a  town  superin- 
tendent annexing  one  district  to  another,  where  the  inhabitants  of  either  are 
opposed  to  the  union,  and  have  sufficient  means  for  the  support  of  a  school,  it 
being  an  abuse  of  discretion."  He  states  in  his  decision :  "  It  appears  that 
sufficient  importance  has  not  been  given  to  the  facts  that  the  inhabitants  of  dis- 
trict no.  2  almost  unanimously  remonstrated  against  the  proposed  union ;  that 
they  have  every  necessary  facility  within  themselves,  as  at  present  organized,  to 


JUDICIAL  decisions:     union  free  school  districts  1351 

sustain  a  good  school ;  that  for  several  years  past  they  have  done  so,  and  that 
they  do  not  need  any  accession  of  territory,  taxable  property  or  inhabitants; 
that  school  district  no.  19,  so  far  as  wealth  and  children  of  the  proper  age  to 
attend  school  are  concerned,  is  far  more  able  to  keep  up  an  efficient  organization 
than  district  no.  2 ;  but,  in  the  absence  of  such  consent,  and  especially  in  the  face 
of  a  determined  and  unanimous  opposition  to  such  arrangement  on  the  part  of 
one  of  the  districts  proposed  to  be  united,  a  consolidation  could,  in  the  judgment 
of  the  Department,  only  prove  detrimental  to  the  cause  of  education,  and  sub- 
versive of  the  best  interests  of  all  concerned." 

In  appeal  no.  3904,  decided  August  29,  1890,  by  Superintendent  Draper,  he 
states  in  his  decision :  "  The  principal  reason  alleged  by  the  appellants  in  sup- 
port of  their  appeal  is  that  their  children  will  have  to  go  much  farther  to  school. 
It  is  admitted  on  all  sides  that  they  would  certainly  have  to  go  a  half  mile  farther 
than  at  present,  and  that,  in  some  instances,  children  would  have  to  go  two  miles 
and  a  half  to  reach  the  school  in  district  no.  2. 

Both  districts  are  reasonably  strong,  both  in  the  number  of  residents  and  in 
the  value  of  property.  No.  2  is  much  the  stronger.  The  number  of  children 
attending  school  in  this  district  last  year  was  122,  and  the  assessable  valuation 
vvas  $342,500.  The  number  of  pupils  registered  in  no.  3  last  year  was  29,  and 
the  assessable  valuation  $78,900.  Thus,  at  present,  no.  2  stands  in  no  need  of 
the  annexation  of  no.  3,  and  it  seems  to  me  that  no.  3  is  sufficiently  strong  to 
maintain  proper  school  accommodations.  This  being  so,  I  think  it  follows  that 
the  question  upon  the  desire  of  the  majority  of  the  residents  of  district  no.  3,  so 
far  as  there  has  been  any  expression  of  the  desire  of  such  majority,  has  been 
opposed  to  the  consolidation  or  annexation.  It  seems  to  me  advisable,  therefore, 
that  the  order  of  the  commissioner  should  not  be  upheld." 

The  counsel  for  the  respondent  cites  the  decision  of  Superintendent  Draper 
in  appeal  no.  3847,  in  support  of  the  orders  appealed  from.  The  facts  in  that 
appeal  are  different  from  those  presented  in  this  appeal.  In  no.  3847  the  incor- 
porate village  of  Cambridge  was  entirely  within  the  limits  of  the  two  districts; 
the  trustees  of  both  districts  consented  to  the  consolidation ;  there  was  no  claim 
that  any  patron  of  the  school  would  be  seriously  inconvenienced  in  consequence 
of  distance  from  school  building ;  that,  on  a  vote  of  the  inhabitants  of  both  dis- 
tricts, 270  were  in  favor  and  no  opposed  to  consolidation;  that  the  buildings 
used  for  school  purposes  in  both  districts  were  old,  and  without  any  of  the 
modem  improvements  for  heating  and  ventilating,  and  ill  adapted   for  school 

purposes. 

From  the  papers  presented  in  this  appeal  I  am  unable  to  see  how  the  educa- 
tional interests  in  district  no.  2  will  be  promoted  by  a  confirmation  of  the  orders 
appealed  from.  If  such  orders  are  confirmed  the  inhabitants  of  district  no.  2 
will  be  forced,  against  their  unanimous  wish,  into  a  union  with  district  no.  10, 
thereby  compelling  their  children  to  travel  a  much  longer  distance  to  attend  school, 
many  of  them  over  roads  in  bad  condition  and  across  railroad  tracks,  and  requir- 
ing the  taxable  property  to  bear  the  burden  of  three-tenths  of  a  bonded  indebted- 


1352  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

ness  of  $17,000  of  district  no.  10,  in  the  creation  of  which  they  had  no  voice,  in 
addition  to  paying  three-tenths  of  the  increased  annual  expense  incident  to  con- 
ducting the  school.  While  their  educational  interest  will  not  be  promoted,  it  is 
apparent  that  financially  their  burden  will  be  increased.  Nor  do  I  see  how  the 
educational  interests  of  district  no.  10  are  to  be  promoted  by  the  confirmation  of 
said  orders ;  but  it  is  apparent  that,  financially,  it  will  be  benefited  by  the  addition 
of  $184,298  to  the  taxable  property  of  the  district,  without  any  substantial  increase 
in  the  annual  budget  of  the  district. 

The  counsel  for  the  respondent  state  in  their  brief  that  "  the  board  of  educa- 
tion (of  district  no.  10)  has  been  diligent  and  persistent  in  establishing  a  good 
union  free  school  in  the  village."  Upon  such  brief  is  set  out  a  letter  from  Super- 
intendent Draper,  under  date  of  March  27,  1891,  in  reply  to  a  letter  from  the 
clerk  of  said  board,  of  March  18,  1891.  The  letter  set  out  upon  the  brief  is  an 
opinion  to  the  effect  that  if  inhabitants  are  brought  into  a  district  by  annexation, 
and  enjoy  the  benefits  of  the  new  school  building,  there  is  no  valid  reason  why 
they  should  not  bear  their  share  of  taxation  which  will  fall  upon  the  district  for 
the  purpose  of  paying  bonds  which  have  been  issued  for  the  purpose  of  con- 
structing the  new  building. 

The  letter  to  Superintendent  Draper,  to  which  his  is  a  reply,  is  not  set  out ; 
but  by  a  reference  to  such  letter  on  file,  it  appears  that  the  board  of  education 
was,  in  March  1891,  contemplating  enlarging  the  limits  of  district  no.  10.  The  let- 
ter states :  "  What  we  propose  to  do  is  to  enlarge  our  district  so  as  to  take  in  at 
least  that  portion  of  the  adjoining  district  which  is  within  the  corporate  limits  of 
the  village.  .  .  .  This  plan,  to  the  board  of  education,  and  a  large  number  of 
the  residents  of  the  adjoining  district,  seems  practicable,  and  what  ought  to  be  done 
"if  there  is  no  legal  objection  to  this  course."  The  letter  then  submits  the  ques- 
tion as  to  whether  the  residents  of  the  territory  annexed  would  be  liable  to  be 
taxed  for  the  bonds  issued.  To  the  latter  question  Superintendent  Draper  replied, 
but  his  letter  is  silent  as  to  the  question  propounded  relative  to  the  annexation  of 
territory.  It  would  seem,  from  the  letter  of  March  18.  1891,  that  the  board  of 
education,  not  satisfied  with  having  established  a  union  free  school  in  district  no. 
10,  was  contemplating  action  by  which  district  no.  2  would  be  forced  to  receive 
the  benefits  of  such  a  school,  when  the  school  law  leaves  the  formation  of  a  union 
free  school  district  entirely  to  the  qualified  voters  of  the  territory  proposed  to  be 
included  in  such  district. 

Upon  the  papers  presented  in  the  appeal,  I  am  of  the  opinion,  and  it  seems 
to  me  advisable,  that  the  appeal  herein  should  be  sustained  and  the  orders  appealed 
from  vacated. 

The  appeal  is  sustained. 

It  is  ordered.  That  the  order  made  herein  by  John  T.  Smith,  school  commis- 
sioner of  the  only  school  commissioner  district  of  Chemung  county,  on  January 
29,  1892,  dissolving  school  district  no.  2,  of  the  town  of  Horseheads,  Chemung 
county,  to  take  effect  on  May  20,  1892 ;  and  the  order  made  by  said  Commissioner 
Smith  on  January  29,  1892,  dissolving  and  annulling  said  school  district  no.  2 


JUDICIAL  decisions:     union  free  school  districts  1353 

and  ordering  and  directing  that  the  territor>-  comprising  said  annulled  and  dis- 
solved district  be  annexed  to,  consolidated  with  and  made  a  part  of  union  free 
school  district  no.  10,  of  said  town  of  Horseheads ;  and  that  said  union  free  school 
district  be  composed  of  the  territory  described  in  said  order;  and  that  said  con- 
solidated and  altered  district  be  known  as  union  free  school  district  no.  2  of  the 
tov,'n  of  Horseheads,  said  order  to  take  effect  on  May  20,  1892;  and  said  order 
made  on  April  26,  1892,  by  said  Commissioner  Smith,  and  the  supervisor  and 
town  clerk  of  said  town  of  Horseheads,  composing  the  local  board,  confirming 
said  two  orders  of  said  Commissioner  Smith,  each  of  which  orders  was  filed  in 
the  office  of  the  town  clerk  of  the  town  of  Horseheads,  Chemung  county,  are, 
and  each  of  said  orders  is,  hereby  vacated  and  set  aside. 


4451 

In  the  matter  of  the  appeal  of  Alexander  H.  De  Clercq  and  Charles  O.  Niles,  as 
trustees  of  school  district  no.  7,  town  of  Cazenovia,  Madison  county,  from 
decision  of  local  board  in  the  matter  of  the  alteration  of  school  district  no.  7, 
and  union  free  school  district  no.  10,  town  of  Cazenovia,  Madison  county. 

Where  it  clearly  appears  that  the  essential,  if  not  the  only,  ground  of  an  order  taking 
territory  from  one  school  district  and  annexing  it  to  another  is  for  the  purpose  of  the 
equalization  of  the  valuation;  held,  that  to  confirm  such  order  would  be  contrary  to 
public  policy  and  the  rulii:gs  of  this  Department.  While  the  equalization  of  valuations 
may  properly  be  an  element  for  consideration  in  the  alteration  of  school  districts  it 
should  not  be  the  controlling  one.  If  a  wealthy  school  district  desires  to  obtain  a  part 
of  the  territory  of  a  comparatively  weaker  district  for  the  sole  purpose  of  benefiting 
such  wealthy  district  financially  and  such  desire  is  sanctioned  by  this  Department, 
the  result  will  be  a  constant  struggle  for  the  annexation  of  such  territory  and  the 
people  and  the  school  system  would  be  endlessly  involved  in  controversies  in  con- 
sequence thereof. 

Decided  May  18,  1896 

E.  N.  Wilson,  attorney  for  appellants 
M.  H.  Kiley,  attorney  for  respondents 

Skinner,  Superintendent 

On  or  about  December  24,  1895,  Lincoln  A.  Parkhurst,  school  commissioner 
of  the  second  commissioner  district  of  Madison  county,  on  the  consent  in  writing 
of  the  trustees,  constituting  the  board  of  education  of  union  free  school  district 
no.  10  of  the  town  of  Cazenovia,  Madison  county,  the  trustees  of  school  district 
no.  7  of  the  town  of  Cazenovia,  Madison  county,  having  refused  to  consent,  made 
a  preliminary  order  altering  the  boundaries  of  said  school  district  no.  7,  and  con- 
sequently altering  the  boundaries  of  said  union  free  school  district  no.  10,  by 
setting  oft  certain  territory  in  said  order  described  from  said  district  no.  7  to 
said  district  no.  10,  and  which  order  was  to  take  effect  on  April  15,  1896.  That 
on  said  December  24,  1895,  said  School  Commissioner  Parkhurst  gave  notice  in 
writing  to  the  trustees  of  said  districts  nos.  7  and  lO  of  said  order,  and  that  on 
January  7,  1896,  at  10  o'clock  in  the  forenoon,  at  the  office  of  H.  J.  Rouse  in 


1354  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

Cazenovia,  he  or  his  successor  will  attend  and  hear  objections  to  said  order  and 
proposed  alterations,  and  that  said  trustees  might  request  the  supervisor  and 
town  clerk  of  the  town  in  which  said  school  districts  were  situated  to  be  asso- 
ciated with  him  or  his  successor  in  hearing  such  objections  and  confirming  or 
vacating  said  order.  That  the  trustees  of  union  free  school  district  no.  lO 
requested  the  supervisor  and  town  clerk  of  the  town  of  Cazenovia  to  be  present 
at  such  hearing  and  to  be  associated  with  the  school  commissioner  of  the  second 
commissioner  district  of  Madison  county  in  hearing  objections  and  in  deciding  to 
confirm  or  vacate  said  order.  That  on  January  7,  1896,  at  the  time  and  place 
mentioned  in  said  notice  there  were  present  Commissioner  Parkhurst,  Supervisor 
Cook  and  Town  Clerk  Rouse,  comprising  the  local  board  and  Trustees  De  Clercq 
and  Niles,  representing  district  no.  7,  and  Trustees  Irish  and  Loyster,  represent- 
ing district  no.  10,  when  said  hearing  was  adjourned  to  January  15,  1896,  and 
on  that  day  further  adjourned  to  January  30,  1896.  That  on  January  30,  1896, 
witnesses  were  sworn  and  examined  before  said  local  board,  and  subsequently, 
said  testimony  having  been  duly  considered,  said  local  board,  by  the  affirmative 
vote  of  each  member  thereof,  confirmed  said  preliminary  order  of  said  School 
Commissioner  Parkhurst. 

From  said  preliminary  order  and  the  action  of  the  said  local  board  confirm- 
ing the  same.  Trustees  De  Clercq  and  Niles  of  said  district  no.  7  have  appealed, 
and  annexed  to  said  appeal  is  a  copy  of  the  testimony  taken  before  said  local 
board. 

The  respondents  herein.  School  Commissioner  Parkhurst,  Supervisor  Cook 
and  Town  Clerk  Rouse,  have  filed  a  statement  in  which  they  concur  in  the  facts, 
maps  and  exhibits  served  upon  them  by  the  appellants  herein. 

it  appears  from  the  papers  filed  herein  that  prior  to  December  24,  1895,  the 
territory  comprising  school  district  no.  7,  of  Cazenovia,  consisted  of  farming 
lands,  excepting  a  portion  thereof  containing  about  150  acres  of  land,  described 
in  said  preliminary  order  of  Commissioner  Parkhurst,  adjoining  Cazenovia  lake, 
upon  which  territory  there  have  been  erected  summer  residences,  owned  by  ten 
or  twelve  persons;  that  the  aggregate  assessed  valuation  of  said  district  was 
$222,675,  ^nd  there  were  thirty-six  persons  therein  who  are  taxed,  eight  of  whom 
reside  upon  the  150  acres  proposed  to  be  taken  from  said  district,  and  none  of 
them  have  children ;  that  of  the  twenty-eight  taxpayers  not  residing  upon  the 
said  150  acres,  there  are  only  five  or  six  having  children  attending  school;  that 
the  aggregate  assessment  of  ten  of  said  twenty-eight  taxpayers,  having  the  lowest 
assessment,  is  $2500,  leaving  the  remaining  eighteen  to  pay  the  bulk  of  the  taxes, 
and  of  these  but  three  have  children  attending  the  school ;  that  the  tax  assessed 
in  the  district  for  school  purposes  is  .1055  on  $100;  that  the  schoolhouse  of  the 
district  is  conveniently  located  for  all  parts  of  the  district,  and  in  good  condition 
and  well  furnished,  and  containing  an  organ,  chart,  maps,  globes,  a  library  of 
245  volumes,  etc.,  etc. ;  that  three  terms  of  school  of  twelve  weeks  each  have  been 
maintained  in  the  school  year;  that  there  were  forty-one  children  of  school  age 
in  the  district,  with  a  registration  of  twenty-six,  and  an  average  daily  attendance 
of  about  twenty-one. 


JUDICIAL  decisions:     union  free  school  districts  1355 

That  union  free  school  district  no.  10  of  the  town  of  Cazenovia  embraced 
within  its  boundaries  a  large  portion  of  the  village  of  Cazenovia,  which  village 
has  a  population  of  about  1800,  and  had  an  aggregate  assessed  valuation  of 
$846,061 ;  that  the  number  of  children  of  school  age  residing  therein  was  397, 
of  which  327  were  registered,  and  eight  teachers  were  employed  in  the  schools 
therein. 

It  also  appears  that  there  were  but  two  children  of  school  age  residing  upon 
the  150  acres  of  land  proposed  to  be  set  off  from  district  no.  7  to  district  no.  10, 
namely,  the  children  of  one  Dean,  a  tenant  upon  the  property  of  L.  M.  Ledyard, 
which  children  attend  school  in  district  no.  10. 

It  is  conceded  that  the  aggregate  assessed  valuation  of  the  parcel  of  150 
acres,  proposed  to  be  set  off  from  district  no.  7  to  district  no.  10  is  $133,700, 
which  would  leave  in  district  no.  7  an  aggregate  assessed  valuation  of  $88,975, 
and  increase  that  of  district  no.  10  to  the  sum  of  $977,761. 

It  is  clear  that  if  the  action  of  the  local  board  and  the  order  of  Commissioner 
Parkhurst  be  affirmed,  the  tax  rate  for  school  purposes  in  district  no.  7  would 
be  increased  from  .1055  on  $100  to  about  30  cents  on  $100,  or  about  three  times 
as  much,  while  that  in  district  no.  10  would  be  diminished. 

No  proof  is  made  herein  that  any  qualified  voter  or  taxpayer  in  said  district 
no.  7  has  requested  that  said  parcel  of  150  acres,  or  any  part  of  said  district  be 
set  off  into  said  district  no.  10,  not  even  Dean,  the  tenant,  who  sends  his  two 
children  to  the  school  in  district  no.  10.  On  the  contrary  it  appears  that  said 
voters  and  taxpayers,  including  the  owners  of  the  parcel  of  the  150  acres  pro- 
posed to  be  set  off,  are  opposed  to  the  alteration  of  district  no.  7  as  set  out  in 
the  order  of  Commissioner  Parkhurst.  Of  the  witnesses  produced  and  examined 
before  the  local  board  all  but  one,  H.  F.  Ludlow,  a  member  of  the  board  of  edu- 
cation of  district  no.  to,  were  opposed  to  the  proposed  alteration,  and  each  testi- 
fied that  he  knew  of  no  one  in  district  no.  7  who  was  in  favor  of  said  alteration. 
The  witnesses  opposed  to  said  alteration  of  district  no.  7  stated  as  the  grounds 
of  their  opposition  that  it  would  not  be  for  the  best  interests  of  the  school  in  the 
district  and  would  result  in  shortening  the  term  of  the  school  in  the  school  year, 
and  greatly  increase  the  rate  of  taxation  for  school  purposes  in  the  district. 

H.  F.  Ludlow,  the  sole  witness  examined  on  behalf  of  the  said  alteration, 
was  asked,  "  If  the  proposed  alteration  is  made,  what  effect  would  it  have  on 
school  district  no.  7,  in  your  judgment,  as  an  educator?"  and  answered.  •'  It 
would  make  it  cost  more ;  it  would  depend  on  the  character  of  the  people."  To 
the  question,  "What  effect  would  it  have  on  no.  10?"  he  answered,  "It  would 
help,  financially."  It  is  not  shown  that  the  said  order  has  been  made  for  the 
convenience  or  benefit  of  residents  of  district  no.  7,  or  of  the  residents  of  the  terri- 
tory affected,  nor  will  it  enlarge  their  school  privileges.  The  residents  of  district 
no.  7  and  of  the  territory  therein  to  be  affected  protest  against  it.  The  only 
party  who  desires  the  alteration  is  the  board  of  education  of  union  free  school 
district  no.  10,  which  district  will  be  benefited,  financially,  by  having  added  to  it 
property  of  the  aggregate  assessed  valuation  of  $133,700. 

While  in  comparison  with  a  great  number  of  school  districts  in  the  State, 


1356  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

and  of  twelve  of  the  districts  in  the  town  of  Cazenovia,  district  no.  7  is  financially 
strong,  it  is,  as  compared  with  union  free  school  district  no.  10,  a  weak  district. 
Said  district  no.  7  is  largely  a  farming  community  and  was  so  when  said  district 
was  formed.  The  parcel  of  150  acres  proposed  to  be  annexed  to  district  no.  10 
has  increased  in  value  by  reason  of  the  summer  residences  erected  thereon  and 
the  decoration  of  the  grounds  connected  with  such  residences.  District  no.  10 
embraces  within  its  boundaries  a  large  portion  of  the  village  of  Cazenovia,  a  vil- 
lage increasing  yearly  in  business  and  wealth. 

It  is  against  the  settled  policy  of  this  Department  to  allow  property  to  be 
transferred  from  a  comparatively  weak  district  to  a  stronger  one  when  it  is  not 
clearly  shown  that  it  will  give  better  school  facilities  and  increased  convenience 
to  the  persons  occupying  the  transferred  territory.  The  only  children  of  school 
age  residing  upon  the  territory  sought  to  be  transferred  are  the  two  children  of 
the  tenant  Dean,  and  he  sends,  by  choice  or  preference,  said  children  to  the 
school  in  district  no.  10.  This  Department  has  held  that  the  mere  choice  or  pref- 
erence of  a  resident  to  send  his  children  to  a  school  out  of  the  district  in  which 
he  resides,  rather  than  to  one  in  his  district,  is  not  sufficient  reason  for  transfer- 
ring him  or  his  lands.  In  the  hearing  before  the  local  board  the  witness,  Ludlow, 
put  in  evidence  a  statement  of  the  aggregate  assessed  valuation  of  the  twelve  other 
school  districts  in  the  town  of  Cazenovia  as  proof  that,  if  the  proposed  order  of 
Commissioner  Parkhurst  became  effective,  the  aggregate  assessed  valuation  of 
district  no.  7  would  then  be  in  excess  of  eleven  of  the  other  districts  in  said 
town. 

It  seems  clear  that  the  essential,  if  not  the  only  ground  of  the  said  proposed 
order  of  Commissioner  Parkhurst,  for  annexing  said  territory  to  district  no.  10 
was  for  the  purpose  of  the  equalization  of  valuations. 

This  Department  has  held  that  while  the  equalization  of  valuations  may 
properly  be  an  element  for  consideration  in  the  alteration  of  school  districts  it 
should  not  be  the  controlling  one. 

Superintendent  Draper,  in  a  decision  rendered  by  him  on  November  13, 
1886,  said:  "  In  any  event  I  am  not  prepared  to  give  sanction  to  the  proposition 
that  school  districts  should  be  changed  only  for  the  purpose  of  equalization  of 
valuations."    I  concur  in  such  decision  of  Superintendent  Draper. 

In  my  opinion,  if  a  wealthy  school  district  desires  to  obtain  a  part  of  the 
territory  of  a  comparatively  weaker  district  for  the  sole  purpose  of  benefiting 
such  wealthy  district  financially,  and  said  desire  is  sanctioned  by  this  Department, 
the  result  will  be  a  constant  struggle  for  the  annexation  of  such  territory,  and 
the  people  and  the  school  system  would  be  endlessly  involved  in  controversy  in 
consequence  thereof. 

To  confirm  said  preliminary  order  and  the  action  of  the  local  board  herein 
would  be  contrary  to  public  policy  and  the  rulings  of  this  Department. 

The  appeal  herein  should  be  sustained,  and  the  said  preliminary  order  and 
the  action  of  said  local  board  confirmatory  thereof,  vacated  and  set  aside. 

The  papers  filed  herein  do  not  show  that  any  confirmatory  order  was  made, 
signed  and  filed.     After  the  action  of  said  local  board  the  school  commissioner 


JUDICIAL  decisions:     union  free  school  districts  1357 

should  have  made  and  filed  a  final  order,  or  the  order  of  alteration.  The  action 
of  the  local  board  did  not  make  the  alteration ;  the  preliminary  order  was  inchoate, 
and  of  no  elfect  whatever  until  it  was  duly  confirmed  by  the  local  board;  the 
confirmatory  order  makes  the  alteration,  and  the  school  commissioner  should 
have  made  such  order  reciting  therein  the  preliminary  order,  and  all  the  proceed- 
ings taken  thereafter,  including  the  action  of  the  local  board,  and  concluding  with 
the  final  order  of  alteration  made  by  the  school  commissioner,  the  said  local  board 
uniting  with  him  and  signing  such  confirmatory  or  final  order. 

The  appeal  herein  is  sustained. 

It  is  ordered,  That  the  said  preliminary  order  made  by  said  School  Commis- 
sioner Parkhurst,  dated  on  or  about  December  24,  1895,  and  the  action  or  decision 
of  the  said  local  board,  on  or  about  January  30,  1896,  confirming  said  preliminary 
order,  be,  and  the  same  are,  and  each  of  them  is,  hereby  vacated  and  set  aside. 


In  the  matter  of  the  appeal  of  Winfield  S.  Gardner  v.  Charles  F.  McXair  as 
school  commissioner  second  commissioner  district  of  Livingston  county. 

School  commissioners  have  the  power,  under  the  provisions  of  the  Consolidated  School 
Law  of  1894,  and  the  rulings  of  this  Department,  to  alter  the  boundaries  of  union 
school  districts ;  but  no  school  district  can  be  divided  that  has  any  bonded  indebtedness 
outstanding.  Union  school  districts  when  duly  established,  under  the  provisions  of 
title  8  of  the  Consolidated  School  Law  of  1894,  and  the  acts  amendatory  thereof, 
can  not  be  dissolved  by  school  commissioners,  but  only  in  the  manner  prescribed  iu 
sections  32  to  41  of  article  5,  title  8  of  the  Consolidated  School  Law  of  1894. 

Decided  October  27,  1900 

Skinner,  Superintendent 

This  is  an  appeal  from  the  refusal  of  Charles  F.  McNair,  as  school  commis- 
sioner of  the  second  commissioner  district  of  Livingston  county,  to  divide  or 
alter  the  boundaries  of  union  school  district  4  (joint")  Groveland  and  Sparta,  Liv- 
ingston county. 

The  appellant  alleges  as  the  grounds  for  bringing  his  appeal  that  such  refusal 
will  deprive  the  inhabitants  of  a  large  part  of  such  district  of  school  privileges 
in  said  district;  also,  on  the  ground  of  the  expediency  of  such  proposed  altera- 
tion. The  respondent,  McNair,  has  answered  the  appeal,  and  to  such  answer 
the  appellant  has  made  a  reply,  and  to  such  reply  the  respondent  has  made  a 
rejoinder. 

It  appears  that  on  April  15,  1899,  at  a  meeting  duly  called  and  held,  of  the 
qualified  voters  of  joint  school  district  6,  Groveland  and  Sparta,  and  of  school 
district  4,  Groveland,  Livingston  county,  under  the  provisions  of  article  i,  title  8 
of  the  Consolidated  School  Law  of  1894,  and  the  acts  amendatory  thereof,  by 
the  affirmative  vote  of  a  majority  of  the  voters  present  and  voting,  it  was  deter- 
mined that  said  school  district  be  consolidated  by  the  establishment  of  a  union 
sciiool  therefor  and  therein ;  that  said  meeting  duly  elected  three  trustees  of  such 
union  school  district;  that  subsequently  Scott  L.  McNinch,  the  then  school  com- 


1358  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

missioner  of  the  first  commissioner  district  of  Livingston  county  and  Samuel  L, 
Whitlock,  the  then  school  commissioner  of  the  second  commissioner  district  of 
Livingston  count}',  by  an  order  made  by  them  designated  the  union  school  so 
established  as  "  union  free  school  district  4,  joint  Groveland  and  Sparta  " ;  that 
September  21,  1899,  a  certified  copy  of  the  proceedings  taken  relative  to  the 
establishment  of  said  district  was  filed  in  the  Department  of  Public  Instruction 
at  the  Capitol  in  the  city  of  Albany;  that  October  21,  1899,  an  appeal  was  taken 
to  the  State  Superintendent  of  PubHc  Instruction  by  A.  B.  Mann  and  others 
from  the  proceedings  of  said  meeting  held  x^pril  15,  1899,  relative  to  the  estab- 
lishment of  said  union  school,  and  February  9,  1900,  said  Superintendent,  by  his 
decision  4842,  dismissed  such  appeal. 

It  further  appears  that  May  26,  1900,  the  trustees  of  said  union  school  dis- 
trict met  for  the  purpose  of  considering  certain  proposed  alterations  of  said  dis- 
trict and  signed  a  consent  that  said  district  be  altered  or  divided,  and  thereafter 
it  should  be  bounded  and  described  as  set  forth  in  a  writing  signed  by  them ;  that 
such  paper  was  afterwards  delivered  to  Commissioner  jNlcNinch  of  the  first  dis- 
trict, and  Commissioner  McNair  of  the  second  district;  that  Commissioner 
McNinch,  June  5,  1900,  upon  his  part,  consented  that  an  order  be  entered  alter- 
ing or  dividing  such  district  as  asked  for  by  such  trustees ;  that  Commissioner 
McNair,  June  5,  1900,  refused  in  writing,  to  indorse  such  application  for  an 
alteration  or  division  of  such  district. 

It  further  appears  that  on  said  June  5,  1900,  said  union  school  district  4 
(joint)  Groveland  and  Sparta,  had  an  outstanding  bonded  indebtedness. 

From  the  proofs  herein  I  am  satisfied  that  the  proposed  alteration  or  division 
of  such  union  school  would  be  in  effect,  a  dissolution  of  said  district,  and  if  it 
could  be  legally  made,  would  in  effect  establish  two  districts  with  nearly  the  like 
boundaries  of  the  two  districts  existing  prior  to  the  consolidation  of  such  dis- 
tricts by  the  establishment  of  a  union  school  therein  at  the  meeting  held  April 
15,  1899. 

School  commissioners  have  the  power,  under  the  rulings  of  this  Department 
and  the  provisions  of  the  school  law,  to  alter  the  boundaries  of  union  school 
districts. 

Section  6  of  title  6  and  section  30  of  article  5,  title  8  of  the  Consolidated 
School  Law  of  1894,  and  the  acts  amendatory  thereof,  expressly  give  such 
power.  But  no  school  district  shall  be  divided  which  has  any  bonded  indebted- 
ness outstanding. 

It  is  in  proof  that  when  Commissioners  McNinch  and  McNair  were  requested 
to  divide  said  union  school  district,  the  district  had  an  outstanding  bonded  indebt- 
edness, and  hence,  such  commissioners  could  not  divide  the  district. 

I  am  satisfied  that  the  alteration  or  division  of  said  district,  as  asked  for  by 
the  trustees,  was  not  an  ordinary  alteration  by  taking  a  parcel  or  parcels  of  land 
from  the  district  and  uniting  such  parcel  or  parcels  to  some  other  district  or  dis- 
tricts, but  was  in  fact  a  scheme  to  reinstate  the  two  districts  as  they  severally 
existed  prior  to  their  consolidation  April  15,  1899,  that  is,  dissolving  such  union 
school  district. 


JUDICIAL  decisions:     union  free  school  districts  1359 

The  union  school  districts  when  duly  established  under  the  provisions  of  title 
8  of  the  Consolidated  School  Law  of  1894,  and  the  acts  amendatory  thereof,  can 
not  be  dissolved  by  the  action  of  school  commissioners,  but  only  in  the  manner 
prescribed  by  sections  32  to  41  of  article  5,  title  8  of  the  Consolidated  School  Law 
of  1894. 

The  appeal  herein  is  dismissed. 


5036 

In  the  matter  of  the  appeal  of  Herman  Cole  v.  Loyal  L.  Davis  as  school  commis- 
sioner, first  commissioner  district  of  Warren  county. 

Under  the  provisions  contained  in  section  9  of  title  6  of  the  Consolidated  School  Law 
of  1894,  as  amended  by  chapter  264  of  the  Laws  of  1896,  a  school  commissioner  has 
power  to  dissolve  a  common  school  district  within  his  commissioner  district,  and  to 
unite  a  portion  of  the  territory,  theretofore  forming  the  district  dissolved,  to  an 
adjoining  union  free  school  district;  and  from  the  residue  of  the  territory  of  the 
district  dissolved  to  form  new  districts,  without  applying  for  or  obtaining  the  consent 
of  the  trustees  of  the  district  dissolved,  or  of  the  union  free  school  district. 

Decided   November  7,   1902 

Charles  F.  King,  attorney  for  appellant 
Loyal  L.  Davis,  attorney  in  person 

Skinner,  Superintendent 

This  is  an  appeal  from  the  following  named  orders  made  by  Loyal  L.  Davis 
as  school  commissioner  of  the  first  commissioner  district  of  Warren  county, 
namely,  order  dated  September  2,  1902,  to  take  effect  immediately,  dissolving 
school  district  14,  Queensbury,  Warren  county,  and  annexing  all  the  territory 
theretofore  forming  said  district  14,  lying  within  the  village  of  Glens  Falls,  to 
union  free  school  district  i,  Queensbury,  forming  school  districts  21  and  22, 
Queensbury;  from  the  territory  theretofore  forming  district  14.  lying  outside  of 
the  village  of  Glens  Falls;  directing  the  records  etc..  of  said  former  district  14 
to  be  filed  with  the  clerk  of  the  town  of  Queensbury ;  ordering  the  first  meeting 
of  new  district  21  to  be  held  at  the  schoolhouse  therein  September  13,  1902,  and 
the  first  meeting  in  new  district  22  to  be  held  at  the  residence  therein  of  James 
H.  Storey,  September  13th;  amending  the  boundaries  of  union  free  school  dis- 
trict I ;  describing  the  boundaries  of  each  of  said  districts  21  and  22. 

An  order  dated  September  5,  1902.  correcting  the  boimdaries  of  district  22, 
and  a  further  order  dated  September  13.  1902,  correcting  the  boundaries  of  dis- 
trict 22,  were  made. 

The  main  grounds  alleged  by  the  appellant  for  bringing  his  appeal  are.  that 
no  consent  or  consents  of  the  trustees  of  former  school  district  14,  and  of  union 
free  school  district  i,  were  made  or  obtained  by  Commissioner  Davis  prior  to 
making  the  orders  appealed  from  ;  that  the  action  of  Commissioner  Davis  in  mak- 
ing the  orders  appealed  from  were  illegal  and  contrary  to  the  provisions  of  the 
Consolidated  School  Law. 


1360  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

The  pleadings  herein  are  quite  voluminous,  consisting  of  the  appeal,  tha 
answer  of  Commissioner  Davis,  the  reply  of  the  appellant,  and  the  rejoinder  of 
Commissioner  Davis. 

A  large  portion  of  the  pleadings  herein  relates  to  the  condition  of  the  school- 
house  in  former  district  14;  the  action  of  the  qualified  voters  therein,  relative  to 
improving  its  condition ;  the  order  of  Commissioner  Davis  condemning  it,  and  the 
failure  of  the  district  to  take  measures  for  the  construction  of  a  new  schoolhouse. 

In  my  opinion  the  questions  presented  by  the  pleadings  for  my  decision  and 
consideration  are,  first,  had  Commissioner  Davis  authority,  under  the  provisions 
of  the  Consolidated  School  Law,  to  make  the  orders  appealed  from ;  and,  second, 
did  Commissioner  Davis  wisely  exercise  such  authority  in  making  said  orders. 

Under  title  6  of  the  Consolidated  School  Law  of  1894,  and  the  acts  amenda- 
tory thereof,  the  school  commissioners  of  the  State  have  power  to  form,  alter 
and  dissolve  school  districts,  except  to  dissolve  a  union  free  school  district.  (See 
sections  32-41,  article  5,  title  6  of  said  Consolidated  Law.) 

Sections  2,  3  and  4,  as  amended  by  section  4,  chapter  264  of  the  Laws  of 
1896,  provide  for  the  alteration  of  common  school  districts.  Section  6,  as 
amended  by  section  5,  chapter  512  of  the  Laws  of  1897,  provides  for  the  altera- 
tion of  union  free  school  districts  whose  limits  do  not  correspond  to  those  of  any 
city  or  incorporated  village,  in  like  manner  as  alterations  of  common  school  dis- 
tricts may  be  made  as  therein  provided  (that  is,  under  sections  2,  3  and  4  of  title 
6),  and  also  provides,  with  the  written  consent  of  all  the  districts  to  be  affected, 
for  the  dissolution  of  one  or  more  common  school  districts  adjoining  any  union 
free  school  district  other  than  one  whose  limits  correspond  to  those  of  any  city 
or  incorporated  village,  and  annex  the  territory  of  said  districts  so  dissolved  to 
such  union  free  school  district.  The  amendment  made  to  section  6  by  chapter 
512  of  the  Laws  of  1897,  consisted  in  striking  out  the  words  "  altered  or  "  before 
the  word  "  divided." 

Section  50,  article  5,  title  8  of  the  Consolidated  School  Law  of  1894,  con- 
tained the  like  provisions  as  in  section  6  of  title  6,  and  the  amendment  of 
section  30  by  chapter  540  of  the  Laws  of  1897  was  in  striking  out  the  words 
"  altered  or  "  before  the  word  "  divided  "  as  section  6,  title  6,  was  amended  by 
chapter  512  of  the  Laws  of  1897. 

Section  9.  as  amended  by  section  4,  chapter  264  of  the  Laws  of  1896,  provides 
"Any  school  commissioner  may  dissolve  one  or  more  districts,  and  may  from 
such  territory  form  a  new  district;  he  may  also  unite  a  portion  of  such  territory 
to  any  existing  adjoining  districts." 

This  Department  has  held,  under  the  provisions  of  said  section  9,  as  amended 
by  chapter  264  of  the  Laws  of  1896,  that  any  school  commissioner  has  the  author- 
ity to  dissolve  one  or  more  school  districts,  other  than  union  free  school  dis- 
tricts, within  his  commissioner  district,  without  obtaining  the  consent  of  the 
trustee  or  trustees  of  such  district  or  districts,  and  from  the  territory  of  the  dis- 
trict or  districts  so  dissolved  to  form  a  new  district  or  districts,  or  unite  a  por- 
tion of  such  district  or  districts  so  dissolved  to'  any  existing  adjoining  district  or 


JUDICIAL  decisions:     union  free  school  districts  1 361 

districts,  whether  such  district  or  districts  are  common  or  union  free  school  dis- 
tricts, and  without  the  consent  of  the  trustee  or  trustees  of  the  district  to  which 
such  portion  is  so  united. 

This  Department  has  held  that  in  the  dissolution  of  a  school  district  under 
such  section  9,  of  title  6,  the  commissioner  can  not  unite  all  the  territory  thereto- 
fore comprising  such  dissolved  district  to  any  adjoining  union  free  school  district, 
without  first  obtaining  the  consent  in  writing  of  the  trustees  of  such  union  free 
school  district. 

I  am  of  the  opinion  that  Commissioner  Davis,  under  the  provisions  of  section 
9  of  title  6,  as  amended  by  chapter  264  of  the  Laws  of  1896,  had  full  power  and  , 
authority  to  dissolve  school  district  14,  Queensbury,  Warren  county,  and  unite 
a  portion  of  the  territory  theretofore  forming  said  district  to  union  free  school 
district  i,  Queensbury,  and  from  the  residue  of  the  territory  of  the  dissolved 
district  to  form  new  districts  21  and  22,  without  applying  for  or  obtaining  the 
consent  of  the  trustees  of  former  district  14,  or  the  trustees  of  union  free  school 
district  i. 

From  the  facts  established  herein,  as  to  the  condition  of  school  aflfairs,  and 
especially  the  condition  of  the  schoolhouse  in  former  district  14,  and  the  neglect 
of  the  qualified  voters  therein  to  take  affirmative  action  to  improve  such  condi- 
tions, Commissioner  Davis  wisely  exercised  the  power  and  authority  given  him 
in  making  the  orders  appealed  from. 

Under  the  uniform  rulings  of  this  Department,  and  the  instructions  issued 
by  me  to  school  commissioners  in  the  formation,  alteration  and  dissolution  of 
school  districts,  when  a  school  district  is  dissolved  the  commissioner  should 
describe  in  an  order  dissolving  a  district,  the  boundaries  of  such  district,  giving  an 
accurate  description.  In  an  order  made  adding  territory  to  a  school  district  such 
order  should  contain  an  accurate  description  of  such  territory.  In  the  order  of 
Commissioner  Davis,  dated  September  2,  1902,  dissolving  school  district  14.  he 
omitted  to  give  an  accurate  description  of  the  territory  comprising  such  district ; 
and  in  such  order  annexing  a  portion  of  former  district  14  to  union  free  school 
district  i,  Queensbury,  he  omitted  to  give  an  accurate  description  of  the  terri- 
tory so  annexed. 

School  Commissioner  Davis  is  hereby  directed  to  amend  said  order  of  Sep- 
tember 2,  1902,  by  inserting  therein  an  accurate  description  of  the  territory  there- 
tofore forming  said  district  14;  and  by  inserting  therein  an  accurate  description 
of  the  territory  annexed  to  union  free  school  district  i.  Queensbury. 

The  appeal  herein  is  dismissed. 

It  is  ordered  that  the  order  made  by  me  herein,  on  September  30.  1902,  upon 
the  petition  of  the  appellant  herein,  staying  all  proceedings  of  Commissioner 
Davis,  and  of  the  trustee  or  trustees  of  school  districts  21  and  22,  Queensbury, 
and  of  each  of  them,  under  and  pursuant  to  the  orders  of  such  conmiissioner, 
appealed  from,  be  stayed,  and  which  order  was  filed  with  the  clerk  of  the  town 
of  Queensbury,  be  and  the  same  is  hereby  vacated  and  set  aside. 


UNION  FREE  SCHOOL  DISTRICTS 

ORGANIZATION 
4046 

In  the  matter  of  the  appeal  of  James  E.  McCane  and  others  v.  a  special  school 
meeting  in  districts  nos.  i  and  3  of  the  town  of  Indian  Lake,  held  for  the 
purpose  of  forming  a  union  free  school  district. 
The  estal)lishment  of  a  union  free  school  district  will  be  vacated  on  the  following  grounds: 
first,  that  a  majority  of  voters  in  one  district  is  opposed;  second,  that  the  number  of 
children   in   the  united   district  is   not   sufficient  to   make   a   graded   school;   third,   that 
some  of  the  children  will  be  required  to  travel  too  great  a  distance  to  attend  school. 
Decided  January  9,  1892 

Robert  Imrie,  attorney  for  appellant 
L.  C.  Aldrich.  attorney  for  respondent 

Draper,  Sitpcrinlciidcut 

This  is  an  appeal  from  a  meeting  held  September  15,  1891,  in  districts 
nos.  I  and  3  of  the  town  of  Indian  Lake,  in  the  county  of  Hamilton,  at  which 
it  was  determined  to  form  a  union  free  school  district.  The  vote  was  very 
close,  being  42  in  favor  of  the  project  to  39  against.  Of  the  persons  who  voted 
from  district  no.  i,  t,2,  were  in  favor  of  the  project  and  24  against.  Of  the 
voters  from  no.  3,  9  were  in  favor  and  15  against.  The  assessable  valuation  of 
district  no.  i  is  about  $47,000,  and  of  district  no.  3  about  $21,000.  There  are 
49  children  of  school  age  in  district  no.  i,  and  28  children  of  school  age  in  no.  3. 
The  districts  are  very  large  in  extent  of  territory,  and  they  are  very  unfortu- 
nately situated  as  to  shape,  the  territory  of  district  no.  3  extending  halfway 
around  that  of  no.   i. 

I  have  concluded  to  sustain  the  appeal  for  the  following  reasons : 

1  The  decided  majority  of  voters  in  one  district  is  opposed  to  the  union. 
This  district  will  feel  that  it  has  been  imposed  upon  and  badly  treated  if  it  is 
forced  into  the  alliance.  The  result  would  be  endless  controversy  and  ill  feeling 
in  the  new  district. 

2  The  number  of  children  in  the  united  district  who  will  attend  the  school 
is  hardly  sufficient  to  make  a  graded  school.  If  that  be  so.  then  there  would 
be  no  compensation  for  the  union. 

3  Some  children  would  have  to  go  a  much  longer  distance  to  school.  The 
distances  are  greater  than  they  should  be  now. 

If  the  people  of  the  united  district  could  be  substantially  harmonious  in 
favor  of  the  proposition,  I  should  be  glad  of  it,  but  under  all  the  circumstances 
of  the  case,  with  opinions  so  nearly  divided  and  with  one  district  strongly 
opposed,  it  seems  to  be  inadvisable. 

The  appeal  is  therefore  sustained  and  the  action  of  the  meeting  of  Septem- 
ber 15th  is  held  to  be  of  no  effect. 

[1362] 


JUDICIAL  decisions:     union  free  school  districts  1363 

3980 

In  the  matter  of  the  appeal  of  A.  H.  Penny  and  Wesley  H.  Squires  v.  school 
districts  nos.  5  and  19,  town  of  Southampton,  county  of  Suffolk. 

The  electors  of  two  school  districts  in  meeting  assembled  voted  to  consolidate  the  districts 
by  establishing  a  union  free  school  therein.  The  chairman  who  presided  ruled  in  an 
arbitrary  and  unparliamentary  manner.  A  majority  for  consolidation  was  secured 
without  due  deliberation  and  public  discussion.  The  extent  of  the  territory  consolidated 
is  nearly  five  miles  wide  and  of  about  the  same  length,  and  many  pupils  of  the  schools 
would  be  greatly  inconvenienced  in  consequence  of  the  distances  required  to  be  traveled 
to  reach  the  school.     Proceedings  set  aside. 

Decided  May  20,  1891 

Nathan  D.  Petty,  attorney  for  appellant 

Draper,  Superintendent 

This  is  an  appeal  from  the  action  of  meetings  held  upon  the  2d  day  of  April 
1891,  and  the  loth  day  of  April  1891,  for  the  purpose  of  voting  upon  the  for- 
mation of  a  union  free  school  district  in  the  two  districts  above  named. 

After  carefully  reading  the  voluminous  papers  in  the  case,  and  hearing  the 
parties  orally,  I  have  come  to  the  conclusion  that  the  best  educational  interests 
of  the  territory  afifected  will  be  promoted  by  sustaining  the  appeal  and  setting 
aside  the  action  appealed  from.  While  there  was  something  of  a  majority 
apparently  in  favor  of  the  consolidation  of  the  districts,  I  think  there  is  good 
evidence  that  such  majority  was  obtained  without  any  deliberation  or  public  dis- 
cussion of  the  question  involved.  Evidence  is  not  wanting  that  the  chairman 
of  the  meeting  resorted  to  arbitrary  and  unparliamentary  practice  for  the  pur- 
pose of  preventing  a  free  expression  of  the  opinions  of  persons  present.  It  is 
also  apparent  that  some  persons  voted  without  the  right  to  do  so.  Neither  of 
the  districts  afifected  is  very  strong  either  in  population  or  in  assessable  prop- 
erty. Both  are  quite  large  in  extent  of  territory.  Proof  is  submitted  that,  if  the 
districts  were  to  be  united,  the  consolidated  school  district  would  be  more  than 
five  miles  in  extent  from  north  to  south,  and  nearly  that  distance  from  east  to 
west.  The  result  would  be  that  some  children  would  have  to  go  much  farther 
to  school  than  children  ought  to  be  compelled  to  go,  while  the  strength  of  the 
districts  is  not  such  as  to  raise  the  presumption  that  a  union  graded  school  would 
be  maintained   which  would  be  sufificient  compensation    for  the   disadvantages 

suffered. 

Moreover,  there  is  a  state  of  unrelenting  bitterness  and  animosity  prevalent 
in  the  districts  affected,  such  as  I  have  scarcely  seen  exceeded  in  any  previous 
case.  This  would  be  carried  into  the  organization  of  the  new  district  if  such 
an  organization  were  to  be  effected,  and  would  operate  to  the  disadvantage  of 
the  enterprise  for  a  considerable  length  of  time. 

In  view  of  these  facts*  I  think  the  appeal  should  be  sustained,  and  the 
action  appealed  from  overruled  and  declared  to  be  of  no  effect. 


IS^H  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    VORK 

3947 

In  the  matter  of  the  appeal  of  E.   C.   Birdseye  and  others  v.  school  districts 
nos.  5  and  9,  town  of  Paris,  county  of  Oneida. 

Proceedings  of  a  meeting  of  electors,  held  to  determine  whether  a  union  free  school 
sliould  be  established,  set  aside  when  it  is  conclusively  shown  that  a  sufficient  numljer 
of  illegal  votes  was  cast  with  the  majority,  which  was  small,  to  have  produced  a  result 
which  would  have  been  otherwise  had  only  qualilied  voters  participated. 

Decided  December  30,  1890 

Praper,  Superintendent 

The  appellants,  legal  voters  of  school  districts  nos.  5  and  9,  town  of  Paris, 
Oneida  county,  allege  that  at  a  meeting  of  the  electors  of  said  districts  held 
pursuant  to  notice,  to  determine  if  a  union  free  school  should  be  established, 
a  large  number  of  the  inhabitants  attended  and  participated  in  the  vote  upon  the 
question  of  the  establishment  of  a  union  free  school,  resulted  as  follows :  for, 
126,  against,  131 ;  that  a  large  number  of  votes  was  cast  against  the  proposition 
by  persons  who  were  not  qualified  to  vote  —  a  sufficient  number  to  defeat  the 
proposition  which  otherwise  would  have  been  carried. 

No  answer  has  been  interposed,  and  the  evidence  presented  by  the  appel- 
lants stands  uncontradicted. 

I  conclude,  therefore,  that  there  was  not  a  fair  and  clear  expression  of  the 
legal  electors  given  at  the  meeting  appealed  from,  and  therefore  set  aside  and 
declare  the  proceedings  of  the  meeting  of  no  effect. 

The  trustees  of  districts  nos.  5  and  9,  Paris,  Oneida  county,  are  hereby 
ordered  and  directed  to  give  notice  within  twenty  days  from  this  date,  of  a  meet- 
ing of  the  legal  voters  of  the  districts  to  determine  the  question  whether  a  union 
free  school  shall  be  established  or  not. 

The  appeal  is  sustained. 


3982 

In  the  matter  of  the  appeal  of  Barbara  Moore  and  others,  from  the  proceed- 
ings of  a  joint  meeting  in  school  district  no.  7,  in  the  town  of  Pembroke, 
and  school  district  no.  9,  in  the  town  of  Batavia,  county  of  Genesee,  held 
for  the  purpose  of  forming  a  union  free  school  district. 

Appeal  from  the  proceedings  of  a  meeting  which  decided  by  a  very  close  vote  to  consolidate 
districts  by  the  establishment  of  a  union  free  school  therein,  sustained  where  the  opposi- 
tion thereto  is  strong  and  much  bitterness  of  feeling  concerning  the  action  is  prevalent, 
and  the  evidence  of  irregularities  too  numerous  to  be  excused  in  view  of  the  slender 
majority  secured  for  consolidation. 

Decided  June  22,   1891 

H.  B.  Cone,  attorney  for  appellants 

James  A.  LeSeur,  attorney   for  respondents 


t  JUDICIAL  decisions:     union  free  school  districts  1365 

Draper.  Superintendent 

This  is  an  appeal  from  the  action  of  a  meeting  held  in  the  above-named 
districts,  on  the  14th  day  of  February  1891,  for  the  purpose  of  forming  a  union 
free  school  district.  There  were  179  votes  cast  at  said  meeting.  The  proposi- 
tion to  form  a  union  free  school  district  was  declared  carried  by  a  majority 
of  but  3.  It  is  claimed  that  some  persons  voted  in  favor  of  the  proposition 
who  were  not  entitled  to  vote.  It  is  shown  that  a  considerable  number  of 
persons  in  the  district  received  no  notice  whatever  of  the  meeting.  It  is  also 
claimed  that  there  were  some  irregularities  in  the  proceedings  and  some  arbi- 
trary action  on  the  part  of  the  presiding  officer.  It  is  made  to  appear  that  each 
of  the  districts  affected  is  abundantly  able  to  support  a  separate  school.  A 
majority  in  value  of  the  property  assessed  is  opposed  to  the  coalition.  A  new 
schoolhouse  was  built  in  district  no.  7  in  1881,  and  a  new  one  was  also  built  in 
district  no.  9  in  1886,  the  former  cost  $1100  and  the  latter  $1300.  District  no. 
7  is  in  tlie  town  of  Pembroke,  and  no.  9  is  in  the  town  of  Batavia.  A  union  of  the 
districts  would,  therefore,  form  a  union  district  lying  partly  in  two  towns.  The 
new  district  is  shown  by  the  map  to  be  an  oddly  shaped  one,  having  something 
of  the  shape  of  an  hour  glass,  small  in  the  middle  and  large  at  the  ends.  It  is 
also  made  to  appear  that,  if  the  meeting  is  to  be  upheld,  many  children  would 
have  to  go  from  a  mile  and  a  half  to  two  miles  to  school,  and  upon  roads  that 
are  at  times  impassable.  It  is  shown  that,  at  a  meeting  held  subsequently  to 
the  one  referred  to,  a  clear  majority  was  developed  in  opposition  to  the  pro- 
posed union. 

In  view  of  these  considerations,  I  think  the  appeal  ought  to  be  sustained. 
There  are  grave  doubts  as  to  whether  the  action  appealed  from  was  reached 
with  such  legal  regularity  as  to  permit  of  its  being  upheld.  But  aside  from  that 
question,  it  is  clearly  manifest  to  me  that  there  is  so  strong  opposition  to  the 
union,  and  so  much  bitterness  of  feeling  concerning  it  prevalent  in  the  terri- 
tory affected,  that  it  would  be  impossible  to  secure  that  cooperation  of  effort 
which  is  essential  to  the  success  of  educational  work  in  the  district.  The  majority 
by  which  the  action  appealed  from  was  secured,  is  too  slender,  the  irregularities 
too  numerous,  and  the  opposition  too  strong  to  justify  it.  From  all  that  I 
can  gather,  after  a  careful  examination  of  the  papers,  and  after  hearing  counsel, 
I  am  forced  to  the  conclusion  that  a  decided  majority  of  the  voters  of  the  terri- 
tory affected  are  opposed  to  the  project.  If  this  is  so,  it  ought  not  to  be  upheld. 
If  it  is  not  so,  that  fact  may  be  ascertained  by  a  renewal  of  the  proceedings 
and  through  another  meeting  at  some  future  time. 

The  appeal  is  sustained  and  the  action  of  the  meeting  of  February  14, 
1 891,  is  declared  to  be  of  no  eft'ect. 


I3<j6  the    university    of    the    state    of    new    YORK  I 

3988 

In  the  matter  of  the  appeal  of  John  Dickson  and  others  v.  school  district  no.  2 
of  the  town  of  Andes,  county  of  Delaware. 

Action  of  a  district  school  meeting  at  which  a  majority  voted  against  the  establishment 
of  a  union  free  school,  will  not  be  disturbed  upon  an  appeal.  A  person  whose  right  to 
vote  is  questioned  should  be  challenged  when  the  vote  is  ofifercd,  and  the  oath  admin- 
istered by  the  chairman  of  the  meeting. 

Decided  July  27,  1891 

Earner  Johnson,  attorney  for  appellants 
C.   M,   Shaw,  attorney   for   respondents 

Draper,  Superintendent 

On  the  13th  day  of  March  1891,  a  meeting  was  held  in  the  above-named 
district  for  the  purpose  of  determining  whether  or  not  a  union  free  school 
district  should  be  organized.  The  proofs  show  that  the  matter  had  been  much 
discussed  in  the  district  for  some  weeks  prior  to  the  time  of  the  meeting,  and 
that  opinions  were  much  divided.  In  consequence  of  this  the  meeting  was 
largely  attended.  The  selection  of  a  chairman  and  secretary  was  satisfactorily 
effected.  It  was  agreed  that  the  meeting  should  proceed  to  ballot  upon  the 
question  of  establishing  a  union  free  school  district.  Tellers  were  appointed 
and  all  electors  in  favor  of  the  organization  of  a  union  free  school  district, 
voted  a  ballot  bearing  the  words  "  for  resolution,"  and  those  opposed  cast 
ballots  bearing  the  words  "  against  resolution."  At  the  conclusion  of  the  ballot- 
ing, the  tellers  canvassed  the  ballots,  and  reported  that  180  had  been  cast  in  all, 
90  of  which  were  in  favor  of  the  resolution  to  form  a  union  free  school  district, 
and  90  of  which  were  against  said  resolution.  The  chairman  thereupon  declared 
that  the  resolution  had  been  lost,  as  it  had  not  received  a  majority  of  all  the 
votes  cast. 

The  appellants  now  bring  the  matter  up  for  review,  and  insist  that  15 
persons  whom  they  name,  voted  against  the  resolution,  when  they  were  not 
entitled  to  vote  at  all.  They  therefore  ask  the  Superintendent  to  declare  the 
resolution  adopted.  The  respondents,  in  reply,  present  the  affidavits  of  15 
persons,  to  whose  right  to  vote  objection  is  made,  attempting  to  show  that  they 
were  entitled  to  vote,  and  in  addition  the  respondents  name  15  persons  who, 
they  claim,  voted  in  favor  of  the  proposition,  when  they  were  not  entitled  to 
vote. 

The  affidavits  of  these  other  15  persons  are  presented  by  the  appellants, 
attempting  to  show  their  qualifications. 

I  can  not  assume  to  declare  the  proposition  to  have  been  adopted  upon 
such  proofs  as  are  submitted.  The  meeting  proceeded  with  deliberation  and 
regularity,  so  far  as  I  can  see.  It  had  the  right  to  take  the  vote  in  the  way 
it  did.  The  resolution  for  the  formation  of  a  union  free  school  district  required 
the  majority  of  all  the  legal  votes  cast.  Upon  the  face  of  the  tellers'  report,  it 
did  not  receive  such  majority.     It  is  too  late  to  attack  the  right  of  persons  to 


JUDICIAL  decisions:     union  free  school  districts  1367 

vote  after  the  meeting  has  adjourned.  If  persons  who  offered  to  vote  had  no 
right  to  do  so,  objection  should  have  been  made  on  the  spot.  No  objection 
seems  to  have  been  offered.  Moreover,  before  a  union  free  school  district 
shall  be  organized  in  this  district,  the  friends  of  the  movement  should  be  able 
to  show  a  clear  and  undisputed  majority  in  favor  thereof  at  a  district  meeting. 
In  view  of  the  above  considerations,  the  appeal  is  dismissed. 


3766 

In  the  matter  of  the  appeal  of  Charles  H.  Robie.  Jerome  H.  Freeman  and 
others  v.  school  district  no.  i,  of  the  town  of  Bath,  in  the  county  of  Steuben. 

At  a  meeting  of  the  inhabitants  of  a  school  district,  held  to  determine  whether  a  union 
free  school  should  be  established  therein,  154  persons  appeared,  by  the  poll  list  kept 
thereat,  to  have  voted  upon  the  proposition. 

The  canvass  of  the  ballots  cast,  however,  revealed  the  fact  that  76  votes  were  cast  for 
the  proposition,  and  75  against  it,  and  one  ballot  was  blank. 

A  question  was  raised  as  to  the  right  of  one  person  to  vote  who  voted. 

No  satisfactory  explanation  is  offered  as  to  the  discrepancy  between  the  number  of  names 
upon  the  poll  list  and  the  number  of  ballots  actually  counted. 

There  was  no  such  majority  of  the  legal  voters  present  and  voting  as  the  statute  con- 
templates. 

Proceedings  of  the  meeting  set  aside,  and  another  meeting  recommended. 

Decided  March  5,  1889 

Reuben  E.  Robie,  attorney  for  appellants 
Miller  &  Nichols,  attorneys  for  respondents 

Draper,  Superintendent 

It  seems  that  the  meeting  was  held  in  the  above-named  district,  on  the  i6th 
day  of  October  1S88,  for  the  purpose  of  determining  whether  a  union  free 
school  district  should  be  formed  within  the  limits  of  said  district.  The  appel- 
lants are  opposed  to  the  formation  of  the  union  free  school  district;  they 
allege  that  the  notice  of  such  meeting  was  not  in  full  compliance  with  the  terms 
of  the  statute  relating  thereto;  they  also  allege  various  irregularities  in  the 
proceedings  of  the  meeting,  and  they  particularly  claim  that  a  majority  of  the 
qualified  voters  of  the  district  present  and  voting  at  the  said  meeting,  did  not 
vote  in  favor  of  the  formation  of  a  union  free  school  district.  It  seems  that 
after  the  meeting  had  been  organized  by  the  selection  of  a  chairman  and  secre- 
tary, two  tellers  were  appointed  for  the  purpose  of  receiving  and  counting 
the  votes  cast,  and  the  meeting  then  proceeded  to  vote  upon  the  question  by 
written  ballot,  those  in  favor  of  the  proposition  writing  "  for "  upon  their 
ballots,  and  those  opposed  writing  "against."  During  the  progress  of  the 
balloting,  some  question  arose  as  to  the  right  of  one  Edward  Gerue  to  vote. 
At  the  conclusion  of  the  balloting,  it  was  announced  that  154  votes  had  been 
polled;  after  the  counting  of  the  ballots  it  was  announced  that  76  votes  had 


13^8  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

been  cast  in  favor  of  the  proposition,  75  against  it,  and  one  blank.  No  satis- 
factory explanation  is  offered  as  to  the  discrepancy  between  the  number  of 
names  on  the  poll  list  and  the  number  of  ballots  actually  counted. 

After  carefully  reading  the  claims  and  proofs  of  the  respective  parties, 
I  come  irresistibly  to  the  conclusion  that  there  was  no  such  majority  of  the 
legal  voters  of  the  district  present  and  voting  in  favor  of  the  proposition  to 
establish  a  union  free  school  district  as  the  statute  contemplates,  and  am  con- 
fident that  the  interests  of  the  district  will  be  best  subserved  by  holding  another 
meeting  at  which  the  question  shall  be  again  submitted.  I  think  it  is  incumbent 
upon  the  persons  favoring  the  establishment  of  the  union  free  school  district, 
either  to  show  that  they  received  a  majority  of  the  154  votes,  or  to  show  that 
there  were  less  than  that  number  actually  cast,  and  this  they  fail  to  do.  Reach- 
ing this  conclusion  upon  the  principal  question  raised  by  the  appellants,  it  is 
unnecessary  to  consider  some  other  questions  which  are  involved  in  the  case. 

The  appeal  is  sustained. 


3899 

In  the  matter  of  the  application  of  Charles  Melius  and  others  v.  George  H. 
Curreen,  D.  Oscar  Dennison  and  George  H.  Burch,  as  members  of  the 
board  of  trustees  of  school  district  no.  i,  of  the  town  of  Greenbush  and 
East  Greenbush,  county  of  Rensselaer. 

A  meeting  for  the  purpose  of  determining  whether  a  union  free  school  should  be  estab- 
lished in  a  school  district,  was  attended  with  much  disorder  and  unparliamentary 
proceedings.  A  subsequent  meeting  immediately  followed,  at  which  it  was  decided 
to  establish  a  union  free  school.  Evidence  was  produced  that  about  two  hundred  per- 
sons present  at  the  time  fixed  for  the  meeting  were  opposed  to  the  change,  while  but 
ninety  favored  the  change.  Held,  that  it  being  clearly  demonstrated  that  the  change 
was  opposed  by  a  large  majority,  the  action  of  the  minority  can  not  be  upheld. 

Decided  August  5,  1890 

B.  Frank  Chadsey,  attorney  for  appellants 
Robert  G.  Scherer,  attorney  for  respondents 

Draper,  Superintendent 

For  a  year  or  more  there  has  been  much  controversy  in  the  district  above 
named  concerning  the  organization  of  a  union  free  school  district,  and  the  matter 
has  previously  been  presented  to  the  Department.  By  direction  of  the  Super- 
intendent a  special  meeting  was  held  on  the  evening  of  July  14th  last  to  deter- 
mine the  question.  Two  meetings  are  alleged  to  have  been  held  upon  that 
evening.  The  first  one  decided  against  the  formation  of  a  union  free  school 
district,  the  friends  of  the  proposition  claiming  that  they  were  clearly  in  the 
majority,  and  that  the  will  of  the  majority  was  thwarted  and  defeated  by  the 
trustees  of  the  district  as  at  present  constituted,  and  their  adherents  proceeded 
to  organize  a  second  meeting  after  the  adjournment  of  the  first  one,  and  at 


JUDICIAL  decisions:     union  free  school  districts  1369 

such  meeting  it  was  determined  by  a  nearly  unanimous  vote,  to  establish  a  union 
free  school.  This  meeting  then  proceeded  to  elect  nine  trustees  of  such  union 
free  school  district.  The  appellants  were  elected  trustees.  As  such,  they  have 
demanded  of  the  old  board  of  trustees  that  all  property  of  the  district  in  their 
hands  be  delivered  to  the  new  board.     The  old  board  has  refused  to  so  deliver. 

This  proceeding  is  an  application  to  the  Department  to  require  them-  to 
deliver  all  property  of  the  district  to  the  new  board. 

The  determination  of  this  application  must  turn  upon  the  question  as  to 
whether  the  proceedings  of  the  second  meeting  above  referred  to  could  be 
upheld.  Because  of  the  long  agitation  of  the  subject  and  the  near  proximity 
of  the  district  to  the  Capitol,  I  have  taken  the  testimony  of  witnesses  presented 
by  the  respective  parties  as  to  the  transactions  of  the  evening  of  July  14th.  Five 
witnesses  were  sworn  upon  each  side.  From  this  testimony,  I  am  satisfied  that 
the  first  meeting  held  upon  that  evening  was  characterized  by  boisterous  conduct 
and  confusion  to  so  great  a  degree  as  to  render  any  of  its  transactions  wholly 
ineffectual,  as  a  matter  of  law.  The  room  was  crowded.  The  meeting  was 
called  to  order  promptly  on  the  arrival  of  the  hour,  by  Mr  Dennison,  one  of  the 
members  of  the  board  of  trustees,  who  was  strongly  opposed  to  the  change  in 
the  form  of  the  district  organization.  He  at  once  entertained  a  motion  that  Mr 
Curreen,  another  one  of  the  trustees,  and  likewise  opposed  to  the  change  in  the 
district  organization,  be  made  chairman.  It  was  moved  on  the  other  side  that 
Mr  Melius,  one  of  the  appellants,  be  made  chairman.  Mr  Dennison  only  put  the 
question  on  the  election  of  his  associate,  Mr  Curreen.  There  were  prompt  and 
emphatic  demands  from  all  parts  of  the  house  for  a  count.  He  refused  to 
recognize  these,  and  declared  Curreen  elected.  There  was  great  noise  and 
confusion.  Curreen  at  once  assumed  the  chair.  A  resolution  was  offered  in 
favor  of  changing  the  form  of  the  district  organization.  An  amendment  was 
proposed  that  the  sentiment  of  the  meeting  was  opposed  to  such  a  change,  and 
had  entire  confidence  in  the  old  board.  The  chairman  put  this  amendment  to 
the  house.  There  was  a  yell  on  each  side,  and  he  declared  the  amendment 
adopted,  and  failed  to  put  the  original  motion.  Immediately,  the  chair  enter- 
tained a  motion  to  adjourn,  declared  it  carried  and  the  meeting  adjourned. 

These  proceedings  occupied  but  a  very  few  moments  of  time,  and  were 
characterized  by  the  utmost  noise  and  confusion.  I  have  had  no  difficulty  in 
coming  to  the  conclusion  that  there  was  no  legal  force  or  effect  in  these  pro- 
ceedings, and  that  this  alleged  meeting  must  be  held  to  be  altogether  inoperative 
and  without  result. 

I  have  carefully  considered  the  question  as  to  whether  the  proceedings  of 
the  second  meeting  should  be  upheld.  Much  of  the  testimony  taken  upon  the 
inquiry  to  which  I  have  hereinbefore  referred,  was  to  the  effect  that  there  were 
something  like  three  hundred  persons  present  in  the  room  at  the  time  the  meet- 
in^  was  called,  and  while  the  boisterous  proceedings  above  referred  to  took 
place,  and  that  there  were  only  about  one  hundred  persons  present  at  the  second 
meetino".     This  scarcely  looked  as  though  a  clear  majority  of  all  the  qualified 


1370  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

electors  in  the  district  who  went  to  the  meeting,  were  in  favor  of  the  organization 
of  a  union  free  school  district.  It  was,  therefore,  left  to  the  respective  parties 
in  interest  to  go  behind  the  proceedings,  and  show  by  the  affidavits  of  individual 
electors  that  they  were  present  upon  the  night  in  question ;  that  they  were  qualified 
electors  in  the  district,  and  that  they  favored  or  opposed  the  proposed  change 
in  the  district  organization.  A  week  was  afforded  for  procuring  these  affidavits. 
I  am  now  presented  with  the  affidavits  of  more  than  two  hundred  persons  who 
swear  that  they  are  qualified  electors  in  the  district;  that  they  were  present  at 
the  meeting,  and  that  they  opposed  the  change.  I  am  likewise  presented  with 
the  affidavits  of  ninety  persons,  that  they  were  qualified  electors,  were  present 
at  the  meeting  and  favored  the  change.  Each  side  has  been  allowed  twenty- 
four  hours  to  scrutinize  the  names  presented  by  the  other,  and  to  show  that 
there  was  false  swearing,  if  such  was  the  case.  While  each  side  objects  to  a 
few  names,  perhaps  six  or  eight,  presented  by  the  other,  there  is  no  valid 
explanation  oft'ered  for  the  marked  disparity  in  numbers.  I  am,  therefore, 
obliged  to  conclude  that  a  decided  majority  of  the  electors  present  upon  the 
night  in  question  were  opposed  to  the  organization  of  a  union  free  school  dis- 
trict, and  have  to  regret  that  they  did  not  see  the  importance  of  securing  an 
expression  of  their  opinions  in  an  orderly  and  valid  manner. 

The  second  meeting  could  be  upheld  only  upon  the  ground  that  it  was 
made  to  appear  that  a  decided  majority  of  all  electors  who  attempted  to  attend 
the  school  meeting  were  in  favor  of  the  change,  and  that  their  purposes  were 
thwarted  and  overthrown  by  unseemly  and  unlawful  conduct.  The  burden  of 
proof  upon  this  question  was  clearly  upon  the  appellants.  They  must  show  it 
affirmatively  in  order  to  succeed.     This  they  have  not  been  able  to  do. 

It  follows  that  the  application  must  be  denied. 


4267 

In  the  matter  of  the  appeal  of  Smith  E.  Slocum  and  others,  from  proceedings 
of  special  meeting  of  school  districts  nos.  5  and  6,  town  of  Ontario,  Wayne 
county,  held  April   18,   1894,  establishing  a  union  free  school  district. 

The  provisions  of  the  school  law  relative  to  the  consolidation  of  two  or  more  adjoining 
common  school  districts  by  the  establishment  of  a  union  free  school  therefor  and 
therein  in  force  in  April  1894,  did  not  require  that  the  call,  signed  by  fifteen  or  more 
persons  from  each  of  said  districts,  should  be  a  joint  call  and  addressed  to  the  trustees 
of  all  the  districts,  nor  that  the  trustees  of  the  districts  should  give  a  joint  notice 
of  the  meeting  pursuant  to  the  call ;  and  separate  calls,  signed  by  the  persons  residing 
in  the  separate  districts,  the  statute  only  requiring  that  such  persons  should  unite  in 
a  call,  and  that  the  trustees  should  unite  in  giving  notice  of  the  meeting,  that  is,  concur, 
consent  or  act  in  concert  in  calling  such  a  meeting;  that  in  a  meeting  so  held  all  acts 
and  proceedings  other  than  such  as  are  mentioned  in  section  5  of  the  title  relating 
to  union  free  school  districts  of  the  school  law  in  force  in  April  1894,  ^""^  void  and 
of  no  legal  effect. 

Decided  October  2,  1894 

S.  B.  Mclntyre,  attorney  for  respondent 


JUDICIAL  decisions:     union  free  school  districts  1371 

Crocker,  Superintendent 

This  appeal  is  taken  from  the  action  and  proceedings  of  a  special  meeting 
held  in  Ontario  village,  Wayne  county,  on  April  18,  1894,  to  take  action  upon 
the  proposition  to  consolidate  common  school  districts  nos.  5  and  6,  town  of 
Ontario,  Wayne  county,  by  the  establishment  of  a  union  free  school  in  said 
district. 

A  copy  of  the  appeal  was  served  on  June  2,  1894,  and  the  appeal  filed  in 
this  Department  on  June  4,  1894.  Various  grounds  of  appeal  are  alleged,  the 
material  ones  being  in  substance  as  follows :  that  the  said  meeting  was  not 
called  or  assembled  in  accordance  with  the  statutes  in  such  cases  made  and 
provided ;  that  the  question  whether  said  district  should  be  consolidated  was 
not  submitted  as  a  separate  question ;  that  the  vote  upon  the  resolution  was  not 
correctly  taken  nor  truly  recorded ;  that  persons  not  legally  qualified  to  vote 
at  such  meeting  were  permitted  to  vote ;  that  the  trustees  or  members  of  the 
board  of  education  were  not  elected  by  ballot.  An  answer  to  the  appeal  has 
been  interposed  and  to  such  answer  a  reply  has  been  made,  and  to  the  reply  a 
rejoinder.  The  papers  in  the  appeal  are  voluminous.  Much,  however,  that  is 
contained  therein  is  not  relevant  to  the  question  involved  in  the  decision  of  the 
appeal. 

The   following   facts  are  established: 

In  the  year  1894,  and  prior  to  April  i8th  of  said  year,  there  existed  in 
the  town  of  Ontario,  Wayne  county,  two  common  school  districts,  numbered 
respectively  5  and  6 ;  that  one  B.  H.  Hoag  was  trustee  of  district  no.  5,  and 
one  J.  C.  Howk  trustee  of  district  no.  6;  that  under  date  of  March  27,  1894, 
a  call  in  writing  addressed  to  said  Hoag,  as  trustee  of  said  district  no.  5,  was 
signed  by  twenty-seven  residents  of  said  district  no.  5  entitled  to  vote  at  any 
school  meeting  of  said  district,  requesting  such  trustee  to  cause  a  special  meeting 
of  the  voters  of  said  district  to  be  called  to  meet  with  the  voters  of  school 
district  no.  6  of  said  town,  provided  the  trustees  of  said  district  no.  6  will 
agree  to  such  meeting,  to  consider  and  decide  the  question  of  uniting  the  above- 
mentioned  districts  in  a  union  free  school  district  and  erecting  a  suiiable  build- 
ing therefor ;  that  under  said  date  of  March  27,  1894,  a  call  in  writing,  addressed 
to  said  Howk,  as  trustee  of  said  district  no.  6,  was  signed  by  forty-five  residents 
of  said  district  no.  6  entitled  to  vote  at  any  school  meeting  of  said  district, 
requesting  said  trustee  to  cause  a  special  meeting  of  the  voters  of  said  district 
to  be  called  to  meet  with  the  voters  of  school  district  no.  5  of  said  town,  pro- 
vided the  trustee  of  said  district  no.  5  agree  to  such  meeting,  for  the  purpose 
of  considering  and  deciding  the  question  of  uniting  the  above-mentioned  dis- 
trict in  a  union  free  school  district  and  erecting  a  suitable  building  therefor: 
that  the  aforesaid  calls,  so  signed  as  aforesaid,  were  together  presented  to  and 
left  with  Hoag  and  Howk.  as  such  trustees,  at  a  meeting  of  said  two  trustees, 
and  that  said  two  trustees  together  agreed  to  call  a  special  meeting  of  the  two 
districts  in  conformity  to  such  two  calls :  and  that  said  two  trustees,  under  date 
of  April  10,  1894,  each  issued  a  notice,  each  signed  by  him  as  trustee  of  his 


1372  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

district;  that  a  joint  meeting  of  the  inhabitants  of  his  district  (5  or  6)  entitled 
to  vote  thereat,  together  with  the  quahtied  voters  of  district  no.  5  or  6,  would  be 
held  at  the  Baptist  church  in  Ontario  village  on  Wednesday,  April  18,  1894, 
at  I  o'clock  p.  m.,  for  the  purpose  of  determining  by  a  vote  of  such  districts 
whether  a  union  free  school  should  be  established  therein  in  conformity  to  the 
provisions  to  that  end  of  chapter  555  of  the  Laws  of  1864  and  the  amendments 
thereof ;  that  in  each  of  said  notices  was  suBiciently  set  forth  the  qualifications 
of  the  inhabitants  entitled  to  vote  at  such  meeting;  that  said  notices  of  such 
special  meeting  were  duly  and  legally  served  upon  the  inhabitants  of  each  of 
said  districts  respectively  qualified  to  vote  at  such  meeting. 

That  on  April  18,  1804,  a  special  joint  meeting  of  the  inhabitants  of  said 
school  districts  nos.  5  and  6,  qualified  to  vote  thereat,  was  held  at  the  Baptist 
church,  in  Ontario  village,  pursuant  to  the  aforesaid  notices ;  that  one  William 
Payne  was  elected  chairman,  in  which  election  154  persons  participated,  and 
C.  J.  Nash  and  E.  J.  Howk  were  elected  secretaries ;  that  the  call  for  the 
special  meeting  was  read,  and  a  paper  signed  by  residents  of  district  no.  5 
protesting  against  the  action  of  the  trustee  of  said  district  in  calling  the  joint 
meeting  without  first  securing  the  consent  of  a  majority  of  the  voters  thereof, 
and  protesting  against  any  joint  action  being  taken  at  that  time  was  read;  that 
one  R.  Johnson  offered  the  following  resolution :  "  Resolved,  That  a  union 
free  school  be  established  within  the  limits  of  district  no.  5  in  the  town  of 
Ontario,  county  of  Wayne,  State  of  New  York,  and  school  district  no.  6  in 
said  town,  pursuant  to  the  provisions  of  chapter  555  of  the  Laws  of  1864,  and 
the  amendments  thereof ;  and  that  a  suitable  schoolhouse  be  erected  in  the  dis- 
trict so  formed  at  a  point  not  to  exceed  five  rods  east  or  west  of  a  line  running 
north  and  south  through  the  north  end  of  the  stone  wall  which  runs  north  and 
south  upon  lands  of  David  Craven,  and  which  wall  is  located  about  20  rods 
west  of  David  Craven's  house,"  and  J.  S.  Bennett  moved  its  adoption.  Unani- 
mous consent  was  given  to  Mr  Johnson  to  amend  said  resolution  so  as  to  read 
"not  to  exceed  10  rods,"  instead  of  "  5  rods";  the  original  call  of  the  inhabit- 
ants of  district  no.  5  to  trustee  Hoag  for  a  special  meeting  with  the  voters  of 
district  no.  6  was  read ;  that  a  vote  by  ayes  and  noes  was  taken  upon  the  adop- 
tion of  the  resolution  ofifered  by  Mr  Johnson,  the  whole  number  of  votes  cast 
being  106,  of  which  99  were  for  7  against  said  resolution  ;  that  the  following 
resolution  was  adopted  by  acclamation : 

"Resolved,  That  we  proceed  to  elect  a  board  of  trustees,  consisting  of 
nine  memliers,  to  be  divided  into  three  classes  consisting  of  three  members  each. 
The  members  of  the  first  class  shall  be  the  first  three  elected,  who  shall  hold 
office  until  one  year  from  the  next  annual  school  meeting.  The  members  of 
the  second  class  shall  be  the  second  three  elected,  and  who  shall  hold  office  until 
two  years  from  the  next  annual  school  meeting,  and  the  members  of  the  third 
class  shall  be  the  third  three  elected,  and  who  shall  hold  office  until  three  years 
from  the  next  annual  school  meeting  " ;  that  F.  J.  Peer,  George  Klock  and  P.  F. 
Osborn  were  nominated  as  the  three  trustees  of  the  first  class,  and  a  motion 


JUDICIAL  decisions:     union  free  school  districts  1373 

was  made  and  carried  that  if  no  other  names  are  placed  in  nomination  that  the 
secretary  cast  a  ballot  for  said  Peer,  Klock  and  Osborn,  and  thereupon  the 
secretary  cast  a  ballot  for  said  persons  and  the  result  of  such  ballot  was  an- 
nounced; that  J.  S.  Brandt,  William  Payne  and  E.  J.  Howk  were  nominated 
as  the  three  trustees  of  the  second  class,  and  a  motion  made  and  carried  that 
if  no  other  names  are  placed  in  nomination  that  the  secretary  cast  a  ballot  for 
said  Brandt,  Payne  and  Howk,  and  thereupon  the  secretary  cast  a  ballot  for 
said  persons,  and  the  result  of  such  ballot  was  announced;  that  R.  Johnson, 
B.  Hoag  and  Charles  Harris  were  nominated  as  the  three  trustees  of  the  third 
class,  when  Mr  Johnson  declined,  and  J.  H.  Pratt  was  nominated  in  place  of 
Mr  Johnson,  and  thereupon  a  motion  was  made  and  carried  that  if  no  other 
names  are  placed  in  nomination  the  secretary  cast  a  ballot  for  said  Pratt,  Hoag 
and  Harris,  and  the  secretary  cast  a  ballot  for  such  persons  and  the  result  of 
said  ballot  was  announced.  It  further  appears  that  at  said  meeting  certain  reso- 
lutions were  presented  and  adopted  relating  to  the  purchase  of  a  schoolhouse 
site,  and  the  erection  of  a  schoolhouse  thereon,  at  a  cost  not  exceeding  $8000, 
and  that  said  sum  be  raised  in  instalments,  etc.,  etc.,  after  which  the  minutes 
of  the  proceedings  of  said  meeting  were  read  and  adopted  and  the  meeting 
adjourned.  A  copy  of  the  calls,  notices  for  said  special  meeting  and  of  the 
minutes  of  said  special  meeting,  duly  certified  by  the  chairman  and  secretaries 
of  the  said  meeting,  were  received  by  me  on  May  3,  1894. 

The  formation  of  a  union  free  school  district  in  the  consolidation  of  two  or 
more  common  school  districts  by  the  establishment  of  a  union  free  school  therefor 
and  therein  is  a  statutory  proceeding  purely,  and  if  the  local  authorities  comply 
substantially  with  the  provisions  of  law  relating  thereto,  the  statute  itself  creates 
the  union  free  school  district,  so  that  no  discretion  rests  with  the  Superintendent 
of  Public  Instruction  to  determine  the  expediency  or  the  advisability  of  the 
action  taken ;  it  is  a  matter  entirely  within  the  power  of  the  inhabitants  of  the 
territory  of  the  proposed  district,  qualified  to  vote  at  school  meetings  therein. 
The  provisions  of  title  9  of  the  Consolidated  School  Act  of  1864,  and  the  amend- 
ments thereto,  were  in  force  at  the  time  of  the  action  and  proceedings  relative 
to  the  consolidation  of  said  school  districts  nos.  5  and  6,  town  of  Ontario,  Wayne 
county,  by  the  establishment  of  a  union  free  school  therefor  and  therein,  and  the 
sole  question  for  me  to  decide  in  this  appeal  is.  whether  or  not  said  action  and 
proceedings  were  substantially  in  accordance  with  the  provisions  of  sections  I, 
2.  3,  4  and  5  of  said  title  9. 

By  section  i  of  title  9  of  said  act,  whenever  fifteen  persons  entitled  to  vole 
at  any  meeting  of  the  inhabitants  of  any  school  district  in  the  State  shall  sign  a 
call  for  a  meeting,  to  be  held  for  the  purpose  of  determining  whether  a  union  free 
school  shall  be  established  therein,  in  conformity  to  the  provisions  of  said  title  9, 
ii  shall  be  the  duty  of  the  trustees  of  such  district,  within  ten  days  after  such 
call  shall  have  been  presented  to  them,  to  give  public  notice  that  a  meeting  will 
be  held  for  such  purpose  as  aforesaid,  etc.,  etc.  If  the  trustees  shall  refuse  or 
neglect  to  give  such  notice  the  Superintendent  of  Public  Instruction  may  authorize 
and  direct  anv  inhabitant  of  said  district  to  give  the  notice. 


1374  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

Section  2  of  title  9  of  said  act  prescribes  the  manner  in  which  the  notices  of 

the  special  meetings  mentioned  in  sections  i  and  4,  title  9,  shall  be  given. 

By  section  4  of  title  9,  whenever  fifteen  persons,  entitled  as  aforesaid  from 
each  of  two  or  more  adjoining  districts,  shall  unite  in  a  call  for  a  meeting  of 
the  inhabitants  of  such  districts,  to  determine  whether  such  districts  shall  be  con- 
solidated by  the  establishment  of  a  union  free  school  therefor  and  therein,  it 
shall  be  the  duty  of  the  trustees  of  such  districts,  or  a  majority  of  them,  to  give 
like  public  notice  of  such  meeting,  at  some  convenient  place  within  such  districts 
and  as  central  as  may  be  within  the  time  and  to  be  published  and  served  in  the 
manner  set  forth  in  the  second  section  of  title  9,  in  each  of  such  districts,  and  the 
Superintendent  of  Public  Instruction  may  order  such  meeting  under  the  conditions 
and  in  the  manner'prescribed  in  the  first  section  of  title  9.  Said  section  does  not 
prescribe  any  form  for  the  call  for  such  meeting,  nor  for  the  notice  of  such 
meeting.  It  does  not  state  that  the  persons  of  the  two  or  more  districts  shall 
join  in  one  call  for  a  meeting,  nor  that  the  trustees  of  the  districts  shall  join  in 
one  notice  of  tlfe  meeting  pursuant  to  the  call ;  it  states  that  the  fifteen  persons 
from  each  of  two  or  more  adjoining  districts  shall  unite,  that  is,  concur,  consent 
or  act  in  concert,  in  calling  for  such  a  meeting,  and  that  trustees  shall  give  like 
public  notice  of  the  meeting,  that  is,  such  trustees  concurring,  consenting  or  act- 
ing in  concert  in  calling  such  meeting. 

I  am  of  the  opinion  that  the  inhabitants  of  said  districts  nos.  5  and  6  of 
Ontario,  united,  within  the  meaning  of  section  4,  above  cited,  in  a  call  for  a  meet- 
ing to  consider  the  question  of  establishing  a  union  free  school  therein,  and  that 
the  trustees  of  said  districts  united  in  calling  such  a  meeting. 

I  am  also  of  the  opinion  that  the  notice  of  such  meeting  was  given  as  pre- 
scribed in  section  2  of  title  9  of  said  section.  By  section  5  of  title  9  of  said  act 
whenever  such  meeting,  as  is  provided  for  in  sections  i  and  4  of  said  title,  is 
held,  such  meeting  shall  be  organized  by  the  appointment  of  a  chairman  and 
secretary,  and  it  may  be  adjourned  from  time  to  time  by  a  majority  vote  provided 
that  such  adjournment  shall  not  be  for  a  longer  period  than  ten  days;  that  at 
such  meeting  when  there  are  present  not  less  than  fifteen  persons  entitled  to 
vote  thereat  shall  by  the  affirmative  vote  of  a  majority  present  and  voting  deter- 
mine to  establish  a  union  free  school  in  said  district,  pursuant  to  such  notice;  it 
shall  be  lawful  for  such  meeting  to  proceed  to  the  election,  by  ballot,  of  not  less 
than  three  nor  more  than  nine  trustees,  who  shall,  by  the  order  of  such  meeting, 
be  divided  into  three  several  classes  the  first  to  hold  uijtil  one.  the  second  until 
two,  the  third  until  three  years  from  the  next  annual  meeting  of  the  district, 
except  in  the  cases  provided  for  in  section  6  of  title  9;  that  said  trustees  and 
their  successors  in  office  shall  constitute  the  board  of  education  of  and  for  the 
union  free  school  district  for  which  they  are  elected,  and  a  designation  of  the 
number  of  said  district  shall  be  made  by  the  school  commissioner  having  juris- 
diction ;  three  copies  of  the  call  and  minutes  of  the  meeting,  duly  certified  by  the 
chairman  and  secretary  thereof,  shall  be  made  and  transmitted  and  deposited, 
one  with  the  school  commissioner,  one  with  the  town  clerk  and  one  with  the 


JUDICIAL  decisions:     union  free  school  districts  1375 

Superintendent  of  Public  Instruction;  but  if  at  such  meeting  the  question  of  the 
establishment  of  a  union  free  school  shall  not  be  decided  in  the  affirmative  then 
all  further  proceedings  at  such  meeting,  except  a  motion  to  reconsider  or  adjourn, 
shall  be  dispensed  with,  and  no  such  meeting  shall  be  again  called  within  one 
year  thereafter. 

Said  section  5  also  provides  that  when  the  trustees  so  selected  shall  enter 
upon  their  office  the  office  of  any  existing  trustee  or  trustees  shall  cease  except 
4"or  the  purposes  stated  in  section  11  of  title  6  of  said  school  act,  namely,  to 
provide  for  and  pay  the  debts  of  said  former  district  or  districts.  This  Depart- 
ment has  held  that  trustees  or  members  of  the  board  of  education  of  such  union 
free  school  district  enter  upon  their  office  at  once  upon  their  election  under  said 
section  5. 

The  said  meeting  of  April  18,  1894,  having  been  duly  called,  had  no  authority, 
under  the  school  law,  to  transact  any  other  business  than  that  specified  in  the 
notice  of  such  meeting  and  mentioned  in  said  section  5  of  title  9.  Said  meeting 
adopted  by  the  affirmative  vote  of  a  majority  present  and  voting,  not  less  than 
fifteen  persons  qualified  to  vote  thereat  being  present  from  each  of  said  district 
nos.  5  and  6,  that  a  union  free  school  be  established  within  the  limits  of  said 
districts  5  and  6  of  the  town  of  Ontario,  Wayne  county,  pursuant  to  the  pro- 
visions of  chapter  555  of  the  Laws  of  1864,  and  the  amendments  thereof.  It  is 
true  that,  coupled  with  the  resolution  to  establish  such  union  free  school  and 
make  a  part  thereof,  were  matters  relating  to  the  erection  of  a  suitable  school- 
house  in  said  district.  The  appellants  contend  that  the  said  resolution  was  invalid 
by  reason  of  the  including  therein  the  matters  relating  to  the  schoolhousc,  and 
that  thereby  a  free  and  unbiased  expression  of  the  will  of  the  voters  present  was 
prevented.  The  contention  is  not  tenable  and  is  not  sustained  by  the  proofs. 
The  voters  at  the  meeting  were  not  misled  and  no  request  was  made  to  divide  the 
resolution.  Said  voters  had  no  authority  at  said  meeting  to  act  upon  the  question 
of  a  schoolhouse,  and  so  much  of  the  resolution  as  relates  to  the  schoolhouse  is 
but  an  expression  of  opinion  by  the  voters  of  no  legal  ability  and  surplusage. 
The  appellants  also  contend  that  the  question  of  establishing  a  union  free  school 
in  said  districts  5  and  6  and  thus  consolidating  said  districts  into  a  union  free 
school  district  should  have  been  submitted  to  the  separate  votes  of  the  voters 
of  said  districts  respectively.  The  contention  is  not  tenable.  If  at  said  meeting 
of  April  18,  1894,  there  were  present  not  less  than  fifteen  persons  from  each 
of  said  districts,  qualified  to  vote  thereat,  a  majority  of  those  present  and  voting 
from  both  of  the  districts  could  lawfully  determine  that  a  union  free  school 
should  be  established.  In  appeal  no.  4178,  decided  by  me  July  6,  1893  (see  page 
154,  of  volume  i  of  my  report  of  1894)  I  held  that  title  9  of  the  Consolidated 
School  Act  does  not  reciuirc  that  the  resolution  establish.ing  a  union  free  school 
district  should  receive  a  majority  of  the  votes  of  each  of  the  districts;  but  that  if 
at  least  fifteen  of  the  voters  of  each  district  are  present  at  the  meeting,  a  majority 
of  the  qualified  voters  from  both  districts  present  and  voting  in  favor  of  the  reso- 
lution is  a  compliance  with  the  provisions  of  said  title. 


1376  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

The  appellants  also  contend  that  no  ballot  of  the  voters  present  was  taken 
upon  the  election  of  any  of  said  trustees.  This  contention  is  not  well  taken.  At 
said  meeting  of  April  16,  1894,  after  it  had  determined  to  establish  a  union  free 
school  district,  it  also  determined  that  said  district  (formerly  districts  5  and  6) 
should  have  nine  trustees,  and  divided  said  trustees  into  three  classes,  the  first 
three  to  be  elected  to  serve  one  year,  the  second  three  to  be  elected  to  serve 
two  years,  and  the  last  three  to  be  elected  to  serve  for  three  years;  that  there- 
upon three  persons  were  nominated  for  the  first  three  to  be  elected,  and  a  motion 
adopted  that  if  no  other  persons  be  nominated  that  the  secretary  cast  a  ballot  for 
the  three  so  nominated,  and  no  other  persons  being  nominated  the  secretary  cast 
a  ballot  for  said  three  persons  and  the  result  of  such  ballot  was  announced ;  that 
a  like  course  was  pursued  in  the  election  of  the  other  six  persons  for  such  trustees. 
I  am  of  the  opinion  that  the  nine  trustees  were  elected  by  ballot  as  recjuired  by 
section  5  of  title  9  of  the  Consolidated  School  Law.  The  qualified  voters  of  a 
district  present  and  voting  have  the  right  of  expressing  their  choice  for  trustees 
by  their  ballots ;  but  where  only  one  or  more  persons,  if  composing  a  class,  are 
put  in  nomination  for  the  office  of  trustee,  and  there  is  no  objection  made  by 
any  voter,  and  it  is  the  unanimous  wish  of  the  qualified  voters  expressed  at  the 
meeting  by  their  votes  that  the  secretary  of  the  meeting  shall  cast  his  one  ballot 
for  such  person  or  persons  so  nominated  for  such  office,  such  person  or  persons 
are  elected  by  ballot. 

No  proof  has  been  presented  by  the  appellants  to  sustain  the  allegations  in 
their  appeal  that  the  vote  upon  the  resolution  to  establish  a  union  free  school 
was  not  correctly  taken  nor  truly  recorded ;  nor  that  persons  not  legally  qualified 
to  vote  at  such  meeting  were  permitted  to  vote  thereat.  All  proceedings  had  and 
taken  at  said  meeting  of  April  18,  1894,  relating  to  the  construction  of  a  new 
schoolhouse  at  any  point  named,  or  the  purchase  of  a  schoolhouse  site,  or  the 
erection  of  a  schoolhouse  upon  said  site  at  a  cost  of  $8000,  and  that  said  sum  be 
raised  in  instalments,  etc.,  were,  and  each  of  them  was,  void  and  of  no  binding 
eflfect,  the  said  meeting  not  having  the  authority,  under  section  5  of  title  9  of  said 
Consolidated  School  Act,  to  take  any  action  except  upon  the  matters  specified  in 
the  call  for  said  meeting  and  permitted  to  be  taken  under  said  section  5. 

I  find  and  decide  that  the  special  meeting  of  the  inhabitants  of  school  districts 
nos.  5  and  6  of  the  town  of  Ontario,  Wayne  county,  qualified  to  vote  at  school 
meetings,  held  at  the  Baptist  church  in  Ontario  village  on  April  18,  1894,  for  the 
purpose  of  determining  whether  a  union  free  school  should  be  established  within 
said  districts  in  conformity  to  the  provisions  to  that  end  of  chapter  555  of  the 
Laws  of  1864,  and  the  amendments  thereof,  was  duly  and  legally  called 
and  held.  That  at  said  meeting  it  was  duly  and  legally  determined  by  the 
affirmative  vote  of  a  majority  present  and  voting,  that  a  union  free  school  be 
established  within  the  limits  of  district  no.  5,  in  the  town  of  Ontario,  Wayne 
county,  State  of  New  York,  and  school  district  no.  6,  in  said  town,  pursuant  to 
the  provisions  of  chapter  555  of  the  Laws  of  1864,  and  the  amendments  thereof. 
That  by  said  determination,  under  the  provisions  of  said  chapter  555  of  the  Laws 


JUDICIAL  decisions:     union  free  school  districts  1377 

of  1864,  and  the  amendments  thereof,  said  school  districts  nos.  5  and  6,  town  of 
Ontario,  Wayne  county,  became  and  were  consolidated  as  one  district,  to  wit, 
union  free  school  district  no.  — ,  of  the  town  of  Ontario  (the  scliool  commissioner 
having  jurisdiction  of  the  district  to  make  the  designation).  That  at  said  meet- 
ing nine  trustees  of  said  district  were  duly  and  legally  elected,  and  divided  into 
three  classes,  the  first  three  elected  to  hold  for  one  year,  the  second  three  elected 
to  hold  for  two  years,  and  the  last  three  elected  to  hold  for  three  years  from  the 
first  Tuesday  of  August  next  following.  That  the  said  nine  trustees  so  elected 
entered  at  once  upon  their  office,  and  the  office  of  any  then  existing  trustee  or 
trustees  in  said  districts,  nos.  5  and  6,  or  either  of  them,  ceased,  except  for  the 
purposes  stated  in  section  11  of  title  6  of  said  chapter  555  of  the  Laws  of  1864, 
and  the  amendments  thereof. 

That  all  actions  and  proceedings  had  and  taken  at  said  special  meetings,  after 
the  organization  thereof,  except  that  relating  to  the  establishment  of  a  union 
free  school  and  the  election  of  trustees,  and  adjourning  were  and  are  void  and  of 
no  legal  effect. 

The  appeal  herein  is  dismissed. 


4306 

In  the  matter  of  the  appeal  of  Henry  F.  Chadeayne  and  Henry  W.  Chadeayne 
from  proceedings  of  a  special  meeting,  held  on  October  20,  1894,  in  school 
district  no.  5,  town  of  Cornwall,  Orange  county. 

Where  in  a  common  school  district  a  call  is  duly  signed  by  at  least  fifteen  qualified  voters 
of  the  district,  for  the  trustees  of  the  district  to  call  a  meeting,  to  be  held  for  the 
purpose  of  determining  whether  a  union  free  school  shall  be  established  therein,  and 
such  notice  is  issued  by  the  trustees  and  a  meeting  duly  held  at  which  no  action  is 
taken  upon  any  resolution  to  establish  a  union  free  school  therein,  and  such  meeting 
is  adjourned  and  the  adjourned  day  being  Sunday,  no  meeting  was  held  thereon,  all 
proceedings  theretofore  had  and  taken,  went  down.  That  a  subsequent  call  for  such 
a  meeting  and  then  notice  of  a  meeting  made  by  the  trustees  thereon,  and  the  action 
of  the  meeting  held  pursuant  to  such  notice  in  the  establishment  of  a  union  free  school 
in  such  district,  was  legal  and  valid. 

Decided  December  21,  1894 

H.  W.  Chadeayne,  attorney  for  appellant 

Crooker,  Superintendent 

On  or  about  August  7,  1894,  a  call,  signed  by  eighteen  qualified  voters  in 
school  district  no.  5,  town  of  Cornwall,  Orange  county,  for  a  meeting  of  the 
qualified  voters  of  said  district,  to  be  held  for  the  purpose  of  determining  whether 
a  union  free  school  should  be  established  therein,  was  received  at  the  annual 
school  meeting,  held  in  said  district  on  August  7,  1894,  read  and  placed  on  file; 
on  August  9,  1894,  the  trustees  of  said  school  district  gave  public  rqotice  that  in 
compliance  with  a  call  of  fifteen  or  more  persons  entitled  to  vote  at  any  meeting 
44 


1378  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

of  the  inhabitants  of  said  district,  that  a  meeting  of  the  inhabitants  of  said  dis- 
trict entitled  to  vote  thereat,  would  be  held  at  the  school  house  on  the  30th  day 
of  August,  at  7.30  p.  m.,  for  the  purpose  of  determining  by  a  vote  of  such  district 
whether  a  union  free  school  should  be  established  therein;  that  said  notice  did 
not  set  forth  the  qualifications  of  the  inhabitants  entitled  to  vote  at  such  meeting ; 
that  on  said  August  30,  1894,  a  meeting  of  said  district,  pursuant  to  said  notice, 
was  held  and  organized  by  the  choice  of  one  Emslie  as  chairman  and  one  Ash- 
worth  as  secretar}' ;  that  the  call  for  said  meeting  was  read,  and  also  a  protest  of 
Henry  F.  Chadeayne,  and  thereupon  the  said  meeting  adjourned  for  ten  days; 
the  meeting  did  not  convene  on  the  day  to  which  it  was  adjourned,  said  adjourned 
day  being  Sunday,  September  9,  1894,  and  said  meeting  went  down;  that  on  or 
about  September  20,  1894,  eighteen  qualified  voters  of  said  school  district  signed 
a  call,  addressed  to  the  trustees  of  said  district,  for  a  special  meeting  of  the 
qualified  voters  of  the  district  to  be  held  in  the  schoolhouse  for  the  purpose 
of  determining  whether  a  union  free  school  should  be  established  therein  in  con- 
formity with  the  provisions  of  title  8,  article  i  of  chapter  556  of  the  Laws  of  the 
State  of  New  York,  passed  May  8,  1894;  that  said  call  was  received  by  the  trus- 
tees of  said  district,  and  thereupon,  on  September  22,  1894,  said  trustees  gave 
public  notice  that  in  compliance  with  a  call  of  fifteen  or  more  persons  entitled 
to  vote  at  any  meeting  of  the  inhabitants  of  said  district,  a  meeting  of  the  inhabit- 
ants of  said  district,  entitled  to  vote  thereat,  would  be  held  at  the  schoolhouse  on 
the  20th  day  of  October  1894,  at  7.30  p.  m.,  for  the  purpose  of  determining,  by 
a  vote  of  such  district,  whether  a  union  free  school  should  be  established  therein 
in  conformity  with  the  provisions  to  that  end  of  chapter  556  of  the  Laws  of 
1894;  that  the  qualifications  of  the  inhabitants  entitled  to  vote  at  such  meeting 
were  sufficiently  set  forth  in  said  notice ;  that  the  notice  of  said  meeting  was  duly 
given  as  required  by  the  provisions  of  chapter  556  of  the  Laws  of  1894;  that  on 
October  20,  1894,  at  7.30  p.  m.,  the  voters  of  said  district,  pursuant  to  said  notice 
of  the  trustees,  dated  September  22,  1894,  assembled  at  the  schoolhouse  and 
organized  the  meeting  by  the  choice  of  Holland  Emslie  as  chairman,  and  W.  H. 
Ashworth  as  secretary.  The  call  was  read  and  the  fact  that  fifteen  persons 
entitled  to  vote  were  present,  and  proof  of  due  service  of  the  notice  of  the  meet- 
ing was  made;  that  a  resolution  in  writing  was  presented  to  the  meeting  that  a 
union  free  school  shall  be  established  within  the  limits  of  district  no.  5,  in  the 
town  of  Cornwall,  pursuant  to  the  provisions  of  chapter  556  of  the  Laws  of  1894, 
and  a  motion  made  that  the  resolution  be  adopted ;  that  a  protest  signed  by  H.  F. 
Chadeayne,  one  of  the  appellants  herein,  to  the  holding  of  said  meeting,  or  any 
action  thereat,  was  presented  to  said  meeting,  but  no  action  was  taken  thereon; 
that  a  ballot  was  taken  upon  said  resolution  to  establish  a  union  free  school  in 
said  district  which  resulted  in  83  votes  being  cast,  of  which  58  were  in  favor  and 
25  against  said  resolution;  that  seven  persons  were  elected  by  ballot  to  compose 
the  board  of  education  of  said  district,  three  of  which  were  elected  for  three 
years,  two  for  two  years  and  two  for  one  year,  and  thereupon  said  meeting 
adjourned. 


JUDICIAL  decisions:    union  free  school  districts  1379 

The  appellants  herein  appeal  from  the  action  and  decision  of  said  special 
meeting  of  October  20,  1894,  and  from  all  the  acts  and  proceedings  of  the  trustees 
of  said  common  school  district  relative  to  a  union  free  school  done  prior  to  said 
meeting,  and  allege  various  grounds  for  said  appeal. 

An  answer  to  said  appeal  has  been  made. 

The  principal  grounds  alleged  in  the  appeal  are,  in  substance:  first,  that  all 
the  notices  and  proceedings  based  upon  the  call  of  September  20,  1894,  are  illegal 
and  void  because  a  legal  call  presented  and  filed  August  7,  1894,  was,  and  is  still 
pending,  and  two  calls  may  not  exist  within  one  year;  second,  that  the  notice  of 
the  meeting  called  for  October  20,  1894,  was  not  served  in  accordance  with  the 
provisions  of  title  8  of  the  Consolidated  School  Law ;  third,  that  the  three  trus- 
tees of  said  district  did  not  meet  and  act  upon  the  call  of  September  20,  1894, 
presented  to  them,  and  in  issuing  their  notice  of  a  meeting  to  be  held  on  October 
20,  1894. 

The  establishment  of  a  union  free  school  within  a  common  school  district 
is  a  statutory  proceeding,  and  if  the  provisions  of  the  school  law  are  substan- 
tially complied  with,  the  statute  itself  creates  such  union  free  school  and  district, 
ipso  facto. 

The  proofs  presented  herein  show  that  on  August  7,  1894,  a  call  signed  by 
fifteen  or  more  qualified  voters  of  said  school  district  no.  5,  for  a  special  meeting 
of  said  district,  to  be  held  for  the  purpose  of  determining  whether  a  union  free 
school  should  be  established  therein,  was  presented,  not  to  the  trustees  of  the  dis- 
trict, but  at  the  annual  school  meeting  held  in  said  district  on  August  7,  1894, 
was  received  and  read  at  the  meeting  and  ordered  on  file;  that  on  August  9,  1894, 
said  trustees,  assuming  it  was  their  duty  to  act  under  said  call,  issued  a  notice  for 
a  special  meeting  of  the  district  to  be  held  at  the  schoolhouse  therein,  on  August 
30,  1894,  for  the  purpose  of  determining  whether  a  union  free  school  should  be 
established  therein;  but  the  qualifications  of  the  inhabitants  entitled  to  vote  at 
such  meeting  were  not  set  forth  in  said  notice;  that  said  notice  was  duly  served 
and  a  meeting  thereunder  was  held  on  August  30th,  which  after  organizing  and 
after  the  reading  of  the  call  and  a  protest  of  Henry  Chadeayne,  the  meeting 
adjourned  for  ten  days;  that  the  day  to  which  the  meeting  was  adjourned  being 
Sunday,  September  9,  1894,  said  adjourned  meeting  was  not  held  and  said 
meeting  went  down  and  said  call,  the  notice  of  meeting  thereunder,  and  all  pro- 
ceedings had  and  taken  at  said  meeting,  went  down  with  said  meeting,  and 
the  situation  of  afifairs  in  said  school  district  relative  to  the  establishment  of  a 
union  free  school  therein,  commenced  by  said  call,  was,  after  September  9,  1894, 
as  if  no  call  for  a  meeting  for  said  purpose  had  ever  been  made  therein;  that 
when  the  call  to  the  trustees,  made  and  signed  on  or  about  September  30,  1894, 
was  presented  to  the  trustees,  no  other  call  existed  or  was  pending  and  in  life 
in  said  district.  The  trustees  of  said  district  did  not  refuse  to  give  notice  of  a 
meeting  upon  the  call  of  August  7.  1894,  nor  did  they  neglect  to  give  the  same  for 
twenty  days,  but  on  the  contrary,  on  August  9,  1894.  within  two  days,  gave  notice 
of  a  meeting  pursuant  to  said  call,  and  hence  if  said  first  call  was  still  existing 


1380  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

and  valid  the  Superintendent  of  Public  Instruction  would  not  have  power  to 
authorize  and  direct  an  inhabitant  of  said  district  to  give  notice  of  a  meeting 
thereunder.  The  contention  of  the  appellants  that  a  call  for  a  meeting  having 
been  made,  and  notice  of  such  meeting  having  been  made  thereunder,  and  such 
meeting  held,  another  call,  notice  and  meeting  can  not  be  legally  had  within  a 
year  thereafter,  is  not  tenable.  Under  title  8  of  chapter  556  of  the  Laws  of 
1894,  it  is  enacted,  that  when  at  any  such  meeting  the  question  as  to  the  establish- 
ment of  a  union  free  school  shall  not  be  decided  in  the  affirmative,  etc.,  etc.,  no 
such  meeting  shall  be  again  called  within  one  year  thereafter.  The  meeting  held 
on  August  30,  1894,  took  no  action  whatever  upon  the  question  of  the  establish- 
ment of  a  union  free  school,  but  adjourned,  and  the  inhabitants  did  not  meet  on 
the  adjourned  day,  and  the  meeting  went  down.  Said  meeting  not  having  acted 
upon  the  question  of  establishing  a  union  free  school,  the  provision  of  the  school 
law,  that  no  meeting  shall  be  again  called  within  one  year  thereafter,  does  not 
apply.  It  requires  a  vote  upon  the  question  at  the  meeting  and  that  vote  must 
negative  the  establishment  of  the  union  free  school,  to  prevent  any  meeting  being 
called  and  held  for  determining  the  question  within  one  year  thereafter,  under  said 
school  law. 

The  answer  to  the  appeal  herein  has  annexed  thereto  the  affidavit  of  one 
Torrey  that  at  least  twenty  days  prior  to  October  30,  1894,  five  copies  of  the 
notice  of  the  special  meeting  to  be  held  on  said  October  20,  1894,  were  posted  by 
him  in  five  public  places  in  said  district;  and  there  is  also  annexed  to  said  answer 
the  affidavit  of  one  MacCann,  a  taxable  inhabitant  of  said  district,  that  he  served, 
prior  to  September  26,  1894,  upon  every  other  inhabitant  of  said  district,  qualified 
to  vote,  notice  of  said  meeting  to  be  held  October  20,  1894,  in  the  manner  required 
by  the  school  law.  The  appellants  have  not  replied  to  such  affidavits,  nor  required 
permission  to  reply  thereof. 

While  in  the  performance  of  the  duties  of  their  office,  trustees  of  school  dis- 
tricts are  required  to  meet  as  a  board,  under  article  i,  title  8  of  the  Consolidated 
School  Law  of  1894,  where  a  call  signed  by  fifteen  persons  entitled  to  vote  at 
school  meetings  of  a  district  for  a  meeting  to  be  held  for  the  purpose  of  deter- 
mining whether  a  union  free  school  shall  be  established  therein  is  presented  to 
said  trustees,  they  have  no  discretion  in  the  matter,  but  it  becomes  their  duty  to 
give  notice  of  the  meeting  in  pursuance  to  such  call,  and  no  meeting  of  the  board 
is  necessary. 

I  find  and  decide,  That  the  call  of  fifteen  or  more  qualified  voters  of  said 
district  for  a  special  meeting  of  the  qualified  voters  of  said  district,  to  determine 
whether  a  union  free  school  should  be  established  therein,  dated  September  20, 
1894,  was  a  legal  call;  that  the  notice  of  a  special  meeting  of  said  district,  to  be 
held  October  20,  1894,  made  by  the  trustees  of  said  district,  pursuant  to  said  call, 
was  a  legal  notice,  and  that  said  notice  was  duly  and  legally  served  upon  the  quali- 
fied voters  of  said  district;  that  said  special  meeting  held  in  pursuance  of  said 
call  and  notice  was  duly  and  legally  called  and  held ;  that  the  action  and  proceed- 
ings had  and  taken  at  said  meeting  were  legal,  and  that  a  union  free  school  in  and 


JUDICIAL  decisions:    union  free  school  districts  1381 

for  said  district  was  duly  and  legally  established  by  the  action  and  proceedings 
of  said  meeting. 

The  appellants  have  failed  in  establishing  their  appeal  and  such  appeal  should 
be  dismissed. 

The  appeal  herein  is  dismissed. 


4305 

In  the  matter  of  the  appeal  of  Julius  M.  Hitchcox  and  others  from  proceedings 
of  a  special  meeting  held  on  October  5,  1894,  in  school  district  no.  i,  town  of 
Canisteo,  Steuben  county. 

The  provisions  of  title  8  of  the  Consolidated  School  Law  of  1894,  relating  to  union  free 
school  districts,  do  not  require  that  in  the  call  and  notice  of  the  meeting,  provided  for 
in  section  i  of  said  title,  shall  contain  any  other  statement  that  said  meeting  is  called 
for  the  purpose  of  determining  whether  a  union  free  school  shall  be  established  therein, 
and  does  not  require  that  said  call  and  notice  shall  refer  to  the  chapter,  article  or  title 
of  the  law  under  which  said  proceedings  are  authorized.  Where  the  call  and  notice 
of  meeting  stated  that  such  meeting  was  to  be  held  for  the  purpose  of  determining 
whether  a  union  free  school  should  be  established  within  the  district  in  conformity 
with  the  provisions,  to  that  end,  of  chapter  555  of  the  Laws  of  1864,  and  the  amend- 
ments thereof,  and  at  the  meeting  a  resolution  was  adopted  to  establish  a  union  free  school 
in  the  district  in  conformity  with  title  8  of  chapter  556  of  the  Consolidated  School 
Law  of  1894,  such  action  was  a  substantial  compliance  with  the  provisions  of  title  8, 
chapter  556  of  the  Laws  of  1894. 

Decided  December  18,  1S94 

Frank  H.  Robinson,  attorney  for  appellants 
A.  H.  Burrell,  attorney  for  respondent 

Crocker,  Superintendent 

On  or  prior  to  September  15,  1894,  fifteen  and  upwards,  to  wit,  2S1  of  the 
inhabitants  of  school  district  no.  i,  town  of  Canisteo,  Steuben  county,  entitled  to 
vote  at  any  school  meeting  of  the  inhabitants  of  said  school  district,  signed  a 
call  for  a  meeting  to  be  held  in  said  district  for  the  purpose  of  determining  whether 
a  union  free  school  shall  be  established  therein,  in  conformity  with  the  provisions, 
to  that  end,  of  chapter  555  of  the  Laws  of  1864,  and  the  amendments  thereof,  and 
said  call  was  duly  delivered  to  William  D.  Carter,  the  sole  trustee  of  said  district; 
that  on  or  about  September  15,  1894,  said  Trustee  Carter,  pursuant  to  such  call, 
issued  a  call  for  a  special  meeting  of  the  inhabitants  of  said  district  entitled  to 
vote  at  any  meeting  of  the  inhabitants  of  said  school  district,  to  be  held  at  the 
schoolhouse  on  the  5th  day  of  October  next  at  7.30  o'clock  in  the  afternoon,  for 
the  purpose  of  determining  by  a  vote  of  such  district  whether  a  union  free  school 
should  be  established  therein  in  conformity  with  the  provisions,  to  that  end,  of 
chapter  555  of  the  Laws  of  1864,  and  the  amendments  thereof :  that  the  qualifica- 
tions of  the  inhabitants  entitled  to  vote  at  such  meeting  were  sufficiently  set  forth 
in  such  notice;  that  on  October  5,  1894,  a  special  meeting  of  said  school  district 


1382  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

was  held  pursuant  to  said  notice  of  Trustee  Carter,  and  was  organized  by  the 
choice  of  James  Roblee  as  chairman  and  four  clerks,  with  James  N.  Osincup,  the 
clerk  of  said  school  district,  and  also  four  inspectors  of  election ;  a  resolution  was 
presented  that  we  change  school  district  no,  i  of  the  town  of  Canisteo,  Steuben 
county,  State  of  New  York,  to  a  union  free  school  with  a  board  of  education, 
in  conformity  with  title  8  of  chapter  556  of  the  Consolidated  School  Law  of  1894; 
that  a  ballot  was  taken  upon  said  resolution,  said  ballots  being  printed  as  follows : 
for  the  resolution  or  against  the  resolution,  to  change  school  district  no.  i,  Can- 
isteo, New  York,  to  a  union  free  school  district  with  a  board  of  education,  in 
conformity  to  title  8,  chapter  556  of  the  Consolidated  School  Law  of  1894;  that 
before  the  ballot  upon  said  resolution  was  taken  an  unsigned  protest  was  presented 
by  one  W.  R.  Stephens  against  the  legality  or  sufficiency  of  notice  of  the  meeting, 
it  having  been  called  under  and  in  conformity  to  the  provisions  of  chapter  555 
of  the  Laws  of  1864,  said  law  having  been  repealed,  and  the  said  meeting  has 
not  been  called  under  the  existing  law,  namely,  chapter  556,  Laws  of  1894,  title  8, 
and  protesting  against  said  meeting  and  the  transaction  of  any  business  at  said 
meeting;  that  by  a  vote  said  protest  was  laid  upon  the  table;  that  the  ballot  upon 
the  aforesaid  resolution  resulted  as  follows :  whole  number  of  votes  cast,  530 ; 
for  the  resolution,  352;  against  the  resolution,  178;  majority  for  the  resolution, 
174;  that  the  meeting  then  proceeded  to  ballot  for  members  of  a  board  of  educa- 
tion, to  consist  of  nine  persons,  three  of  whom  to  hold  office  for  one  year,  three 
for  two  years  and  three  for  three  years ;  that  the  ballot  resulted  in  250  votes  being 
cast,  of  which  Elijah  Hollett,  Harrison  Crane  and  William  P.  Goff,  for  the 
term  of  one  year,  received  250  votes ;  A.  H.  Burrell  and  William  Carter  received 
250,  and  William  B.  Taylor  received  249,  for  the  term  of  two  years,  and  Daniel 
Tucker,  J.  E.  Lyon  and  H.  S.  Beebe  received  250  votes  for  the  term  of  three 
years ;  that  after  the  reading  and  approving  of  the  minutes  of  said  meeting  the 
meeting  adjourned. 

The  appellants  herein  have  appealed  from  the  action  of  Carter  as  trustee 
of  said  district  in  calling  said  special  meeting,  and  from  the  action  of  said  special 
meeting. 

•  Various  grounds  are  alleged  in  the  appeal,  the  principal  ones  being  that  the 
call  to  the  trustee  for  a  special  meeting  and  the  notice  of  the  trustee  of  the  meet- 
ing specified  that  it  was  for  the  purpose  of  determining  whether  a  union  free 
school  should  be  established  in  conformity  to  chapter  555  of  the  Laws  of  1864, 
which  law  was  repealed  by  chapter  556  of  the  Laws  of  1894 ;  that  two  ballot  boxes 
and  two  poll  lists  were  kept,  and  that  the  votes  of  persons  not  qualified  to  vote 
were  received. 

An  answer  has  been  made  to  the  appeal.  The  formation  of  a  union  free  school 
district  is  a  statutory  proceeding,  and  if  the  provisions  of  the  statute  are  sub- 
stantially complied  with  on  the  part  of  the  local  authorities,  the  statute  creates 
the  said  district. 

The  proceedings  to  establish  a  union  free  school  in  common  school  district 
no.  I,  town  of  Canisteo,  were  commenced  since  June  30,  1894,  at  which  latter  date 
the  Consolidated  School  Law  of  1894,  chapter  556  of  the  Laws  of  1894  went  into 


JUDICIAL  decisions:    union  free  school  districts  1383 

effect,  and  chapter  555  of  the  Laws  of  1864,  and  the  acts  amendatory  thereof, 
were  repealed.  The  provisions  in  chapter  556  of  the  Laws  of  1894,  relative  to  the 
manner  of  proceeding  to  establish  a  union  free  school  in  a  common  school  dis- 
trict, do  not  differ  materially  from  those  in  chapter  555  of  the  Laws  of  1864  and 
amendments,  and  such  difference  is  mainly  in  regard  to  the  length  of  time  of 
notice,  by  trustees,  of  the  meeting  and  of  the  method  of  service  of  such  notice. 
Neither  chapter  555  of  the  Laws  of  1864,  nor  chapter  556  of  the  Laws  of  1894, 
prescribes  any  form  for  a  call  of  the  inhabitants  to  the  trustees  for  such  meeting, 
nor  of  the  notice  of  meeting  by  trustees  pursuant  to  such  call.  If  the  call,  signed 
by  at  least  fifteen  qualified  voters  of  a  common  school  district  expresses  the  wish 
of  the  signers  thereto  that  the  trustees  shall  call  a  meeting  to  determine  whether  a 
union  free  school  shall  be  established  in  said  district,  under  the  general  school 
laws,  it  is  a  sufficient  compliance  with  the  law ;  and  if  the  notice  given  by  the  trus- 
tees thereunder  states  the  time  and  place  such  meeting  is  to  be  held,  and  that  the 
meeting  will  be  called  upon  to  determine  whether  a  union  free  school  shall  be 
established  in  the  district  under  the  general  school  law,  and  the  qualifications  of 
the  inhabitants  entitled  to  vote  at  such  meeting  shall  be  sufficiently  set  forth  in 
the  notice,  such  notice  of  the  meeting  is  a  sufficient  compliance  with  the  law. 

The  call  and  notice  of  the  meeting  from  which  the  appeal  is  taken  were  un- 
doubtedly drawn  from  the  forms  printed  in  the  Code  of  Public  Instruction  of 
1887  in  the  notes  to  the  sections  of  the  School  Law  of  1864,  relating  to  union  free 
schools,  which  were  given  as  a  guide  to  school  district  officers,  and  not  as  forms 
prescribed  by  any  provisions  of  the  school  law. 

It  is  clear  that  no  one  was  misled  by  the  call  or  notice  of  the  meeting,  and  it 
is  not  alleged  that  the  trustee  did  not  cause  such  notice  to  be  served  as  required 
by  the  provisions  of  title  8,  chapter  556  of  the  Laws  of  1894. 

It  appears  that  on  October  6,  1894,  at  least  fifteen  of  the  qualified  voters 
of  said  school  district  assembled  and  were  present  in  accordance  with  the  notice 
made  by  the  trustee,  and  that  such  meeting  was  duly  organized;  that  a  resolu- 
tion was  presented  that  a  union  free  school  be  established  in  said  district  in 
conformity  to  title  8  of  chapter  556  of  the  Consolidated  School  Law  of  1894; 
that  a  ballot  was  taken  upon  said  resolution,  and  said  resolution  was  adopted 
by  a  majority  of  174.  In  taking  such  ballot  two  ballot  boxes  were  used  and 
two  poll  lists  kept,  and  the  appellants  contend  that  such  procedure  was  irregular. 
Title  8  of  chapter  556  of  the  Laws  of  1894  does  not  prescribe  the  manner  in 
which  a  vote  upon  a  resolution  to  establish  a  union  free  school  in  a  common 
school  district  shall  be  taken.  The  meeting  decided  to  ballot  upon  the  resolu- 
tion. Two  ballot  boxes  were  used  and  two  poll  lists  kept  for  the  purpose  of 
facilitating  the  reception  of  the  votes  of  the  qualified  voters.  It  is  not  alleged 
or  proved  that  any  person  was  aggrieved  thereby.  The  appellants  allege  that 
persons  voted  at  said  meeting  who  were  not  qualified  to  vote  under  the  school 
law.     The  appellants  do  not  show  that  any  person  was  challenged. 

This  Department  has  held  that  a  party  knowing  a  person  to  be  unqualified, 
and  permitting  him  or  her  to  vote  without  challenge,  will  not  be  allowed  to 
object  to  proceedings  of  the  meeting  because  such  unqualified  person  participated 


1384  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

in  them.  The  rule  is  well  settled  that  proceedings  of  a  meeting  will  not  be 
vitiated  by  illegal  votes  unless  a  different  result  would  have  been  produced  by- 
excluding  such  votes.  It  lies  upon  the  party  objecting  to  show  that  fact.  For 
aught  that  appears  in  the  appeal  herein  the  ballots  cast  by  persons  claimed  to  be 
not  qualified  voters  were  against  the  resolution.  To  warrant  setting  aside  the 
vote  upon  said  resolution,  it  must  appear  affirmatively  that  the  resolution 
received  a  number  of  votes  cast  by  persons  not  qualified  to  vote,  which,  if 
rejected,  would  have  defeated  the  passage  of  the  resolution.  In  case  of  an 
appeal  to  set  aside  the  action  of  a  school  district  meeting  on  the  ground  of 
illegal  voting,  or  the  disqualification  of  certain  persons  who  voted,  it  is  incum- 
bent upon  the  appellant  not  only  to  allege  such  illegal  voting  or  disqualification 
of  such  persons,  but  to  show  by  evidence  the  lack  of  qualification  in  such  terms 
as  necessarily  to  exclude  every  presumption  that  the  voter  could  be  qualified 
under  the  provisions  of  section  11,  article  i,  title  7  of  the  Consolidated  School 
Law  of  1894.     In  this  the  appellants  have  failed. 

The  meeting  was  called  for  7.30  p.  m.,  the  usual  hour  for  school  meetings 
to  be  called,  and  out  of  the  600  voters  in  the  district  530  attended  and  voted, 
and  the  resolution  to  establish  a  union  free  school  in  said  district  received  352 
votes. 

In  my  opinion  the  provisions  of  title  8  of  chapter  556  of  the  Laws  of  1894, 
relative  to  the  establishment  of  union  free  schools  in  common  school  districts, 
was  substantially  complied  with;  that  the  appellants  have  failed  to  establish 
their  appeal  herein  and  said  appeal  should  be  dismissed. 

Appeal  dismissed. 


4178 

In  the  matter  of  the  appeal  of  John  H.  Gould  and  others  from  the  decision  of 
joint  school  meeting  of  district  no.  7,  Pembroke,  and  district  no.  9,  Batavia, 
Genesee  county,  consolidating  said  districts  by  establishing  a  union  free 
school  therein. 

Where,  in  a  meeting,  held  in  two  school  districts  pursuant  to  the  joint  call  of  the  trustees 
of  said  districts  for  the  purpose  of  determining  by  a  vote  of  the  qualified  voters  of 
such  districts,  whether  a  union  free  school  shall  be  established  therein  and  said  dis- 
tricts consolidated  and  the  notices  of  said  meeting  were  posted  less  than  twenty  days 
prior  to  said  meeting,  but  omission  to  post  was  not  wilful  and  fraudulent  and  it 
appeared  that  the  qualified  voters  of  said  districts  respectively  were  personally  served 
with  notice  of  said  meeting  at  least  six  days  prior  thereto  the  action  of  said  meeting 
will  not  be  set  aside.  Title  9  of  the  Consolidated  School  Law  does  not  require  that  the 
resolution  establishing  such  union  free  school  should  receive  a  majority  of  the  votes 
of  each  of  said  districts,  but  at  least  fifteen  of  the  voters  of  each  district  being  present,  a 
majority  of  the  qualified  voters  present  and  voting,  from  both  districts,  in  favor  of 
said  resolution,  is  a  compliance  with  the  provisions  of  said  title. 

Decided  July  6,  1893 

H.  B.  Cone,  attorney  for  appellants 
LeSeur  &  Lent,  attorneys  for  respondents 


JUDICIAL  decisions:    union  free  school  districts  1385 

Crooker,  Superintendent 

This  is  an  appeal  from  the  action  of  a  school  meeting  held  in  the  above- 
named  districts  on  March  11,  1893,  for  the  purpose  of  forming  a  union  free 
school  district. 

It  appears  that  there  were  present  and  voting  at  said  meeting  188  persons, 
and  that  102  votes  were  cast  for  the  consolidation  of  the  said  two  districts  by 
the  establishment  of  a  union  free  school  therein,  and  86  votes  were  cast  against 
such  proposition,  the  proposition  being  carried  by  a  majority  of  16  votes. 

It  appears  that  on  or  about  February  14,  1893,  a  petition  signed  by  fifteen 
or  more  of  the  inhabitants  entitled  to  vote  at  school  meetings  in  each  of  the 
said  school  districts,  respectively,  of  district  no.  7  of  Pembroke,  and  no  9  of 
Batavia,  was  presented  to  J.  H.  Dickenson,  sole  trustee  of  district  no.  7   of 
Pembroke  and  John  Moore,  sole  trustee  of  district  no.  9  of  Batavia,  asking 
that  a  meeting  be  called  and  held  for  the  purpose  of  determining  by  a  vote 
whether  said  districts  should  be  consolidated  into  a  union  free  school  district, 
in  conformity  to  the  provisions  of  chapter  555  of  the  Laws  of  1864.    That  on 
or  about  February  21,  1893,  i"  compliance  with  said  request  or  petition,  said 
trustees  of  said  districts  did  call  a  meeting  of  the  inhabitants  of  said  districts, 
entitled   to   vote   thereat,   to   be   held   at   Seminary    Hall,    East    Pembroke,    on 
Saturday,  March   11,   1893,  at  2  o'clock  in  the  afternoon  for  the   purpose  of 
determining  by  a  vote  of  such  districts  whether  a  union  free  school  shall  be 
established  therein,  in  conformity  to  the  provisions  to  that  end,  of  chapter  555 
of  the  Laws  of   1864,  and  the  amendments  thereof.     That  printed  notices  of 
said  meeting,   including  the  qualifications   of   voters  at  school  meetings,   were 
printed,  and  five  copies  thereof  were  posted  in  various  conspicuous  places  in 
each  of  said  districts,  respectively,  on  February  22,  1893,  seventeen  days  prior 
to  said  meeting,  except  that  one  of  said  notices  was  posted  in  district  no.  9, 
on  February  23,  1893.    That  the  omission  to  post  said  notices,  for  at  least  twenty 
days  prior  to  said  meeting  was  not  wilful  and  fraudulent,  but  was  due  to  mistake 
of  said  trustees  in  fixing  the  time  of  said  meeting  on  March  nth,  in  counting 
the  days  in  the  month  of  February  as  thirty-one  instead  of  twenty-eight.     That 
all  of  the  legal  voters  of  said  districts,  respectively,  were  personally  served  with 
notice  of  said  meeting  at  least  six  days  prior  thereto.     It  is  not  claimed  by  the 
appellants  that,  if  any  voter  of  said  districts  or  either  of  them  was  not  served 
personally  with  a  notice  of  said  meeting,  the  ommission  to  give  such  notice 
was  wilful  and  fraudulent. 

Section  7  of  title  7  of  the  Consolidated  School  Law  of  1864.  provides  that 
the  proceedings  of  no  neighborhood  or  district  meeting  shall  be  held  illegal  for 
want  of  a  due  notice  to  all  the  persons  qualified  to  vote  thereat,  unless  it  shall 
appear  that  the  omission  to  give  notice  was  wilful  and  fraudulent. 

It  appears  that  the  said  meeting  held  on  March  11,  1893,  was  fully  at- 
tended, 188  having  voted.  It  is  not  claimed  that  any  qualified  voter  in  district 
no  7,  of  Pembroke,  was  absent  from  the  meeting,  and  it  is  claimed  that  but 
eight  qualified  voters  in  district  no  9  of  Batavia  were  absent.     The  resolution 


I3S6  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

to  consolidate  said  districts  by  the  establishment  of  a  union  free  school  therein 
was  adopted  by  sixteen  majority,  and  had  the  eight  voters  from  district  no.  9 
of  Batavia  been  present  and  voted  against  the  resolution  it  would  then  have 
been  adopted  by  eight  majority.  The  appellants  contend,  as  the  principal 
ground  of  their  appeal,  that  because  the  notices  required  by  the  school  law  to 
be  posted  in  hve  conspicuous  places  in  each  of  the  said  districts,  for  at  least 
twenty  days,  were  not  posted  but  seventeen  days,  the  action  of  said  meeting 
should  be  set  aside.  The  intent  and  object  of  the  law  is  that  the  qualified  voters 
of  the  said  districts  should  have  notice  of  the  time,  place  and  object  of  the 
meeting.  The  purpose  of  the  law  is  to  give  every  legal  voter  a  full  and  free  oppor- 
tunity to  cast  his  or  her  ballot  for  or  against  the  proposition.  .  It  clearly  appears 
that  all  of  the  voters  of  said  two  districts,  respectively,  had  such  notice,  and  all 
of  said  voters,  with  the  exception  of  eight  residing  in  district  no.  9,  of  Batavia, 
were  present  at  said  meeting.  It  is  seldom  that  at  school  meetings  so  large  a 
proportion  of  the  voters  residing  in  the  district  or  districts  are  present,  as  it 
appears  were  present  at  said  meeting  of  March  11,  1893,  and  I  am  convinced 
that  the  notice  of  the  meeting  was  ample  and  sufficient  to  all  of  the  voters  of 
said  districts,  and  that  no  voter  residing  therein  was  misled  or  injured  or  preju- 
diced or  absent  from  said  meeting  by  the  failure  to  post  notices  of  said  meeting 
at  least  twenty  days  prior  to  the  time  of  holding  the  same.  It  appears,  upon 
the  argument  and  submission  of  the  appeal  herein,  that  in  February  14,  189 1, 
a  meeting  of  the  voters  of  said  districts  was  held  for  the  purpose  of  forming  a 
union  free  school  district;  that  179  votes  were  cast,  and  the  proposition  to 
establish  a  union  free  school  had  a  majority  of  3  votes.  For  certain  irregu- 
larities the  action  of  such  meeting,  upon  appeal,  was  declared  of  no  effect. 
After  the  lapse  of  two  years  another  meeting  was  held  and  a  greater  number 
of  voters  was  present,  and  the  majority  for  a  union  free  school  was  larger. 
It  is  apparent  the  subject  is  one  that  has  been  discussed  fully,  and  the  voters 
of  said  district  had  full  knowledge  of  the  meeting  of  March  nth  and  attended, 
and  that  a  majority  of  the  voters  of  said  district  desire  the  establishment  of  a 
union  free  school  therein. 

The  appellants  have  not  shown  that  they  are  aggrieved,  that  is,  injured, 
either  by  reason  of  the  notices  of  the  meeting  for  March  11,  1893,  not  being 
posted  for  at  least  twenty  days  prior  to  said  meeting,  nor  by  the  action  of  said 
meeting  in  voting  to  consolidate  said  districts  by  the  establishment  of  a  union 
free  school  therein.  All  the  voters  of  said  districts  had  notice  of  said  meeting, 
and  all  of  such  voters,  excepting  eight,  were  present  at  said  meeting.  There 
should  be  some  real  grievance,  some  positive  and  serious  injury  sustained,  to 
justify  an  appeal  to  the  Department.  This  Department,  when  asked  to  set 
aside  the  acts  of  school  meetings  or  school  officers,  always  inquires  into  the 
bona  fides  of  such  acts,  whether  the  things  done  were  such  as  it  was  proper  to 
do ;  did  they  undertake  to  do  them  according  to  such  knowledge  as  they  had  ? 
Has  any  one  been  imposed  upon  or  wronged?  If  irregularities  have  occurred 
will  the  greater  hardship  be  imposed  upon  individuals  and  greater  help  be  given 


JUDICIAL  decisions:    union  free  school  districts  1387 

to  the  cause  of  education  by  setting  aside  or  sustaining  such  acts?  The  griev- 
ance upon  the  part  of  the  appellants  herein  by  the  action  of  said  meeting  of 
March  11,  1893,  is  that  it  decides  to  consolidate  said  districts  by  the  establish- 
ment of  a  union  free  school  therein,  and  that  they  are  opposed  to  the  estab- 
lishment of  such  a  school.  This  is  not  a  real  grievance,  nor  such  serious  injury 
as  should  justify  an  appeal  to  this  Department,  nor  justify  the  Department, 
an  appeal  having  been  brought,  to  vacate  and  set  aside  the  action  of  said  meeting. 
The  formation  of  a  union  free  school  district  is  a  proceeding  under  title  9  of 
the  Consolidated  School  Law,  and  is  a  matter  entirely  within  the  powers  of 
the  voters  of  the  territory  of  the  proposed  district,  and  if  its  provisions  are 
substantially  complied  with,  the  statute  itself  creates  the  union  free  school 
district,  ipso  facto,  so  that  no  discretion  rests  with  the  State  Superintendent  to 
determine  the  expediency  or  the  advisability  of  the  action  taken. 

The  appellants  contend  that  where  there  is  a  joint  school  meeting  held, 
under  sections  4  and  5  of  title  9  of  the  Consolidated  School  Law,  for  the  pur- 
pose of  consolidating  said  districts  by  the  establishment  of  a  union  free  school 
therein,  the  decision  establishing  such  union  free  school  should  not  be  upheld 
unless  it  shall  be  made  to  appear  that  there  is  a  majority  in  each  district  in  favor 
thereof.  I  am  of  the  opinion  that  this  contention  is  not  tenable.  Section  4  of 
title  9  provides  that  when  fifteen  persons  entitled  to  vote,  from  each  of  two  or 
more  adjoining  districts,  shall  unite  in  a  call  for  a  meeting  of  the  inhabitants 
of  such  districts  to  determine  whether  such  districts  shall  be  consolidated  by  the 
establishment  of  a  union  free  school  therefor  and  therein,  it  shall  be  the  duty  of 
the  trustees  of  such  districts,  or  a  majority  of  them,  to  give  public  notice  of 
such  meeting,  at  some  convenient  place  within  such  districts  and  as  central  as 
may  be,  etc.  The  meeting  held  under  the  foregoing  provisions  is  a  meeting 
of  the  voters  of  the  two  or  more  districts  mentioned  in  the  call  to  take  action 
on  the  proposition  to  consolidate  such  districts  by  the  establishment  of  a  union 
free  school  therefor  and  therein  and  not  a  meeting  of  the  voters  of  the 
districts  separately.  Section  5  of  title  9  relates  to  the  proceedings  to  be  taken 
and  had  at  such  meetings,  as  well  as  to  proceedings  at  meetings  held  under 
sections  i  and  2  of  title  9.  All  that  is  required  by  section  5  of  title  9  is,  whether 
the  meeting  is  held  under  sections  i,  2  or  4  that  fifteen  of  the  legal  voters  shall 
be  present  if  the  meeting  is  of  one  district,  or  fifteen  voters  from  each  dis- 
trict if  the  meeting  is  of  two  or  more  districts,  and  that  a  majority  of  those 
present  and  voting  shall  determine  the  proposition  presented  to  the  meeting. 
The  word  "  district,"  used  in  the  sentence  in  section  5.  "  by  the  affirmative  vote 
of  a  majority  present  and  voting,  determine  to  establish  a  union  free  school  in 
said  district "  means  the  district  under  the  provisions  of  sections  i  and  2,  or  the 
ioint  or  consolidated  district  composed  of  the  two  or  more  districts  joining  in 
the  meeting  called  under  section  4.  Had  the  Legislature  intended  that  at  the 
meetings  called  and  held  under  section  4.  that  there  must  be  a  majority  of  the 
voters  present  and  voting  at  such  meeting,  residing  in  each  of  said  districts, 
joining  in  the  call  to  consolidate  such  districts  by  the  establishment  of  a  union 
free  school  therefor  and  therein,  it  would  have  so  stated. 


1388  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

The  appellants  seem  to  apprehend  that  there  is  a  scheme  on  the  part  of  the 
respondents  to  acquire  for  the  union  free  school  district  certain  property  known 
as  "  the  Rural  Seminary."  Under  the  provisions  of  title  9  of  the  Consolidated 
School  Law  and  the  amendments  thereof,  boards  of  education  of  union  free 
school  districts  have  no  power,  without  a  vote  of  their  respective  districts,  to 
purchase  sites,  change  sites,  designate  sites,  sell  sites,  or  to  purchase  or  construct 
schoolhouses  or  buildings,  or  additions  to  schoolhouses  or  buildings,  or  sell 
school  buildings. 

Upon  the  papers  presented  upon  the  appeal  herein  I  am  of  the  opinion 
that  the  appellants  have  failed  to  sustain  their  appeal  and  that  the  appeal  should 
be  dismissed. 

Appeal  dismissed. 


4350 

In  the  matter  of  the  appeal  of  New  York  Central  &  Hudson  River  Railroad 
Company  from  proceedings  of  school  meeting  of  districts  no.  i  and  no.  28, 
town  of  Verona,  Oneida  county,  on  December  20,  1894. 

This  Department  has  uniformly  held  that  the  establishment  of  a  union  free  school  in  any 
common  school  district,  or  the  consolidation  of  two  or  more  common  school  districts 
by  the  establishment  of  a  union  free  school  therefor  and  therein,  is  a  statutory  proceed- 
ing purely.  If  the  local  school  authorities  comply  with  the  provisions  of  the  school 
laws  of  this  State,  relating  to  the  establishment  of  such  union  free  schools,  the 
statute  itself  creates  the  union  free  school  district  ipso  facto,  so  that  no  discretion 
rests  with  the  State  Superintendent  of  Public  Instruction  to  determine  the  expediency 
or  the  advisability  of  the  action  taken. 

Decided  April  2,  1895 

C.  D.  Prescott,  attorney  for  appellant 

Crooker,  Superintendent 

This  is  an  appeal  from  the  proceedings  of  a  school  meeting  of  the  qualified 
voters  of  school  districts  nos.  i  and  28,  town  of  Verona,  Oneida  county,  held 
in  school  district  no.  28,  on  December  20,  1894,  in  consolidating  said  districts  by 
the  establishment  of  a  union  free  school  therefor  and  therein. 

The  grounds  of  said  appeal  are  in  substance,  first,  that  the  request  or  call 
to  the  trustees  of  said  districts  for  a  meeting  of  the  qualified  voters  of  said  dis- 
tricts for  the  purpose  of  considering  the  question  of  such  consolidation,  etc., 
was  not  signed  by  at  least  fifteen  qualified  voters  of  said  districts  nos.  i  and  28, 
that  the  said  districts  possessed  all  the  requisites  for  the  education  of  the  per- 
sons of  school  age  residing  in  said  districts,  and  that  there  existed  no  reason 
or  necessity  for  the  consolidation  of  said  districts  by  the  establishment  of  a 
union  free  school  therein. 

An  answer  to  the  appeal  has  been  made  by  the  board  of  education  of  said 
union  free  school  district. 


JUDICIAL   DECISIONS        UNION    FREE   SCHOOL   DISTRICTS  I389 

The  following  facts  are  esta  iished:  That  the  appellant  is  a  railroad  cor- 
poration owning  property  subject  to  taxation  for  school  purposes  in  said  school 
districts  nos.  i  and  28,  in  the  town  of  Verona,  Oneida  county,  and  for  the  past 
six  years  has  paid  more  than  50  per  cent  of  the  taxes  for  school  purposes 
assessed  and  collected  in  said  districts;  that  said  school  districts  were  formed 
and  established  before  the  railroad  now  owned  and  operated  by  the  appellant, 
or  any  railroad,  was  built  or  operated  within  said  districts;  that  on  or  prior  to 
November  23,  1894,  a  call  or  request,  addressed  to  the  trustees  of  said  school 
districts  nos.  i  and  28,  town  of  Verona,  that  they  call  a  meeting  of  the  inhabi- 
tants of  said  districts  entitled  to  vote  at  district  meetings,  for  the  purpose  of 
determining  whether  such  districts  shall  be  consolidated  by  the  establishment 
of  a  union  free  school  therefor  and  therein,  and  signed  by  at  least  fifteen  persons 
entitled  to  vote  at  said  meeting,  was  presented  to  the  trustees  of  said  districts, 
and  on  Nevember  23,  1894,  said  trustees  made  and  signed  a  notice  for  said 
meeting  pursuant  to  said  call  or  request,  to  be  held  in  the  schoolhouse  in  district 
no.  28,  on  December  20,  1894,  at  2  p.  m. ;  that  said  notice  of  said  meeting  was 
duly  and  legally  given;  that  said  meeting,  pursuant  to  said  notice,  was  duly 
held  on  December  20,  1894,  and  a  resolution,  consolidating  said  districts  by  the 
establishment  of  a  union  free  school  therefor  and  therein  was  adopted,  and  that 
Gottlieb  Merry,  W.  C.  Palmer,  C.  R.  Frisbie,  J.  M.  Ressigue,  H.  M.  Stearns, 
J.  D.  Case  and  J.  E.  Tafft  were  duly  elected  to  constitute  the  board  of  education 
of  said  union  free  school  district. 

It  is  alleged  by  the  appellant  that  the  statement  in  the  notice  for  the  school 
meeting  of  December  20,  1894,  that  a  petition  had  been  presented  having  attached 
the  names  of  fifteen  qualified  voters  of  district  no.  i  was  not  in  fact  true :  and 
the  appellant  claims  that  at  least  two  of  them,  namely,  C.  C.  Bross  and  D.  H. 
Dygert,  were  not  qualified  voters,  and  that  the  name  of  Joseph  Archer  was 
obtained  without  his  intent  to  sign  such  call,  and  was  used  against  his  protest. 
That  as  to  the  allegation  relative  to  C.  C.  Bross,  there  is  annexed  to  the  appeal  the 
affidavit  of  Bross  in  which  he  states  that  about  July  i,  1894,  he  moved  from 
Utica  to  Verona  and  into  school  district  no.  i,  and  rented  a  house  and  resided 
there  until  November  23,  1894,  when  he  moved  to  Whitesboro;  that  he  signed  the 
call  or  request  in  September  or  October  1894,  and  does  not  nor  did  not  know  at 
the  time  he  signed  whether  he  was  a  legal  voter  in  said  district.  Also  annexed  to 
the  appeal  is  the  affidavit  of  Sarah  W.  Stephens,  in  which  she  alleges  that  she 
is  advised  that  W.  C.  Bross  was  not  a  resident  of  said  district  no.  i  at  the  time  of 
signing  the  call,  and  never  has  been  a  legal  voter  in  said  district  under  the  school 
laws  of  this  State.  Annexed  to  the  answer  is  the  affidavit  of  \V.  N.  Peckham. 
who  states  that  he  is,  and  was,  during  the  year  1894,  the  owner  of  a  house  and 
lot  in  said  school  district  no.  i,  and  that  on  July  i,  1894,  he  rented  said  house  and 
lot  to  said  W.  C.  Bross,  who  occupied  the  same  from  July  i  to  November  23, 
1894,  and  paid  the  rent  therefor ;  also  the  affidavit  of  J.  E.  Taflft,  who  states  that 
he  was  an  inspector  of  election  at  the  general  election  in  this  State  in  November 
i'894,  in  the  town  of  Verona,  and  which  election  district  in  which  he  was  such 
inspector  included  the  territory  known  as  school  district  no.   I,  and  that  said 


1390  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

W.  C.  Bross  voted  at  such  election  as  a  resident  of  said  election  district.  That  as 
to  the  allegation  relating  to  D.  H.  Dygert,  the  only  proof  on  the  part  of  the  appel- 
lant to  sustain  it  is  an  allegation  in  the  affidavit  of  said  Sarah  W.  Stephens  that 
she  is  advised  that  D.  H.  Dygert  was  not  at  the  time  of  signing  said  call  a  legal 
voter  under  the  school  laws  of  the  State.  Annexed  to  the  answer  herein  is  the 
affidavit  of  said  D.  H.  Dygert,  who  states  that  during  the  year  1894  he  has  resided 
in  said  school  district  no.  i,  and  that  on  March  15,  1894,  he  leased  113  acres  of 
land  situate  in  said  district  for  the  term  of  three  years,  and  since  said  March  15, 
1894,  he  has  been,  and  still  is,  in  possession  of  said  land.  That  as  to  the  allegations 
relating  to  Joseph  Archer,  the  only  proof  on  the  part  of  the  appellant  to  sustain 
it  is  the  allegation  in  the  affidavits  of  said  Sarah  W,  Stephens  that  she  is  further 
advised  that  the  name  of  Joseph  Archer  to  said  call  was  obtained  by  deception, 
and  after  he  learned  the  nature  of  the  paper  he  insisted  that  his  name  be  stricken 
from  the  call.  Annexed  to  the  answer  herein  is  the  affidavits  of  said  Joseph 
Archer,  who  states  that  some  time  in  October  or  November  1894,  he  signed  a 
petition  asking  for  a  meeting  to  be  called  for  the  purpose  of  consolidating  school 
districts  nos.  i  and  28,  of  the  town  of  Verona,  and  form  a  union  free  school 
district,  and  that  since  he  signed  his  name  for  that  purpose  he  has  never  requested 
that  his  name  be  taken  ofif  or  erased  therefrom. 

I  find  and  decide,  That  the  said  C.  C.  Bross  and  D.  H.  Dygert  were,  and 
each  of  them  was,  a  qualified  voter  in  school  district  no.  i,  town  of  Verona,  when 
they  and  each  of  them  signed  said  call  or  request  for  a  special  meeting  to  deter- 
mine whether  said  districts  nos.  i  and  28  should  be  consolidated  by  the  establish- 
ment of  a  union  free  school  therefor  and  therein. 

That  as  to  the  second  ground  upon  which  the  appeal  herein  is  taken  I  would 
state  that  this  Department  has  uniformly  held  that  the  establishment  of  a  union 
free  school  in  any  common  school  district,  or  the  consolidation  of  two  or  more 
common  school  districts  by  the  establishment  of  a  union  free  school  district  there- 
for and  therein,  is  a  statutory  proceeding  purely,  and  if  the  local  school  authori- 
ties comply  with  the  provisions  of  the  school  laws  of  this  State  relating  to  the 
establishment  of  such  union  free  schools,  the  statute  itself  created  the  union  free 
school  district  ipso  facto,  so  that  no  discretion  rests  with  the  State  Superintendent 
of  Public  Instruction  to  determine  the  expediency  or  the  advisability  of  the 
action  taken. 

The  appeal  herein  is  dismissed. 


4750 

In  the  matter  of  the  appeal  of  board  of  education  of  union  school  district  no.  3, 
Ramapo,  county  of  Rockland,  v.  Edward  Corrigan,  A.  S.  Zabriskie  and 
A.  N.  Fellows  as  trustees  of  school  district  no.  3,  Ramapo,  county  of 
Rockland. 

When  in  any  common  school  district  a  union  school  is  legally  established  and  a  board  of 
trustees  is  legally  elected,  or  when  two  or  more  common  school  districts  are  consoli- 
dated by  the  legal  establishment  therein  of  a  union  school  and  the  legal  election  of  a 


JUDICIAL  decisions:     union  free  school  districts  1391 

board  of  trustees  for  such  union  school  district,  such  board  of  trustees  are  the 
legal  successors  of  the  trustees  of  such  common  school  districts  respectively,  and 
legally  entitled  to  the  possession  of  the  schoolhouses  and  property  of  such  former  com- 
mon school  districts,  and  to  have  and  receive  from  the  trustees  of  such  former  com- 
mon school  districts  respectively,  all  moneys  of  such  former  districts  raised  by  tax,  or 
apportioned  to  them  from  the  state  school  moneys,  or  derived  from  any  other  source, 
less  the  aggregate  amount  of  all  just  debts,  if  any,  due  and  owing  at  the  time  of  the 
establishment  of  the  union  school  district. 
Decided  February  28,  1899 

Skinner,  Superintendent 

This  is,  in  effect,  an  appeal  by  the  board  of  trustees  of  union  school  district 
3,  Ramapo,  Rockland  county,  from  the  refusal  of  Edward  Corrigan,  A.  S. 
Zabriskie  and  A.  N.  Fellows,  as  trustees  of  the  late  common  school  district  3, 
Ramapo,  Rockland  county,  to  pay  over  to  the  appellant,  or  its  treasurer,  certain 
money  in  the  hands  of  William  Johnson  as  collector  of  said  late  common  school 
district  3,  which  money  the  appellant  claims  said  union  school  district  3  is  entitled 
to  receive. 

To  the  appeal  herein  the  respondents,  Corrigan  and  Zabriskie,  have  filed 
their  respective  affidavits,  together  with  the  affidavits  of  William  Johnson,  col- 
lector, and  Ira  Green,  truant  officer. 

The  following  facts  appear  to  be  admitted  in  the  papers  filed  herein : 

Prior  to  December  9,  1898,  there  existed  a  common  school  district,  situate 
in  the  town  of  Ramapo,  Rockland  county,  known  as  common  school  district  3, 
and  which  district  had  a  board  consisting  of  three  trustees,  namely,  Edward  Cor- 
rigan, A.  S.  Zabriskie  and  A.  N.  Fellows ;  that  at  the  annual  meeting  held  in  such 
district  on  the  first  Tuesday  of  August  1898,  the  sum  of  $3090  was  voted  to  be 
raised  by  tax  for  teachers'  wages  and  other  expenses  for  maintaining  a  school  in 
the  district  for  the  school  year  of  1898-99,  and  a  tax  list  assessing  said  sum  upon 
the  taxable  property  in  the  district,  was  subsequently  made  and  delivered  by  said 
trustees,  with  their  warrant,  to  William  Johnson,  collector  of  the  district;  that 
said  collector  collected  various  sums  so  assessed  under  said  tax  list  and  warrant, 
and  paid  certain  orders  drawn  upon  him  by  said  trustees,  and  on  January  31, 
1899,  said  warrant  was  renewed  for  a  period  of  thirty  days;  that  on  February 
16,  1899,  said  collector  had  on  deposit  in  the  Paterson  National  Bank  of  Paterson, 
New  Jersey,  the  sum  of  $1412.49  and  in  his  hands  the  sum  of  $62.62.  aggregat- 
ing $1475.11  and  there  remained  uncollected  and  unpaid  of  said  tax  the  sum  of 
$204.03,  showing  that  since  August  i.  1898,  of  the  sum  of  $3090.  voted  to  be 
raised  by  tax,  the  aggregate  sum  of  $1410.86  had  been  collected  by  tax,  and  dis- 
bursed by  orders  drawn  by  said  trustees  for  school  purposes  in  said  district. 

It  further  appears  that  December  9,  1898.  at  a  meeting  of  the  inhabitants  of 
said  district,  qualified  to  vote  at  school  meetings  therein,  duly  called  and  held 
under  the  provisions  of  article  i,  title  8  of  the  Consolidated  School  Law  of  1894, 
and  the  acts  amendatory  thereof,  it  was  determined  to  establish  a  union  school 
in  said  district,  and  thereupon  said  meeting  elected  the  following  persons,  namely, 


1392  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

Albion  Norris  Fellows,  Claude  Gignoux,  Everett  Fredericks,  Millard  A.  Hallett, 
J.  J.  Cullen,  David  H.  McConnell,  William  H.  Kearnan,  Everett  A.  Cooper  and 
Alfred  S.  Bush,  as  trustees  of  such  union  school  district,  so  aforesaid  established ; 
that  a  certified  copy  of  all  proceedings  relative  to  said  meeting  and  of  the  pro- 
ceedings taken  at  such  meeting  was  filed  with  R.  R.  Felter  as  school  commis- 
sioner of  Rockland  county,  who  duly  designated  such  district  as  "Union  free 
school  district  no.  3,  town  of  Ramapo,  county  of  Rockland,"  and  another  certified 
copy  of  such  proceedings  was  duly  filed  in  the  office  of  the  clerk  of  the  town  of 
Ramapo,  and  also  another  copy  of  such  proceedings  was  duly  filed  with  the 
Superintendent  of  Public  Instruction,  and  which  proceedings  were  approved  by 
him  January  3,  1899;  that  said  board  of  trustees  of  such  union  school  district 
duly  organized  and  elected  Albion  Norris  Fellows  as  president,  Claude  Gignoux 
as  clerk,  and  Samuel  A.  Cochran  as  treasurer;  that  said  Cochran,  as  treasurer, 
executed  and  delivered  to  said  board  of  trustees,  a  bond  for  the  faithful  dis- 
charge of  his  duties  as  such  treasurer,  which  bond  was  approved  by  such  board ; 
that  no  appeal  has  been  taken  from  the  proceedings  of  said  special  meeting  held 
in  common  school  district  no.  3,  Ramapo,  in  the  establishment  of  such  union 
school  therein ;  that  since  December  9,  1898,  said  board  of  trustees  of  union  school 
district  3  has  had  the  charge  and  control  of  the  schoolhouse  and  school  property 
therein,  and  the  management  and  control  of  the  school  maintained  therein;  that 
said  board  of  trustees  has  been  unable  to  pay  the  wages  of  the  teachers  due  since 
December  9,  1898,  or  to  pay  any  of  the  current  expenses  of  said  school  since  said 
date,  by  reason  of  there  being  no  funds  under  the  control  of  such  board  to  pay 
the  same;  that  the  trustees  of  late  common  school  district  3  of  Ramapo  or  a 
majority  of  them,  have  failed  and  refused  to  pay  over  to  the  trustees  of  said 
union  school  district  3,  Ramapo,  or  its  treasurer,  the  school  money  under  the 
control  of  the  trustees  of  such  former  common  school  district  3,  and  in  the  pos- 
session of  the  collector  of  said  district,  which  money,  it  is  claimed,  such  union 
school  district  3,  is  legally  entitled  to  receive. 

In  section  5,  article  i,  title  8  of  the  Consolidated  School  Law  of  1894,  as 
amended  by  section  12  of  chapter  264  of  the  Laws  of  1896,  it  is  provided  that 
when  at  a  school  meeting,  duly  called  and  held  in  a  school  district  under  the  pro- 
visions of  article  i,  title  8  of  said  school  law,  such  meeting  shall  have  determined 
to  establish  a  union  school  in  said  district,  such  meeting  shall  elect  by  ballot  not 
less  than  three  nor  more  than  nine  trustees,  who  by  the  order  of  the  meeting, 
shall  be  divided  into  three  several  classes,  the  first  to  hold  until  one,  the  second 
until  two,  and  the  third  until  three  years,  from  the  first  Tuesday  of  August  next 
following;  that  the  trustees  so  as  aforesaid  elected,  shall  enter  at  once  upon  their 
offices,  and  the  office  of  any  existing  trustee  or  trustees  in  such  district,  before 
the  establishment  of  a  union  school  therein,  shall  cease,  except  for  the  purposes 
stated  in  section  12,  title  6  of  said  act. 

Under  section  12  of  title  6  of  said  school  law  the  only  authority  legally  pos- 
sessed by  Messrs  Zabriskie,  Corrigan  and  Fellows  as  trustees  of  said  district, 
before  the  establishment  of  the  union  school  therein  on  December  9,  1898,  was 


JUDICIAL  decisions:     union  free  school  districts  1393 

to  provide  for  and  pay  all  the  just  debts  of  the  district  that  had  accrued  prior  to 
December  9,  1898. 

On  and  after  December  9,  1898,  common  school  district  3  ceased  to  exist 
in  fact,  but  continued  to  exist  in  lazv,  but  oftly  for  the  purpose  of  providing  for 
and  paying  all  its  just  debts.  The  office  of  the  three  trustees  of  said  common 
school  district  3,  before  the  establishment  of  the  union  school  district  therein, 
ceased  to  exist  upon  the  election  December  9,  1898,  of  nine  trustees  of  said  union 
school  district,  except  for  the  sole  and  only  purpose  of  providing  for  and  paying 
all  the  just  debts  of  said  common  school  district  existing  on  December  9,  1898. 

This  Department  has  uniformly  held  that  the  trustees  of  a  union  school  dis- 
trict,  elected  at  the  meeting  at  which  such  union  school  was  established,  as  pro- 
vided in  section  3,  article  i,  title  8  of  the  Consolidated  School  Law,  are  the  legal 
successors  of  the  trustees  of  the  district  before  such  union  school  was  established 
and  are  legally  entitled  to  the  possession  of  the  schoolhouse  and  property,  and  to 
have  and  receive  from  the  trustees  of  such  common  school  district  all  moneys  of 
the  district  raised  by  tax,  or  apportioned  to  it  from  State  school  moneys,  or 
derived  from  any  other  source,  less  the  aggregate  amount  of  all  just  debts,  if  any, 
due  and  owing  at  the  time  of  the  establishment  of  such  union  school. 

It  appears  that  the  teachers  in  the  school  have  been  paid  and  the  current 
expenses  in  conducting  the  school  have  been  paid  by  Messrs  Zabriskie,  Corrigan 
and  Fellows  to  December  9,  1898.  It  is  not  in  proof  whether  there  are  noiv  any 
just  debts  of  common  school  district  3  outstanding.  If  there  are,  the  aggregate 
amount  will  not  exceed  $30.  No  explanation  is  furnished  to  me  herein  why 
Messrs  Zabriskie  and  Corrigan  have  not  performed  their  duty  in  putting  the 
trustees  of  union  school  district  3  in  the  possession  and  control  of  the  school 
money  to  which  such  district  is  legally  entitled. 

The  appeal  herein  is  sustained. 

It  is  ordered : 

That  A.  S.  Zabriskie,  Edward  Corrigan  and  A.  N.  Fellows,  as  trustees  of 
former  common  school  district  3,  Ramapo,  Rockland  county,  forthivith  draw  their 
order  upon  William  Johnson  as  collector  of  such  district,  payable  to  Samuel  A. 
Cochran,  as  treasurer  of  union  school  district  3.  town  of  Ramapo,  Rockland 
county,  or  his  order,  for  the  sum  of  $141249.  being  the  sum  of  money  m  the 
Paterson  National  Bank  of  Patcrson,  New  Jersey,  deposited  by  said  Johnson  as 
collector,  as  aforesaid,  and  deliver  said  order  to  said  S.  A.  Cochran,  as  such 
treasurer. 

It  is  further  ordered :  -      ^., 

That  said  Zabriskie,  Corrigan  and  Fellows,  as  such  trustees,  «  a  oresaHl 
formmth  ascertain  and  determine  the  aggregate  amount  of  any  J"="l^b.s  «h'ch 
were  due  and  owing  by  such  common  school  district  3,  December  9,  .89S,  and 
Thich  have  not  been'paid,  and  draw  their  order  or  orders  upoa  WdUam  Johnson 
as  collector  of  such  district  in  payment  thereof. 


1394  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

It  is  further  ordered: 

That  said  Zabriskie,  Corrigan  and  Fellows,  as  such  trustees,  as  aforesaid, 
direct  said  William  Johnson  as  such  collector,  as  aforesaid,  to  proceed  with  all 
reasonable  dispatch  to  collect  the  unpaid  taxes  upon  the  tax  list  delivered  to  him, 
with  their  warrant;  and  as  often  as  he  shall  have  collected  the  aggregate  sum  of 
$25,  that  he  report  the  same  to  such  trustees,  and  thereafter  such  trustees  draw 
their  order  upon  said  collector,  payable  to  the  order  of  Samuel  A.  Cochran,  treas- 
urer of  union  school  district  3,  Ramapo,  for  the  arjiount  so  collected,  and  deliver 
such  order  to  said  Treasurer  Cochran. 


3985 

In  the  matter  of  the  appeal  of  Patrick  Collins  and  others  from  the  proceedings 
of  a  joint  meeting  of  districts  9  and  16,  town  of  Johnsburgh,  Warren  county, 
held  May  23,  1891. 
The  notice  of  a  meeting  of  the  electors  of  two  school  districts,  called  for  the  purpose  of 
determining   whether   the   districts    should   be   consolidated   by   the    establishment   of   a 
union  free  school  therein,  did  not  set  forth  the  qualitications  of  voters,  and  was  posted 
but  ten  days ;  held,  irregular  and  fatally  defective. 
Decided  July  3,  1891 

A.  Armstrong,  jr,  attorney  for  appellants 

Draper,  Superintendent 

This  appeal  by  electors  of  districts  nos.  9  and  16,  town  of  Johnsburgh,  county 
of  Warren,  is  from  the  proceedings  of  a  joint  meeting  held  May  23,  1891,  at 
which  it  was  voted  to  consolidate  the  districts  by  the  establishment  of  a  union 
free  school  therein.  The  appellants  allege  that  the  proceedings  were  irregular  in 
these  respects : 

1  The  trustees''  notice  for  the  meeting,  a  copy  of  which  accompanies  the 
papers,  was  defective.  It  did  not  set  forth  the  qualification  of  persons  entitled  to 
vote  at  said  meeting.  The  notice  did  not  state  that  at  least  fifteen  persons  entitled 
to  vote  at  school  meetings  from  each  district,  requested  the  trustees  to  call  the 
meeting. 

2  The  notice  was  posted  but  ten  days. 

3  The  vote  at  the  meeting  upon  the  question  of  consolidation  was  not  taken 
by  ballot. 

No  answer  has  been  interposed.  The  third  objection  is  not  tenable.  The 
statute  does  not  require  a  vote  by  ballot. 

The  other  objections  I  must  sustain.  The  irregularities  set  forth  are  fatal. 
The  statute  has  not  been  complied  with. 

The  appeal  is  sustained,  and  the  action  of  the  meeting  of  May  23,  1891,  is 
declared  void  and  of  no  effect. 


JUDICIAL  decisions:     union  free  school  districts  1395 

4365 

In  the  matter  of  the  appeal  of  Hugh  Campbell  and  others  from  action  of  school 
meeting  held  in  district  no.  5,  town  of  Caledonia,  Livingston  county,  on  June 
18,  1895. 

Where  the  notice  of  a  meeting,  called  by  a  trustee  for  the  purpose  of  determining  whether 
a  union  free  school  should  be  established  therein,  does  not  state  the  qualifications  of 
the  inhabitants  entitled  to  vote  at  such  meeting  as  prescribed  by  the  school  law,  the 
proceedings  of  the  meeting  held  under  and  pursuant  to  said  notice  will  be  void,  and, 
upon  appeal  from  the  action  and  proceedings  of  said  meeting,  the  same  will  be  vacated 
and  set  aside. 

Decided  September  20,  1895 

Skinner,  Superintendent 

This  appeal  is  taken  from  the  action  of  a  school  meeting  held  on  June  18, 
1895,  in  district  no.  5,  town  of  Caledonia,  Livingston  county,  called  by  the  trus- 
tees of  said  district  to  consider  the  matter  of  the  establishment  of  a  union  free 
school  in  such  district.  The  ground  of  the  appeal,  as  alleged  therein,  is  that  the 
notice  of  such  meeting  did  not  specify  the  qualifications  of  the  inhabitants  entitled 
to  vote  at  such  meeting,  as  required  by  law. 

An  answer  has  been  filed  to  said  appeal  and  to  said  answer  a  reply  and  to  the 
reply  a  rejoinder. 

From  the  papers  presented  herein  the  following  facts  are  established : 

That  a  call  or  request  signed  by  fifteen  or  more  qualified  voters  of  the  dis- 
trict, that  the  trustees  of  the  district  call  a  meeting  of  the  qualified  voters  of  the 
district  for  the  purpose  of  changing  the  district  school  to  a  union  free  school  was 
presented  to  the  trustees ;  that  pursuant  to  said  call  or  request  the  trustees  of  said 
district  gave  notice  of  a  special  meeting  of  all  legal  voters,  for  the  purpose  of 
voting  on  the  question  whether  they  would  make  such  change  or  not,  to  be  held 
in  the  schoolhouse  on  June  18,  1895,  at  8  o'clock  p.  m. ;  that  the  qualifications  of 
the  inhabitants  entitled  to  vote  at  such  meeting  were  not  set  forth  in  said  notice ; 
that  at  the  date  specified  in  said  notice  of  meeting  at  least  fifteen  persons  claiming 
to  be  qualified  voters  of  said  district,  assembled  at  the  schoolhouse  and  a  meet- 
ing was  organized  and  a  resolution  adopted  by  a  vote  taken  and  ascertained  by 
ballot  to  establish  a  union  free  school  in  said  district;  that  a  board  of  education 
was  elected  and  the  meeting  adjourned. 

The  formation  of  a  union  free  school  district  (that  is,  the  establishment  of  a 
union  free  school  in  a  common  school  district)  is  a  statutory  proceeding,  and  if 
the  local  authorities  of  a  common  school  district  comply  with  the  provisions  of 
article  i,  title  8  of  chapter  556  of  the  Laws  of  1894,  such  statute  creates  the  union 
free  school  district. 

It  appears  that  the  trustees  of  school  district  no.  5,  Caledonia,  in  their  notice 
of  a  meeting  of  said  district,  to  be  held  on  June  18,  1895,  did  not  comply  with 
the  provisions  of  said  article  i,  title  8  of  said  Consolidated  School  Law.  By 
section  i  of  article  i,  title  8  of  said  law  it  is  enacted  that  in  the  notice  of  the 


1396  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

meeting  pursuant  to  the  call  or  request  of  at  least  fifteen  qualified  voters  of  said 
district,  they  shall  state  the  purpose  of  said  meeting,  the  time  and  place  where 
the  meeting  will  be  held,  and  that  "  the  qualifications  of  the  inhabitants  entitled 
to  vote  at  such  meeting  shall  be  sufficiently  set  forth  in  the  notice  aforesaid." 
Said  trustees  did  not  sufficiently  set  forth  in  said  notice  the  qualifications  of  the 
inhabitants  entitled  to  vote  at  such  meeting.  Said  trustees  stated  in  said  notice 
that  a  special  meeting  "  of  all  legal  voters,"  etc.,  etc.,  would  be  held,  but  failed  to 
set  forth  therein  the  qualifications  required  by  the  school  law  in  section  11,  article 
I,  title  7,  of  said  law  to  be  possessed  by  the  inhabitants  of  said  district  to  entitle 
them  to  vote  at  such  meeting. 

The  form  of  notice  given  by  said  trustees  should  have  been  substantially  as 
follows : 

"  The  undersigned,  trustees  of  school  district  no.  5,  in  the  town  of  Caledonia, 
in  compliance  with  a  call  of  twenty  persons  entitled  to  vote  at  any  meeting  of  the 
inhabitants  of  said  district,  hereby  give  notice  that  a  meeting  of  the  inhabitants 
of  said  district,  entitled  to  vote  thereat,  will  be  held  at  the  schoolhouse  on  June 
18,  1895,  «^t  7.30  p.  m.,  for  the  purpose  of  determining  by  a  vote  of  such  district 
whether  a  union  free  school  shall  be  established  therein  in  conformity  with  the 
provisions  to  that  end  of  title  8,  of  chapter  556,  of  the  Laws  of  1894." 

The  persons  entitled  to  vote  at  such  meeting  are  those  who  possess  one  or 
more  of  the  following  qualifications: 

1  Every  person  of  full  age  who  is  a  citizen  of  the  United  States  and  a  resi- 
dent of  the  district,  and  who  has  resided  therein  for  a  period  of  thirty  days  next 
preceding  the  meeting  at  which  he  or  she  offers  to  vote,  and  who  owns  or  hires, 
or  is  in  the  possession  under  a  contract  of  purchase,  of  real  property  in  such 
district  liable  to  taxation  for  school  purposes. 

2  Every  resident  of  the  district,  and  who  has  resided  therein  for  a  period  of 
thirty  days  next  preceding  the  meeting  at  which  he  or  she  offers  to  vote,  who  is 
a  citizen  of  the  United  States,  21  years  of  age,  and  who  is  a  parent  of  a  child  of 
school  age,  provided  such  child  shall  have  attended  the  district  school  (in  the 
district  in  which  the  meeting  is  held),  for  a  period  of  at  least  eight  weeks  within 
one  year  preceding  such  school  meeting. 

3  Every  resident  of  the  district,  and  who  has  resided  therein  for  a  period  of 
thirty  days  next  preceding  the  meeting  at  which  he  or  she  offers  to  vote,  who  is 
a  citizen  of  the  United  States,  21  years  of  age,  not  being  a  parent,  who  shall  have 
permanently  residing  with  him  or  her  a  child  of  school  age,  which  shall  have 
attended  the  district  school  in  said  district  for  a  period  of  at  least  eight  weeks 
within  one  year  preceding  such  school  meeting. 

4  Every  resident  of  the  district,  and  who  has  resided  therein  for  a  period  of 
thirty  days  next  preceding  the  meeting  at  which  he  or  she  offers  to  vote,  who  is  a 
citizen  of  the  United  States,  21  years  of  age,  who  owns  any  personal  property, 
assessed  on  the  last  preceding  assessment  roll  of  the  town,  exceeding  $50  in  value, 
exclusive  of  such  as  is  exempt  from  execution. 


JUDICIAL  decisions:     union  free  school  districts  1397 

No  person  shall  be  deemed  to  be  ineligible  to  vote  at  said  district  meeting  by 
reason  of  sex,  who  has  one  or  more  of  the  other  foregoing  qualifications. 
Dated  this        day  of  ,  1895. 

[Signed]  A.  B. 

C.  D. 
E.   F. 
Trustees  of  School  District  N'o.  5,  Totcn  of  Caledonia 

This  Department  has  held  that  where  the  notice  of  a  meeting,  called  by  trus- 
tees for  the  purpose  of  determining  whether  a  union  free  school  shall  be  estab- 
lished therein,  does  not  state  the  qualifications  of  the  inhabitants  entitled  to  vote 
at  such  meetings  as  prescribed  by  the  school  law,  the  proceedings  of  the  meeting 
held  under  and  pursuant  to  said  notice  will  be  void,  and  upon  appeal  from  the 
action  and  proceedings  of  said  meeting  such  proceedings  will  be  vacated  and  set 
aside. 

The  appellants  herein  contend  that  the  meeting  held  in  said  district  on  June 
18,  1895,  had  not  the  lawful  authority  to  elect  a  board  of  trustees  or  education 
for  the  reason  that  the  notice  of  said  meeting  stated  that  the  business  of  the  meet- 
ing was  to  act  upon  the  question  of  the  establishment  of  a  union  free  school  in 
said  district.    This  contention  is  erroneous  and  not  tenable. 

Section  5  of  article  i,  title  8,  of  the  Consolidated  School  Law  enacts  what 
business  shall  be  transacted  at  a  meeting  duly  and  legally  called  and  held  in  any 
common  school  district  under  said  article  i,  title  8,  of  said  law  for  acting  upon 
the  question  of  establishing  a  union  free  school  therein.  Said  section  5  provides 
that  if  at  such  meeting  it  shall  be  determined  to  establish  such  union  free  school 
the  meeting  shall  proceed  to  elect  by  ballot  not  less  than  three  nor  more  than  nine 
trustees,  etc.,  etc. 

Had  the  meeting  of  June  18,  1895,  been  legally  called  it  had,  upon  determin- 
ing to  establish  a  union  free  school,  the  lawful  authority  then  and  there  to  elect 
a  board  of  trustees  or  board  of  education  of  the  union  free  school  district  as 
stated  in  said  section  5. 

The  respondents  herein  contend  that  the  appeal  herein  was  not  brought  within 
the  thirty  days  of  the  time  of  the  holding  of  the  district  meeting,  as  required  by  the 
rules  of  this  Department  relating  to  appeals.  This  contention  is  not  tenable.  The 
appeal  was  received  at  this  Department  on  July  18,  1895,  but  not  having  thereon 
cr  annexed  thereto  proof  of  service  of  a  copy  as  required  by  said  rules,  was 
returned  to  the  appellants  for  such  proof,  and  on  July  22,  was  filed  in  the  Depart- 
ment. The  time  in  which  an  appeal  may  be  taken  to  the  Superintendent  of  Pub- 
lic Instruction  may  be  extended  by  him. 

I  decide  that  the  said  meeting  held  in  said  district  no.  5,  Caledonia,  on  June 
18,  1895,  was  not  duly  and  legally  called  and  held  for  the  reason  hereinbefore 

stated. 

The  appeal  herein  is  sustained. 

It  is  ordered,  That  all  proceedings  had  and  taken  at  the  school  meeting  held 
in  school  district  no.  5,  town  of  Caledonia,  Livingston  county,  on  June  18.  1895, 
be,  and  the  same  are,  and  each  of  them  is,  vacated  and  set  aside. 


UNION  FREE  SCHOOL  DISTRICTS 

COLLECTOR— TREASURER 
5371 

In  the  matter  of  the  appeal  of  William  H.  Dempsey  and  Walter  F.  JcfFers  as 
legal  voters  and  taxpayers  of  union  free  school  district  no.  i,  town  of 
Eastchester,  county  of  Westchester,  from  the  action  of  a  meeting  of  the 
board  of  education  of  such  district,  held  on  the'  15th  day  of  October  1907, 
in  electing  William  J.  Fisher  treasurer  of  said  district. 

The  plain  meaning  of  any  statute  which  makes  an  officer  the  custodian  of  a  fund  is  that 
such  fund  shall  be  strictly  held  for  the  purposes  for  which  it  is  created  and  shall  not 
be  otherwise  used.  The  treasurer  of  a  district  should  always  keep  the  funds  of  the 
district  separate  and  distinct  and  should  never  mingle  such  funds  with  his  personal 
funds.  This  law  is  founded  upon  a  moral  obligation  which  prohibits  all  public  officers 
from  engaging  in  transactions  which  produce  a  conflict  between  official  conduct  and 
common  honesty. 

A  board  of  education  stands  as  a  representative  of  the  district  and  of  the  State  and  is 
bound  to  select  as  treasurer  a  person  morally  and  intellectually  qualified  to  perform 
the  duties  of  such  office.  A  board  can  not  select  as  treasurer  of  the  district  a  person 
whose  unfitness  was  conspicuous  and  fully  known  to  every  member  of  the  board.  Such 
action  is  an  abuse  of  the  board's  discretion  and  is  subject  to  review  by  the  Commis- 
sioner of  Education  under  title  14  of  the  Consolidated  School  Law.  The  irregularities 
of  a  treasurer,  his  direct  and  constant  violation  of  the  statutes,  his  conversion  of  dis- 
trict funds  to  his  personal  use,  his  lack  of  competent  system  of  keeping  accounts, 
render  him  unfit  and  ineligible  to  such  office. 

Decided  January   11,   1908 

Frederick  M.  Clark,  attorney  for  appellants 

H.  D.  Lent  &  IMichael  J.  Tierney,  attorneys  for  respondent 

Draper,  Commissioner 

William  J.  Fisher,  respondent  herein,  has  served  as  treasurer  of  union  free 
school  district  no.  i,  town  of  Eastchester,  county  of  Westchester,  for  several 
years.  On  October  i,  1907,  he  was  reelected  to  such  office  by  the  board  of 
education  by  vote  of  three  to  two.  Appellants  are  members  of  the  board  of 
education  and  they  voted  against  the  reelection  of  Mr  Fisher.  They  bring  this 
proceeding  to  vacate  the  action  of  the  board  in  electing  Mr  Fisher.  The 
ground  upon  which  they  predicate  this  proceeding  is  in  substance  that  by  reason 
of  improper  uses  of  large  sums  of  district  funds  during  his  previous  terms,  by 
failure  to  make  complete  and  accurate  entries  of  funds  received  and  by  failure 
to  receive  and  disburse  the  funds  of  his  office  as  the  statutes  direct,  he  is  dis- 
qualified to  hold  such  office. 

It  is  shown  upon  the  record  in  this  case  that  Mr  Fisher  received  funds  of 
the  district  on  various  dates  between  June  23,  1904  and  March  30.  1906  amount- 

I1398I 


JUDICIAL  decisions:     union  free  school  districts  1399 

ing  to  the  sum  of  $2032.74  which  he  did  not  charge  to  himself  as  treasurer 
until  September  10,  1906;  and  that  he  received  $886.05  between  March  and 
June  1907  which  he  did  not  charge  to  himself  until  August  5,  1907.  The 
details  of  these  transactions  are  as  follows: 

Received  June  23,  1904 $883  65 Credited  Sept.  10,  1906 

Oct.  18,  1905 84908 

Mar.  30,  1906 300       "  " 

Mar.  14,  1907 200       "        Aug.     5,1907 

June  27,  1907 686  05 

The  total  amount  involved  in  these  transactions  is  $2919.78. 

ll  is  also  shown  upon  the  record  that  part  of  these  items  was  not  credited 
by  Mr  Fisher  on  the  treasurer's  books  until  an  investigation  had  been  instituted 
by  appellants  into  the  accounts  of  the  treasurer.  It  is  further  shown  that  dur- 
ing the  time  the  treasurer  held  these  sums  and  before  crediting  the  same  to 
the  district  three  checks  were  issued  in  payment  of  district  liabilities  which 
went  to  protest  because  sufficient  funds  did  not  stand  credited  to  the  district 
to  meet  such  checks.  Had  these  funds  been  properly  credited  by  the  treasurer 
these  checks  would  not  have  been  dishonored. 

This  district  is  building  a  new  schoolhouse.  It  had  a  building  fund  of 
$30,120  realized  upon  the  sale  of  district  bonds.  This  amount  was  deposited 
to  the  credit  of  Treasurer  Fisher  in  the  Mount  Vernon  Trust  Co.  about  the 
1st  of  January  1907.  Within  a  few  days  after  this  fund  was  deposited  to  his 
credit  he  began  to  draw  upon  that  fund  without  authority  from  or  knowledge 
of  the  board  of  education.  Mr  Fisher  drew  from  this  fund  nearly  $4000  and 
deposited  it  to  the  credit  of  his  personal  account  in  the  First  National  Bank  of 
Mount  Vernon.  He  did  not  draw  this  amount  in  one  check  but  he  drew  it 
upon  several  checks  payable  to  cash.  It  had  been  Fisher's  custom  to  pay  the 
salary  of  teachers  and  to  pay  other  bills  in  cash.  He  kept  on  hand  cash  for 
this  purpose.  The  reasonable  presumption  is  that  he  drew  this  $4000  on  several 
checks,  instead  of  one  check,  payable  to  "  cash  "  so  that  suspicion  or  undue 
attention  would  not  be  directed  to  the  transaction. 

It  appears  that  the  board  of  education  had  decided  that  this  fund  should 
not  be  credited  to  the  treasurer  but  should  be  deposited  in  the  name  of  Mr 
Jackson  and  Mr  Jeffers,  two  members  of  such  board.  When  these  members 
of  the  board  discovered  that  the  fund  had  been  deposited  to  the  credit  of 
Treasurer  Fisher  and  that  he  had  transferred  nearly  $4000  to  his  personal 
account  in  another  bank,  they  made  demand  upon  him  for  restitution  of  such 
funds.  Fisher  promptly  complied  with  this  demand  and  deposited  to  the  credit 
of  the  building  fund  a  sum  sufficient  to  replace  the  amount  he  had  improperly 
and  unlawfully  drawn  from  that  fund.  Fisher  did  not  have  the  money  to 
meet  this  demand,  as  he  swears  that  he  had  used  the  money  illegally  credited 
to  his  personal  account  in  his  personal  affairs,  and  was  therefore  compelled  to 
borrow  the  necessary  amount  to  restore  the  $4000  to  the  building  fund. 


1400  THE   UNIVERSITY   OF   THE    STATE   OF    NEW    YORK 

The  record  further  shows  that  the  accounts  and  books  of  Fisher  were 
referred  to  an  auditing  committee  of  the  board  of  education  in  July  1907  for 
annual  examination  and  audit.  This  examination  of  the  treasurer's  books  and 
accounts  showed  that  there  should  be  in  the  treasury  a  balance  of  $10,453.15. 
There  was  actually  to  the  credit  of  the  district  only  $3905.65.  There  remained 
therefore  $6547.50  of  the  district's  funds  unaccounted  for,  but  which  had  been 
officially  received  by  Fisher.  Fisher  acknowledged  this  shortage  in  his  accounts. 
He  offered  to  give  the  board  of  education  a  demand  note  indorsed  by  his  wife 
and  he  also  offered  to  deposit  as  security,  deeds  of  two  pieces  of  real  property. 
The  board  declined  to  accept  these  propositions  and  insisted  that  Fisher  should 
make  gopd  the  deficiency  by  the  payment  of  cash.  The  surety  company  on 
Fisher's  bond  was  notified.  On  August  6th,  the  date  of  the  annual  school 
meeting  and  at  which  meeting  the  board  of  education  was  required  by  law  to 
make  a  report,  Fisher  paid  to  the  board  of  education  in  cash  $6547.50,  the 
amount  of  the  shortage  in  his  accounts. 

On  December  4,  1907,  I  gave  a  hearing  in  this  proceeding  and  Appellant 
Dempsey  and  Respondent  Fisher  were  examined  at  length  by  counsel  and  by 
the  Commissioner  of  Education.  The  sworn  testimony  of  Fisher  at  this  exami- 
nation revealed  that  Fisher  made  no  pretense  of  keeping  his  personal  funds 
and  the  ofificial  funds  of  the  district  separate  and  distinct.  He  swore  that  it 
was  his  custom  to  deposit  the  district  funds  to  his  personal  account  and  that 
he  frequently  expended  the  district  funds  in  his  personal  affairs.  He  also 
swore  that  the  $4000  which  he  drew  from  the  building  fund  on  checks  payable 
to  "  cash  "  and  which  he  deposited  in  another  bank  to  the  credit  of  his  personal 
account  he  also  used  in  his  personal  affairs.  He  also  used  in  his  personal  affairs 
the  shortage  of  $6547.50  which  was  discovered  in  July.  It  was  shown  by 
Fisher's  testimony  upon  this  hearing  that  about  the  time  he  was  endeavoring 
to  adjust  these  shortages  with  the  board  of  education  he  transferred  the  title 
of  his  property  to  a  party  who  indorsed  his  paper,  and  that  his  mother  also 
mortgaged  her  property.  The  reasonable  presumption  is  that  these  transactions 
were  for  the  purpose  of  raising  funds  to  meet  Fisher's  shortage,  although  he 
denies  it.     Fisher  swears  that  he  loaned  no  part  of  these  moneys. 

In  July  when  the  auditing  committee  discovered  a  shortage  in  Fisher's 
accounts  he  presented  his  resignation  to  the  board  of  education.  The  board 
declined  to  accept  such  resignation  until  the  shortage  in  question  was  made 
good  and  his  accounts  properly  audited.  Because  of  a  controversy  over  the 
election  at  the  annual  meeting  the  board  of  education  did  not  elect  a  treasurer 
for  the  current  year  until  October  15th.  The  manner  by  which  the  election 
was  effected  is  entitled  to  consideration.  The  board  of  education  consists  of 
five  members,  namely,  the  two  appellants,  the  father  of  respondent  Fisher,  and 
two  others.  It  is  shown  that  the  father  of  Fisher  is  an  elderly  man  and  has 
been  in  poor  health  during  the  past  year.  He  had  not  attended  a  board  meeting 
in  over  one  year.  He  was  brought  to  the  meeting  on  the  evening  of  October 
15th  in  a  carriage  and  cast  the  deciding  vote  by  which  Fisher  was  made  treas- 


JUDICIAL  decisions:    union  free  school  districts  1401 

urer  and  the  only  conclusion  which  can  be  reached  under  all  the  circumstances 
is  that  Fisher  was  instrumental  in  having  his  father  brought  to  this  meeting 
to  secure  his  own  election. 

It  is  not  alleged  that  the  meeting  at  which  Fisher  was  elected  was  irregularly 
conducted  in  any  way.  It  is  not  alleged  that  he  has  improperly  used  the  funds 
of  the  district  since  his  election  in  October  last.  It  is  not  claimed  that  the  dis- 
trict suffered  a  financial  loss  through  Fisher's  irregularities.  It  also  appears 
that  he  is  properly  bonded  by  a  surety  company.  There  is  therefore  but  one 
question  in  this  proceeding  and  that  is,  was  the  official  conduct  of  respondent 
Fisher  during  his  previous  term  of  office  as  treasurer  in  this  district  such  as 
to  disqualify  him  for  reelection  to  such  office?  Could  the  board  of  education 
with  full  knowledge  of  Fisher's  irregularities  of  official  duty,  his  direct  and 
constant  violations  of  the  statutes,  his  conversion  of  district  funds  to  his  per- 
sonal use  and  his  lack  of  competent  and  proper  system  of  keeping  his  accounts 
and  in  the  performance  of  his  duties,  legally  elect  him  to  the  office  of  treasurer? 
This  is  an  important  question  and  it  must  be  determined  not  only  in  relation  to 
the  taxpayers  of  this  district  but  with  reference  to  what  shall  be  the  general 
policy  of  the  State  in  protecting  the  school  moneys  held  by  the  treasurers  of  the 
11,000  school  districts  of  the  State.  Five  million  dollars  of  the  State's  money 
IS  apportioned  annually  by  this  Department  to  the  several  school  districts  and 
cities  of  this  State  and  this  money  is  held  by  the  treasurers  of  districts  and  cities 
to  be  disbursed  as  the  statutes  direct.  These  officers  are  also  the  custodians  of 
much  larger  sums  of  local  funds  in  the  aggregate  and  no  person  should  be 
appointed  to  such  office  whose  moral  character  and  incompetency  have  been 
shown  to  disqualify  him  for  performing  the  duties  of  such  office.  While  it  is 
true  that  Fisher  made  good  his  shortage  it  must  be  borne  in  mind  that  the 
$2032.74  paid  to  Fisher  between  June  23,  1904,  and  March  26,  1906,  was  not 
credited  to  the  district  until  September  10,  1906.  It  was  not  credited  then  until 
the  failure  to  credit  it  was  discovered  through  the  alertness  of  Mr  Dempsey. 
For  more  than  two  years  Fisher  had  part  of  this  money  in  his  possession  and 
had  used  it  illegally.  During  that  time  he  never  charged  himself  with  any  part 
of  it  and  he  made  restitution  only  after  his  failure  to  properly  credit  it  had 
been  discovered.  It  is  unnecessary  to  speculate  as  to  whether  or  not  it  would 
have  been  paid  to  the  district  had  it  not  been  for  the  discovery  of  Mr  Dempsey. 

It  is  contended  by  the  attorney  for  the  respondent  Fisher  that  there  is  no 
direct  statutory  prohibition  of  the  mingling  of  the  funds  of  a  school  district 
with  his  personal  funds  and  that  the  only  requirement  of  the  law  is  that  a  treas- 
urer shall  be  able  to  meet  any  orders  drawn  against  the  funds  he  holds  and 
shall  be  able  to  pay  upon  demand  any  funds  in  his  possession  to  his  successor 
in  office.  In  proof  of  this  contention  he  cites  section  36  of  title  7  of  the 
Consolidated  School  Law  which  defines  the  duty  of  a  treasurer  of  a  common 
school  district.  But  this  is  not  the  section  of  law  which  governs  the  conduct  of 
a  treasurer  of  a  union  free  school  district.  The  law  controlling  in  this  matter  is 
section  25,  title  8  of  the  Consolidated  School  Law.  The  plain  meaning  of  any  stat- 


1402  THE    UNIVERSITY   OF   THE   STATE   OF    NEW    YORK 

ute  which  makes  an  officer  the  custodian  of  a  fund  is  that  such  fund  shall  be  held 
strictly  for  the  purpose  for  which  the  fund  is  created  and  shall  not  be  otherwise 
used.  The  literal  meaning  of  this  statute  is  that  the  funds  held  by  the  treasurer 
of  the  district  shall  always  be  kept  a  separate  and  distinct  fund  and  that  it  shall 
never  be  mingled  with  other  funds.  This  law  is  founded  upon  the  moral  obli- 
gation which  prohibits  all  public  officers  from  engaging  in  transactions  which 
produce  a  conflict  between  official  conduct  and  common  honesty.  Section  25 
distinctly  provides  that  no  district  fund  in  the  possession  of  the  treasurer  shall 
be  drawn  except  pursuant  to  a  resolution  of  the  board  and  on  drafts  signed  by 
the  president  and  countersigned  by  the  clerk,  payable  to  the  order  of  the  person 
entitled  to  receive  such  money.  Such  drafts  must  also  state  upon  their  face 
the  purpose  or  service  for  which  such  moneys  have  been  authorized.  There 
can  be  no  misunderstanding  as  to  the  intent  of  this  law  both  as  to  the  separate- 
ness  of  this  fund  from  personal  or  other  funds  of  the  custodian  and  the  pur- 
poses for  which  it  might  be  used.  It  is  crime  for  a  custodian  to  use  it  other- 
wise than  the  statutes  direct.     Under  the  Penal  Code  this  is  a  misdemeanor. 

A  portion  of  the  moneys  which  Fisher  received  and  used  in  his  personal 
affairs  but  which  he  afterwards  credited  to  the  district  was  State  money  due 
the  district  under  a  supplementary  apportionment  of  this  Department.  Under 
section  470  of  the  Penal  Code  it  is  a  felony  for  an  officer  or  any  other  person 
receiving  moneys  on  account  of  the  State  or  receiving  any  fund  created  by  law 
and  in  which  the  State  is  directly  or  indirectly  interested  to  appropriate  the 
same  to  his  own  use  or  the  use  of  others.  The  fact  that  the  money  thus  appro- 
priated is  returned  does  not  alter  the  situation  nor  is  it  necessary  to  show 
corrupt  intention.  The  mere  fact  that  the  money  is  misappropriated  constitutes 
a  crime. 

The  board  of  education  in  electing  a  treasurer  is  given  discretionary  power. 
In  the  exercise  of  such  discretion  it  must  not  be  guilty  of  an  abuse  thereof. 
It  stands  as  the  representative  of  the  district  and  the  State  to  select  a  person 
morally  and  intellectually  qualified  to  fill  and  truly  perform  the  duties  of  such 
office.  Fisher's  conduct  in  this  office  had  made  him  an  unfit  person  to  be 
elected  to  the  office  of  treasurer  in  this  district.  His  unfitness  was  conspicuous 
and  fully  known  to  every  member  of  the  board  of  education.  The  action  of 
the  board  in  electing  him  was  an  abuse  of  the  discretion  vested  in  that  body 
and  is  therefore  reviewable  under  title  14  of  the  Consolidated  School  Law  by 
the  Commissioner  of  Education. 

It  is  not  here  determined  that  Fisher  had  any  corrupt  intention  to  convert 
the  funds  of  the  district  but  at  the  least  he  had  a  wholly  unlawful  conception 
of  the  proper  management  of  his  office  and  of  the  kind  of  care  which  the  law 
requires  that  he  shall  give  to  public  moneys.  This  of  itself  is  sufficient  to  pre- 
clude his  continuance  in  the  office. 

In  the  case  of  Conroy  v.  the  Mayor,  the  Aldermen  etc.  reported  in  6  Daly 
(N.  Y.)  490  and  affirmed  by  the  Court  of  Appeals  [67  N.  Y.  610]  the  precise 
question  before  the  court  was  not  the  same  as  the  question  in  this  case.     The 


JUDICIAL  decisions:    union  free  school  districts  1403 

language  of  the  court  in  that  opinion  however  expresses  the  court's  views  upon 
the  question  which  is  presented  in  this  case.  The  justice  of  a  New  York  court 
appointed  as  interpreter  a  person  unable  to  speak  a  foreign  language.  Judge 
Daly  in  the  opinion  said,  "  The  appointment  of  fit  persons  as  interpreters  was 
in  the  discretion  of  the  justices  of  the  courts  and  for  any  abuse  of  the  power 
conferred  upon  them,  they  are  responsible.  .  .  .  Had  the  officer  who 
appointed  him  knowledge  of  the  fact  that  he  knew  no  foreign  language,  he 
would  be  bound  to  withhold  the  appointment  and  would  have  no  discretion." 
It  would  therefore  follow  that  if  the  appointing  power  possessed  full  knowledge 
of  the  facts  disqualifying  for  any  reason,  it  would  be  bound  to  withhold  the 
appointment. 

The  action  of  the  board  must  therefore  be  set  aside  and  a  fit  person  should 
be  selected  as  treasurer.  The  board  should  require  such  treasurer  to  give  a 
bond  of  sufficient  sum  to  amply  protect  the  district  in  the  amount  which  shall 
be  in  the  custody  of  such  treasurer.  The  building  fund  improperly  deposited 
to  the  credit  of  two  members  of  the  board  should  be  transferred  to  the  custody 
of  the  treasurer.  All  future  .drafts  issued  upon  the  treasurer  should  be  in  strict 
compliance  with  the  provisions  of  section  25,  title  8  of  the  Consolidated  School 
Law. 

The  appeal  herein  is  sustained. 

It  is  ordered,  That  the  action  of  the  board  of  education  of  union  free 
school  district  no.  i,  town  of  Eastchester,  Westchester  county,  at  a  meeting  held 
on  the  15th  day  of  October  1907,  in  electing  William  J.  Fisher  treasurer  of 
said  district  be  and  the  same  hereby  is  vacated,  and  that  the  said  board  of  edu- 
cation shall  without  delay  elect  another  and  a  fit  person  to  the  said  office  of 

treasurer. 

It  is  further  ordered,  That  upon  the  election  and  qualification  of  such 
treasurer  the  board  of  education  shall  turn  over  to  him  all  funds  of  the  district 
and  such  funds  shall  thereafter  be  held  and  paid  by  said  treasurer  in  strict 
conformity  to  the  provisions  of  section  25,  title  8  of  the  Consolidated  School 
Law. 


4510 


In  the  matter  of  the  appeal  of  John  Krcutz.  Edward  Engelskircher  and  Michael 
Farrell  v.   Christopher  H.    Stark,   George   W.    Flood.   C.   Herbert   Brown. 
Edward  W.  Hopkins,  Daniel  Meskil  and  Robert  Altslicimer ;  and  from  pro- 
ceedings of  an  alleged  annual  school  meeting  held  August  4,  1896,  in  union 
free  school  district  no.  2,  town  of  Highlands.  Orange  county. 
When  at  an  annual  school  district  meeting  a  motion  is  made  to  adjourn,  and  the  chairman 
neglects  or  refuses  to  call  for  the  noes  upon  such  mot.on.  and  declares  the  mo  .on 
adopted  and  the  meeting  adjourned  and  he  leaves  the  cha.r  and  room,  such  mectmg 
was  not  legally  adjourned,  and  the  qualified  voters  present  may    egally  elect  another 
Thairman  and  proc  ed  with  the  regular  business  of  the  meetmg.     In  un.on  free  school 


1404  THE   UNIVERSITY    OF   THE    STATE   OF    NEW    YORK 

districts  whose  limits  do  not  correspond  to  those  of  an  incorporated  village  or  city, 
no  one  can  hold  the  office  of  treasurer  or  collector  unless  he  or  she  is  a  taxable  inhab- 
itant of  the  district,  and  no  taxable  inhabitant  can  legally  hold  both  offices.    The  clerk 
of  the  district  can  not  legally  hold  either  the  office  of  treasurer  or  collector. 
Decided  November  12,  1896 

M.  H.  Hirschberg,  attorney  for  respondents 

Skinner,  Superintendent 

The  appellants  in  the  above-entitled  matter,  three  members  of  the  board  of 
education  of  union  free  school  district  no.  2,  town  of  Highlands,  Orange  county, 
appeal  from  the  proceedings  of  a  school  meeting  held  in  said  district  on  August 
4.  1896,  in  the  election  of  Moses  F.  Nelson  as  clerk  of  said  district,  and  voting 
taxes  for  various  purposes;  and  from  the  decision  of  said  board  in  recognizing 
said  Nelson  as  clerk  of  said  district  and  refusing  to  recognize  one  E.  C.  Carpen- 
ter as  said  clerk ;  and  in  the  appointment  of  said  board  of  said  Nelson  as  treasurer 
and  collector  of  said  district;  and  in  neglecting  to  make  and  publish,  at  least 
twenty  days  before  the  annual  meeting,  a  full  and  detailed  account  of  all  moneys 
received  by  the  board  or  treasurer  of  said  district  for  its  account  and  use,  and  of 
all  the  money  expended  therefor,  giving  the  items  of  expenditure  in  full.  The 
respondents  herein  have  filed  an  answer  to  the  appeal,  and  to  the  answer  the 
appellants  have  replied,  and  to  the  reply  the  respondents  have  made  a  rejoinder. 

The  only  material  fact  upon  which  there  appears  to  be  any  conflict  in  the 
proofs  presented  is,  whether  or  not  the  annual  school  meeting,  convened  on 
August  4,  1896,  and  organized  by  the  choice  of  Caleb  Huse  as  chairman,  and  at 
which  Frank  R.  Gump,  the  district  clerk,  acted  as  clerk,  was  legally  adjourned  to 
August  31,  1896. 

It  appears  from  the  proofs  herein  that  said  school  district  is  a  union  free 
school  district  whose  limits  do  not  correspond  to  those  of  an  incorporated  village 
or  city,  and  the  board  of  trustees  or  board  of  education  of  said  district  consists  of 
nine  members ;  that  at  7.30  p.  m.,  on  August  4,  1896,  certain  of  the  qualified  voters 
of  the  district  assembled  at  the  schoolhouse  in  said  district  for  the  purpose  of 
holding  the  annual  school  meeting  of  said  district,  and  that  said  meeting  was 
called  to  order  by  Frank  R.  Gump,  the  clerk  of  the  district,  and  one  Calvin  Huse 
was  elected  chairman  of  the  meeting  and  said  Gump  acted  as  clerk ;  that  after  the 
organization  of  said  meeting  the  chairman  stated  to  said  meeting  that  it  could 
not  proceed  with  its  business  as  the  board  of  education  had  not  made  or  pub- 
lished a  report  of  its  receipts  and  disbursements  for  the  year ;  whereupon  a  motion 
was  made  that  the  meeting  adjourn  until  August  31,  1896,  which  motion  the 
chairman  declared  adopted  and  immediately  left  the  platform,  and  a  portion  of 
the  persons  present  left  the  meeting;  that  those  remaining  elected  one  Joseph  C, 
Miller  as  chairman,  the  said  Gump  continuing  to  act  as  clerk ;  that  the  report  of 
the  treasurer  of  the  district  for  the  previous  school  year  of  receipts  and  disburse- 
ments was  presented  and  read  by  the  clerk  and  was  duly  adopted ;  that  the  board 
of  education  presented  to  the  meeting  a  detailed  statement  in  writing  of  the 


JUDICIAL  decisions:    union  free  school  districts  1405 

amount  of  money  required  for  school  purposes  for  the  present  school  year,  aggre- 
gating the  sum  of  $6152,  which  statement  was  read  to  the  meeting,  and  the  (jues- 
tion  was  taken  upon  voting  the  amount  to  be  levied  by  tax  upon  the  district  and 
adopted  by  recording  the  ayes  and  noes  of  those  present  and  voting;  that  a  ballot 
was  taken  for  a  district  clerk,  which  resulted  as  follows:  Whole  number  of 
votes  cast  38,  of  which  Moses  F.  Nelson  received  36  and  Frank  R.  Gump  2,  and 
thereupon  the  meeting  adjourned  sine  die;  that  on  August  5,  1896,  a  meeting  for 
the  annual  election  of  the  members  of  the  board  of  education  of  said  district  was 
held,  the  polls  being  opened  at  12  o'clock  noon  and  closed  at  4  o'clock  in  the  after- 
noon, and  the  result  of  the  ballot  as  announced  was  that  the  appellants  herein, 
John  Kreutz,  Michael  Farrell  and  Edward  Engelskircher,  each  received  a  major- 
ity of  the  votes  cast  for  trustee  for  the  full  term  of  three  years ;  that  on  August 
31,  1896,  at  8  p.  m.,  certain  persons  assembled  at  the  schoolhouse  of  said  dis- 
trict, claiming  to  meet  in  pursuance  of  the  alleged  adjournment  of  the  annual 
school  meeting,  on  August  4,  1896,  said  Calvin  Huse  acting  as  chairman,  and 
electing  one  J.  Denna  as  clerk;  that  said  meeting  voted  a  tax  of  $3775,  with  a 
sufficient  amount  to  pay  an  outstanding  bond  of  the  district  falling  due  and  the 
interest  upon  the  remaining  bonds,  and  electing  one  E.  C.  Carpenter  as  district 
clerk;  that  said  meeting  also  voted  to  add  to  the  tax  list  the  sum  of  $14.40  to  pay 
to  James  Merritt  a  bill  for  printing;  that  a  committee  consisting  of  J.  Denna, 
Townshend  Drew  and  Calvin  Huse,  was  appointed  to  examine  all  papers  and  let- 
ters pertaining  to  the  affairs  of  the  district  and  prepare  and  present  to  the  dis- 
trict an  itemized  account  of  all  moneys  received  and  expended  during  the  preced- 
ing school  year,  at  the  time  to  which  the  said  meeting  should  be  adjourned;  and 
thereupon  said  meeting  adjourned  to  September  14,  1896,  at  8  o'clock  p.  m. ;  that 
on  August  II,  1896,  the  annual  meeting  of  the  board  of  education  was  held,  at 
which  the  following  members  were  present,  namely :  Messrs  Flood,  Stark,  Meskil, 
Hopkins,  Brown,  Altsheimer  and  Farrell,  and  Mr  Flood  was  elected  temporary 
chairman,  and  Mr  Stark  was  chosen  president  of  the  board;  that  on  the  fourth 
ballot  Moses  F.  Nelson  was  appointed  district  treasurer  and  collector;  that  on 
September  14,  1896,  at  8  p.  m.,  certain  persons  assembled  at  the  schoolhouse  in 
said  district,  claiming  to  meet  in  pursuance  of  the  adjournment  of  the  said  meet- 
ing, on  August  31,  1896,  said  Calvin  Huse  acting  as  chairman  and  J.  Denna  as 
clerk,  and  after  correcting  the  minutes  of  the  meeting  of  August  31.  1896,  the 
committee  to  investigate  the  receipts  and  disbursements  of  the  preceding  school 
year  presented  a  report  which  was  read  and  ordered  placed  on  file  and  entered 
in  the  records ;  that  a  resolution  was  adopted  that  the  number  of  the  members  of 
the  board  of  education  of  said  district  be  reduced  from  nine  to  three,  and  there- 
upon the  meeting  adjourned  sine  die;  that  on  September  i,  1896,  at  a  regular 
monthly  meeting  of  the  board  of  education  of  said  district  E.  C.  Carpenter,  who 
claimed  to  have  been  elected  district  clerk  at  said  adjourned  meeting,  held  on 
August  31,  1896,  presented  himself  and  offered  to  perform  the  duties  of  district 
clerk  and  demanded  that  the  books  and  records  of  the  district  be  delivered  to  him ; 
that  a  motion  was  made  on  the  part  of  the  appellants  that  said  Carpenter  be 


I406  THE  UNIVERSITY   OF  THE   STATE   OF   NEW   YORK 

recognized  as  district  clerk  and  the  books  and  records  of  the  district  be  dtlivered 
to  him;  but  the  president  refused  to  entertain  the  motion,  and  upon  an  appeal 
from  such  decision  the  president  was  sustained;  that  on  or  about  September  5, 
1896,  said  board  of  education  caused  a  tax  list  to  be  made,  including  therein  the 
moneys  voted  at  the  meeting  held  August  4,  1896,  at  which  said  Miller  was  chair- 
man, and  attached  its  warrant  thereto  and  delivered  the  same  to  the  collector  of 
said  district,  Moses  F.  Nelson;  that  said  Moses  F.  Nelson  is  the  clerk  of  the 
town  of  Highlands ;  that  said  board  of  education  did  not  make  and  publish  a  full 
and  detailed  account  of  all  moneys  received  by  the  board  or  the  treasurer  of  the. 
district  for  its  account  and  use,  and  of  all  money  expended  therefor,  giving  the 
items  of  expenditure  in  full,  required  by  section  18,  article  4,  title  8  of  the  Con- 
solidated School  Law  of  1894. 

The  appellants  herein  allege  that  the  annual  school  meeting  that  was  held  in 
said  district  on  August  4,  1896,  was  duly  and  legally  adjourned  to  August  31, 
1896.  In  support  of  this  the  affidavits  of  many  persons  are  filed,  in  which  they 
state  that  after  said  meeting  was  organized  it  was  stated  that  the  board  of  educa- 
tion had  not  made  or  published  a  report  of  receipts  and  expenditures  as  required 
by  law,  and  that  the  matter  was  discussed,  and  that  a  motion  was  made  and  sec- 
onded that  said  meeting  be  adjourned  to  August  31,  1896,  at  8  o'clock  p.  m.,  and 
that  said  motion  was  put  to  vote  by  the  chairman  and  was  declared  by  him  to 
have  been  adopted  unanimously ;  that  an  opportunity  was  given  by  the  chairman 
to  anyone  there  present  to  object  or  question  the  correctness  of  the  decision  so 
made  by  him,  but  that  no  objection  whatever  was  raised  by  any  one  present,  and 
the  meeting  unanimously  acquiesced  in  the  decision  of  the  chairman,  declaring 
the  meeting  adjourned. 

The  respondents  herein  allege  that  at  said  meeting,  when  the  action  was 
put  to  vote  by  the  chairman  to  adjourn  to  August  31,  1896,  only  a  small  number 
responded  "  aye,"  and  that  the  chairman  did  not  call  for  the  vote  of  those 
opposed,  or  give  any  opportunity  to  those  opposed  to  vote,  although  requested 
to  do  so,  but  declared  the  meeting  adjourned  and  immediately  left  the  chair 
and  the  school  building.  The  affidavits  of  many  persons  are  filed  in  support 
of  such  allegations.  The  chairman,  Huse,  in  an  affidavit  made  by  him,  states 
that  "  he  did  put  the  negative  of  the  question  to  the  meeting  by  saying  plainly, 
contrary  minded,  *  no  ' ;  that  there  was  no  negative  vote  cast."  The  respondents 
have  filed  the  affidavits  of  five  persons  that  said  Chairman  Huse  stated  and 
admitted  to  them,  or  in  their  hearing,  that  he  did  not  call  for  the  negative  vote 
upon  said  motion  to  adjourn  said  meeting  to  August  31,  1896.  I  am  of  the 
opinion,  from  the  proofs,  that  Chairman  Huse  did  not  call  for  the  negative 
vote  on  said  motion  to  adjourn  said  meeting  to  August  31,  1896,  and  did  not 
give  an  opportunity  to  those  persons  present  who  were  opposed  to  such  adjourn- 
ment to  vote  against  the  motion,  as  it  was  his  duty  to  do ;  that  said  annual 
■  ineetmg  was  not  legally  adjourned  to.  August  31,  1896,  nor  to  any  time  whatever, 
but  continued  to  be  the  legal  annual  school  meeting  of  said  district,  notwith- 
standing the  declaration  of  Chairman  Huse  that  the  meeting  was  adjourned; 


JUDICIAL  decisions:     union  free  school  districts  1407 

that  Chairman  Huse,  having  left  the  chair  and  meeting,  the  quahfied  voters  of  the 
district  present  had  the  legal  authority  to  elect  a  chairman  in  place  of  said  Huse, 
and  to  proceed  to  transact  any  and  all  business  which  said  annual  school  meeting 
had  the  authority  to  transact  under  the  provisions  of  the  school  law.  That  the 
meetings  held  in  said  district  on  August  31  and  September  14,  1896,  at  which 
said  Huse  acted  as  chairman,  were  not,  nor  was  either  of  them,  a  legal  school  meet- 
ing, and  the  proceedings  had  and  taken  thereat  were  and  are  without  authority 
of  law  and  void. 

I  am  also  of  the  opinion  that  the  proceedings  of  said  annual  school  meeting, 
after  the  same  had  elected  said  Joseph  C.  Miller  as  chairman  thereof,  in  receiving 
and  acting  upon  the  reports  of  the  treasurer  of  the  district,  and  the  statement 
of  the  board  of  education  of  the  sums  necessary  to  be  raised  by  tax  for  school 
purposes  for  the  school  year  of  1896-97,  and  in  voting  to  raise  by  tax  the  aggre- 
gate sum  of  $6132,  and  in  the  election  of  Moses  F.  Nelson  as  district  clerk, 
were,  and  each  of  them  was,  legal. 

Under  section  18,  article  4,  title  8,  of  the  Consolidated  School  Law  of  1894, 
it  was  the  duty  of  the  board  of  education  of  said  district  to  cause  to  be  pub- 
lished once  in  each  year,  and  twenty  days  next  before  the  annual  meeting  of  the 
district,  in  at  least  one  public  newspaper  printed  in  said  district,  a  full  and 
detailed  account  of  all  moneys  received  by  the  board  or  the  treasurer  of  said 
district  for  its  account  and  use,  and  of  all  the  money  expended  therefor,  giving 
the  items  of  expenditure  in  full;  should  there  be  no  paper  published  in  said 
district  said  board  shall  publish  such  account  by  notice  to  the  taxpayers,  by 
posting  copies  thereof  in  five  public  places  in  said  district.  This  duty  was  as 
mandatory  upon  said  board  as  any  other  requirement  of  the  school  law.  The 
failure  of  said  board  to  perform  such  duty  was  not  any  reason  for  the  adjourn- 
inent  of  the  annual  school  meeting,  nor  any  reason  why  such  meeting  could  not 
transact  the  business  of  such  meeting,  as  under  the  school  law  said  board  were 
also  required  to  make  a  report  to  said  meeting  of  the  moneys  received  and 
disbursed  by  it,  or  its  treasurer,  as  well  as  a  detailed  statement  in  writing  of 
the  amount  of  money  which  would  be  required  for  the  ensuing  year  for  school 
purposes,  exclusive  of  the  public  moneys,  specifying  the  several  purposes  for 
which  it  would  be  required,  and  the  amount  for  each.  This  report  and  state- 
ment, it  appears,  had  been  prepared  for  and  were  presented  and  read  at  said 
annual  meeting  and  acted  upon. 

Under  the  provisions  contained  in  section  7,  article  i,  title  8,  of  the  Con- 
solidated School  Law  of  1894,  as  amended  by  section  13,  chapter  264,  Laws  of 
1894,  it  is  enacted  that  boards  of  education  shall,  at  their  annual  meeting,  elect 
one  of  their  number  president. 

In  every  union  free  school  district,  other  than  those  whose  limits  correspond 
to  those  of  an  incorporated  village  or  city,  the  qualified  voters  shall  elect  a 
clerk  of  said  district,  who  shall  also  act  as  clerk  of  the  board  of  education  of 
such  district.  Said  board  of  education  shall  have  power  to  appoint  one  of 
tlie  taxable  inhabitants  of  their  district  as  treasurer  and  fix  his  compensation,  and 


1408  THE   UNIVERSITY   OF    THE   STATE   OF    NEW    YORK 

another  (that  is,  taxable  inhabitant  of  the  district)  collector  of  the  moneys  to 
be  raised  within  the  same  for  school  purposes,  who  shall  severally  hold  such 
appointments  during  the  pleasure  of  the  board.  Notwithstanding  the  plain 
provisions  of  the  school  law,  that  said  board  of  education  of  said  district,  in 
the  appointment  of  treasurer  and  collector,  should  appoint  a  taxable  inhabitant 
as  treasurer,  and  another  taxable  inhabitant  as  collector,  showing  clearly  that 
one  taxable  inhabitant  could  not  lawfully  be  appointed  both  treasurer  and 
collector,  said  board,  at  its  annual  meeting,  held  on  August  11  1896,  appointed 
or  attempted  to  appoint  Moses  F.  Nelson  as  treasurer  and  collector.  And  what 
is  more  surprising  is  that  said  board  appointed  as  such  treasurer  and  collector 
said  Nelson,  who  was  then  the  district  clerk  of  the  district  and  thereby  clerk 
of  the  board.  The  duties  of  Nelson  as  clerk  of  the  district  and  of  the  board 
are  incompatible  with  the  duties  of  treasurer  and  collector,  or  treasurer  or 
collector,  even  if  the  school  law  did  not  prohibit  said  board  from  appointing  the 
same  person  as  treasurer  and  collector;  and  the  school  law  and  the  decisions 
of  this  Department  are  that  no  person  can  hold  more  than  one  school  district 
office,  at  one  and  the  same  time.  The  appointment  by  said  board  of  said  Nelson 
as  treasurer  and  collector  was  and  is  clearly  illegal  and  void. 

It  appears  that  on  or  about  September  5,  1896,  said  board  of  education 
delivered  the  tax  list  made  by  it,  with  its  warrant,  to  said  Nelson  as  collector. 
As  said  Nelson  could  not  legally  hold  the  office  of  collector  or  legally  collect 
the  tax  contained  in  said  tax  list,  it  is  the  duty  of  said  board  to  recall  such  tax 
list  and  warrant  from  the  hands  of  said  Nelson. 

The  appeal  herein  is  sustained  as  to  so  much  thereof  as  is  taken  from  the 
appointment  by  said  board  of  education  of  said  Nelson  as  treasurer  and  collector 
of  said  district,  and  the  delivery  to  said  Nelson  by  the  said  board  of  the  tax  list 
and  warrant  made  and  issued  by  it ;  and  as  to  all  other  matters  it  is  dismissed. 

It  is  ordered,  That  all  proceedings  had  and  taken  at  the  annual  school 
meeting  held  in  said  district  on  August  4,  1896,  in  relation  to  the  motion  to 
adjourn  said  meeting  to  August  31,  1896,  at  8  o'clock  p.  m.,  including  the  declara- 
tion of  the  chairman,  Calvin  Huse,  that  said  motion  was  adopted  and  said  meeting 
adjourned,  be,  and  the  same  are,  and  each  of  them  is,  vacated  and  set  aside. 

It  is  further  ordered.  That  all  proceedings  had  and  taken  at  the  meeting 
held  in  said  district  on  August  31,  1896,  and  September  14,  1896,  be,  and  the 
same  are,  and  each  of  them  is,  vacated  and  set  aside  as  illegal  and  void. 

It  is  further  ordered,  That  all  proceedings  had  and  taken  by  the  said  board 
of  education  of  said  district  at  its  annual  meeting  held  on  August  11,  1896,  in 
the  election  or  appointment  of  Moses  F.  Nelson  as  treasurer  and  collector  of 
said  district  be,  and  the  same  are,  and  each  of  them  is,  vacated  and  set  aside 
as  illegal  and  void. 

It  is  further  ordered.  That  the  said  board  of  education  of  said  district 
forthwith  recall  from  the  hands  of  said  Moses  F.  Nelson  the  tax  list  and  warrant 
issued  by  said  board  and  delivered  to  said  Nelson  on  or  about  September  5,  1896. 


JUDICIAL  decisions:    union  free  school  districts  1409 

4418 

In  the  matter  of  the  appeal  of  William  Robinson  from  action  of  the  board  of 
education  of  union  free  school  district  no.  2,  Middletown  and  Southfield, 
Richmond  county,  removing  him  as  treasurer  of  said  board. 

In  every  union  free  school  distiict  other  than  such  whose  limits  correspond  with  those  of 
an  incorporated  village  or  city,  the  board  of  education  has  the  legal  authority  to  appoint 
one  of  the  taxable  inhabitants  of  such  district  treasurer  and  fix  his  compensation. 
Such  treasurer  shall  hold  such  appointment  during  the  pleasure  of  the  board;  there 
is  no  provision  of  law  prohibiting  such  board,  at  the  time  of  making  such  appomtment, 
from  exercising,  expressing  and  defining  its  pleasure  as  to  the  term  or  time  such 
appointee  shall  hold  such  office.  Where  a  board,  at  the  time  of  the  appointment  of  a 
treasurer,  fixes  the  term  of  the  appointment  for  "the  ensuing  year,"  it  thereby  ex- 
ercised and  voiced  its  pleasure  that  the  appointee  should  hold  for  the  ensuing  year, 
or  balance  of  the  then  school  year,  and  by  such  action  the  board  was  estopped  from  re- 
moving the  appointee  except  for  some  cause  other  than  that  of  the  will  or  desire  of 
the  majority  of  the  board. 

Decided  January  16,  1896 

John  Widdecombe,  attorney  for  respondents 

Skinner,  Superintendent 

At  a  regular  monthly  meeting  of  the  board  of  education  of  union  free  school 
district    no.   2,    Middletown    and    Southfield,    Richmond   county,   which    board 
consists  of  nine  members,  held  on  September  3,  1895.  all  the  members  of  said 
board  being  present  except  Felix  O'Hanlon,  the  following  resolution  was  adopted 
by  a  vote  of  7  for  and  i  against  said  resolution,  namely,  -  Resolved,  that  Mr 
William   Robinson   be   appointed  treasurer    for   the   ensuing   year";   that   at  a 
subsequent   regular  monthly  or  adjourned   meeting   of    said  board,   a   quorum 
being  present,  the  minutes  of  said  meeting  of   September  3.   1895,  ot   which 
minutes  the  resolution  above  quoted  formed  a  part  were  read  and  approved; 
that  said  board  did  not  fix  the  amount  of  the  bond  to  be  given  by  hmi  or  give 
him  written  notice  of  his  appointment  as  treasurer;  but  said  Robinson,  as  such 
treasurer,  filed  a  bond  in  the  sum  of  $30,000,  with  sureties,  with  said  board,  and 
at  a  meeting  of  said  board,  held  subsequent  to  September  3,   1895.  said  bond 
was  approved  by  said  board  as  to  the  form  and  sufficiency  thereot,  and  was 
accepted  by  said  board,   and  the   president   of   said  board   was   authorized   to 
indorse  the  approval  of  said  board  upon  said  bond,  and  the  said  bond  wa3 
ordered  filed  as  required  by  law.     That  at  an  adjourned  monthly  meeting  of 
said  board,  held  on  November  19,  1895.  a  resolution  was  adopted  by  a  vote  of 
5  in  favor  and  4  against,  dispensing  with  the  services  of  said  Robinson  as  such 
treasurer  from  and  after  December  i,  1895.  and  that  Mrs  Anna  W.  Lowes 
was  appointed  treasurer  of  said  board  in  place  of  said  Robinson  by  a  vote 
of  q  i^n  favor  to  4  against  such  appointment;  that  a  resolution  was  adopted 
by  a  majority  of  said  board  fixing  the  bond  of  Mrs  Lowes  as  such  treasurer 
at  $20,000,  and  ordering  said  Robinson  to  turn  over  all  books,   papers   and 

45 


I4I0  THE   UNIVERSITY   OF    THE    STATE   OF    NEW    YORK 

money  belonging  to  said  district  to  the  newly  elected  treasurer ;  that  a  resolution 
was  also  adopted  at  said  meeting  that  the  action  of  the  board,  in  removing  said 
Robinson,  was  to  be  no  reflection  upon  his  character,  nor  upon  the  faithful  dili- 
gence with  which  he  performed  the  duties  of  his  office;  that  at  a  meeting  of  said 
board,  held  on  November  27,  1895,  it  appearing  that  December  i,  1895,  would  be 
Sunday,  said  board  rescinded  said  resolutions  adopted  on  November  19,  1895,  dis- 
pensing with  the  services  of  said  Robinson  as  treasurer  from  and  after  December 
I,  1895,  and  appointing  Mrs  Lowes  as  treasurer,  and  then  by  a  vote  of  5  against  4 
adopted  resolutions  dispensing  with  the  services  of  said  Robinson  as  treasurer, 
from  and  after  December  3,  1895,  and  appointing  Mrs  Anna  W.  Lowes  as 
treasurer  from  said  date,  fixing  the  amount  of  her  bonds  at  $20,000,  and  direct- 
ing the  finance  committee  to  audit  the  books  and  accounts  of  said  Robinson : 
that  on  November  29,  1895,  the  bond  of  Mrs  Lowes,  as  treasurer,  was  approved 
and  ordered  filed  by  a  majority  of  said  board,  and  said  Robinson  was  directed 
to  arrange  to  transfer  the  money  in  his  possession  as  treasurer  to  Mrs  Lowes 
as  treasurer,  and  to  deliver  his  books  and  papers  to  said  board  on  December 
3,  1895,  at  8  o'cloc4v  p.  m. 

From  said  action  of  said  board  in  removing  him  as  treasurer  of  said  board 
and  appointing  Mrs  Lowes  as  treasurer  to  succeed  him,  the  said  Robinson  has 
appealed  to  me. 

An  answer  by  five  members  of  said  board  to  said  appeal  has  been  filed, 
four  members  of  said  board  refusing  to  join  in  said  answer. 

There  is  no  contention  between  the  appellant  and  respondents  as  to  the 
facts  as  hereinbefore  stated,  except  that  three  members  of  said  board,  namely. 
Messrs  Flannigan,  Blauth  and  Beinert,  each  states  in  an  affidavit  made  and 
sworn  to  by  each,  that  he  voted  for  the  resolution  at  the  meeting  of  said  board 
on  September  3,  1895,  appointing  said  Robinson  treasurer  in  the  belief  that 
said  resolution  provided  for  the  appointment  of  said  Robinson  as  treasurer 
to  hold  during  the  pleasure  of  the  board,  and  not  otherwise. 

In  section  7,  article  i,  title  8  of  the  Consolidated  School  Law  of  1894,  it 
is  enacted  that  boards  of  education  in  even,'  union  free  school  district,  other 
than  those  whose  limits  correspond  to  those  of  an  incorporated  village  or  city, 
shall  have  power  to  appoint  one  of  the  taxable  inhabitants  of  their  district 
treasurer,  and  another  collector  of  the  moneys  to  be  raised  within  the  same  for 
school  purposes,  who  shall  severally  hold  such  appointments  during  the  pleasure 
of  the  board. 

The  rule  is  well  settled  that  where  the  power  to  remove  at  pleasure  is  con- 
ferred in  general  terms  upon  an  official  or  board,  such  power  may  be  exercised 
without  a  cause  and  without  any  notice  to  the  incumbent,  i  Dillon  Municipal 
Corporations,  §  250:  People  ex  rel.  Sims  v.  Board  of  Commissioners  of  the 
City  of  New  York,  73  N.  Y.  437 ;  People  ex  rel.  Westray  v.  Mayor  of  the  City 
of  New  York,  82  N.  Y.  491;  People  ex  rel.  Gere  v.  Whitlock,  92  N.  Y.  191; 
Dunavon  v.  Board  of  Education  of  Hornellsville,  47  Hun  13;  Weidman  v. 
Board  of  Education,  7  N.  Y.  Supplement  309. 


JUDICIAL  decisions:     union  free  school  districts  141 1 

The  appellant,  in  substance,  contends  that  by  and  under  the  said  resolution 
of  said  board,  passed  September  3,  1895,  appointing  him  treasurer  for  the  ensu- 
ing year,  a  contract  was  made  with  him  for  the  remainder  of  the  school  year; 
that  there  is  nothing  in  said  section  7,  article  i,  title  8  of  the  Consolidated  School 
Law  of  1894  which  prohibits  said  board  from  appointing  the  appellant  as 
treasurer  for  a  definite  term,  that  is,  for  one  year  or  for  the  ensuing  year, 
and  that  after  said  board  has  exercised  its  pleasure  by  designating  the  term  of 
employment  of  the  appellant  it  can  not  remove  him  from  office  during  the  term 
so  designated  without  cause. 

The  contention  of  the  respondents  herein,  in  substance,  is  that  the  appel- 
lant, having  been  appointed  treasurer  in  the  year  1894  by  the  board  of  education 
then  in  office,  held  such  office  until  his  removal  by  the  present  board  in  Novem- 
ber 1895,  and  the  action  of  the  said  board  in  September  3,  1859,  in  appointing 
appellant  as  treasurer  was  illegal;  that  under  said  section  7,  article  i,  title  8 
of  the  Consolidated  School  Law  the  dismissal  of  the  appellant  and  the  appoint- 
ment of  Mrs  Lowes  was  legal;  that  the  action  of  said  board  on  September  3, 
1895,  in  appointing  the  appellant  was  illegal  in  so  far  as  it  attempted  to  make 
the  appointment  for  a  definite  period,  the  Legislature  having  limited  the  power 
of  the  board  in  that  regard;  that  the  treasurer  being  an  employee  of  the  board, 
rather  than  a  district  officer,  the  right  of  the  board  to  dismiss  at  pleasure  is 
absolute. 

Under  the  Consolidated  School  Law  of  1894  (see  section  13,  article  3,  title 
8,  and  section  7,  article  i,  title  8)  it  was  the  duty  of  the  persons  constituting 
the  board  of  education  of  union  free  school  district  no.  2,  Middletown  and 
Southfield,  for  the  school  year  1894-95  and  1895-96,  respectively,  on  the  Tuesday 
next  following  the  annual  school  district  meeting  held  therein  (in  August),  to 
hold  the  annual  meeting  of  said  board.  That  at  said  annual  meetings  said  board 
should  elect  one  of  the  members  of  said  board  as  president  thereof,  and  the 
person  so  elected  shall,  unless  he  resign  the  office  or  cease  to  be  a  member  of 
said  board,  hold  said  office  for  the  school  year;  that  said  board  shall  also,  at 
such  annual  meetings,  if  the  school  district  at  its  annual  meeting  for  the  election 
of  officers  did  not  elect  a  clerk  of  said  district,  under  said  section  7  above  cited, 
appoint  one  of  their  number  as  clerk  of  said  board,  whose  term  of  office  will 
end  at  the  date  of  the  next  annual  school  meeting  of  the  district.  That  under 
said  section  7  said  board  had  the  power  to  appoint  one  of  the  taxable  inhab- 
itants of  said  school  district  as  treasurer  of  the  board,  to  hold  such  appoint- 
ment during  the  pleasure  of  said  board,  and  whose  term  of  office,  if  not  sooner 
removed,  would  expire  at  the  next  annual  school  district  meeting;  but  no 
member  of  said  board  could  be  appointed  to  the  office  of  treasurer. 

The  appeal  herein  alleges  that  the  appellant  was  appointed  treasurer  at 
the  regular  monthly  meeting  of  said  board  held  on  September  3,  1895.  but  does 
not  state  whether  anv  appointment  of  treasurer  was  made  at  the  annual  meet- 
ing of  the  board  on  the  Tuesday  next  after  the  annual  school  meeting  in  1895. 
and  the  answer  alleges  that  the  appellant,  in  1894,  was  appointed  trea'surer  of 


I4I2  THE    UNIVERSITY    OF   THE   STATE   OF   NEW    YORK 

the  then  existing  board  of  education,  but  does  not  state  whether  or  not  such 
appointment  was  made  at  the  annual  meeting  of  said  board  which  should  have 
been  held  on  the  Tuesday  next  after  the  annual  school  meeting  of  the  district 
in  1894.  Admitting,  however,  that  appellant  was  appointed  such  treasurer  by 
the  board  for  the  school  year  of  1894-95,  and  was  not  removed  by  said  board 
during  its  official  life,  his  term  of  office  expired,  under  such  appointment,  with 
that  of  the  board  that  appointed  him,  and  therefore  the  contention  of  the 
respondents  that  he  continued  to  hold  office  during  the  pleasure  of  the  board 
for  1895-96  until  his  removal  by  it  on  November  27,  1895,  is  not  well  taken. 
There  is  no  contention  that  the  appellant  herein  was  not,  in  November  1895, 
a  taxable  inhabitant  of  said  school  district,  nor  that  he  has  not  been  a  taxable 
inhabitant  of  said  district  since  the  commencement  of  the  school  year  of  1894-95. 
It  is  admitted  that  appellant  executed  and  delivered  to  said  board,  after  his 
appointment  on  September  3,  1895,  ^  bond  with  sufficient  penalty  and  sureties, 
which  bond  was  duly  approved  and  filed.  It  is  also  admitted  that  appellant 
performed  the  duties  of  treasurer  with  "  faithful  diligence." 

The  treasurer  appointed  by  a  board  of  education  is  the  custodian  of  the 
moneys  belonging  to  the  district,  and  it  is  important  that  such  treasurer  should 
be  a  person  of  integrity  and  possessed  of  sufficient  business  ability  to  properly 
perform  the  duties  of  the  office.  It  was  doubtless  the  intention  of  the  Legislature 
in  providing  that  such  officer  should  hold  during  the  pleasure  of  the  board  to 
provide  a  summary  method  for  the  removal  of  a  person  who  it  was  found  was 
incompetent  to  perform  the  duties  of  the  office  or  was  not  a  safe  and  proper 
person  as  custodian  of  the  school  funds.  It  is  clear  that  said  board  had  the 
power  to  appoint  the  appellant  as  treasurer,  and  I  am  not  aware  of  any  pro- 
vision of  law  prohibiting  said  board  at  the  time  of  making  such  appointment 
from  exercising,  expressing,  defining  and  stating  its  pleasure,  that  is,  will,  desire, 
choice  as  to  the  term  or  time  the  appellant  should  hold  such  appointment  of 
treasurer,  to  wit,  "  for  the  ensuing  year."  Had  said  board,  on  September  3, 
1895,  resolved  that  Mr  William  Robinson  be  appointed  treasurer,  there  can  not 
be  any  doubt  but  that  said  board  would  have  had  legal  authority  at  any  subse- 
quent meeting  to  have  removed  him  as  such  treasurer  and  appointed  some  other 
person  in  his  place;  but  having  at  such  meeting  resolved  that  he  be  appointed 
treasurer  "  for  the  ensuing  year,"  it  thereby  exercised  and  voiced  its  pleasure, 
expressing,  defining  and  stating  its  pleasure  that  the  appellant  should  hold  such 
appointment  for  the  ensuing  year  (or  balance  of  the  present  school  year),  and 
said  board  by  such  action  was  estopped  from  removing  the  appellant  except  for 
some  cause  other  than  that  of  the  will  or  desire  of  a  majority  of  said  board. 

The  resolution  presented  to  and  adopted  by  said  board  appointing  the  appel- 
lant as  treasurer  was  plain  and  concise,  and  I  do  not  see  how  it  could  be  misunder- 
stood by  any  member  of  the  board  present  at  its  meeting  on  September  3,  1895, 
or  how  any  member  could  be  misled  as  to  its  language  and  efifect.  At  a  sub- 
sequent meeting  of  said  board  the  proceedings  had  and  taken  at  said  meeting  on 


JUDICIAL  decisions:    union  free  school  districts  1413 

September  3,  1895,  were  read  and  approved.  There  is  nothing  in  the  affidavits 
of  Messrs  Flannigan,  Blauth  and  Beinert,  annexed  to  the  answer  herein,  that 
indicated  that  they  misunderstood  the  terms  of  said  resolution  or  were  misled 
by  it.  Each  of  them  says  that  he  voted  for  said  resolution  in  the  belief  that 
the  resolution  pro\  ided  for  the  appointment  of  the  appellant  as  treasurer  to  hold 
office  during  the  pleasure  of  the  board  and  not  otherwise.  That  is  just  what  the 
resolution  did  provide  for,  namely,  the  appointment  of  the  appellant  as  treasurer, 
he  to  hold  the  office  during  the  pleasure  of  the  board,  and  that  the  board  defined 
and  expressed  therein  its  pleasure,  to  wit,  for  the  ensuing  year. 

I  am  of  the  opinion  that  the  action  and  proceedings  of  said  board  had  and 
taken  at  its  meetings  on  November  27  and  29,  1895,  dispensing  with  the  services 
of  the  appellant  herein  as  treasurer  from  and  after  December  3,  1895,  and 
appointing  Mrs  Anna  W.  Lowes  as  treasurer  from  said  December  3,  1895,  fixing 
the  bond  of  Mrs  Lowes  at  $20,000,  and  directing  the  appellant  to  transfer  the 
money  in  his  possession  as  treasurer  to  said  Mrs  Lowes,  and  to  turn  over  the 
books  and  papers  in  his  possession  to  said  board,  are  and  each  of  them  was 
without  power  or  authority  on  the  part  of  said  board,  and  should  be  vacated 
and  set  aside.  That  said  board  restore  to  the  appellant,  as  treasurer,  all  moneys 
in  the  hands  of  Mrs  Lowes,  belonging  to  said  district,  and  all  books  and  papers 
pertaining  to  the  office  of  treasurer,  turned  over  by  said  appellant  to  said  board. 
The  appeal  herein  is  sustained. 

It  is  ordered,  That  the  action  and  proceedings  of  the  board  of  education 
of  union  free  school  district  no.  2,  Middletown  and  Southficld,  Richmond  county, 
had  and  taken  at  its  meetings  held  on  November  2-]  and  29,  1895,  and  each  of 
said  meetings,  dispensing  with  the  services  of  the  appellant,  William  Robinson, 
as  treasurer  from  and  after  December  3,  1S95,  and  appointing  Mrs  Anna  W. 
Lowes  as  treasurer  from  said  December  3,  1895,  fixing  the  bonds  of  Mrs  Lowes 
at  $20,000,  and  directing  the  said  appellant,  Robinson,  to  transfer  the  moneys 
in  his  possession  as  treasurer  to  said  Mrs  Lowes,  and  to  turn  over  the  books  and 
papers  in  his  possession  to  said  board,  be,  and  the  same  are,  and  each  of  them  is, 

vacated  and  set  aside. 

It  is  further  ordered,  That  said  board,  without  unnecessary  delay,  remstate 
the  said  appellant,  William  Robinson,  as  treasurer,  in  accordance  with  the  terms 
of  the  resolution  of  said  board  appointing  him  treasurer,  adopted  by  said  board 
on  September  3,  1895. 

4271 

In  the  matter  of  the  appeal  of  Charles  Lamoreaux  and  others,  from  proceedings 
of  annual  meeting  held  in  district  no.  7,  town  of  Schohane,  Schoharie 
county,  on  August  7,  1894. 

Where  at  the  annual  meeting  in  the  school  districts  of  the  State,  the  election  of  school  dis- 
trict officers  was  not  had  in  accordance  with  the  provisions  of  section  14.  article  i, 
itle  7  of  the  Consolidated  School  Law  of  1894.  and  an  appeal  is  taken  from  the  pro- 


I414  THE    UNIVERSITY    OF    THE    STATE   OF    NEW    YORK 

ceedings  of  such  meeting  relative  to  such  election,  such  action  and  proceedings  will  be 
vacated  and  set  aside  and  a  special  meeting  ordered  for  the  transaction  of  the  business 
of  the  annual  meeting  of  the  district. 
Decided  October  5,  1894 

Crooker,  Superintendent 

This  appeal,  taken  from  the  proceedings  of  the  annual  school  meeting,  held 
on  August  7,  1894,  in  district  no  7,  town  of  Schoharie,  county  of  Schoharie. 
The  principal  irregularities  related  in  the  appeal  are :  that  a  suitable  ballot  box 
was  not  provided  by  the  trustee;  that  in  the  election  of  district  officers  only  one 
office,  that  of  trustee,  was  elected  by  ballot ;  that  the  result  of  the  vote  for  said 
trustee  was  not  announced  by  the  chairman  of  the  meeting,  but  by  one  of  the 
inspectors  or  tellers ;  that  the  ballots  were  defective  in  this,  that  said  ballots  con- 
tained only  the  name  of  the  person  voted  for  and  not  designating  the  office ;  that 
illegal  votes  were  received,  and  that  one  person  who  was  challenged  was  per- 
mitted to  vote  without  making  the  declaration  required  by  the  school  law,  such 
challenge  not  having  been  withdrawn ;  that  no  poll  list  was  kept ;  that  the  person 
who  was  elected  collector  of  the  district  was  also  elected  treasurer  of  the  dis- 
trict, without  any  resolution  having  been  adopted  by  the  meeting  to  elect  a 
treasurer;  that  the  vote  to  raise  money  by  tax,  or  making  appropriations,  was 
not  taken  as  required  by  the  school  law.  The  appeal  is  verified,  and  a  copy 
thereof  duly  served  upon  Daniel  Waterbury,  the  person  alleged  to  have  been 
elected  trustee  of  the  district  at  said  annual  meeting.  No  answer  has  been  made 
to  the  appeal,  and  I  am  in  receipt  of  a  letter  written  for  said  Waterbury,  sub- 
mitting the  appeal  to  me  for  examination  and  decision. 

The  allegations  contained  in  the  appeal  are  deemed  by  me  to  be  admitted  by 
said  Waterbury. 

Subdivision  4  of  section  14,  article  i,  title  7  of  the  Consolidated  School  Law 
of  1894,  provides  that  all  district  officers  shall  be  elected  by  ballot;  that  at 
elections  of  district  officers  the  trustees  shall  provide  a  suitable  ballot  box;  two 
inspectors  of  election  shall  be  appointed  in  such  manner  as  the  meeting  shall 
determine,  who  shall  receive  the  votes  cast,  and  canvass  the  same  and  announce 
the  result  of  the  ballot  by  the  chairman;  a  poll  list,  containing  the  name  of  every 
person  whose  vote  shall  be  received,  shall  be  kept  by  the  district  clerk  or  the 
clerk  for  the  time  of  the  meeting;  the  ballots  should  be  written  or  printed,  or 
partly  written  and  partly  printed,  containing  the  name  of  the  person  voted  for, 
and  designating  the  office  for  which  each  is  voted  for;  the  chairman  shall  declare 
to  the  meeting  the  result  of  each  ballot,  as  announced  to  him  by  the  inspectors, 
and  the  persons  having  a  majority  of  votes,  respectively,  for  the  several  offices, 
shall  be  elected. 

By  the  provisions  of  law  above  cited,  a  suitable  ballot  box  shall  be  provided 
by  the  trustee.  The  law  does  not  describe  the  kind  of  ballot  box  which  shall  be 
used,  but  the  same  shall  be  suitable  for  the  purpose.  Such  ballot  box  should  be 
during  the  election  of  officers,  in  the  possession  of  the  inspectors  of  election,  and 
each  voter  should  deliver  his  or  her  ballot  to  such  inspectors,  or  one  of  them, 


JUDICTAL  decisions:    union  free  school  districts  1415 

and  when  the  name  of  the  voter  is  recorded  upon  the  poll  list  b}-  the  clerk,  and 
the  vote  is  not  challenged,  should  be  deposited  in  the  ballot  box  by  the  inspector. 
The  ballot  should  be  written  or  printed,  or  partly  written  and  partly  printed, 
containing  the  name  of  the  person  voted  for  and  designating  the  office  for  which 
each  is  voted  for.  This  latter  provision  has  especial  reference  to  where  all  the 
district  officers  are  elected  upon  one  ballot.  When  each  district  office  is  balloted 
for  separately,  the  ballot  will  be  valid,  having  thereon  only  the  name  of  the 
person  voted  for,  as  each  voter  has  knowledge  of  the  office  for  which  the  ballot 
is  being  taken,  and  the  ballot  is  for  that  office  only. 

Section  11,  article  i,  title  7  of  the  Consolidated  School  Law  of  1894  specifies 
tJie  quaHfications  which  a  resident  of  any  school  district  of  the  State  must 
possess  to  entitle  such  resident  to  vote  in  the  district  in  which  he  or  she  resides. 
Any  person  to  be  entitled  to  vote  must  possess  at  least  one  of  the  qualifications 
specified  in  said  section.  Section  12,  article  i,  title  7  of  said  school  law  provides 
that  any  person  offering  to  vote  at  any  district  meeting  may  be  challenged  by 
any  qualified  voter  of  such  district,  as  unqualified,  and  when  so  challenged,  such 
person  shall  be  required  by  the  chairman  of  the  meeting  to  make  the  declaration 
specified  in  said  section  12,  and  if  said  person  makes  such  declaration  he  or  she 
shall  be  permitted  to  vote;  but  if  such  person  refuses  to  make  such  declaration 
his  or  her  vote  shall  be  rejected. 

The  treasurer  of  a  common  school  district  is  a  new  officer  provided  for 
under  the  new  Consolidated  School  Law  of  1894.  Under  the  provisions  of  sub- 
division 5  of  section  14,  article  i,  title  7  of  said  law,  at  the  annual  meeting  of  any 
such  district,  or  at  any  special  meeting  called  for  that  purpose,  the  qualified  voters 
tJierein  are  authorized  to  adopt  a  resolution  by  a  majority  of  such  voters  present 
and  voting,  such  vote  to  be  ascertained  by  taking  and  recording  the  name  of  the 
voter  and  whether  such  voter  votes  aye  or  nay  upon  said  resolution  to  elect  a 
treasurer  of  said  district.  If  said  resolution  is  adopted  the  meeting  shall  there- 
upon elect  by  ballot  a  treasurer.  No  person  shall  be  eligible  to  the  office  of 
treasurer  unless  he  is  a  qualified  voter  in  and  a  taxable  inhabitant  of  said  dis- 
trict. No  district  meeting  can  legally  elect  a  treasurer  of  the  district  until  a 
resolution  shall  be  adopted  to  elect  such  treasurer  in  the  manner  above  stated. 

Under  the  school  law  no  person  can  legally  hold  two  district  offices  at  one 
and  the  same  time. 

Under  subdivision  18  of  section  14,  article  i,  title  7  of  the  Consolidated 
School  Law  of  1894,  it  is  enacted  that  in  all  propositions  arising  at  said  district 
meeting  involving  the  expenditure  of  money  or  authorizing  the  levy  of  a  tax  or 
taxes,  the  vote  thereon  shall  he  by  ballot  or  ascertained  by  taking  and  recording 
the  names  of  the  voters  and  how  each  said  voter  votes,  that  is,  either  aye  or  no 
upon  each  proposition. 

Under  section  86,  article  7,  title  7  of  the  Consolidated  School  Law  of  1894 
the  collector  of  a  district  shall  keep  in  his  possession  all  moneys  received  or 
collected  by  him,  and  the  same  shall  not  be  paid  out  by  him  except  upon  the 
wrkten  orders  of  a  trustee  or  trustees,  or  a  majority  of  said  trustees;  and  any 


I416  THE   UNIVERSITY   OF   THE   STATE   OF    NEW    YORK 

moneys  remaining  in  his  hands  when  his  successor  in  ofBce  shall  be  elected  and 
shall  have  executed  a  bond,  shall  be  paid  by  him  to  his  successor.  He  shall 
report  his  receipts  and  disbursements  in  writing  at  the  annual  meeting. 

Under  section  55,  article  6,  title  7  of  said  Consolidated  School  Law  of  1894 
the  trustee  or  trustees  of  a  district  shall,  at  the  annual  meeting,  render  a  just, 
full  and  true  account  in  writing  under  his  or  their  hand  or  hands,  of  all  moneys 
received  for  the  use  of  the  district,  or  raised  or  collected  by  tax  the  preceding 
year,  and  the  manner  in  which  the  same  has  been  expended,  etc. 

At  an  annual  school  meeting  the  order  of  business  shall  be  as  follows: 

To  appoint  a  chairman  of  the  meeting,  and  if  the  district  clerk  is  absent,  to 
appoint  a  clerk  for  the  meeting;  the  trustee  or  trustees  should  present  to  the 
meeting  his  or  their  report,  which  should  then  be  acted  upon  by  the  mettin-;; 
then  the  report  of  the  collector  should  be  presented  and  acted  upon;  then  the 
trustee  should  present  a  statement  of  the  amount  of  money  needed  for  payment 
of  teachers'  wages,  fuel,  repairs,  insurance,  furniture,  books  for  school  library. 
hiring  janitor,  etc.,  etc.,  and  the  items  should  be  voted  upon  and  taxes  ordered  to 
be  assessed  in  the  manner  hereinbefore  stated ;  the  meeting  should  then  proceed 
to  elect  its  district  officers  in  the  manner  hereinbefore  stated.  Every  district  officer 
must  be  a  resident  of  his  or  her  district  and  qualified  to  vote  as  its  meetings,  and 
no  person  shall  be  eligible  to  hold  any  district  office  who  can  not  read  and  write ; 
but  a  treasurer  of  a  district  must  also  be  a  taxable  inhabitant  of  said  district. 

It  is  clear  that  the  actions  arid  proceedings  at  the  annual  meeting,  held  on 
August  7,  1894,  in  district  no.  7,  town  of  Schoharie,  were  not  in  accordance  with 
the  provisions  of  the  school  law.  I  have  stated  thus  fully  what  can  be  legally 
done  at  an  annual  school  meeting,  in  order  that  there  should  be  no  want  of  infor- 
mation as  to  what  the  action  and  proceedings  which  shall  be  taken  at  the  special 
meeting  which  I  shall  direct  to  be  called  in  said  district,  to  transact  the  business 
of  the  annual  meeting. 

The  appeal  herein  is  sustained. 

It  is  ordered,  That  the  action  and  proceedings  had  and  taken  at  the  annual 
school  meeting  held  on  August  7,  1894,  in  district  no.  7,  town  of  Schoharie, 
county  of  Schoharie,  be  and  the  same  hereby  are,  and  each  of  them  is,  vacated 
and  set  aside. 

It  is  further  ordered.  That  Daniel  Waterbury,  a  qualified  voter  of  said  district, 
is  hereby  authorized  and  directed  to  forthwith  call  a  special  meeting  of  the  inhab- 
itants of  said  school  district  no.  7,  town  of  Schoharie,  county  of  Schoharie,  entitled 
to  vote  at  school  meetings  in  said  district,  in  the  manner  prescribed  in  sections  2 
and  6  of  article  i,  title  7  of  the  ConsoHdated  School  Law  of  1894,  for  the 
purpose  of  transacting  the  business  of  the  annual  meeting;  such  business  to  be 
conducted  in  the  manner  provided  in  title  7  of  the  Consolidated  School  Law 
of  1894,  and  as  stated  in  this  decision;  but  no  business  shall  be  done  or  per- 
formed at  such  special  meeting,  other  than  that  which,  under  said  school  law, 
could  have  been  done  or  performed  at  said  annual  meeting  on  the  first  Tuedsay 
of  Ausiist  1894. 


JUDICIAL  decisions:    union  free  school  districts  1417 

4984 

In  the  matter  of  the  appeal  of  Byron  Mansfield  v.  board  of  education  of  union 
free  school  district  no.  10,  New  Baltimore,  Greene  county. 

In  every  union  free  school  district  other  than  those  whose  limits  correspond  to  those  of  an 
incorporated  village  or  city,  the  board  of  education  has  the  power  to  appoint  one  of 
the  taxable  inhabitants  of  their  district,  treasurer,  and  fix  his  compensation,  and  an- 
other (taxable  inhabitant)  collector  of  the  moneys  to  be  raised  within  the  same  for 
school  purposes;  but  said  boards  of  education  can  not  legally  appoint  one  of  their 
number  as  treasurer  or  collector. 

Decided  December  30,  1901 

Skinner,  Superintendent 

This  is  an  appeal  from  the  action  of  the  board  of  education  of  union  free 
school  district  10,  New  Baltimore,  Greene  county,  in  the  appointment  of  William 
H.  Baldwin  a  member  of  said  board  of  education  as  district  treasurer. 

No  answer  has  been  made  by  the  board  of  education  to  the  appeal  herein 
and  under  the  rules  of  practice  established  by  this  Department,  regulatnig  appeals 
to  the  State  Superintendent  of  Public  Instruction,  where  no  answer  has  been 
made  to  an  appeal,  the  material  allegations  in  the  appeal  will  be  deemed  admitted. 

It  appears  that  the  board  of  education  of  union  free  school  district  10, 
New  Baltimore,  Greene  county,  consists  of  three  members,  namely,  J.  D.  Carhart, 
William  H.  Baldwin  and  Andrew  Colvin;  that  at  an  adjourned  annual  meeting  of 
such  board,  held  on  August  16,  1901,  there  were  present  Messrs  Baldwin  and  Col- 
vin; that  in  the  absence  of  Mr  Carhart,  president  of  the  board,  Mr.  Colvin  was 
elected  president  pro  tem. ;  that  on  motion  of  Mr  Baldwin,  Mr  Carhart  was 
elected  president  of  the  board  for  the  ensuing  year;  that  on  a  motion  that  Wil- 
liam H.  Baldwin  be  the  treasurer  of  the  board  for  the  ensuing  year,  such 
motion  was  adopted;  that  one  Albert  Fackler  was  elected  clerk  for  the  ensuing 
year  at  a  compensation  of  $25 ;  that  William  Patterson  was  elected  collector  for 
the  ensuing  year;  that  Martin  Fink  was  elected  truant  officer  subject  to  his 
acceptance  of  the  office;  that  it  was  voted  that  the  collector's  bond  be  fixed  at 
$1000  and  the  treasurer's  bond  be  fixed  at  $1500. 

Section  7  of  article  i,  title  8  of  the  Consolidated  School  Law  of  1894, 
as  said  section  was  amended  by  section  i,  chapter  456  of  the  Laws  of  1897, 
provides  that  boards  of  education  shall  have  power  to  appoint  one  of  the 
taxable  inhabitants  of  their  district  treasurer  and  fix  his  compenijation  and 
another  (taxable  inhabitant)  collector  of  the  moneys  to  be  raised  within  the 
same  for  school  purposes,  who  shall  severally  hold  such  appointment  during  the 
pleasure  of  the  board.  Such  treasurer  and  collector  shall  each,  within  ten 
days  after  notice  in  writing  of  his  appointment,  duly  served  upon  him,  and 
before  entering  upon  the  duties  of  his  office,  execute  and  deliver  to  said  board 
of  education  a  bond  with  such  sufficient  penalties  and  sureties  as  the  board  may 
require,  conditioned  for  the  faithful  discharge  of  the  duties  of  his  office,  and 
in  case  such  bond  shall  not  be  given  within  the  time  specified,  such  office  shall 


I418  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

thereby  become  vacant,  and  said  board  shall  thereupon,  by  appointment,  supply 
such  vacancy. 

This  Department  has  uniformly  held  that  the  treasurer  or  collector  of  a 
union  free  school  district  can  not  be  a  member  of  the  board  of  education. 
Deputy  Superintendent  Barr,  on  October  13,  1865,  held  that  it  is  not  legal  for 
a  board  of  education  to  appoint  a  member  thereof  as  the  treasurer  of  the  board ; 
that  the  treasurer  of  the  board  and  collector  must  each  execute  and  deliver 
to  the  board  a  bond  conditioned  for  the  faithful  discharge  of  the  duties  of  his 
office ;  that  the  law  contemplates  a  treasurer  and  collector  separate  and  distinct 
from  the  board;  that  it  might  become  necessary  for  the  board  to  sue  the  treasurer 
or  collector  and  he  being  a  member  of  the  board  could  not  unite  with  them  in  suing 
himself.  Superintendent  Weaver,  on  February  17,  1873,  held  that  the  board  of 
education  in  a  union  free  school  district  have  no  power  to  appoint  a  treasurer 
from  their  own  number;  that  the  appoinlment  by  a  board  of  education  of  one 
of  their  own  number  to  the  office  of  treasurer  is  an  unauthorized  act  and  there 
is  the  same  inconsistency  in  a  trustee  of  a  union  free  school  district  holding  the 
office  of  treasurer  that  there  is  in  a  trustee  of  a  common  school  district  holding 
that  of  district  collector,  and  that  is  expressly  prohibited  by  the  statute. 

The  appeal  herein  is  sustained. 

It  is  ordered  that  the  proceedings  of  the  board  of  education  of  union  free 
school  district  10,  New  Baltimore,  Greene  county,  at  the  adjourned  annual 
meeting  of  said  board,  held  on  August  16,  1901,  in  the  election  of  William  H. 
Baldwin,  a  member  of  said  board  as  treasurer  of  the  board  in  the  district,  are 
hereby  vacated  and  set  aside. 


VOTERS 

The  taxable  inhabitants  of  school  district  no.   lo,  in  the  town  of   Schodack, 
ex  parte. 

Colored  persons  may  vote  at  school  district  meetings. 
Decided  December  27,  1836 

Dix,  Superintendent 

This  was  an  application  for  the  opinion  of  the  Superintendent  by  several 
of  the  taxable  inhabitants  of  school  district  no.  10  in  the  town  of  Schodack, 
with  regard  to  the  right  of  colored  persons,  who  had  been  assessed  to  pay 
highway  taxes,  to  vote  at  school  district  meetings. 

Colored  persons  have  a  right  to  vote  at  meetings  in  the  school  districts  in 
which  they  reside,  if  they  have  the  requisite  qualifications  of  property,  or  if 
they  have  been  assessed  to  pay  highway  taxes  in  the  town  during  the  year  in 
which  they  vote,  or  the  preceding  year.  The  construction  which  has  been 
given  to  the  statute  relating  to  the  qualifications  of  voters  in  school  districts,  with 
respect  to  aliens,  is  considered  equally  applicable  to  this  case.  Indeed,  colored 
persons  are  permitted  to  vote  at  popular  elections  under  certain  circumstances, 
and  the  construction  referred  to  may,  perhaps,  be  urged  with  greater  force 
in  their  favor  than  in  the  case  of  aliens,  who  are  not  allowed  in  any  case  to 
vote  at  such  elections. 


An  alien,  though  he  has  taken  the  incipient  measures  to  be  naturalized,  is  not  qualified  to 
vote  at  a  school  district  meeting  in  the  district  where  he  resides,  unless  an  affidavit 
of  that  fact  be  filed  and  recorded  in  the  office  of  the  Secretary  of  State 

Decided  October  30,  1854 

Rice,  Superintendent 

This  is  an  appeal  taken  by  five  of  the  inhabitants  from  the  proceedings 
of  a  special  school  district  meeting,  holden  in  district  no.  6,  in  the  town  of 
Montague,  Lewis  county,  in  the  early  part  of  October  1854. 

The  appellants  aver  that  persons  not  duly  qualified  to  vote  did  vote  at 
said  meeting,  and  that  their  votes  aflPected  the  result.  It  seems  that  the  only 
material  vote  of  the  meeting  was  carried  by  two  majority,  whereas  the  right 
of  three  persons  to  vote,  who  voted  with  the  majority,  was  doubtful.  One  of 
them  was  a  man  working  for  a  resident  of  the  district,  but  whether  he  was  of 
legal  age  and  possessed  the  other  requisite  qualifications  is  by  no  means  certam. 

The  other  two  persons,  Messrs  Fuller  and  Boyd,  are  aliens,  and  only  during 
the  week  that  the  meeting  of  May  1854,  stood  adjourned  to,  did  they  file  their 
intentions  of  becoming  citizens.     An  alien,  though  he  has  taken  the  incipient 

[1419] 


I4-20  THE    UNIVERSITY    OF    THE    STATE    OF    XEW    YORK 

measures  to  obtain  naturalization,  can  not  hold  real  property  or  be  a  qualified 
voter  at  a  school  district  meeting  in  the  district  where  he  resides. 

He  is  required  to  make  a  deposition  or  affirmation  in  writing,  before  an 
officer  authorized  to  take  the  proofs  of  deeds  to  be  recorded,  that  he  is  a 
resident  of,  and  intends  always  to  reside  in  the  United  States,  and  to  become 
a  citizen  thereof  as  soon  as  he  can  be  naturalized,  and  that  he  has  taken  such 
incipient  measures  as  the  laws  of  the  United  States  require  to  enable  him  to 
obtain  naturalization,  which  shall  be  certified  by  such  officer,  and  be  filed  and 
recorded  by  the  Secretary  of  State  in  a  book  to  be  kept  by  him  for  that  purpose, 
and  such  certificate,  or  a  certified  copy  of  it,  shall  be  evidence  of  the  facts 
therein  contained. 

As  Messrs  Fuller  and  Boyd  did  not  comply  with  the  requirements  of  the 
statute,  and  therefore  could  not  become  owners  of  taxable  property,  the  con- 
clusion becomes  a  necessary  sequence  that  the  vote  was  void. 


5392 

In  the  matter  of  the  appeal  of  Ebenezer  J.  Preston  et  al.  from  the  action  of  the 
annual  district  meeting  of  union  free  school  district  no.  9,  town  of  Amenia, 
Dutchess  county. 

Qualifications  of  voters;  failure  to  deny  allegations.  Where  the  appellants  allege  on 
information  and  belief  that  certain  persons  are  not  qualified  to  vote,  such  allegations 
will  be  taken  as  true  unless  controverted  by  answer. 

Idem;  residence  of  wife.  A  wife  whose  husband  lives  outside  of  a  school  district  is  not 
a  qualified  elector  of  such  district  in  the  absence  of  proof  that  she  is  divorced  from 
her  husband  or  living  separately  from  him. 

Idem;  leases  made  on  day  of  meeting.  A  person  may  not  qualify  as  a  TOter  by  hiring 
land  on  the  day  of  the  meeting  for  a  nominal  consideration.  To  qualify  a  person  as  a 
hirer  of  real  property  and  make  him  eligible  as  a  voter,  the  lease  must  have  been  made 
in  good  faith  so  as  to  give  the  tenant  some  actual  and  substantial  interest  in  the  district 
and  its  affairs.  A  lease  made  for  the  sole  purpose  of  qualifying  the  tenant  as  a  voter 
is   ineffectual. 

Idem;  deeds  to  wife.  A  married  woman  does  not  become  qualified  as  an  elector  by  a  deed 
from  her  husband  executed  a  few  days  prior  to  the  meeting  but  never  recorded,  con- 
veying a  joint  interest  in  the  home  occupied  by  them,  where  it  appears  that  such 
transaction  was  for  the  purpose  of  qualifying  the  wife  as  a  voter. 

Idem;  joint  lease  to  husband  and  Vidfe.  Where  a  few  days  before  the  meeting  a  joint 
lease  was  made  to  a  husband  and  wife  in  place  of  a  lease  formerly  held  by  the  hus- 
band, the  wife  is  not  a  hirer  of  real  property  within  the  meaning  of  the  statute. 

Idem;  lodgers  and  boarders.  To  constitute  a  hiring  under  the  statute  the  relation  of 
landlord  and  tenant  must  exist.  Such  a  relation  does  not  exist  between  a  boarding 
house  keeper  and  a  boarder  or  lodger,  nor  does  it  exist  where  the  owner  of  a  building 
permits  a  person  to  occupy  a  room  as  a  lodger,  the  owner  retaining  the  legal  possession 
of  the  whole  house. 

Idem;  ownership  of  reversion.  The  ownership  of  a  reversionary  interest  in  real  property 
is  not  such  a  present  ownership  as  qualifies  a  person  as  an  elector. 


JUDICIAL  decisions:     voters  1421 

Idem;  deeds  and  leases  for  the  purpose  of  qualifying  electors.  Whenever  it  appears 
that  deeds  and  leases  which,  while  colorably  giving  thle,  were  made  for  the  purpose  of 
giving  the  grantees  or  tenants  the  apparent  right  to  vote,  they  will  be  regarded  by 
the  Department  as  a  fraud  upon  the  statute,  and  will  confer  no  right  to  vote  at  a  school 
meeting. 

Decided  November  16,  1908 

Allison  Butts,  attorney  for  appellants 

James  E.  Carroll,  attorney  for  respondents  \ 

Draper,  Commissioner 

The  appellants,  Ebenezer  J.  Preston,  Lewis  F.  Eaton  and  Benjamin  H.  Fry, 
are  taxpayers  and  duly  qualified  voters  of  union  free  school  district  no.  9,  town 
of  Amenia,  and  appeal  from  the  action  of  the  annual  school  meeting  held  in 
and  for  such  district  on  the  4th  day  of  August  1908,  in  respect  to  the  following 
matters : 

1  The  adoption  of  a  proposition  to  increase  the  number  of  trustees  of  said 
school  district  from  three  to  five. 

2  The  election  of  James  P.  Monohan,  John  Q.  Tobin  and  Michael  O'Connor 
as  trustees  thereof. 

It  appears  from  the  pleadings  that  204  votes  were  cast  in  favor  of  the  propo- 
sition, and  154  votes  against  it;  and  that  194  votes  were  cast  for  the  above-named 
trustees  and  137  votes  were  cast  in  favor  of  John  R.  Thompson,  jr,  Benjamin  H. 
Fry  and  Dudley  C.  Culver  for  such  offices.  The  ground  of  the  appeal  consists  of 
the  alleged  disqualification  of  88  persons  who  voted  in  favor  of  the  above  propo- 
sition, and  79  persons  who  voted  for  the  successful  candidates  for  trustees  of 
such  district.  The  respondents  in  their  answer  allege  that  of  the  154  voters  who 
voted  against  the  proposition  to  increase  the  number  of  trustees  from  three  to 
five,  and  of  the  137  votes  in  favor  of  the  unsuccessful  candidates  for  trustees,  14 
were  not  qualified  voters  of  the  district  and  were  not  entitled  to  vote  on  such 
proposition,  or  for  such  candidates. 

The  appellants  have  included  in  their  petition  two  lists,  schedules  A  and  B, 
containing  the  names  of  the  alleged  disqualified  voters  who  voted  for  such  propo- 
sition and  in  favor  of  the  successful  candidates  for  trustees.  Schedule  A  con- 
tains the  names  of  80  persons  and  states  in  what  respect  they  were  disqualified 
and  alleges  at  the  end  thereof  that  they  were  all  challenged  before  they  voted. 
Schedule  B  contains  the  names  of  8  persons  but  it  appears  that  none  of  them 
were  challenged.  It  also  appears  that  of  the  14  persons  whom  the  respondents 
allege  were  not  entitled  to  vote  at  the  meeting  6  were  not  challenged  before  voting. 
It  is  a  well  established  rule  in  appeals  of  this  character  that  if  a  qualified  voter 
be  present  at  a  meeting  and  permit  a  person,  known  to  him  to  be  unqualified 
for  any  cause,  to  vote  without  challenge,  he  will  not  thereafter  be  allowed  to 
object  to  the  proceedings  of  the  meeting  because  such  unqualified  voter  partici- 
pated therein.  This  rule  is  here  reaffirmed.  Its  justice  is  apparent,  for  it  is 
abvious  that  if  the  right  of  challenge  had  been  exercised  by  either  of  the  appellants 


1422  THE   UNIVERSITY    OF    THE   STATE   OF    NEW    YORK 

the  alleged  unqualified  voter  might  have  refused  to  vote  and  there  would  then 
have  been  no  cause  for  complaint  so  far  as  he  was  concerned.  The  application 
of  such  rule  to  the  present  case  reduces  the  number  of  alleged  unqualified  voters 
who  voted  for  the  proposition  from  88  to  80,  and  of  those  who  voted  against  from 
14  to  8. 

It  will  first  be  proper  to  consider  the  alleged  disqualifications  of  the  80  per- 
sons who  voted  in  favor  of  the  proposition  to  increase  the  number  of  trustees 
from  three  to  five.  Of  this  number  1 1  are  named  in  schedule  A  of  the  appellants' 
petition  and  it  is  alleged  in  substance  in  respect  to  each  that  he  or  she  neither 
owns  nor  hires  real  property  nor  is  in  possession  of  such  property  under  a 
contract  of  purchase,  nor  owns  any  personal  property  assessed  on  the  last  preced- 
ing assessment  roll  of  the  town  of  Amenia.  Five  of  these  11  are  married  but  it 
is  alleged  that  none  of  them  has  children  of  school  age  who  attended  school  in 
the  district  for  at  least  eight  weeks  during  the  year  preceding  the  annual  school 
meeting  in  question.  These  allegations  were  made  on  information  and  belief,  but 
are  sufficiently  specific  to  indicate  what  constitutes  the  alleged  disqualification. 
7^he  respondents  have  not  denied  these  allegations ;  the  fact  that  they  were  on 
information  and  belief  did  not  dispense  with  the  necessity  of  setting  up  by  oppos- 
ing affidavits  the  facts  on  which  the  respondents  rely  for  sustaining  the  qualifica- 
tions of  these  voters.  It  is  doubtless  true  that  the  burden  is  on  the  appellants  to 
show  that  the  persons  named  who  voted  at  the  meeting  were  not  qualified  voters, 
but  it  must  be  held  that  where  allegations  are  made  showing  a  want  of  legal 
qualifications  they  will  be  taken  as  true  unless  controverted  in  the  answer  of  the 
respondents.  By  a  failure  to  answer  as  to  these  11  alleged  disqualified  voters 
the  respondents  have  admitted  their  disqualifications,  and  they  must  therefore  be 
eliminated  from  the  count  in  favor  of  the  proposition  to  increase  the  number  of 
trustees  from  three  to  five. 

The  elimination  of  these  ii  voters  leaves  for  consideration  the  qualifications 
of  69  persons  whose  names  appear  in  the  appellants'  schedule  A.  Two  of  these 
persons  Marie  E.  Blot  and  Theresa  Barhyte  are  clearly  nonresidents.  Both  of 
these  women  are  married,  the  former  living  with  her  husband  near  Williams- 
bridge,  and  the  latter  with  her  husband  in  the  suburbs  of  New  York.  It  does 
not  appear  that  either  is  divorced  or  is  living  separately  from  her  husband.  There 
is  nothing  in  the  respondents'  affidavits  which  overcomes  the  presumption  that 
in  each  case  the  residence  of  the  wife  is  that  of  her  husband,  and  I  must  therefore 
hold  that  these  two  women  are  nonresidents  and  were  not  qualified  to  vote  at  such 
school  meeting. 

It  is  contended  in  respect  to  the  other  persons  named  by  the  appellants  as 
being  disqualified,  that  they  neither  own  nor  hire  real  property  in  the  district 
liable  to  taxation.  The  statute  provides  that  "  every  person  of  full  age  residing  in 
any  school  district  and  who  has  resided  therein  for  a  period  of  thirty  days  next 
preceding  any  annual  or  special  election  held  therein,  and  a  citizen  of  the  United 
States,  who  owns  or  hires,  or  is  in  the  possession  under  a  contract  of  purchase, 
of  real  property  in  such  school  district  liable  to  taxation  for  school  purposes  .  .  . 


JUDICIAL  decisions:     voters  1423 

is  entitled  to  vote  at  any  school  meeting  held  in  such  district  etc."  It  must  be 
ascertained  whether  the  persons  named  "  own  or  hire  "'  real  property  within  the 
meaning  of  the  statute. 

Nineteen  of  the  persons  named  by  the  appellants  as  disqualified  base  their 
claim  to  qualification  upon  subleases  made  to  them  on  the  day  of  the  meeting.    It 
appears  from  the  respondents'  affidavits  that  on  August  4,  1908,  John  Flanagan 
leased  from  Margaret  McEnroe  a  tract  of  land  within  the  district  for  the  annual 
rental  of  $10.    The  said  Flanagan  on  the  same  day  divided  this  land  into  20  lots 
each  25  feet  by  150  feet,  and  sublet  the  same  to  20  persons  for  the  sum  of  $1 
per  year.    Each  of  these  persons  voted  at  the  school  meeting  although  challenged. 
It  appears  from  the  appellants'  affidavits  in  reply  that  this  land  was  worthless  for 
agricultural  or  building  purposes.    The  respondents'  attorney  does  not  deny  that 
this  transaction  was  entered  into  for  the  sole  purpose  of  making  the  subtenants 
qualified  voters  at  the  school  meeting  to  be  held  in  the  evening  of  the  day  on 
which  such  subleases  were  executed.    It  is  contended  by  him  that  there  can  be  no 
inquiry  as  to  the  motive  of  the  hiring;  that  if  the  hiring  was  actual  the  persons 
were  qualified  as  voters  regardless  of  the  value  of  the  property  or  the  time  when 
the  lease  was  executed.     In  other  words,  it  is  insisted  that  the  language  of  the 
statute  must  be  literally  construed  and  applied  without  regard  to  its  intent;  if 
a  person  shows  that  he  is  the  owner  or  hirer  of  taxable  real  property  within  the 
district  at  the  time  of  the  meeting,  inquiry  must  stop,  and  the  person  be  permitted 
to  vote.    This  doctrine  must  be  emphatically  refuted.    Its  application  would  lead 
to  a  nullification  of  the  statutory  limitation  on  the  right  to  vote  at  school  meeting, 
and  make  it  possible  for  any  person  for  a  nominal  sum  to  clothe  himself  with 
the  essential  property  qualifications.    It  is  a  familiar  rule  of  statutory  construction 
that  the  real  intent  of  a  statute,  when  ascertained,  will  always  prevail  over  the 
literal  sense  of  the  language;  because  both  the  canons  of  the  verbal  criticism  and 
the  rules  of  grammatical  construction  must  yield  alike  to  the  manifest  spirit  and 
intent  of  an  enactment.     The  intent  of  the  provision  prescribing  ownership  or 
hiring  of  taxable  real  property  as  one  of  the  qualifications  of  a  voter  at  a  school 
meeting  where  such  voter  is  not  the  parent  of  a  chiUl  of  school  age  who  has 
attended  school  for  the  required  perird  of  time  during  the  preceding  year,  is  to 
Hmit  the  right  to  vote  to  those  who  have  some  actual  and  substantial  interest  in 
the  district  and  its  aflfairs  which  may  be  affected  by  the   failure  to  properly 
administer  the  affairs  of  the  school.    To  permit  a  person  to  qualify  by  hiring  land 
on  the  day  of  the  meeting  for  a  mere  nominal  consideration  would  result  in  the 
subversion  of  this  legislative  intent  and  render  ridiculous  and  absurd  a  wise  and 
appropriate  statutory  limitation.     These  19  voters  were  not  .lualified  and  their 
votes  should  be  eliminated  from  the  count. 

Closely  allied  in  principle  to  the  transaction  last  described  is  that  of  a  joint 
lease  of  a  tract  of  land  for  alleged  gardening  purposes  to  Jennie  McEnroe.  Mary 
McEnroe,  and  Carrie  McEnroe  on  July  30,  1908.  five  days  before  the  meetmg. 
This  land  was  leased  for  $12  per  year,  and  was  divided  into  three  parcels  each 
15  feet  by  6  feet ;  but  little  planting  was  done  and  no  actual  attempt  was  made  to 


1424  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

do  any  gardening.  The  lessees  were  school  teachers,  home  on  their  vacation. 
It  is  clear  that  this  hiring  was  also  for  the  purpose  of  qualifying  the  leasees  as 
voters,  and  for  the  reasons  stated  above  these  women  were  not  qualified  voters 
and  their  votes  should  not  have  been  counted. 

In  the  case  of  Mary  Tompkins,  Victoria  Ahern  and  Ida  Flynn,  it  appeared 
that  their  respective  husbands  joined  with  them  in  the  hiring  of  the  premises 
where  they  had  lived;  that  the  alleged  leases  were  executed  August  ist,  three 
days  before  the  meeting,  and  that  at  and  prior  to  such  time  the  leases  were  in 
the  names  of  the  husbands.  The  alleged  joint  hiring  was  made  for  the  sole 
purpose  of  qualifying  these  women  as  voters  at  this  meeting.  It  was  not  such 
a  hiring  as  the  statute  contemplates  and  their  votes  should  not  be  counted.  Mary 
Farley  and  Jane  Foley  claim  to  be  qualified  voters  because  of  deeds  executed  by 
their  husbands  conveying  to  them  a  joint  interest  in  their  respective  homes.  These 
deeds  were  executed  August  ist,  and  have  never  been  recorded.  No  attempt  lias 
been  made  to  rebut  the  presumption  that  the  deeds  were  executed  to  qualify  the 
wives  as  voters  and  were  not  therefore  in  good  faith.  These  women  were  not 
qualified  to  vote  at  such  meeting,  and  their  votes  must  be  eliminated. 

Another  class  of  persons  attempted  to  qualify  by  asserting  that  the  rooms 
occupied  by  them  at  the  places  where  they  boarded  were  hired  by  them  at  a  stated 
price  per  month.  From  the  affidavits  of  these  persons  it  appears  that  they  have 
hired  the  rooms  occupied  by  them,  but  it  appears  also  from  the  affidavits  pre- 
sented by  the  appellants  that  they  board  at  the  same  places.  To  constitute  a 
hiring  within  the  statute  the  relation  of  landlord  and  tenant  must  exist.  These 
persons  are  either  boarders  or  lodgers,  but  they  are  not  tenants.  It  is  not  shown 
in  any  case  that  the  occupancy  of  the  room  hired  was  separate  and  independent 
from  that  of  the  rest  of  the  house.  In  order  to  constitute  a  tenancy,  or  a  hiring 
under  the  sections  of  the  Consolidated  School  Law,  prescribing  the  qualifications 
of  voters  at  school  meetings,  there  must  be  a  putting  of  a  lessee  into  the  exclusive 
occupation  of  the  apartment,  and  not  a  mere  admission  of  a  common  lodger  or 
inmate,  the  landlord  retaining  the  legal  possession  of  the  whole  house.  To 
permit  every  person  who  lodges  or  boards  at  a  certain  place  to  assert  that  he 
hires  the  room  occupied  by  him  and  is  therefore  qualified  as  a  voter  under  this 
statute  would  subvert  the  very  purpose  of  the  statutory  limitation.  The  limita- 
tion is  an  absurdity  if  every  person  who  occupies  a  room  as  a  lodger  or  boarder 
is  a  qualified  voter,  even  though,  as  is  claimed  here  in  some  cases,  the  hiring 
of  the  room  is  a  transaction  distinct  from  that  of  the  agreement  for  board. 
Applying  the  principles  here  declared,  I  find  that  the  following  13  persons  who 
voted  at  such  meeting  were  not  qualified  and  their  votes  should  not  have  been 
counted:  William  Thompson,  Timothy  Flanery,  William  Maloney,  John  Doyle, 
Jennie  Cogan,  Agnes  Cogan,  Margaret  Cogan,  Alexander  de  ^Manchi,  James  P. 
McEnroe,  Patrick  Ormond,  Charles  B.  Sackett,  Miles  Linehan  and  John  P.  Riley 

Another  class  consists  of  farm  laborers  and  domestics  who  work  for  their 
employers  for  a  specified  wage,  including  board  and  room,  and  who  claim  to  hire 
rooms  in  the  district  containing  personal  effects  and  maintained  by  the  occupant*? 


JUDICIAL  decisions:     voters  1425 

for  their  personal  convenience.  No  formal  leases  are  shown  nor  are  any  allcc;a» 
tions  made  indicating  that  the  relationship  of  landlord  and  tenant  actually  existed. 
The  circumstances  clearly  show  that,  even  if  such  relationship  did  exist  it  was 
created  for  the  sole  purpose  of  constituting  these  persons  qualified  voters.  It 
must  therefore  be  held  that  Sarah  Folan,  Edward  Flanagan,  Elizabeth  Mines, 
Thomas  Kenney,  Lackey  Burns  and  Margaret  Murray  (6  persons)  are  not  quali- 
fied voters  of  such  district  and  their  votes  should  not  have  been  counted. 

James  McEnroe  shows  by  affidavit  that  he  hires  a  room  in  the  house  of 
Catherine  Hart  for  $5  a  month  and  boards  with  his  brother  Thomas  McEnroe. 
He  is  a  lodger  and  not  a  tenant  and  should  not  have  been  allowed  to  vote. 

Mary  Wade  in  her  affidavit  alleges  that  she  owns  real  property  conveyed  to 
her  by  her  father  by  deed  executed  August  i,  1908,  in  which  the  grantor  reserves 
a  life  interest.  It  thus  appears  that  she  had  only  a  reversionary  interest  in  the 
premises.  It  has  been  held  by  this  Department  that  the  ownership  of  a  rever- 
sionary interest  in  real  property  is  not  such  a  present  ownership  as  qualifies  an 
elector  at  a  school  meeting  [appeal  of  Wilcox,  no.  3722  (1891)].  It  must 
therefore  be  held  that  Mary  Wade  was  not  a  qualified  voter  and  her  vote  should 
not  have  been  received. 

The  qualifications  of  61  persons  who  voted  at  the  annual  school  meeting  of 
this  district  on  August  4,  1908,  for  the  proposition  to  increase  the  number  of 
trustees  from  three  to  five  have  been  considered  and  from  the  facts  appearing  in 
the  affidavits  presented  by  both  parties  to  this  appeal  and  for  the  reasons  above 
stated  I  now  hold  that  none  of  these  persons  were  qualified  electors  on  such  date 
and  they  should  not  have  been  permitted  to  vote.  The  remaining  19  persons 
named  in  the  appellants'  schedule  A  may  or  may  not  have  been  qualified.  It  is 
only  necessary  for  the  purpose  of  determining  this  appeal  to  consider  the  qualifi- 
cations of  the  others  named.  The  boldness  of  the  effort  made  to  qualify  a  suffi- 
cient number  of  persons  to  safely  control  the  meeting  in  question  as  evinced  by 
the  papers  in  this  case,  raises  a  presumption  against  the  validity  of  the  voters  of 
all  those  remaining.  But  it  will  answer  the  purpose  of  this  appeal  to  assume 
that  this  presumption  has  been  met  and  admit  that  they  legally  voted  for  the 
proposition  in  question.  Furthermore  it  is  unnecessary  to  determine  as  to  the 
legality  of  the  8  votes  cast  against  such  proposition  by  the  persons  named  in 
schedule  A  as  having  been  challenged  at  the  meeting;  for  admitting  that  they  were 
not  qualified  there  still  remain  146  valid  votes  cast  against  such  proposition. 
Eliminating  the  votes  cast  in  favor  of  such  proposition  by  the  persons  who  I  have 
above  decided  were  not  qualified  electors  of  the  district,  there  remains  a  total 
of  143  votes.  I  therefore  decide  that  the  proposition  for  increasing  the  number 
of  trustees  of  union  free  school  district  no.  9,  town  of  Amenia,  county  of 
Dutchess,  was  not  legally  adopted,  and  that  the  election  of  James  P.  Monahan. 
John  O.  Tobin  and  Michael  O'Connor  as  trustees  of  said  district  was  illegal  and 

is  hereby  set  aside. 

In  rendering  this  decision,  I  will  state  for  the  future  gmdance  of  this  and 
every  other  school  district  in  the  State  that  whenever  it  appears  that  deeds  and 


1426  THE   UNIVERSITY    OF   THE   STATE   OF    NEW   YORK 

leases  which,  while  colorably  giving  title,  were  made  for  the  purpose  of  giving 
the  grantees  or  tenants  the  apparent  right  to  vote,  they  will  be  regarded  by  this 
Department  as  a  fraud  upon  the  statute  and  will  confer  no  right  to  vote  at  school 
meetings.  The  Department  reserves  the  right  to  examine  the  good  faith  of  every 
transaction  tending  to  qualify  a  person  as  a  voter.  If  it  may  be  adduced  from 
the  evidence  that  the  object  of  such  transaction  was  to  qualify  a  person  as  an 
elector,  it  will  be  rejected  and  its  purpose  frustrated  if  it  lies  within  the  power  of 
the  Department. 

The  appeal  herein  is  sustained. 

It  is  ordered,  That  the  action  of  the  annual  school  meeting  held  in  and  for 
union  free  school  district  no.  9,  town  of  Amenia,  county  of  Dutchess,  in  adopt- 
ing a  proposition  to  increase  the  number  of  trustees  of  said  school  district  from 
three  to  five  be,  and  the  same  is,  hereby  vacated  and  declared  to  be  null  and  void. 

That  the  election  at  such  meeting  of  James  P.  Monahan,  John  Q.  Tobin  and 
Michael  O'Connor  as  trustees  of  such  district  be,  and  the  same  is,  hereby  set 
aside. 


3722 

In  the  matter  of  the  appeal  of  Stephen  K.  Wilcox  v.  school  district  no.  9,  town 
of   Smyrna,  in  the  county  of  Chenango. 

The  fact  that  a  woman  is  the  wife  of  a  man  owning  real  estate  in  which  she  has  a  dower 
right  is  not  suflficient  to  qualify  her  to  vote  at  school  meetings. 

Ownership  of  a  reversionary  interest  in  real  estate  which  is  subject  to  an  unexpired  life  estate 
is  not  such  a  present  ownership  of  land  as  qualifies  an  elector  at  school  meetings. 

In  a  case  where  two  ladies  swore  that  they  owned  real  estate  at  the  time  of  a  school 
meeting,  but  fail  to  disclose  the  location,  or  any  other  facts  concerning  the  same,  and 
the  public  records  show  no  conveyance  to  them;  held,  that  they  were  bound  to  supply 
such  facts,  and  raises  the  presumption  that  such  ownership  is  not  bona  fide,  and  was 
erfected  only  to  enable  them  to  vote  at  the  school  meeting,  and  that  their  claim  to  do 
so  could  not  be  sustained. 

Decided  November  14,  1888 

D.  L.  Atkyns,  attorney  for  appellant 
Stephen  Holden,  attorney  for  respondent 

Draper.  Siiperintendept 

This  in  an  appeal  from  the  action  of  a  special  meeting  held  in  district 
no.  9  of  the  town  of  Smyrna,  Chenango  county,  held  on  the  13th  day  of  August 
1888,  changing  the  schoolhouse  site.  The  vote  by  which  this  action  was  taken 
stood  15  in  the  affirmative  and  12  in  the  negative.  The  appellant  claims  that 
8  of  the  15  persons  voting  in  the  affirmative  were  not  qualified  electors  of  the 
district.  The  names  of  the  8  so  challenged  are  as  follows :  Walter  E.  Scarritt, 
Addie  Northrup,  Sarah  Northrup,  Jessie  Northrup,  Nettie  Dunham,  Alice 
Northrup,  Henry  Scarritt  and  Harley  Scarritt.  It  becomes  necessary,  there- 
fore, to  inquire  into  the  qualifications  of  these  voters. 


JXJDICIAL  DECISIONS :       VOTERS  14-7 

Walter  Scarritt,  Henry  Scarritt  and  Harley  Scarritt  severally  swear  that 
they  are  over  21  years  of  age,  residents  of  the  district,  and  entitled  to  hold 
lands  in  this  State,  and  hire  real  estate  taxable  for  school  purposes.  The  appel- 
lant undertakes  to  throw  doubt  over  the  hiring  of  such  real  estate  in  good  faith 
by  these  men,  but  I  think  not  successfully.  Their  affidavits  are  clear,  and,  if 
true,  they  are  entitled  to  vote  at  school  meetings. 

Alice  Northrup  is  conceded  by  the  appellant  to  be  the  wife  of  John  B. 
Northrup,  a  citizen  of  the  United  States  of  full  age,  and  the  mother  of  two 
children  of  school  age  who  attended  school  more  than  eight  weeks  during  the 
preceding  year.  These  facts  constitute  her  a  qualified  voter  at  district  school 
meetings. 

Addie  Northrup  and  Sarah  Northrup  are  each  resident  citizens,  of  full 
age,  and  the  owners  of  one  vmdivided  fourth  interest  in  a  farm  in  the  district, 
but  their  rights  in  said  land  are  subject  to  a  life  estate  therein  held  by  their 
father,  Yale  Northrup.  There  is  no  dispute  about  the  facts,  so  far  as  they  are 
concerned,  and  it  is  not  claimed  that  they  are  qualified  electors  by  reason  of  any 
other  circumstances.  I  am  unable  to  adopt  the  view  of  the  respondent  that 
they  are  electors.  The  statute  provides  that  any  person  who  is  a  resident  and 
of  full  age  and  entitled  to  hold  lands  in  the  State,  and  who  "  owns  or  hires  real 
property  in  such  school  district  liable  to  taxation  for  school  purposes,"  shall 
be  qualified  to  vote.  I  am  of  the  opinion  that,  in  the  instances  under  considera- 
tion, there  is  no  such  ownership  of  real  estate  liable  to  taxation  as  the  statute 
contemplates.  I  have  given  the  able  argument  of  the  respondent's  counsel  upon 
this  point  full  consideration,  but  am  clearly  of  the  opinion  that  the  mterest 
which  the  Trusses  Northrup  have  in  the  land  in  question  is  not  such  a  present 
ownership  as  will  entitle  them  to  vote  at  school  meetings. 

There  is  no  serious  claim  that  Nettie  Dunham  and  Jessie  Northrup  were 
entitled  to  vote  They  are  wives  of  husbands  owning  real  estate,  but  this  would 
not  make  them  voters,  and  no  other  reason  is  advanced  to  establish  their  quali- 

cations  as  electors. 

If  I  am  right  in  my  reasoning,  then,  there  were  but  11  legal  votes  cast  in 

favor  of  the  change  of  site.  j     .     .1  :^ 

There  were  12  votes  cast  against  such  change,  but  the  respondents  claim 
that  two  of  them  were  illegal,  namely,  those  of  Sarah  L.  Wilcox  and  Delphma 
Wilcox.  These  two  ladies  swear  that  they  owned  real  estate  at  the  time  of  the 
meeting  referred  to.  There  is  no  conveyance  to  them  on  record.  They  fail  to 
produce  a  deed  or  even  to  state  where  their  possessions  are  located  or  their 
vie  or  extent.  This  information  could  not  be  ascertained  from  other  sources. 
Thee  was  no  opportunity  for  cross-examination.  I  think  they  were  bound  to 
suooTv  it  and  the  r  failure  to  do  so  raises  presumptions  that  the  alleged  convey- 
ance to  ihem  was  made  only  for  the  purpose  of  enabling  them  to  ^.rt.cpate 
inThe  action  from  which  this  appeal  is  taken  and  not  in  good  faith.  It  is  true 
t^at  they  might  be  bona  fide  owners  of  real  estate  without  the  conveyance 
ti^e  eof  bein<^  of  record,  but  when  the  right  to  vote  depends  upon  such  owner- 


14-28  THE    UNIVERSITY   OF   THE   STATE   OF    NEW    YORK 

ship,  aixl  is  challenged,  the  fact  that  the  conveyance  is  not  recorded  makes  it 
necessar}-  to  d\o\v  fully  and  clearly  all  the  facts  in  reference  to  it.  Their  failure 
to  do  so  leads  to  the  necessity  of  holding  that  they  were  not  qualified  electors. 

If  I  am  right  in  this  conclusion,  then  there  were  but  lo  legal  votes  cast 
against  the  change  of  site,  and  there  was  a  legal  majority  of  i  in  favor  thereof. 

The  appellant  also  claims  that  the  proposed  new  site  is  not  a  desirable 
one  and  not  convenient  to  the  residents  of  the  district.  I  have  endeavored  to 
read  patiently  all  that  has  been  said  by  the  respective  parties  upon  this  point. 
The  new  site  is  not  over  75  rods  from  the  old  one,  so  that,  as  to  location,  it 
can  not  be  much  more  or  less  inconvenient  to  the  residents  than  the  old  one. 
The  burden  is  upon  the  appellant  to  show  that  it  is  unsuitable  for  school  pur- 
poses, and  he  does  not  show  it  to  my  satisfaction. 

In  view  of  the  foregoing  considerations,  I  must  dismiss  the  appeal. 


4693 

In  the  matter  of  the  appeal  of  Joseph  F.  Russell  and  others  from  proceedings 
of  annual  school  meeting,  held  on  August  2,  1898,  in  district  no.  6,  Stephen- 
town,  Rensselaer  county,  in  the  election  of  trustee. 

Where  the  resident  of  a  school  district  hires  a  farm  situate  in  the  district  under  an  agree- 
ment between  him  and  the  owner  of  the  farm  that  for  the  use  thereof  he  shall  pay  to 
the  owner  one-half  of  the  produce  of  the  farm  and  also  pay  one-half  of  all  taxes  as- 
sessed upon  the  farm;  held,  that  under  such  agreement  the  relations  created  between 
the  parties  thereto,  were  that  of  master  and  servant;  that  the  agreement  entered  into 
did  not  amount  to  a  technical  lease;  that  the  relation  of  landlord  and  tenant  was  not 
created  and  the  portion  of  the  crops  reserved  to  the  owner  is  not  rent,  but  compensa- 
tion for  the  use  of  the  land,  while  the  other  portion  is  compensation  for  the  occupier 
for  his  work,  labor  and  services;  that  the  legal  possession  of  the  farm  is  in  the  owner, 
and  the  parties  to  the  agreement  are  tenants  in  common  of  the  crop  raised;  that  the 
occupier  of  the  farm  did  not  hire  rea.1  property  situate  in  the  district  and  liable  to 
taxation  for  school  purposes,  and  was  not  a  qualified  voter  at  the  annual  school  meet- 
ing held  in  the  district  within  the  meaning  of  the  Consolidated  School  Law. 

Dated  October  31,  1898 

Nelson  Webster,  attorney  for  respondent 

Skinner,  Superintendent 

This  is  an  appeal  from  the  annual  meeting  held  August  2,  1898,  in  school 
district  6,  Stephentown,  Rensselaer  county,  in  the  election  of  a  trustee  of  the 
district. 

The  ground  upon  which  this  appeal  is  brought  is,  as  alleged  by  the  appel- 
lants, that  at  such  annual  meeting  in  the  final  ballot  for  trustee,  one  Albert  E. 
Provost  cast  his  ballot  for  John  Roach  for  said  office,  and  that  he  (Albert  E. 
Provost)  was  not,  at  that  time,  a  quahfied  voter  in  such  school  district  under 
the  provisions  of  the  school  law. 


JUDICIAL  DECISIONS:       VOTERS  I429 

John  Roach,  the  person  who  was  announced  to  have  received  a  majority  of 
the  votes  cast  for  trustee  at  such  annual  meeting,  has  answered  the  appeal,  and  to 
the  answer  a  reply  has  been  made  by  the  appellants,  and  to  such  reply  the 
respondent.  Roach,  has  filed  a  rejoinder. 

It  is  established  by  the  proofs  filed  herein  that  at  such  annual  meeting 
several  ballots  were  taken  for  trustee,  each  of  which  resu;led  in  no  choice;  that 
upon  another  ballot  being  taken  it  resulted  as  follows:  whole  number  of  ballots 
cast,  7 ;  of  which  John  Roach  received  4  and  Frank  Gavett  3 ;  that  Messrs 
Carlton.  Snell  and  Pease  voted  for  Gavett,  and  Messrs  Gavett,  Roach,  Albert 
E.  Provost  and  Joseph  E.  Provost  voted  for  Roach. 

The  main  question  presented  for  my  decision  is,  whether  or  not  Albert  E. 
Provost,  who  voted  at  such  meeting  for  Roach  for  trustee,  was  a  qualified  voter 
in  such  district. 

The  appellants  allege  that  Albert  E.  Provost,  August  2,  1898,  did  not  own 
or  hire,  nor  was  he  in  possession  under  a  contract  of  purchase,  of  real  property 
situated  within  said  district  liable  to  taxation  for  school  purposes  therein;  nor 
was  he  the  parent  of  a  child  or  children  of  school  age ;  nor  had  he  then  residing 
with  him,  not  being  the  parent  of  any  child  or  children  of  school  age,  some  one 
or  more,  of  whom  shall  have  attended  the  school  in  such  district  for  a  period 
of  at  least  eight  weeks  within  one  year  preceding  such  meeting;  that  he  did  not 
own  any  personal  property  assessed  on  the  last  preceding  assessment  roll  of  the 
town,  exceeding  $50  in  value,  exclusive  of  such  as  is  exempt  from  execution. 
Albert  E.  Provost,  in  his  affidavit  annexed  to  the  answer  of  the  respondent, 
Roach,   does  not  deny  the  aforesaid  allegations   of   the  appellants,  except   the 
one  that  he  does  not  hire  real  property  subject  to  taxation  in  the  district  for 
school  purposes.     He  avers  in  substance  that  at  the  time  of  the  annual  meeting 
he  then,  and  for  several  years  last  past,  had  hired  of  his  father,  Joseph  E. 
Provost    a  farm  of  about  260  acres,  owned  by  the  father,  and  situate  in  said 
school  district,  and  for  the  rent  thereof  he  pays  and  yields  to  his  father  one-half  of 
the  produce  of  such  farm,  and  pays  one-half  of  all  taxes  assessed  thereon.    He 
also  avers  that  he  owns  personal  property  exceeding  $50  in  value,  exclusive  of 
such  as  is  exempt  from  execution,  consisting  of  stock  on  such  farm,  but  such 
property  was  assessed  on  the  last  preceding  assessment  roll  of  the  town  of 
Stephentown  to  his  father.  .        ,  •  , 

\nnexed  to  said  answer  is  also  an  affidavit  of  Joseph  E.  Provost  m  which 
he  avers  that  he  is  the  father  of  Albert  E.  Provost,  and  that  he  has  heard  read  the 
affidavit  of  said  Albert,  and  that  the  facts  stated  in  such  affidavit  are  in  all 

respects  true.  ,       •        n  ^i    ^        u 

The  appellant,  Russell,  in  his  reply  to  the  answer  herein,  alleges  that  such 
farm  and  personal  property  are  assessed  for  all  taxes,  including  highway  and 
school  taxes,  to  said  Joseph  E.  Provost:  that  he  further  alleges  to  the  best 
of  his  information  and  belief,  that  the  direction  of  work  upon  such  f arm - 
the  purchase  of  supplies  therefor- the  hiring  and  paying  o  farm  hands 
Employed  thereon,  have  been  done  by  Joseph  E.  Provost,  and  that  he  is  respon- 


1430  THE    UNIVERSITY    OF    THE   STATE   OF    NEW    YORK 

sible  for  all  accounts  rendered  for  said  purposes ;  that  persons  having  business 
in  any  way  materially  connected  with  such  farm  transact  the  same  with  Joseph 
E.  Provost,  and  that  it  has  never  been  evident  in  any  way  or  manner  that  said 
Joseph  E.  Provost  is  other  than  what  he  has  been  generally  deemed  to  be, 
namely,  the  owner,  manager  and  director  of  such  farm,  and  of  the  work  per- 
taining thereto. 

In  support  of  the  contention  on  the  part  of  the  appellants,  there  is  annexed 
to  the  reply  the  affidavit  of  George  H.  Carpenter,  in  which  he  states  that  he 
is  roadmaster  in  that  part  of  school  district  6,  Stephentown,  in  which  is  situated 
the  farm  of  Joseph  E.  Provost  and  the  highways  bounding  the  same;  that  the 
road  tax  assessed  is  so  assessed  to  Joseph  E.  Provost,  and  notice  of  warning  re- 
quiring work  upon  such  highway  is  served  at  his  residence,  and  he  appears  with 
his  teams  and  directs  the  work  of  such  teams ;  that  it  has  never  been  brought  to 
his  (Carpenter's)  notice  in  any  way  that  Albert  E.  Provost  has  any  control  or 
voice  in  the  direction  of  said  farm  matters  further  than  might  be  in  the  case  of  a 
trusted  employee  or  grown-up  son.  Also,  the  affidavit  of  appellant  Joseph  P. 
Russell,  in  which  he  states  that  in  the  summer  of  1896  he  exchanged  work  with 
Joseph  E.  Provost  in  harvest  time,  and  the  arrangements  for  such  exchange 
were  made  with  Joseph  E.  Provost,  and  it  did  not  come  to  his  (Russell's)  notice 
or  understanding  that  Albert  E.  Provost  was  in  any  way  connected  with  the 
control  or  management  of  the  farm.  Also,  the  affidavit  of  Henry  A.  Wylie,  in 
which  he  states  that  he  was  hired  by  Joseph  E.  Provost  to  work  on  his  farm 
and  was  paid  therefor  in  ice  by  said  Provost,  and  that  to  all  external  appear- 
ances the  work  of  the  farm  was  carried  on  and  directed  by  said  Provost.  Also, 
the  respective  affidavits  of  George  N.  Southard  and  Loren  M.  Decker,  in  which 
each  of  them  respectively  states  that  he  was  employed  by  Joseph  E.  Provost 
to  work  on  his  farm  and  performed  such  work  and  was  paid  therefor  by  said 
Provost ;  that  to  all  appearances  the  work  of  the  farm  was  directed  and  carried 
on  by  said  Provost.  To  such  reply  of  the  appellants  the  respondent  has  filed  a 
rejoinder,  consisting  of  the  respective  affidavits  of  Joseph  E.  and  Albert  E. 
Provost  and  the  affidavit  of  one  Elmer  H.  Thompson.  Albert  E.  Provost  in 
his  affidavit  states  that  he  does  not  reside  with  his  father,  but  has  a  family  of 
his  own,  and  occupies  one  part  of  the  house  on  the  farm,  his  father  occupying 
the  other  part;  that  since  the  spring  of  1896  he  has  worked  said  farm  as  stated 
in  his  former  affidavit;  that  under  his  contract  with  his  father  relative  to  the 
working  of  the  farm,  he  was  to  board  the  needed  help  hired  on  the  farm,  and 
has  done  so  in  all  cases  but  one;  that  he  personally  hired  George  Southard  to 
work  at  threshing  and  paid  him;  that  Loren  M.  Decker  worked  on  the  farm 
but  half  a  day  since  April  i,  i8g6,  and  was  paid  by  him  (Albert  E.)  personally 
for  such  work;  that  he  and  Henry  A.  Wylie  exchanged  work  in  threshing,  and 
that  there  was  a  balance  in  favor  of  Wylie  which  was  paid  to  him  by  permitting 
him  to  cut  ice  on  a  pond  on  the  farm,  permission  to  do  so  being  given  by  Joseph 
E.  Provost  at  the  request  of  his  son  Albert  E. ;  that  in  1896  he  exchanged  work 
with  the  appellant  Russell,  personally  working  for  Russell,  and  in  return  Rus- 


JUDICIAL  DECISIONS:       VOTERS  I43I 

sell,  having  been  spoken  to  by  Joseph  E.  Provost  at  the  request  of  Albert  E., 
worked  at  harvest  upon  the  farm;  that  Carpenter,  as  overseer  of  highways, 
notified  the  deponent  personally  to  work  on  the  roads,  and  that  deponent  with 
his  men  and  team  worked  out  one-half  of  the  highway  tax  assessed  to  his  father 
Joseph  E.  Provost,  and  that  his  father  worked  out  the  other  half ;  that  his  father 
by  the  contract  is  not  obliged  to  work  on  said  farm,  but  does  so  of  his  own 
choice  when  he  pleases ;  and  he  consults  with  his  father  in  regard  to  the  conduct 
of  the  farm,  and  his  father  often  directs  how  the  work  shall  go  on;  that  his 
father  very  often  acts  as  his  agent  in  the  business  connected  with,  and  the 
carrying  on  of,  said  farm ;  that  the  services  rendered  by  him  on  said  farm  are 
rendered  for  himself  and  that  he  does  not  in  any  way  work  for  his  father  for 
hire. 

Joseph  E.  Provost,  in  his  affidavit,  states  that  he  has  read  the  affidavit  of 
Albert  E.  Provost,  and  that  the  facts,  etc.,  stated  therein  are  in  all  respects  true. 
He  also  repeats  the  statements  contained  in  his  former  affidavit  relative  to 
renting  his  said  farm  to  his  son  Albert  E. 

There  is  an  absence  of  proof  as  to  whether  the  contract  relative  to  the 
farm,  as  claimed  by  J.  E.  and  A.  E.  Provost,  was  oral  or  written.  It  seems  to 
be  claimed  that  such  contract  became  operative  on  April  i,  1896,  but  it  is  not 
shown  for  what  term  of  time  it  is  to  continue.  Assuming,  for  the  purpose  of 
argument  only,  that  such  contract  was  for  the  lease  of  the  farm,  if  the  leasing 
was  for  a  longer  period  than  one  year,  under  the  statute  of  frauds,  it  was  void 
unless  reduced  to  writing  and  subscribed  by  the  party  making  the  lease. 

Albert  E.  Provost  claims  that  on  August  2,  1898,  he  being  then  a  citizen 
oi  the  United  States,  21  years  of  age  and  upwards,  and  a  resident  of  school 
district  6,  Stephentown,  Rensselaer  county,  for  a  period  of  thirty  days  next 
preceding  such  meeting;  and  then  having  real  property  in  said  district  subject 
to  taxation  for  school  purposes,  he  was  a  qualified  voter  in  said  district,  and 
entitled  to  vote  at  such  annual  meeting.  He  further  claims  that  the  real  prop- 
erty hired  by  him  is  a  certain  farm  situated  in  the  district  owned  by  his  father, 
and  that  under  a  contract  or  agreement  between  him  and  his  father,  for  the 
rent  thereof  he  pays  and  yields  to  his  father  one-half  of  the  produce  of  such 
farm    and  pays  one-half  of  all  taxes  assessed  on  such  farm. 

I  am  of  the  opinion  that  under  the  decisions  of  the  courts  of  this  State,  the  re- 
lation of  landlord  and  tenant  in  any  form,  was  not  created  by  the  contract  or  agree- 
ment itself,  claimed  to  have  been  made  relative  to  said  farm  between  Albert  E. 
Provost  and  his  father,  or  in  consequence  of  any  occupancy  of  the  farm  under 
it  by  Albert  E  Provost;  that  under  such  contract  or  agreement  the  relations 
created  between  the  parties  thereto  was  that  of  master  and  servant.  (See 
Putnam  v.  Wise,  i  Hill  234:  Taylor  v.  Bradley,  39  N.  Y.  129;  Reynolds  v. 
Reynolds,  48  Hun  142;  Unglish  v.  Marvin.  128  N.  Y.  380.) 

I  am   clearly   of   opinion  that  the  contract  or  agreement  alleged   to  have 

been  entered  into  bv  the  Provosts  did  not  amount  to  a  technical  lease  •  that  the 

•  relation   of  landlord   and   tenant   is  not   created   and   the  portion   of   the  crops 


f432  THE   UNIVERSITY   OF   THE   STATE    OF    NEW    YORK 

reser\-ed  to  the  father  is  not  rent,  but  compensation  for  the  use  of  the  land, 
while  the  other  portion  is  compensation  for  the  occupier,  Albert  E.  Provost, 
for  his  work,  labor  and  services,  etc. ;  and  that  the  legal  possession  of  the  farm 
is  in  the  owner,  and  the  two  Provosts  are  tenants  in  common  of  the  crop  raised. 

It  appears,  from  the  proofs  herein,  that  at  such  annual  school  meeting  in  the 
final  ballot  taken  for  trustee,  the  whole  number  of  votes  cast  was  7,  of  which 
John  Roach  received  4  and  Frank  Gavett  3,  and  that  Albert  E.  Provost  voted 
for  John  Roach. 

I  decide : 

That  Albert  E.  Provost  was  not,  on  August  2,  1898,  a  qualified  voter  in 
said  school  district,  and  hence  his  ballot  for  John  Roach  for  trustee  was  an 
illegal  ballot.  Such  illegal  ballot  must  be  deducted  from  the  total  ballots  cast 
for  trustee,  which  leave  6  legal  ballots  cast,  a  majority  of  which  would  be  4. 
That  such  illegal  ballot  must  be  deducted  from  the  4  cast  for  Roach,  leaving 
but  3  legal  ballots  cast  for  him,  and  the  ballot  resulted  in  a  tie.  That  no  person 
having  received  a  majority  of  the  legal  votes  for  trustee,  John  Roach  was  not 
legally  elected  trustee  and  the  meeting  failed  to  elect  a  trustee.  That  such 
annual  meeting  having  adjourned  without  day,  without  electing  a  trustee  for  the 
district  for  the  school  year  of  1898-99  under  the  provisions  of  the  Consolidated 
School  Law  of  1894,  section  24  of  article  3,  title  7,  providing  that  every  district 
officer  shall  hold  his  office  unless  removed  during  his  term  of  office,  until  his 
successor  shall  be  elected  or  appointed,  the  trustee  of  such  school  district  for  the 
school  year  of  1897-98  holds  over,  and  that  there  is  no  vacancy  in  the  office  of 
trustee  of  such  district,  which  a  meeting  of  the  district  would  have  power  to 
fill. 

The  appeal  herein  is  sustained. 


5334 

In  the  matter  of  the  appeal  of  William  F.  Allen  from  the  proceedings  of  the 
annual  meeting  of  school  district  no.  4,  Scio,  Allegany  county. 

Where  the  arrangement  between  father  and  son  relative  to  the  occupancy  of  real  estate 
owned  by  the  father  but  the  transaction  can  not  be  regarded  as  constituting  a  technical 
lease  but  the  relation  created  thereby  is  that  of  master  and  servant  instead  of  landlord 
and  tenant  the  son  is  not  a  qualified  voter. 

Decided  September  13,  1907 

Draper,  Conunissioner 

The  vote  for  trustee  at  the  annual  meeting  of  district  no.  4,  Scio,  Allegany 
county,  held  on  August  6,  1907,  resulted  in  5  ballots  being  cast  for  John  Culbert 
and  4  for  J.  F.  Dunnigan.  Mr  Culbert  was  declared  elected.  It  is  alleged  in 
the  moving  papers  that  ^^'illiam  Coyle  and  Philip  Coyle  each  voted  for  said 
Culbert  and  that  neither  of  such  persons  was  legally  qualified  to  vote  at  such 


JUDICIAL  decisions:     voters  1433 

meeting.  S.  E.  Smith,  C  S.  Stonham,  J.  F.  Dunnigan  and  William  Merry  all 
swear  that  they  are  legal  voters  in  such  district,  that  they  wtre  at  the  annual 
meeting  held  in  such  district  August  6,  1907,  and  that  they  voted  for  said  J.  F. 
Dunnigan  for  the  office  of  trustee.  Since  Dunnigan  received  only  4  votes  and 
since  the  4  voters  above  named  swear  they  voted  for  Dunnigan  it  must  be  held, 
in  the  absence  of  evidence  to  the  contrary,  that  all  the  other  voters  voted  for 
Culbert. 

It  appears  that  William  Coyle  and  Philip  Coyle  are  young  men  living  with 
their  father  and  working  their  father's  farm  on  shares.  They  have  no  written 
lease  of  the  property.  They  swear  that  they  are  entitled  to  a  portion  of  the 
produce  and  proceeds  from  said  farm  and  that  their  father  receives  a  portion 
of  the  proceeds  of  said  farm  as  rental  therefor.  Respondent  alleges  that  this 
claim  establishes  the  relation  of  landlord  and  tenant  between  the  father  and 
the  sons  and  that  the  sons  are  therefore  renters  of  real  property  and  legal  voters 
of  the  school  district.  This  contention  is  not  sound.  Under  these  conditions 
the  relation  of  master  and  servant  is  established  and  not  the  relation  of  landlord 
and  tenant.  The  transaction  can  not  be  regarded  as  constituting  a  technical 
lease  (see  128  N.  Y.  380  and  cases  therein  cited).  It  must  therefore  be  held 
that  the  two  Coyles  were  not  legal  voters  and  that  by  voting  at  the  meeting  in 
question  a  result  was  reached  which  was  different  from  that  which  would  have 
been  reached  had  they  not  voted. 

The  appeal  herein  is  sustained. 

It  is  ordered,  That  the  action  of  the  annual  meeting  of  school  district  no.  4, 
town  of  Scio,  Allegany  county,  held  on  the  6th  day  of  August  1907,  in  electing 
John  Culbert  trustee,  be,  and  the  same  hereby  is,  vacated. 

It  is  also  ordered,  That  the  clerk  of  said  district  no.  4,  Scio,  shalt  without 
unnecessary  delay  call  a  special  meeting  of  the  district  for  the  purpose  of  electing 
a  trustee  for  the  remainder  of  the  current  school  year. 


3781 

In  the  matter  of  the  appeal  of  Harvey  C.  Gott  v.  Christopher  WTieeler,  trustee 
of  school  district  no.  6,  of  the  town  of  Austerlitz,  county  of  Columbia. 

Ownership  of  personal  property  which  does  not  appear  on  tlie  assessment  rolls  not  suffi- 
cient ground  to  qualify  a  voter  at  school  meetings. 

The  ofRce  of  trustee,  held  by  a  person  who  owns  personal  property  which  has  not  been 
taxed  and  possessed  no  other  qualificatiun  for  a  voter,  declared  vacant. 

Decided  April  16,  1889 

Draper,  Stipcrintcndent 

This  is  an  appeal  by  a  resident  of  district  no.  6,  of  the  town  of  Austerlitz, 
county  of  Columbia,  versus  the  trustee  of  said  district,  who  was  chosen  at  the 
annual  meeting,  on  the  ground  that  since  such  election,  and  at  the  time  of  taking 


1434  THE    UNIVERSITY   OF    THE   STATE   OF    NEW    YORK 

the  appeal,  it  has  been  discovered  that  the  respondent  is  ineHgible  to  hold  the 
office  of  trustee,  not  possessing  any  of  the  qualifications  of  a  voter  at  school 
meetings. 

The  respondent  answers  and  alleges  as  a  qualification  for  the  office,  that 
he  is  liable  to  taxation  for  personal  property  to  the  amount  of  $200,  which  fact 
is  well  known  to  the  appellant. 

As  the  liability  to  taxation  for  personal  property  does  not  qualify  a  person, 
the  statute  requiring  that  such  person  shall  have  been  assessed  for  over  fifty 
dollars  of  personal  property  in  order  to  qualify  him  to  vote,  I  must  sustain 
the  appeal  and  declare  the  office  of  trustee  vacant.  The  district  clerk  is  hereby 
directed  to  forthwith  call  a  special  meeting  of  the  inhabitants  of  the  district 
to  be  held  within  fifteen  days  from  this  date  to  select  a  person  to  fill  the  vacancy. 


4373 

In  the  matter  of  the  appeal  of  Silas  B.  Tarbell  from  proceedings  of  annual 
school  meeting  held  on  August  6,  1895,  in  district  no.  2,  town  of  Groton, 
Tompkins  county,  in  the  election  of  trustee. 

Any  person  who  is  a  citizen  of  the  United  States,  21  years  of  age,  and  who  has  resided  in 
the  school  district  for  a  period  of  thirty  days  next  preceding  any  annual  or  special 
meeting  held  therein,  and  who  hires  any  real  property  in  said  school  district  liable  to 
taxation  for  school  purposes,  is  a  qualified  voter  of  said  district  whether  he  or  she 
pays  the  rent  of  said  premises  so  hired  in  money  or  labor,  and  as  such  qualified  voter 
is  eligible  to  hold  any  school  district  office,  provided  he  or  she  can  read  and  write. 

Decided   September  27,   1895 

Skinner,  Superintendent 

At  the  annual  school  meeting  held  on  August  6,  1895,  in  district  no.  2, 
town  of  Groton,  Tompkins  county,  the  same  was  duly  organized  and  two 
inspectors  of  election  chosen;  that  Albert  Gould  and  E.  A.  Fish  were  candidates 
for  the  office  of  trustee  of  said  district;  that  three  ballots  were  had  for  trustee, 
two  of  which  resulted  in  no  choice,  and  on  the  third  ballot,  33  votes  were  cast, 
of  which  Albert  Gould  received  17  and  E.  A.  Fish  16. 

On  August  26,  1895,  the  above-named  appellant  filed  in  this  Department 
an  appeal  or  petition  asking  that  said  Albert  Gould  be  declared  ineligible  to 
hold  said  office  of  trustee  and  that  he  be  removed  from  .office. 

The  grounds  upon  which  the  petitioner  asks  to  have  said  -Gould  declared 
ineligible  to  hold  said  office,  as  alleged  in  said  petition  is  that  said  Gould  is  not 
a  qualified  voter  of  said  district,  as  he  "  leases  no  real  estate  for  a  money  rent  " ; 
that  he  resides  on  a  farm  situate  in  said  district,  owned  by  one  Moe  and  works 
the  farm  upon  shares. 

Any  person  who  is  a  citizen  of  the  United  States,  21  years  of  age  and  who 
has  resided  in  a  school  district  for  a  period  of  thirty  days  next  preceding  any 
annual  or   special   meeting  held   therein,   and   who   hires   any   real   property   in 


JUDICIAL  decisions:     voters  1435 

said  school  district,  liable  to  taxation  for  school  purposes,  is  a  qualified  voter 
of  said  district  whether  he  or  she  pay  the  rent  of  said  premises  so  hired  in 
money  or  labor. 

The  petitioner  alleges  that  said  Albert  Gould  did  not  receive  a  majority  of 
the  votes  cast  on  said  ballot  for  trustee,  but  that  upon  said  ballot  a  Mrs  Malley 
and  a  Miss  Malley  each  voted  for  said  Gould  for  trustee  and  that  neither  of 
said  persons  was  a  qualified  voter  of  said  district. 

It  appears  from  the  papers  presented  herein  that  neither  Mrs  Malley  nor 
Miss  Malley  was  challenged  at  said  meeting,  but  voted  at  each  of  said  three 
ballots  for  trustee  unchallenged.  A  party  knowing  a  person  to  be  unqualified  and 
permitting  such  person  to  vote  without  challenge,  will  not  be  allowed  to  object  to 
the  proceedings  of  the  meeting  because  such  unqualified  person  participated  in 
them. 

Where  a  petition  or  appeal  is  made  for  the  removal  of  an  officer  upon  the 
ground  of  illegal  votes  having  been  cast,  it  is  incumbent  upon  the  moving  party 
not  only  to  allege  the  illegal  voting  or  the  disqualification  of  certain  persons, 
but  to  show  by  evidence  the  lack  of  qualifications  in  such  terms  as  necessarily 
to  exclude  every  presumption  that  the  voter  or  voters  could  be  qualified  under 
the  provisions  of  the  school  law.    This  the  petitioner  herein  has  failed  to  do. 

I  find  and  decide  that  Albert  Gould,  at  the  time  of  the  annual  meeting  held 
on  August  6,  1895,  in  said  district  no.  2,  town  of  Groton,  Tompkins  county, 
was  a  qualified  voter  of  said  district  and  as  such  eHgible  to  hold  the  office  of 
trustee  of  such  district;  that  at  said  annual  meeting  said  Albert  Gould  was 
duly  and  legally  elected  as  trustee  of  said  district. 
The  appeal  and  petition  herein  are  dismissed. 


4498 

In  the  matter  of  the  appeal  of  Cyrus  Cudney  v.  Michael  McDermott  as  trustee 

of   school   district  no.   4,  town   of   Olive,   Ulster  county. 
When  at  an  annual  school  meeting  in  any  school  district  a  resident  of  the  district,  but  not  a 
citizen   of  the  United   States,   is  chosen  to   any   district  office,   such   person   is   not  a 
qualified  voter  of  the  district  and  is  not  eligible  to  hold  any  district  office. 
Decided    October   23,    1896 

F.  Arthur  Westbrook,  attorney  for  appellant 

Skinner,  Superintendent  ,        1      •  r 

The  appellant  in  the  above-entitled  matter  appeals  from  the  election  of 
Michael  McDermott  as  trustee  of  school  district  no.  4.  town  of  Olive,  Ulster 
county  at  the  annual  school  meeting  held  in  said  district  on  August  4.  1896. 
upon  the  ground  that  said  McDermott  was  not  a  qualified  voter  of  said  district 
on  said  date,  not  then  being  a  citizen  of  the  United  States,  hence,  not  eligible 
b  hold  the  office  of  trustee  under  the  provisions  of  the  school  law. 


1436  THE    UNIVERSITY   OF    THE   STATE   OF    NEW   YORK 

The  appellant  alleges  in  his  appeal  that  said  McDermott  did  not  become  a 
citizen  of  the  United  States  until  September  7,  1896. 

The  appeal  herein  was  not  brought  until  October  13,  1896,  but  the  appel- 
lant alleges  he  did  not  know  of  the  fact  that  ]\IcDermott  was  not  a  citizen  of 
the  United  States  until  August  14,  1896,  and  that  since  that  date  two  appeals 
have  been  sent  to  this  Department,  both  of  which  were  returned  as  not  being 
in  conformity  with  the  rules  of  this  Department. 

The  respondent  McDermott  has  filed  an  answer  to  said  appeal  in  which 
he  admits  that  he  did  not  become  a  citizen  of  the  United  States  until  Septem- 
ber 7,  1896.  He  alleges  that  the  appellant  knew  by  general  report,  if  not  as  a 
fact,  before  August  14,  1896,  that  he  (McDermott)  was  not  such  a  citizen,  and 
asks  as  the  appellant  has  not  been  injured  in  any  of  his  rights  by  any  act  of  the 
respondent  as  trustee,  that  the  appeal  be  dismissed. 

Under  the  provisions  of  section  11,  article  i,  title  7,  of  the  Consolidated 
School  Law  of  1894,  a  person  to  be  a  qualified  voter  in  any  school  district  must 
be  of  full  age,  a  resident  of  the  school  district  and  must  have  resided  therein 
for  a  period  of  thirty  days  next  preceding  any  annual  or  special  meeting 
held  therein,  and  a  citizen  of  the  United  States,  and  must  possess  one  or  more 
of  the  other  qualifications  mentioned  in  said  sections. 

In  section  23,  article  3,  title  7  of  said  Consolidated  School  Law  it  is  enacted 
that  "  every  district  officer  must  be  a  resident  of  his  school  district,  and  qualified 
to  vote  at  its  meetings." 

It  is  conceded  by  the  respondent  McDermott,  that  on  August  4,  1896,  he 
was  not  a  citizen  of  the  United  States.  Under  the  school  law  he  was  not  a 
qualified  voter  of  said  school  district  no.  4,  Olive,  Ulster  county,  and  not  eligible 
to  hold  any  district  office. 

The  appeal  herein  is  sustained. 

It  is  ordered,  That  the  election  of  Michael  McDermott  as  trustee  of  school 
district  no.  4,  town  of  Olive,  Ulster  county,  at  the  annual  meeting  held  on 
August  4,  1896,  be,  and  the  same  is,  hereby  vacated  and  set  aside  as  illegal  and 
void. 

It  is  further  ordered,  That  the  clerk  of  school  district  no.  4,  town  of  Olive, 
Ulster  county,  without  unnecessary  delay,  call  a  special  meeting  of  the  inhabi- 
tants of  said  district  qualified  to  vote  at  school  meetings  therein,  for  the  purpose 
of  electing  a  trustee  of  said  district  for  the  present  school  year. 


3664 

In  the  matter  of  the  appeal  of  Charles  B.  Gregory  from  the  proceedings  of  the 
annual  school  meeting,  held  in  district  no.  9,  town  of  Carmel,  Putnam 
county. 

A  chairman  of  a  district  meeting  has  no  right  to  determine  a  voter's  qualification. 
The  statute  prescribes  that  when  a  challenge  is  interposed,  it  is  the  duty  of  the  presiding 
officer  to  require  the  person  offering  to  vote  to  make  a  certain  declaration. 


JUDICIAL  DECISIONS:       VOTERS  1437 

If  the  declaration  is  made  tne  vote  must  be  accepted.     If  the  declaration  is  not  made  the 

vote  must  be  rejected. 
When    a   ballot   has   been    deposited,    neither   the   chairman    nor   any   other   person    has   a 

right  to  withdraw  the  ballot,  even  though  it  appear  that  an  illegal  vote  has  been  cast. 
The  law  provides  the  penalty  for  making  either  a  false  declaration  or  the  casting  of  an 

illegal  vote. 
Decided  January  27,  1888 

Draper,  Superintendent 

The  appellant  herein  alleges  that  at  the  annual  school  meeting  held  in  dis- 
trict no.  9,  town  of  Carmel,  Putnam  county,  August  30th  last,  two  persons 
when  offering  their  votes  were  challenged  and  that  the  chairman  disregarded 
the  challenge  and  permitted  the  persons  challenged  to  vote  without  administer- 
ing the  oath  and  requiring  the  declaration  required  by  statute.  That  the  right 
of  one  person  who  had  voted,  to  vote,  was  questioned  and  the  chairman  took 
from  the  votes  cast,  one  ballot.  That  thereupon  the  vote  was  announced  as 
follows:  13  votes  for  James  Curry  for  trustee  and  12  votes  for  Elbert  Sloat  for 
trustee  and  the  chairman  announced  thereupon  the  election  of  James  Curry  as 
trustee. 

It  is  alleged  that  the  two  persons  challenged  as  aforesaid,  were  partisans  of 
James  Curry,  and  the  person  whose  right  to  vote  was  questioned  after  deposit- 
ing his  ballot  was  a  supporter  of  Elbert  Sloat. 

James  Curry,  as  respondent,  answers  the  appeal  and  supplies  evidence  to 
establish  the  right  of  the  persons  challenged  to  vote  and  that  the  person  for 
whom  a  ballot  was  withdrawn  was  not  a  legal  voter. 

The  only  question  in  this  case  which  it  is  necessary  for  me  to  consider  is 
the  action  of  the  chairman  and  his  action  must  be  governed  by  the  following 

rulings : 

1  A  chairman  at  a  district  meeting  has  no  right  to  determine  a  voter's 
qualification.  The  statute  prescribes  that  when  a  challenge  is  interposed,  it  is 
the  duty  of  the  presiding  officer  to  require  the  person  offering  to  vote  to  make 
the  following  declaration: 

"  I  do  declare  and  affirm  that  I  am  an  actual  resident  of  this  school  district, 
and  that  I  am  qualified  to  vote  at  this  meeting." 

When  this  declaration  is  made,  the  person  must  be  permitted  to  vote.  If 
he  refuses,  his  vote  must  be  rejected. 

2  When  a  vote  has  been  cast,  neither  the  chairman,  nor  any  other  person 
has  a  right  to  withdraw  a  ballot,  even  though  it  is  made  to  appear  that  an  illegal 

vole  has  been  cast. 

The  law  provides  a  penalty  for  making  either  a  false  declaration  or  casting 

of  an  illegal  ballot.  ,        ,  ,  .. 

From  the  pleadings,  it  appears  to  me  that  the  ballot  taken  from  the  votes 
cast  was  a  ballot  for  Elbert  Sloat  for  trustee.  Had  this  ballot  been  counted  the 
result  would  have  been  a  tie  and  no  election. 

"  ^-      I  have  reached  the  conclusion  that  there  was  no  election  and  that  a  vacancy 
exists  in  the  office  of  trustee. 


1438  THE   UNIVERSITY   OF   THE   STATE   OF    NEW   YORK 

I  therefore  order  and  direct  the  remaining  trustee  to  order  a  special  meeting 
to  choose  a  trustee  for  the  unexpired  term,  to  be  held  within  twenty  days  from 
the  date  of  this  decision. 


4007 

In  the  matter  of  the  appeal  of  James  McGiflfen  v.  Joseph  H.  Stevens  of  school 

district  no.  i,  of  the  town  of  Oswegatchie,  county  of  St  Lawrence. 
Upon  the  challenge  of  a  person  offering  to  vote,  it  is  the  duty  of  the  chairman  of  the 

meeting  to  administer  the  oath  prescribed  by  statute,  and  if  the  oath  is  taken  by  the 

person  the  vote  must  be  received. 
It  is  not  the  province  of  the  chairman  to  determine  who  are  and  who  are  not  legal  voters. 
On  appeal,  it  appearing  that  respondent  was  the  choice  of  the  majority  who  voted  for 

trustee  at  the  annual  meeting,  the  appeal  is  overruled. 
Decided  September  19,  1891 

Draper,  Superintendent 

At  the  annual  school  district  meeting  held  in  district  no.  i,  Oswegatchie, 
St  Lawrence  county,  August  4,  1891,  a  dispute  arose  over  the  election  of  trustee. 
The  appellant  alleges  that  one  Henry  F,  Niven  was  chosen;  the  respondent 
claims  that  he  himself  was  chosen.  The  material  facts  as  I  find  them  from  the 
evidence  presented,  are  as  follows : 

The  meeting  was  properly  organized  with  the  respondent  in  the  chair. 
Nine  persons  claiming  the  right  to  vote  were  present.  The  respondent  was 
nominated  for  trustee,  whereupon  respondent  as  chairman,  declined  to  put  the 
motion,  but  directed  the  clerk  to  do  so,  which,  after  some  confusion,  the  clerk 
did.  calling  for  a  vote  by  acclamation.  When  the  vote  had  been  taken  by  ayes 
and  noes,  the  chairman  declared  himself  elected,  but  the  clerk  declared  the 
result  to  be,  for  respondent  3,  against  5,  and  so  announced  and  recorded  the 
result  in  the  minutes.  Thereupon,  Henry  F.  Niven  was  nominated  for  trustee 
and  upon  the  chairman  declining  to  put  the  vote,  the  clerk  did,  when  6  votes 
were  cast  for  the  motion  and  none  against  it,  and  Niven  was  declared 
elected.  During  the  wrangle  which  naturally  occurred,  the  right  of  several  to 
vote  was  questioned,  and  the  chairman  was  requested  to  put  the  oath  to  the 
questioned  voters,  which  he  did  not  do,  but  assumed  to  declare  who  were  and 
who  were  not  voters. 

The  respondent  does  not,  in  his  answer,  fairly  or  squarely  meet  the  facts 
as  found,  except  that  he  alleges  that  there  were  three  votes  against  his  election, 
one  of  which  he  decided  was  not  given  by  a  legal  voter.  He  also  alle^ges  that, 
immediately  after  his  (alleged)  election,  Henry  F.  Niven  was  chosen  district 
clerk,  and  has  not  declined  to  serve,  and  can  not  therefore  hold  the  office  of 
trustee.  The  respondent  does  not  meet  the  issue,  but  would  seek  to  retain  the 
office  upon  the  plea  that  his  opponent  is  ineligible  thereto. 

The  respondent,  as  chairman,  assumed  powers  which  he  did  not  possess. 
After  refusing  to  put  a  motion  to  a  vote  and  directing  the  clerk  to  do  so,  he 


JXJDiciAL  decisions:     voters  1439 

should  not  have  attempted  to  declare  a  result  in  his  own  favor,  which  at  best 
was  lost  by  the  vote  which  was  a  tie. 

If  he  or  any  other  voter  questioned  the  right  of  any  other  person  to  vote, 
a  challenge  should  have  been  interposed  and  the  oath  administered  by  the 
chairman.  If  the  person  took  the  oath,  his  vote  should  have  been  receivecl, 
otherwise  rejected. 

If  such  person  voted  illegally,  he  could  be  prosecuted  both  for  perjury  and 
for  illegal  voting,  and  if  the  result  is  affected  by  such  vote,  an  appeal  would 
be  entertained.  The  right  to  vote  at  school  meetings  does  not  rest  upon  the 
chairman's  declaration. 

I  believe  the  motion  to  choose  respondent  trustee  was  lost,  and  that  the 
motion  to  elect  Henry  F.  Niven  trustee  was  carried. 

I  therefore  sustain  the  appeal,  and  declare  Henry  F.  Niven,  and  not  the 
respondent  herein,  to  have  been  elected  trustee  of  school  district  no.  i,  Oswe- 
gatchie,  St  Lawrence  county,  at  the  last  annual  meeting. 


5429 

In  the  matter  of  the  appeal  of  Horace  W.  Provost  from  the  proceedings  and 
decisions  of  a  special  meeting  of  school  district  no.  6,  Stephentown,  Rensse- 
laer county. 

Effect  of  resignation.  Where  a  person  elected  as  trustee  at  an  annual  meeting  resigns 
his  office  after  an  appeal  has  been  brought  from  his  election  on  the  ground  that  he  did 
not  possess  the  necessary  property  qualifications,  and  thereafter  a  special  meeting  was 
called  to  fill  the  vacancy,  such  resignation  is,  in  eflFect,  an  admission  that  he  was  not 
qualified  to  hold  the  office  to  which  he  was  elected. 

Resignation  does  not  affect  the  validity  of  annual  meeting.  Where  an  appeal  is  brought 
from  the  election  of  trustee  at  an  annual  meeting  and  it  appears  that  illegal  votes  were 
cast  for  the  candidate  who  was  declared  elected,  and  that  if  such  votes  had  not  been 
counted  his  competitor  would  have  been  legally  elected,  it  must  be  held  on  appeal  that 
the  election  was  illegal,  notwithstanding  the  subsequent  resignation  of  the  trustee  who 
was  declared  elected. 

Qualifications  of  voters.  Where  an  assessment  roll  is  not  completed  prior  to  the  holdmg. 
of  the  annual  meeting,  it  can  not  be  used  to  determine  the  property  qualifications  of 
voters  at  such  meeting.  The  fact  that  a  person  who  voted  at  such  meeting  was  assessed 
on  the  assessment  roll  for  the  year  in  which  the  annual  meeting  was  held,  for  personal 
property  valued  at  $=;5  does  not  qualify  such  pcrs-.n  as  an  elector  if  his  name  was  not 
included  on  the  assessment  roll  of  the  preceding  year,  which  was  the  only  roll  com- 
pleted  at  the  time  of  holding  such  annual  meeting. 

Decided  December  28,  1909 

C.  E.  Bennett,  attorney  for  appellant 

D.  E.  Miller,  attorney  for  respondent 

Draper,  Commissioner 

This  appeal  involves  the  validity  of  the  election  of  a  trustee  ?n  school  dis- 
trict no.  6,  town  of  Stephentown,  county  of  Rensselaer.    The  appellant,  Horace 


1440  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

W.  Provost,  has  in  fact  brought  two  appeals,  one  from  the  election  of  the 
respondent,  Burton  P.  Hatch,  as  trustee  at  the  annual  meeting  held  August  3, 
1909,  and  another  from  a  subsequent  election  of  the  said  Hatch  at  a  special  meet- 
ing called  to  fill  a  vacancy  in  the  office  of  trustee  caused  by  Mr  Hatch's  resigna- 
tion. It  appears  that  the  appellant  in  his  first  appeal,  which  was  received  at  this 
Department  August  27,  1909,  insisted  that  Mr  Hatch  was  not  a  qualified  elector 
of  the  district  and  was  not,  therefore,  qualified  to  hold  the  office  of  trustee,  and 
that  he  did  not  receive  a  majority  of  the  votes  of  the  qualified  electors  present 
and  voting  at  the  meeting.  Mr  Hatch  did  not  answer  the  petition  on  this  appeal, 
but  submitted  his  resignation  to  the  school  commissioner  and  the  same  was 
accepted.  He  notified  the  Department  of  his  resignation  in  writing,  and  stated 
that  the  reason  for  his  resignation  was  that  he  wished  to  avoid  the  trouble  and 
expense  of  answering  the  petition  of  the  appellant.  Subsequent  to  the  acceptance 
and  filing  of  his  resignation  he  went  before  the  town  assessors  at  their  meeting 
for  the  hearing  of  grievances,  and  asked  that  his  personal  property  assessment 
be  raised  from  fifty  to  fifty-five  dollars,  for  the  apparent  purpose  of  qualifying 
him  to  hold  the  office  of  trustee.  This  must  be  deemed  to  be  an  admission  that 
he  was  not  qualified  to  hold  the  office. 

It  further  appears  that,  upon  the  acceptance  of  such  resignation  the  district 
clerk  called  a  special  meeting  to  fill  the  vacancy  caused  thereby,  which  was  held 
September  10,  1909.  Mr  Hatch  was  again  presented  as  a  candidate  for  trustee, 
apparently  upon  the  assumption  that  he  had  become  qualified  to  hold  such  office 
since  the  annual  meeting.  He  was  declared  elected  trustee  and  now  holds  the 
office.  The  legality  of  this  meeting  depends  upon  whether  or  not  the  respondent 
Hatch  was  legally  elected  as  trustee  at  the  annual  meeting,  independently  of  the 
question  of  his  eligibility. 

The  appeal  from  the  action  of  the  annual  meeting  is  pending  and  clearly 
raises  this  question.  If  it  is  decided  that  persons  who  were  not  qualified  as 
electors,  voted  for  Mr  Hatch  at  the  annual  meeting,  their  votes  must  be  thrown 
out,  and  if  there  was  a  sufficient  number  of  these  illegal  votes  to  place  him  in 
the  minority,  it  must  be  held  that  his  opponent  was  elected.  In  this  event  the 
resignation  of  the  respondent  Hatch  was  ineffectual  to  create  a  vacancy,  and 
there  was  no  occasion  for  the  holding  of  a  special  meeting. 

It  is  alleged  by  the  appellant  that  33  votes  were  cast  for  candidates  for  the 
office  of  trustee  at  the  annual  meeting,  of  which  the  respondent  Hatch  received 
18  and  Charles  H.  Pease  received  15.  Four  of  the  18  voters  who  voted  for  Hatch 
were  challenged  by  the  appellant,  but  each  of  them  made  the  declaration  required 
by  law  and  their  votes  were  received.  The  four  persons  so  challenged  were 
Burton  P.  Hatch,  Nellie  Hatch,  Elizabeth  Russell  and  Marguerite  Russell,  and 
the  petition  states  that  neither  of  them  had  any  of  the  qualifications  prescribed 
by  statute  for  qualified  electors  at  school  meetings.  For  the  purpose  of  deter- 
mining whether  these  persons  were  legal  voters  it  is  proper  to  refer  to  all  the 
affidavits  submitted  on  both  appeals.  It  seems  established  thereby  that  Nellie 
Hatch,  Elizabeth  Russell  and  Marguerite  Russell  depended  for  their  right  to  vote 


JUDICIAL  DECISIONS :       VOTERS  I44I 

at  the  annual  meeting  upon  the  assessment  made  against  them  on  the  town 
assessment  roll  of  1909  in  the  amount  of  $50.  This  roll  was  not  completed  at 
the  date  of  the  annual  meeting,  since  the  day  appointed  by  the  assessors  for  the 
hearing  of  grievances  was  August  i8th,  some  two  weeks  after  the  annual  meeting. 
It  is  alleged  by  the  appellant  that  these  persons  were  not  assessed  on  the  town 
assessment  roll  of  1908,  which  was  the  last  completed  assessment  roll  prior  to 
the  annual  meeting  of  1909,  and  must  determine  the  qualifications  of  these  voters 
who  claimed  the  right  to  vote  because  of  the  ownership  of  personal  property, 
"  assessed  on  the  last  preceding  assessment  roll  of  the  town,  exceeding  $50  in 
value  exclusive  of  such  as  is  exempt  from  execution  "  (Education  Law,  §  93, 
subd.  3).  These  voters  were  challenged  at  the  special  meeting  held  September 
loth,  and  in  the  petition  on  the  appeal  from  the  actions  of  this  meeting,  the  same 
question  was  raised  as  to  their  qualification.  The  respondent  based  his  claim 
that  they  were  qualified  upon  the  fact  that  they  were  each  assessed  for  personal 
property  valued  at  $55  on  the  assessment  roll  of  1909.  He  does  not  claim  that 
they  had  any  of  the  other  necessary  qualifications.  Nellie  Hatch,  Elizabeth  Rus- 
sell and  Marguerite  Russell  were  not  assessed  for  personal  property  on  the  town 
assessment  roll  of  1908,  and  they  were  not  entitled  to  vote  at  the  annual  meeting 
of  1909,  on  the  strength  of  their  assessment  on  the  assessment  roll  of  1909. 
Their  votes  must  therefore  be  thrown  out,  which  reduces  the  number  of  votes  for 
Burton  P.  Hatch  to  15. 

The  vote  of  Burton  P.  Hatch  was  challenged  at  the  annual  meeting.  It  was 
insisted  on  the  original  appeal  that  he  could  not  legally  hold  the  office  of  trustee 
because  he  was  not  a  qualified  elector  of  the  district.  As  already  stated  he  prac- 
tically admitted  such  disqualification  by  resigning  the  office  to  which  he  was 
declared  elected,  and  subsequently  qualified  by  requesting  the  town  assessors  to 
assess  him  for  personal  property  of  the  value  of  $55.  It  is  alleged  that  he  voted 
for  himself  for  trustee  at  the  annual  meeting,  as  he  had  a  right  to  do  if  he  was  a 
qualified  elector.  But  not  being  a  qualified  elector  his  vote  must  be  deducted 
from  the  total  number  of  votes  cast  for  him.  Other  voters  are  named  in  the 
original  petition  who  are  claimed  to  be  without  the  necessary  qualifications.  It 
does  not  appear  that  these  voters  were  challenged  by  the  appellant  at  the  annual 
meeting.  The  question  of  the  legality  of  their  votes  will  not  therefore  be 
considered. 

After  deducting  the  four  illegal  votes  cast  at  the  annual  meeting  as  above 
indicated,  the  result  of  the  vote  for  trustee  at  such  meeting  would  be  for  Charles 
H.  Pease,  15,  and  for  Burton  P.  Hatch,  14.  Charles  H.  Pease  was  therefore  the 
legally  elected  trustee  of  this  district.  The  resignation  of  Burton  P.  Hatch  did 
not  create  a  vacancy  in  the  office  of  trustee  so  as  to  permit  the  calling  of  a  special 
district  meeting  for  the  purpose  of  filling  such  vacancy.  The  election  of  Burton 
P.  Hatch  to  fill  such  vacancy  at  the  special  meeting  held  September  10,  1909,  was 
illegal.  But  pending  the  determination  of  this  appeal  the  official  acts  of  said 
Hatch  both  prior  to  his  resignation  after  the  annual  meeting,  and  subsequent  to  his 
alleged  election  at  the  special  meeting,  are  valid  and  binding  upon  the  district. 
The  appeal  herein  is  sustained. 
46 


1442  THE   UNIVERSITY   OF   THE   STATE   OF    NEW    YORK 

It  is  hereby  ordered,  That  on  and  after  the  date  of  the  fihng  of  this  decision 
in  the  office  of  the  district  clerk  of  school  district  no.  6,  town  of  Stephentown, 
county  of  Rensselaer,  Charles  H.  Pease  be  declared  to  be  the  duly  elected  trustee 
of  such  district,  and  that  Burton  P.  Hatch  shall  forthwith  deliver  to  the  said 
Pease  all  the  books,  papers,  money  and  other  property  belonging  to  said  district, 
in  his  possession  or  under  his  control  at  said  date. 

It  is  hereby  further  ordered,  That  the  official  acts  of  the  said  Burton  P. 
Hatch  performed  by  him  as  trustee  of  said  district  since  the  annual  meeting  held 
August  3,  1909,  and  prior  to  the  acceptance  of  his  resignation,  and  also  the  offi- 
cial acts  performed  by  him  as  such  trustee  subsequent  to  the  special  meeting 
held  in  said  district  September  10,  1909,  and  prior  to  the  date  of  the  filing  of  this 
decision  in  the  office  of  the  district  clerk  of  said  district,  are  hereby  declared  to 
be  valid  and  binding  upon  said  district,  so  far  as  they  may  have  been  affected  by 
the  illegality  of  his  election  as  such  trustee. 


5418 

In  the  matter  of  the  appeal  of  Abner  Curtis  and  Charles  R.  Freeborn  from  the 
proceedings  of  annual  school  meeting  in  district  no.  7,  Middleburg  and 
Fulton,  Schoharie  county. 

Disqualification  of  alleged  illegal  voter  must  be  shown.  In  the  absence  of  allegations 
of  material  facts  tending  to  siiow  the  disqualification  of  an  alleged  illegal  voter,  it  must 
be  held  that  such  voter  was  qualified. 

Adjournment  of  annual  meeting.  The  vote  for  trustee  at  an  annual  meeting  resulted 
in  a  tie.  The  respondent  who  was  a  candidate  for  the  office,  alleges  that  he  made  a 
motion  directing  that  a  special  meeting  be  called  for  a  specified  date ;  the  appellants 
allege  that  his  motion  was  a  motion  to  adjourn;  neither  party  produced  the  minutes 
of  the  meeting;  held  that  the  presumption  is  that  the  meeting  voted  to  adjourn,  since 
it  had  such  power,  but  had  no  power  to  call  a  special  meeting. 

Decided  October  18,  1909 

Draper,  C ommissioner 

The  appellants  appeal  from  the  act  of  the  respondent,  Charles  H.  Wilson,  in 
retaining  in  the  office  of  trustee  of  school  district  no.  7,  towns  of  Middleburg 
and  Fulton,  county  of  Schoharie,  and  in  refusing  to  deliver  to  his  successor  in 
office  the  books,  papers  and  property  of  the  district.  The  one  question  to  be 
determined  is  whether  the  appellant,  Abner  Curtis,  has  been  legally  elected  trus- 
tee of  such  district,  thus  terminating  the  office  of  his  predecessor,  Charles  H. 
Wilson.  At  the  annual  meeting,  held  August  3d,  there  were  14  votes  cast  for  the 
office  of  trustee,  7  of  which  were  for  Curtis  and  7  for  Wilson.  The  respondent 
alleges  in  his  answer  that  one  of  the  persons  voting  for  Curtis  was  not  a  qualified 
elector  of  the  district,  and  that  he,  the  respondent,  was  legally  elected  trustee  at 
the  annual  meeting.  The  voter  was  challenged  but  he  swore  that  he  was  a 
qualified  elector,  and  his  vote  was  received.     The  respondent  does  not  name  the 


JUDICIAL  DECISIONS:       VOTERS  I443 

alleged  illegal  voter,  and  does  not  slate  the  facts  upon  which  he  bases  his  con- 
clusions that  such  voter  was  disqualified.  It  is  obviously  improper  to  consider 
an  objection  to  the  qualifications  of  a  voter  in  the  absence  of  allegations  of  mate- 
rial facts  tending  to  show  the  disqualification  of  such  voter.  It  must  therefore 
be  held  that  the  vote  for  trustee  at  the  annual  meeting  was  a  tie. 

The  annual  meeting  proceeded  to  elect  the  other  district  ofikers.  A  second 
ballot  for  the  office  of  trustee  was  not  taken.  It  was  evidently  determined  by 
the  voters  present  that  the  question  of  the  election  of  a  trustee  should  be  decided 
at  a  subsequent  meeting.  The  appellants  both  swear  that  the  respondent  himself 
made  a  motion  to  adjourn  the  meeting  to  August  loth  and  that  such  motion  was 
carried.  The  respondent  claims  that  his  motion  was  that  a  special  meeting  be 
called  in  said  district  for  August  loth.  He  insists  in  his  answer  that  the  annual 
meeting  did  not  adjourn  to  August  loth,  but  that  it  directed  that  a  special  meeting 
be  called  for  that  date  and  that  since  a  special  meeting  was  not  called  and  the 
qualified  electors  were  not  notified  to  attend  as  provided  in  the  Education  Law, 
the  meeting  held  on  that  day  was  not  legal.  Neither  party  produces  the  minutes 
of  the  annual  meeting  to  show  what  this  motion  was. 

A  considerable  number  of  the  qualified  electors  of  the  district  met  at  the 
schoolhouse  on  the  evening  of  August  loth  in  accordance  with  the  alleged  motion 
to  adjourn.  The  respondent,  who  was  holding  over  as  trustee  and  had  the  key  to 
the  schoolhouse,  did  not  attend,  and  refused  to  permit  the  building  to  be  opened. 
The  qualified  electors  present  at  the  schoolhouse  secured  an  entrance  therein  and 
organized  a  meeting  and  elected  the  appellant,  Abner  Curtis,  as  trustee. 

If  this  meeting  was  an  adjourned  annual  meeting  it  was  legally  held  and  the 
trustee  elected  thereat  was  legally  elected.  An  annual  meeting  may  adjourn  from 
time  to  time.  Such  a  meeting  has  no  power  to  call  a  special  meeting  to  be  held  at  a 
specified  time.  The  presumption  is  that  the  annual  meeting  sought  to  do  what 
it  had  power  to  do.  The  respondent  Wilson  made  the  motion.  He  was  a  candi- 
date for  the  ofiice  of  trustee  and  because  of  a  tie  there  was  no  election.  It  was 
his  apparent  desire  that  the  question  of  the  election  of  his  successor  be  post- 
poned to  the  date  named  l)y  him  in  his  motion.  The  only  way  in  which  this  could 
lawfully  be  done  was  by  a  motion  to  adjourn.  It  must  be  assumed  that  this  was 
the  intent  of  the  meeting,  and  where  there  is  conflict  as  to  the  form  and  contents 
of  a  motion  adopted  at  a  district  meeting,  the  intent  of  the  meeting  as  ascertained 
from  apparent  facts  should  control  its  meaning.  Whatever  may  have  been  the 
form  of  the  motion,  it  seems  clear  that  the  motion  was  for  an  adjournment  of 
the  annual  meeting  to  the  date  therein  specified  and  such  motion  must  be  so 
construed. 

The  adjourned  annual  meeting  held  August  loth  was  a  legal  meeting  and 
the  trustee  elected  at  such  meeting  is  the  legal  trustee  of  the  district.  This  appeal 
is  therefore  sustained. 

It  is  ordered,  That  the  adjourned  aimual  meeting  held  in  district  no.  7,  towns 
of  Middleburg  and  Fulton,  county  of  Schoharie,  on  the  loth  day  of  Au.crust  IQ09, 
and  the  election  of  Abner  Curtis  at  such  meeting  as  trustee  of  such  district,  be 
9nd  the  same  hereby  are  ratified  and  declared  to  be  legal. 


1/^/14  THE    UNIVERSITY   OF   THE    STATE   OF    NEW    YORK 

It  is  hereby  further  ordered,  That  on  and  after  the  fihng  of  this  decision,  the 
said  Abner  Curtis  shall  be  the  trustee  of  such  district  and  that  Charles  H.  Wilson 
shall  forthwith  surrender  and  deliver  to  the  said  Curtis  all  books,  papers  and 
property,  in  his  possession  belonging  to  such  district. 


4257 

In  the  matter  of  the  appeal  of  John  C.  L.  Hamilton  v.  the  proceedings  of  an 
annual  school  meeting  held  on  August  2,  1892,  in  district  no.  9,  town  of 
Greenburgh,  Westchester  county;  and  from  acts,  proceedings  and  decisions 
of  Gustave  A.  T.  Goebel  and  George  L.  Miles,  as  trustees  of  said  district. 

Where  a  clergyman,  who  is  the  pastor  of  a  church,  residing  in  a  dwelling  owned  by  such 
church,  he  alleging  that  he  pays  rent  for  such  house,  such  house  being  exempt  from  tax- 
ation for  school  purposes  in  the  school  district  in  which  the  same  is  located,  and  such 
clergyman  not  owning  any  real  estate  subject  to  taxation  in  the  district  for  school  pur- 
poses or  hiring  any  other  real  estate  subject  to  such  taxation,  is  not  a  qualified  voter 
in  the  district,  and  hence  is  not  eligible  to  hold  the  office  of  trustee.  Where  it  is  estab- 
lished to  the  satisfaction  of  the  Superintendent  of  Public  Instruction  that  trustees  of 
a  school  district  have  been  guilty  of  any  wilful  violation  or  neglect  of  duty,  under  the 
school  law,  such  trustees  should  be  removed  from  office. 

Decided  July  13,  1894 


W.  H.  H.  Ely,  attorney  for  appellant 
E.  T.  Lovatt,  attorney  for  respondents 


Crooker,  Superintendent 

This  appeal  is  brought  from  the  proceedings  of  an  annual  meeting  held  in 
school  district  no.  9,  town  of  Greenburgh,  Westchester  county,  in  the  election 
of  Gustave  A.  T.  Goebel  as  a  trustee  of  said  district,  and  asks  for  the  removal  of 
said  Goebel  and  one  Miles,  as  trustees  of  said  district,  for  wilful  violation  and 
neglect  of  duty. 

The  principal  grounds  for  removal  of  said  Goebel  and  Miles,  as  alleged  in 
said  appeal,  are  that  said  Goebel  at  the  time  of  his  election  to  the  ofifice  of  trus- 
tee and  the  time  of  bringing  this  appeal,  was  not  eligible  to  the  office  of  trustee  by 
reason  of  not  being  a  qualified  voter  in  said  school  district ;  that  said  Goebel  and 
Miles,  without  authority  of  law,  drew  an  order  upon  the  collector  of  said  district 
for  $75  to  pay  a  lawyer  as  a  retainer  and  for  services  in  defending  them  in  a  suit 
brought  against  them  in  the  courts ;  that  said  Goebel  and  Miles  ignored  the 
appointment  by  the  school  commissioner  of  the  commissioner  district  in  which 
said  school  district  was  situate,  of  one  Heady,  as  a  trustee  of  said  district,  to  fill 
a  vacancy  in  said  office  caused  by  the  resignation  of  one  Dressier,  and  did  not 
notify  said  Heady  of  the  meetings  of  said  board  of  trustees  and  refused  to  per- 
mit said  Heady  or  the  appellant  to  examine  the  records  of  the  proceedings  of 
said  board. 


JUDICIAL  DECISIONS :       VOTERS  I445 


The  allegations  in  the  appeal  are  supported  by  the  affidavits  of  the  appellant 
and  others. 

Messrs  Goebel  and  Miles  answer  the  appeal,  alleging  that  said  Goebel  was, 
at  the  time  of  his  election  as  trustee  and  when  this  appeal  was  brought,  eligible 
to  hold  said  office.  It  admits  the  drawing  of  the  order  upon  the  collector  of  $75 
in  payment  of  the  retainer  and  services  of  an  attorney  in  the  defense  of  the  action 
brought  against  them  in  the  court,  and  the  offer  to  restore  the  money,  and  puts  in 
issue  some  of  the  allegations  in  such  appeal  relative  to  their  proceedings  as  a 
board  of  trustees,  and  the  ignoring  of  Mr  Heady  as  a  member  of  said  board. 
The  allegations  in  the  answer  are  supported  by  the  affidavits  of  Goebel,  Miles 
and  others.  A  large  number  of  affidavits  have  been  presented  by  Goebel  and 
Miles  as  to  matters  not  relevant  to  the  issue  in  this  appeal. 

From  a  careful  examination  and  consideration  of  the  papers  presented  it 
appears  that  school  district  no.  9,  town  of  Greenburgh,  Westchester  county,  is  a 
common  school  district  organized  under  the  general  school  law  of  the  State,  and 
having  a  board  consisting  of  three  trustees ;  that  at  the  annual  school  meeting  in 
said  district  held  in  August  1892,  one  Gustave  A.  T.  Goebel  was  elected  a  trustee 
for  said  district;  that  said  Goebel  was  at  the  time  of  such  election,  and  at  the 
time  the  appeal  herein  was  brought,  a  clergyman  and  the  pastor  of  the  Green- 
burgh Reformed  Church  at  Elmsford  in  the  town  of  Greenburgh,  Westchester 
county,  and  within  the  boundaries  of  said  school  district  no.  9 ;  that  said  church 
or  society  owned  a  church  edifice  and  a  parsonage ;  that  said  Goebel  resided  with 
his  family  in  said  parsonage;  that  in  the  contract  with  said  Goebel,  relative  to 
his  salary  as  such  pastor,  the  use  or  rental  by  him  of  said  parsonage  was  taken 
and  valued  at  the  sum  of  $200  per  annum ;  that  said  Goebel  has  not,  at  least  for 
the  three  years  passed,  been  assessed  upon  the  assessment  rolls  of  the  town  of 
Greenburgh,  nor  upon  the  assessment  rolls  and  tax  list  of  said  school  district 
for  either  personal  property  or  real  estate ;  that  said  Goebel  has  not,^  for  the 
three  years  last  past,  owned  any  real  estate  situate  in  said  school  district  liable 
to  taxation  for  school  purposes,  nor  has  he  been  within  said  time  the  parent  of 
a  child  or  children  of  school  age,  nor  not  being  the  parent  of  a  child  or  children 
of  school  age  has  he  had  residing  with  him  such  child  or  children ;  that  the  said 
Greenburgh  Reformed  Church  was  not  in  the  year  1892,  nor  since,  assessed  upon 
the  assessment  rolls  of  the  town  of  Greenburgh  for  its  parsonage,  nor  for  any 
other  property,  real  or  personal,  nor  has  it  been  assessed  for  any  property,  real 
or  personal,  upon  the  tax  lists  and  assessments  made  and  issued  by  the  trustees 
of  said  school  district  no.  9  for  the  past  three  years;  that  the  annual  school  meet- 
ing of  said  district  held  in  August  1893,  elected  the  respondent,  George  L.MiIes. 
as  trustee  of  said  district  and  one  G.  A.  Arnoux,  district  clerk  and  collector. 

It  also  appears  that  at  some  time  after  said  annual  meeting  in  August  1893, 
and  before  February  15,  1894,  John  Dressier,  a  trustee  of  said  district,  resigned 
but  no  action  was  taken  by  said  Goebel  and  Miles,  his  associates,  to  supply  said 
vacancy;  that  said  district  had  voted  to  build  a  new  schoolhouse  at  a  cost  of 
^000    slid  sum  to  be  raised  in  instalments,  and  bonds  of  the  district  for  said 


1446  THE    UNIVERSITY    OF   THE    STATE   OF    NEW    YORK 

sum  to  be  issued;  that  said  Goebel  and  Miles  on  or  about  February  15,  1S94, 
published  a  notice  in  the  Tarrytown  Argus  that  they  would  on  February  28,  1894, 
receive  bids  for  the  purchase  of  said  bonds,  and  on  February  16,  1894,  also  puh- 
lished  a  notice  that  they  would,  until  March  i,  1894,  noon,  receive  bids  at  the 
store  of  said  Miles  in  Elmsford,  where  plans  and  specifications  may  be  had  for 
the  erection  of  a  schoolhouse  in  said  district;  that  on  February  21,  1894,  the 
vacancy  in  the  office  of  a  trustee  of  said  district,  caused  by  the  resignation  of  said 
Dressier,  not  having  been  supplied  by  a  district  meeting  within  one  month  after 
such  vacancy  occurred.  School  Commissioner  Farrington  M.  Thompson  of  the 
second  commissioner  district  of  Westchester  county,  in  which  commissioner  dis- 
trict said  school  district  is  situate,  ai)pointc(l  one  William  K.  Heady  as  trustee 
of  said  school  district  to  fill  the  vacancy  created  by  the  resignation  of  said 
Dressier,  and  such  appointment  was  immediately  filed  with  G.  A.  Arnoux  who 
was  elected  clerk  of  said  district  at  the  annual  meeting  of  said  district  in  August 
1893,  'i"'^  s^if^  Goebel  and  Miles  were  personally  notified  of  such  appointment ; 
that  on  March  3,  1894,  said  Goebel  and  Miles  sent  a  written  communication  to 
said  Heady  in  which  they  stated  that  they  had  received  from  Heady  a  communi- 
cation that  he  (Heady)  had  been  appointed  trustee  by  Commissioner  Thompson, 
and  notified  tieady  that  a  special  meeting  of  the  board  of  trustees  of  the  district 
would  be  held  at  the  schoolhouse  on  Tuesday,  March  13,  1894,  at  4  p.  m.,  at 
which  time  they  proposed  to  award  the  contract  for  the  school  building,  etc.,  and 
requested  the  personal  attendance  of  Heady;  that  on  said  March  13,  1894,  a 
meeting  of  said  board  of  trustees  of  said  district  was  held  at  which  all  three  of 
said  trustees  were  present;  that  at  said  meeting  on  March  13,  1804,  the  readin/::^ 
of  the  minutes  of  the  meeting  on  March  i,  1894,  of  said  Goebel  and  Miles  was, 
by  motion  of  said  Goebel,  dispensed  with,  and  said  trustee  Heady  was  not  per- 
mitted to  inspect  said  minutes  and  said  meeting  was  adjourned;  that  on  or  about 
March  13,  tS'(j4,  an  action  was  commenced  in  the  Supreme  Court  by  one  Ollie 
A.  Green  against  said  Goebel,  Miles  and  Heady  as  trustees  of  said  school  dis- 
trict no.  9,  and  the  said  Goebel  and  Miles,  without  any  meeting  of  the  voters  of 
the  school  district  or  any  meeting  of  the  trustees  of  said  district,  and  without 
any  consultation  with  their  associate  Heady,  employed  counsel  to  defend  them 
in  said  action,  and  drew  an  order  upon  the  collector  or  treasurer  of  said  district 
for  the  sum  of  $75  and  received  the  money  therefor,  and  paid  the  same  to  the 
counsel  so  employed  by  them. 

Section  12  of  title  7  of  the  Consolidated  School  Act  of  1864,  and  the  amend- 
ments thereof,  prescribes  who  are  entitled  to  vote  at  common  school  district 
meetings,  and  section  24  of  title  7  of  said  act  enacts  that  every  district  officer 
must  be  a  resident  of  his  district,  and  qualified  to  vote  at  its  meetings.  The 
respondent,  Goebel,  claims  to  have  been  a  qualified  voter  in  said  district  no.  9  at 
the  time  of  his  election  in  August  1892,  and  at  the  time  this  appeal  was  brought, 
and  therefore  eligible  to  hold  the  office  of  a  trustee  of  such  district,  upon  the 
ground  that  he  hired  real  property  in  said  district  liable  to  taxation  for  school 
purposes.     He  was  the  pastor  of  the  German  Reformed  Church  in  Elmsford  in 


JUDICIAL  decisions:     voters  1447 

said  school  district,  and  resided  with  his  family  in  a  .Iwelling  house  owned  by 
such  church.  He  aluges  that  he  pays  $200  per  year  rent  for  such  house.  The 
terms  of  the  contract  or  agreement  between  Goebel  and  such  .church  officers  is 
not  stated  in  the  papers ;  but  assuming  for  the  purpose  of  argument  that  he  pays 
rent  for  said  house,  it  appears  by  the  proofs  presented  herein,  that  such  house 
and  grounds  are  not  liable  to  taxation  for  school  purposes  in  said  district.  For 
three  years  and  more  said  house  and  grounds  have  not  been  assessed  or  taxed 
upon  the  town  assessment  rolls  of  the  town  of  Greenburgh.  nor  have  they  been 
assessed  upon  the  tax  lists  and  assessments  made  by  the  trustees  of  said  school 
district  for  school  purposes  for  the  period  of  three  years  or  more,  and  during 
a  portion  of  the  time  said  Goebel  has  been  acting  as  one  of  the  trustees  of  said 
district.  Under  the  provisions  of  the  seventh  article  of  title  7  of  the  school  law 
of  1864,  section  66,  trustees  are  required  to  assess  all  real  estate  within  the 
boundaries  of  their  district,  not  exempt  by  law  from  taxation,  and  if  the  assessors 
of  the  town  have  omitted  any  such  real  estate  from  the  town  rolls  it  is  the  duty 
of  such  trustees  to  assess  it  upon  the  district  assessments.  From  the  action  and 
decision  of  the  town  assessors  and  the  trustees  of  said  district  I  must  hold  in  this 
appeal  that  said  house  and  land,  occupied  by  said  Goebel,  are  not  liable  to  taxation 
for  school  purposes  in  such  school  district,  and  hence  said  Goebel  was  not  a  quali- 
fied voter  in  such  school  district  and  not  eligible  to  hold  any  district  office  in  such 
district. 

Under  the  provisions  of  subdivision  4  of  section  16  of  title  7  of  the  school 
law  of  1864  and  its  amendments,  the  inhabitants  entitled  to  vote  in  each  school 
district  have  power  to  choose  one  or  three  trustees  as  thereinafter  provided,  a 
district  clerk,  collector,  etc.,  and  so  often  as  such  offices  become  vacated,  except 
as  thereinafter  provided.  It  is  provided  by  section  30  of  title  7  of  said  act,  that 
in  case  of  vacancy  in  the  office  of  a  trustee,  and  the  vacancy  is  not  sui)plied  by 
a  district  meeting  within  one  month  thereafter  the  school  commissioner  of  the 
commissioner  district  in  which  such  school  district  is  situate  may  appoint  a  suit- 
able person  to  fill  such  vacancy.  School  district  no.  9.  Greenburgh,  had  three 
trustees.  The  district  had  voted  to  build  a  new  schoolhouse  at  a  cost  of  $8000, 
and  the  qualilied  voters  of  the  district  had  a  right  to  have  a  full  board  of  trus- 
tees of  their  own  selection  to  conduct  the  business  of  the  district.  It  appears 
tliat  a  vacancy  occurred  in  said  board  of  trustees  by  the  resignation  of  one 
Dressier.  Although  under  section  48  of  title  7  of  said  act  of  1864,  the  two  trus- 
tees remaining  in  said  board  possessed  the  powers  and  were  subject  to  all  the 
duties  and  liabilities  of  the  three,  the  first  act  of  Goebel  and  Miles  should  have 
been,  after  such  a  vacancy  in  said  district,  and  it  was  their  duty,  to  call  a  special 
meeting  of  the  inhabitants  of  said  district  qualified  to  vote,  to  elect  a  trustee 
to  fill  such  vacancy.  Notwithstanding  the  fact  of  the  important  duties  devolving 
upon  the  members  of  said  board  in  the  adoption  of  plans  and  specifications  for 
the  new  schoolhouse,  the  execution  of  a  contract  for  its  construction,  and  the 
execution  and  sale  of  the  bonds  of  the  district,  said  Goebel  and  Miles,  as  such 
trustees,  were  guilty  of  a  violation  and  neglect  of  duty  in  failing  to  call  such 


1448  THE   UNIVERSITY   OF    THE   STATE   OF    NEW    YORK 

a  meeting  of  said  district  to  elect  a  trustee  to  fill  such  vacancy,  and  on  February 
15,  1894,  the  school  commissioner  of  the  commissioner  district  in  which  said 
school  district  is  situated  appointed  Mr  Heady  as  trustee  to  fill  such  vacancy. 
Said  Goebel  and  Miles  had  personal  knowledge  of  such  appointment  of  Mr  Heady 
as  early  as  March  3,  1894;  but  it  was  not  until  March  13,  1894,  that  he  attended 
any  meeting  of  the  board  of  trustees. 

By  subdivision  14  of  section  16  or  title  7  of  the  school  act  of  1864,  a  school 
district  meeting  has  the  power  to  vote  a  tax  to  pay  the  reasonable  expenses 
incurred  by  district  officers  in  defending  suits  or  appeals  brought  against  them 
for  their  official  acts. 

By  section  7  of  title  13  of  said  act,  whenever  the  trustees  of  any  school  dis- 
trict shall  have  been  instructed  by  a  resolution  of  the  district  to  defend  any  action 
brought  against  them,  all  their  costs  and  reasonable  expenses  shall  be  a  district 
charge  and  shall  be  levied  by  tax,  and  if  the  amount  claimed  by  them  shall  be 
disputed  it  shall  be  adjusted  by  the  county  judge. 

By  section  8  of  title  13,  whenever  such  trustees  shall  have  defended  any 
such  action  zvithout  any  such  resolution,  they  shall  present  to  any  regular  meeting 
of  the  district  an  account  in  writing  of  all  the  costs,  etc.,  paid  by  them,  and  a 
majority  of  the  voters  may  direct  that  the  same  be  paid  and  the  money  therefor 
assessed  against  the  district. 

By  section  9  of  title  13,  when  said  meeting  shall  refuse  to  allow  such  account, 
the  trustees  may  give  public  notice  that  they  will  appeal  to  the  county  judge. 

On  March  13,  1894,  an  action  was  commenced  in  the  Supreme  Court  against 
the  three  trustees  of  the  district,  and  without  any  meeting  of  the  district  or  of 
the  board  of  trustees  being  called  or  held,  the  said  Goebel  and  Miles,  without  any 
consultation  with  their  associate  trustee.  Heady,  employed  counsel  to  defend  them 
in  said  action,  and  drew  an  order  on  the  collector  of  said  district  for  $75,  received 
the  money  and  paid  the  same  to  counsel.  This  was  a  clear  violation  of  duty  on 
the  part  of  said  Goebel  and  Miles.  In  performing  their  duties  a  board  of  three 
trustees  must  meet  as  a  board,  and  there  was  no  meeting  of  the  board  to  take 
action  in  relation  to  defending  said  action,  and  they  could  not  make  any  contract 
in  the  employment  of  counsel  that  would  bind  the  district.  But  had  there  been 
a  legal  meeting  of  the  board  and  a  legal  employment  of  counsel,  said  Goebel  and 
Miles,  nor  the  three  trustees  together,  had  no  legal  right  or  authority  to  use  any 
moneys  belonging  to  the  district  to  pay  said  counsel  until  a  district  meeting  had 
authorized  such  payment.  The  moneys  in  the  hand  of  the  collector  of  said  dis- 
trict were  raised  by  tax  for  specific  purposes,  and  said  Goebel  and  Miles  had  no 
right  to  use  said  moneys  for  any  purpose  other  than  that  for  which  it  was  raised. 

Under  the  provisions  of  title  7  of  the  school  act  of  1864  and  the  amendments 
thereof,  the  qualified  voters  of  school  districts  have  the  power  to  elect  a  district 
clerk  and  a  district  collector;  that  no  person  can  hold  two  district  offices,  and  no 
trustee  can  hold  the  office  of  district  clerk  or  collector;  that  the  district  clerk  must 
keep  a  record  of  the  proceedings  of  all  district  meetings  and  is  the  clerk  of  the 
board  of  trustees  of  his  district  and  should  attend  all  meetings  of  the  board  and 


JUDICIAL  decisions:     voters  1449 

keep  a  record  of  the  proceedings  of  the  board ;  that  such  records  are  the  property 
of  the  district  and  open  for  inspection  to  any  qualified  voter  of  the  district  at  all 
reasonable  hours.  When  any  vacancy  occurs  in  the  office  of  district  clerk  or  col- 
lector it  is  the  duty  of  the  trustees  of  the  district  to  supply  such  vacancy  by 
appointing  some  qualified  voter  of  the  district  to  fill  it. 

It  appears  from  the  proofs  presented  in  this  appeal  that  at  the  annual  meet- 
ing of  the  district  held  in  August  1893,  one  C.  A.  Arnoux  was  elected  district 
clerk.    It  further  appears  by  the  affidavits  of  Goebel  and  Miles  that  said  Arnoux 
at  some  time  resigned  as  such  district  clerk.    There  is  no  proof  that  said  Goebel 
and  Miles  appointed  any  person  as  district  clerk  to  fill  such  vacancy ;  but,  on  the 
contrary,  it  appears  that  said  Goebel  claimed  to  act  as  district  clerk.    In  the  let- 
ter of  said  Goebel  and  Miles  to  Mr  Heady,  under  date  of  March  3,  1894,  inform- 
ing Mr  Heady  that  the  notification  of  his  appointment  as  trustee  had  not  come 
to  them  in  the  channel  designated  by  law,  etc.,  they  state  that  they  would  be 
pleased  to  have  him  file  his  original  appointment  "  with  the  clerk  of  our  board, 
Mr  Goebel,"  "  there  being  no  district  clerk,  the  proper  place  for  the  filing  of 
your  official  appointment  is  with  the  clerk  of  the  board,  Mr  Goebel."    The  school 
law  does  not  recognize  any  such  officer  as  clerk  of  the  board  of  trustees  of  a 
common  school  district  other  than  the  district  clerk  of  the  district,  who  is  the 
lawful  clerk  of  said  board  of  trustees,  and  the  school  law  prohibits  a  trustee  from 
holding  the  office  of  a  district  clerk.     Mr  Heady  sent  notice  of  his  appointment 
to  the  person  who  was  elected  district  clerk,  with  whom  the  school  law  requires 
such  notice  to  be  filed.    It  is  true  that  the  school  law  provides  that  every  appoint- 
ment to  fill  a  vacancy  shall  be  filed  by  the  commissioner  or  trustee  in  the  office 
of  the  district  clerk,  who  shall  immediately  give  notice  of  the  appointment  to  the 
person  appointed;  but  an  omission  on  the  part  of  the  commissioner  to  file  such 
appointment  would  not  invalidate  such  appointment.     Mr  Heady  as  trustee,  the 
appellant  herein,  or  any  qualified  voter  of  said  district,  had  the  right  at  all  reason- 
able hours  to  inspect  the  records  of  the  proceedings  of  said  board  of  trustees  of 
said  district,  and  the  refusal  of  said  Goebel  and  Miles  to  permit  such  inspection 
of  such  minutes  was  a  neglect  and  violation  of  duty  on  their  part  as  trustees  of 
said  district.     It  was  a  neglect  of  duty  on  the  part  of  Goebel  and  Miles  when  a 
vacancy  occurred  in  the  office  of  district  clerk  not  to  have  immediately  appointed 
some  qualified  voter  of  the  district  as  district  clerk. 

Section  18  of  title  i  of  the  school  act  of  1864  provides  that  wherever  it  shall 
be  proven  to  the  satisfaction  of  the  Superintendent  of  Public  Instruction  that  any 
school  commissioner  or  other  school  officer  has  been  guilty  of  any  wilful  violation 
or  neglect  of  duty,  said  Superintendent  may,  by  an  order,  remove  such  officer. 

The  courts  of  this  State  have  hold  that  "  wilful  "  in  said  statute  means 
"  intentional,"  that  is,  that  the  school  officer  knew  what  his  duty  was  and  refused 
or  neglected  to  perform  it. 

Messrs  Goebel  and  Miles  are  intelligent  men,  Mr  Goebel  being  a  clergyman. 
It  must  be  assumed  that  they  were  familiar  with  the  school  law  of  the  State ;  that 
they,  as  trustees  of  their  school  district,  were  statutory  officers,  and  that  their 


1450  THE   UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

powers  and  duties  and  liabilities  were  clearly  defined  by  such  statutes,  and  it 
must  be  held  that  the  violations  and  neglect  of  duty  under  the  school  law,  upon 
their  part  as  hereinbefore  stated,  were  zvilftd  and  not  the  result  of  mere  misap- 
prehension or  inadvertence  on  their  part. 

I  do  find  and  decide,  That  Gustave  A,  T.  Goebel  was  not  at  the  time  of  the 
annual  meeting  in  school  district  no.  7,  town  of  Greenburgh,  Westchester  county, 
held  in  August  1892,  nor  at  the  time  the  appeal  herein  was  brought,  nor  is  he 
now,  a  qualified  voter  in  said  district,  and  was  not  and  is  not  eligible  to  hold  the 
office  of  a  trustee  of  said  district. 

That  said  Gustave  A.  T.  Goebel  and  George  L.  Miles,  as  such  trustees  of 
said  school  district,  are,  and  each  of  them  is,  guilty  of  wilful  violation  and  neglect 
of  duty. 

That  the  appeal  herein  should  be  sustained. 

Appeal  sustained. 

It  is  ordered.  That  said  Gustave  A.  T.  Goebel  and  George  L.  Miles  be,  and 
each  of  them  is,  hereby  removed  from  the  office  of  a  trustee  of  school  district  no. 
9,  town  of  Greenburgh,  Westchester  county,  for  wilful  violation  and  neglect  of 
duty  on  their  part,  and  on  the  part  of  each  of  them,  as  a  trustee  of  said  school 
district. 


3300 

Constitutionality  of*  the  act  conferring  upon  women  the  right  to  vote  at  school  meetings. 
Decided  December  11,  1883 

Ruggles,  Superintendent 

A  more  serious  question  is  raised  by  the  last  ground  of  appeal,  namely,  as 
to  the  constitutionality  of  the  statute  conferring  upon  women  the  right  to  vote 
at  school  meetings.  I  am  not  aware  that  this  question  has  been  judicially  passed 
upon  by  any  of  our  courts;  and  I  do  not  find  that  it  has  ever  been  brought  in 
issue  or  decided  on  an  appeal  to  the  Superintendent  of  Public  Instruction. 

It  is  squarely  an  issue  upon  this  appeal,  and  the  result  of  the  appeal  must 
depend  upon  the  decision  of  this  point,  inasmuch  as,  if  all  the  262  votes  cast  by 
women  are  rejected  from  the  count,  the  majority  for  the  resolutions  would  be 
changed  into  a  minority.  Bearing  in  mind  that  the  power  of  the  Legislature  in 
the  enactment  of  laws  is  supreme,  except  as  it  is  restricted  by  constitutional 
limitations,  let  us  look  briefly  into  the  alleged  conflict  between  the  acts  of  the 
Legislature  and  the  organic  law. 

Article  2,  section  i  of  the  State  Constitution,  so  far  as  it  affects  the  ques- 
tion, provides  as  follows : 

"Every  male  citizen  of  the  age  of  21  years  who  shall  have  been  a  citizen 
for  ten  days  and  an  inhabitant  of  this  State  one  year  next  preceding  an  election, 
and  for  the  last  four  months  a  resident  of  the  county,  and  for  the  last  thirty  days 
a  resident  of  the  election  district  in  which  he  may  offer  his  vote,  shall  be  entitled 
to  vote  at  such  election  in  the  election  district  of  which  he  shall,  at  the  time,  be  a 


JUDICIAL  DECISIONS :       VOTERS  145^ 

resident,  and  not  elsewhere,  for  all  officers  that  now  are  or  hereafter  may  be 
elective  by  the  people,  and  upon  all  questions  which  may  be  submitted  to  the  vote 
of  the  people."  The  courts  have  uniformly  held  that  this  article  and  similar  arti- 
cles in  the  constitutions  of  other  states  are  to  be  taken  as  definitions  of  the  qualifi- 
cations of  electors  and  limit  the  elective  franchise  to  persons  having  the  specified 
qualifications.  (People  v.  Susan  B.  Anthony,  ii  Blatch.  200;  9  Phil.  (Pa.)  241  ; 
53  Missouri  58.) 

The  act  of  the  Legislature,  chapter  9,  laws  of  1880,  entitled  "An  act  to 
declare  women  eligible  as  school  trustees,"  provides  as  follows: 

"  No  person  shall  be  deemed  to  be  ineligible  to  serve  as  any  school  officer, 
or  to  vote  at  any  school  meeting,  by  reason  of  sex,  who  has  the  other  qualifica- 
tions now  required  by  law." 

In  1881  another  statute  was  passed  on  the  same  subject,  chapter  492  of  the 
laws  of  that  year.  This  was  in  the  shape  of  an  amendment  to  section  12,  article 
I,  title  7  of  the  Consolidated  School  La>v  of  1864.  This  article  i  is  entitled  "  of 
school  districts  and  neighborhood  meetings,  the  voters  and  their  powers  gen- 
erally," and  section  12  of  said  article,  as  amended  in  1881,  was  made  to  read 
as  follows : 

"  Every  person  of  full  age  residing  in  any  neighborhood  or  school  district 
and  entitled  to  hold  lands  in  this  State,  who  owns  or  hires  real  property  in  such- 
neighborhood,  or  school  district  liable  to  taxation  for  school  purposes,  and  every 
resident  of  such  neighborhood  or  district  who  is  a  citizen  of  the  United  States, 
above  the  age  of  21  years,  and  who  has  permanently  residing  ivith  him  or  her  a 
child  or  children  of  school  age,  some  one  or  more  of  whom  shall  have  .".tter.dcil  the 
district  school  for  a  period  of  at  least  eight  weeks  within  one  year  preceding,  and 
every  such  resident  and  citizen  as  aforesaid,  who  owns  any  personal  property 
assessed  on  the  last  preceding  assessment  roll  of  the  town,  exceeding  htty  dol- 
lars in  value,  exclusive  of  such  as  is  exempt  from  execution,  and  no  other,  shall 
be  entitled  to  vote  at  any  school  meeting  held  in  such  neighborhood  or  school 

district."  ^  ,  ^-       ^i. 

The  material  changes  thus  made  consist  in  dropping  out  from  the  section  the 
word  "  male  "  which  before  preceded  the  word  "  person."  and  also  omitting  a 
clause  requiring  the  voter  to  be  entitled  to  vote  at  town  meetings  of  the  town  in 
v.'hich  the  district  is  situated. 

With  tlie  exception  of  these  changes  and  the  substitution,  some  years  ago. 
of  the  clause  relating  to  the  attendance  at  the  district  school  of  a  child  or  children 
for  eight  weeks  in  place  of  a  clause  requiring  the  payment  of  a  rate  bill,  the  above 
statutory  provisions,  as  to  qualifications  of  voters  at  school  meetings,  have  been 
in  operation  ever  since  the  adoption  of  the  Constitution  of  184O.  And  the  con- 
stitutional provisions,  cited  above,  have  been  substantially  as  they  are  now.  dur- 
ng  the  sanie  period,  except  that  in  the  year  1874  the  words  and  upon  al  ques- 
tions which  may  be   submitted  to  the  vote  of  the  people      were  inserted  by 

'"'ft"w"n  be  observed  by  comparing  the  statutory  requirements  as  to  qualifica- 
tions of  voters  at  school  meetings  with  the  constitutional  definition  of  the  quahfi- 


1452  THE   UNIVERSITY    OF   THE    STATE   OF    NEW    YORK 

cations  of  electors,  that  they  differ  materially  in  several  important;  particulars, 
aside  from  the  matter  of  sex. 

For  instance,  the  Constitution  requires  of  the  electors  citizenship  for  ten 
days,  inhabitancy  in  the  State  one  year,  residence  in  the  county  four  months  and 
in  the  election  district  thirty  days.  None  of  these  conditions  are  essential  under 
the  statute.  Under  its  provisions,  in  one  of  the  contingencies  specified,  a  person 
may  be  a  voter  at  school  meetings  without  citizenship,  and  without  inhabitancy 
or  residence  other  than  at  the  time  of  voting. 

In  certain  contingencies  named  the  statute  imposes  a  property  qualification 
which  the  Constitution  does  not.  In  another  it  formerly  required  payment  of 
a  rate  bill,  and  now  certain  attendance  at  school,  as  to  which  the  Constitution 
is  silent.  If  the  statute  is  unconstitutional  for  the  reason  that  it  conflicts  with 
that  instrument  in  respect  to  the  qualifications  as  to  sex,  by  the  same  argument 
it  has  been  unconstitutional  for  the  last  thirty-seven  years,  by  reason  of  the 
conflict  with  the  Constitution  in  the  several  other  particulars  above  referred  to. 
And,  in  fact,  there  has  been  no  time  since  the  adoption  of  the  first  Constitution, 
in  the  year  1777,  when  the  statutory  provision  prescribing  the  qualifications  of 
voters  at  school  meetings  did  not  differ  materially  from  the  provisions  of  the 
existing  Constitution  prescribing  the  qualifications  of  voters  at  elections. 

Of  course  this  line  of  argument  is  by  no  means  conclusive,  but  it  is  a  cir- 
cumstance of  some  weight,  in  the  consideration  of  the  question  in  hand,  that 
while  for  more  than  half  a  century,  at  least,  the  State  has  been  divided  into 
school  districts  numbering  from  seven  to  twelve  thousand,  with  usually  one 
annual  and  several  school  meetings  in  each  district  each  year,  at  which  the  voting 
for  school  officers  and  upon  measures  involving  local  taxation  as  well  as  upon 
a  great  variety  of  other  measures  of  interest  to  the  district  inhabitants,  has 
been  proceeding  under  the  regulation  as  to  qualifications  of  voters  prescribed  by 
those  school  statutes,  and  while  the  multitude  of  school  district  dissensions  arising 
out  of  the  proceedings  of  such  meetings  have  resulted  in  numerous  litigations 
in  which  the  courts  have  often  been  called  upon  to  interpret  these  statutes,  yet 
no  case  appears  upon  the  records  of  the  courts  upon  which  the  question  of  the 
unconstitutionality  of  these  statutory  provisions  by  reason  of  these  divergences 
from  the  constitutional  provisions  has  been  distinctly  raised  and  judicially 
decided. 

It  is  regarded  as  appropriate  and  as  a  matter  entitled  to  careful  considera- 
tion, in  construing  the  words  of  the  Constitution,  to  look  back  at  the  situation 
of  the  country  and  its  existing  institutions  and  systems  at  the  time  and  anterior 
to  the  time  of  its  adoption.     (Potter's  Dwarris,  657.) 

At  the  time  of  the  adoption  of  the  Constitution  of  1846,  and  for  years 
anterior  thereto,  there  had  been  in  existence  in  the  State,  a  general  common 
school  system,  under  which  the  State  was  divided  into  thousands  of  school  dis- 
tricts, each  of  which  had  various  well-defined  powers  exercised  through  the 
medium  of  district  school  meetings,  and  needful  for  the  proper  care  and  mainte- 
nance of  the  local  schools  and  for  the  harmonious  working  of  the  system. 

The  qualifications  of  voters  prescribed  by  the  statute  were  such  as  were 


JUDICIAL  decisions:     voters  1453 

considered  best  adapted  for  the  peculiar  character  and  needs  of  the  system,  and 
as  before  stated,  varied  essentially  from  the  qualifications  prescribed  by  the  ex- 
isting Constitution,  for  electors  at  ordinary  elections. 

At  the  same  time,  another  system  was  and  long  had  been  in  existence — the 
system  of  popular  elections.  Under  this  system  and  as  an  essential  part  of 
its  machinery,  the  State  had  been  divided  into  many  thousands  of  election  dis- 
tricts, at  which  the  popular  will  was  exercised,  through  the  elective  franchise,  in 
the  maintenance  of  civil  government.  The  qualifications  of  electors  were  here 
also  such  as  were  deemed  best  adapted  to  the  character,  necessities  and  success- 
ful operation  of  the  particular  system. 

These  two  systems  with  their  dissimilar  provisions  as  to  the  qualifications 
of  voters,  had  for  years  been  moving  along  together,  pari  passu,  without  jar 
or  discord. 

Referring  again  to  the  section  of  the  Constitution  in  question,  we  find  that 
the  male  citizen,  having  the  other  specified  qualifications,  and  having  been  "  for 
the  last  thirty  days  a  resident  of  the  election  district  in  which  he  may  offer  his 
vote,  shall  be  entitled  to  vote  at  such  election  in  the  election  district  of  which 
he  shall  at  the  time  be  a  resident,  and  not  elsewhere." 

The  foregoing  considerations  induce  me  to  the  conclusion  that  the  framers 
of  the  Constitution  in  the  use  here  made  of  the  words  "  election  district," 
intended  to  refer  solely  to  the  election  districts  which  had  long  been  established 
throughout  the  State,  under  that  designation,  as  an  integral  part  of  the  machinery 
of  popular  elections,  and  that  it  has  no  reference  or  application  to  the  estab- 
lished method  of  choosing  school  district  officers  or  of  voting  upon  other  matters 
at  school  district  meetings. 

The  objection  to  the  constitutionality  of  the  statutes,  under  the  provisions 
of  which  women  voted  at  the  school  meeting  in  question,  must,  therefore,  be 
overruled. 


3513 

If  the  uniform  ballot  act  does  apply  to  school  districts,  and  if  the  law  had  required  that 
the  vote  in  the  present  case  should  have  been  taken  by  ballot,  and  if  said  law  as  to 
uniformity  of  ballots  had  not  been  observed,  the  result  would  not,  on  that  account, 
have  been  rendered  void. 

Any  person  who  knowingly  or  wilfully  violates,  or  attempts  to  violate,  the  statute  relating 
to  the  uniformity  of  ballots,  would  be  subject  to  a  fine  or  imprisonment,  but  there  is 
nothing  in  the  law  which  would  have  set  aside  the  results  of  an  election  held  in 
violation  of  its  provisions. 

Decided  August  4,  1886 

Draper,  Superintendent 

This  district,  no.  3,  town  of  Flushing,  is  operated  under  a  special  act.  A 
special  district  meeting  was  called  and  held,  at  which  it  was  voted  to  appropriate 
the  sum  of  $7500  for  the  enlargement  of  the  school  building. 

One  of  the  appellants'  objections  to  the  regularity  of  this  meeting    or  its 


1454  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

proceedings,  is  to  the  ballot,  on  the  ground  that  the  provisions  of  chapter  367 
of  the  Laws  of  1880,  commonly  known  as  the  "  uniform  ballot  act,"  were  not 
observed.     The  first  section  of  this  act  is  as  follows: 

Section  i  At  all  elections  hereafter  held  within  the  limits  of  this  State,  for 
the  purpose  of  enabling  electors  to  choose  by  ballot  any  officer  or  officers  under 
the  laws  of  this  State,  or  of  the  United  States,  or  to  pass  upon  any  amendments, 
law  or  public  act  or  proposition  submitted  to  the  electors  to  vote  by  ballot  under 
any  law,  each  and  all  ballots  used  at  any  such  election  shall  be  upon  plain,  white 
printing  paper,  and  without  any  impression,  device,  mark  or  other  peculiarity 
whatsoever  upon  or  about  them  to  distinguish  one  ballot  from  another  in  appear- 
ance, except  the  names  of  the  several  candidates,  and  they  shall  be  printed  in 
plain  black  ink. 

It  is  conceded  by  the  respondents  that  the  ballots  used  were  not  in  com- 
pliance with  the  provisions  of  this  act.  They  varied  in  color,  in  size;  they  were 
without  the  prescribed  captions  and  they  were  not  printed  in  the  prescribed 
size  of  type. 

Whether  or  not  it  was  the  intention  of  the  Legislature  that  the  provisions  of 
the  uniform  ballot  act  should  apply  at  elections  'held  at  school  meetings,  is  a 
question  which  is  by  no  means  free  from  doubt,  it  is  not  necessary  to  determine 
that  question,  however,  in  order  to  dispose  of  the  present  case.  Section  i  of  the 
uniform  ballot  act,  above  set  forth,  limits  the  operation  of  that  act  to  cases 
where  an  officer  is  to  be  elected  or  an  act  or  a  proposition  to  be  determined  is 
■ "  submitted  to  the  electors  to  vote  by  ballot  under  any  lazv."  There  is  nothing 
in  the  provisions  of  the  statutes  governing  this  meeting  which  requires  that  the 
question  at  issue  should  be  determined  by  ballot.  It  was  only  required  by  the 
board  of  education  that  they  "  shall  submit  the  same  to  the  electors  of  said 
district  at  an  annual  or  at  a  special  meeting  to  be  called  for  that  purpose."  It 
is  true  that  section  3  of  the  special  act,  as  amended,  does  provide  that  "  all  elec- 
tions shall  be  by  ballot,"  but  this  unquestionably  refers  to  elections  for  members 
of  the  board  of  education,  and  I  can  see  no  requirement  of  the  statute  which 
necessitated  the  taking  of  the  vote  in  this  instance  by  ballot,  however  proper 
and  perhaps  desirable  that  it  should  be  done  in  that  way.  Furthermore,  if  the 
uniform  ballot  act  does  apply  to  school  districts,  and  if  the  law  had  required 
that  the  vote  in  the  present  case  should  have  been  taken  by  ballot,  and  if  said 
law  as  to  uniformity  of  ballots  had  not  been  observed  the  result  would  not  on 
that  account  have  been  rendered  void.  Any  person  who  knowingly  or  wilfully 
violates,  or  attempts  to  violate,  the  statute  relating  to  the  uniformity  of  ballots 
would  be  subject  to  a  fine  or  imprisonment,  but  there  is  nothing  in  the  law 
which  would  have  set  aside  the  results  of  an  election  held  in  violation  of  its 
provisions. 

The  objection  that  the  result  of  the  balloting  was  not  announced  by  the 
inspectors,  but  rather  by  the  president  of  the  board  of  education,  has  no  force. 
They  canvassed  the  vote  and  made  and  signed  a  certificate  of  the  result  and 


JUDICIAL  DIXISIONS:       VOTERS  1455 

passed  it  to  the  president  of  the  board,  who  announced  the  result  in  their 
presence  and  at  the  proper  time,  and  the  act  must  be  deemed  to  have  been  their 
own  act. 

The  fifth  objection,  that  the  question  is  not  within  the  jurisdiction  of  the 
Superintendent  of  Public  Instruction,  can  not  be  sustained.  It  was  undoubtedly 
the  intention  of  the  Legislature  to  permit  this  district  to  operate  its  schools  upon 
a  system  peculiarly  its  own ;  but  to  concede  that  it  was  thereby  removed  from 
the  supervision  of  the  State  jiuthorities  would  be  destructive  of  the  educational 
system  of  the  State.     The  action  appealed  from  affirmed. 


INDEX 

Appeals  page 

A   leading  case   in  which   the  jurisdiction   in   general   of   the   Commissioner  of 

Education  is  determined 7 

The  jurisdiction  of  the  Superintendent  is  statewide  covering  all  controversies 
touching  any  oftkial  act  under  the  general  law  or  under  special  statutes 
(3583) 10 

The  Commissioner  of  Education  has  jurisdiction  to  hear  and  determine  an  appeal 
from  the  action  of  the  board  of  education  of  a  city  of  the  second  class 
operating  under  uniform  charters  for  cities  of  such  class  (5384) 12 

An  appeal  will  not  be  entertained  when  the  point  at  issue  has  been  settled  in  a 

court  of  competent  jurisdiction 13 

An  appeal  will  not  be  entertained  when  the  courts  have  acquired  jurisdiction 

through  an  action  brought  thereunder   (3875) 14 

An  appeal  will  not  be  sustained  when  the  papers  are  so  defectively  prepared  and 
so  poorly  arranged  that  an  intelligent  understanding  of  the  case  can  not  be 
obtained  (3754) '5 

To  be  successful  an  appellant  must  show  that  he  is  aggrieved  or  injured  by  the 
act  or  decision  complained  of.  When  the  proof  fails  to  show  that  some 
proper  person  has  sustained  damage  or  injury,  or  that  the  educational  interests 
of  the  district  have  sustained  damage,  the  appeal  will  be  dismissed  (4169) 15 

The  Superintendent  is  without  jurisdiction  over  the  person  charged  with  wrong- 
fully retaining  money  of  the  district.  The  redress  in  such  case  would  be 
obtained  only  through  the  courts  (361 1) '7 

Appeals  will  not  be  entertained  where  the  allegations  are  vague  and  indefinite,  and 

legal  and  comprehensive  proof  is  not  furnished  (3995)  •  •  • '^ 

An  appeal  will  be  dismissed  when  it  is  not  taken  until  four  months  after  the  per- 
formance of  the  act  complained  of,  and  sufficient  excuse  for  the  delay  is 
not  given  (3601 ) '9 

An  aggrieved  party  over  the  issuance  of  a  tax  list  should  bring  an  appeal  imme- 
diately after  such  list  has  been  issued.  A  delay  until  the  collection  of  such  tax 
is  enforced  is   fatal    (5008) ••         '9 

An  appeal  involving  the  right  of  a  teacher  under  a  contract  who  has  been  dis- 
missed, not  having  been  taken  within  a  reasonable  time  and  sufficient  reason 
not  having  been  given  for  such  delay,  will  be  dismissed  (3628) 21 

An  appeal  not  brought  within  thirty  days  will  not  be  entertained  unless  the  delay 

is  excused  for  satisfactory  reasons   (3963) ^- 

An  appeal   involving  claims   for   damages   under  a   contractual   right,  when   the 

extent  of  the  damages  is  indefinite  and  uncertain,  will  be  dismissed  (3963) 22 

The  power  of  the  Commissioner  of  Education  to  grant  rehearings  on  appeals 

generally  considered    (3So8) ^ 

When  an  appeal  has  been  decided  it  will  not  be  reopened  except  upon  the  ground 
of  newly  discovered  evidence,  and  when  testimony  not  contained  in  the  original 
appeal  is  offered,  it  must  be  shown  that  such  testimony  was  not  known,  or 
could  not  have  been  procured,  by  the  appellants  at  the  time  the  appeal  was 
brought    (3508) ................        2 

A  district  meeting  may  allow  a  claim   for  legal  services  by  a  district  officer  in 

defending  an  appeal   (3940 *■' 

[I4.^7l 


1458  THE    UNIVERSITY   OF   THE   STATE   OF    NEW    YORK 

Appeals  —  continued  page 

The  costs  and  expenses  incurred  in  an  appeal  can  not  be  allowed  by  a  district 
meeting  unless  the  appeal  was  instituted  by  a  school  officer  in  his  official 
capacity    (3983) 28 

When  a  district  meeting  appoints  a  committee  to  represent  the  district  upon  a 
proceeding  before  the  county  judge,  the  charges  for  services  of  counsel,  if 
exorbitant,  will  not  be  allowed  and  a  committee  is  not  entitled  to  compensation 
for  its  services  (3558) 29 

The  expenses  of  a  member  of  a  board  of  education  in  defending  an  action  brought 
against  him  in  his  official  capacity  are  chargeable  against  the  district,  if 
reasonable  (3399) 31 

In  an  appeal  showing  that  a  district  officer  defended  an  appeal  from  his  official 
acts,  and  he  was  charged  with  improper  and  illegal  action,  a  reasonable 
expense  in  defending  such  appeal  may  be  allowed  by  the  State  Superintendent 
(4652)    33 

An  appeal  showing  the  distinction  between  the  provisions  of  the  Consolidated 
School  Law  of  1894,  relating  to  the  expenses  of  district  officers  in  defending 
suits  or  appeals,  and  the  provisions  relating  to  the  prosecution  or  defense  of 
school  officers  in  actions  or  proceedings  in  the  courts  of  the  State  (4507) 36 

The  qualified  voters  of  a  district  meeting  may  authorize  a  tax  levy  to  pay  the 
expenses  incurred  by  district  officers  in  defending  suits  or  appeals  brought 
against  them  for  their  official  conduct  (4890) 40 

An  appeal  will  not  lie  from  the  failure  of  a  board  of  education  to  conform  to 
the  order  of  supervisors  in  equalizing  the  tax  in  a  district  comprising  a 
portion  of  two  or  more  towns,  unless  the  appellant  is  injuriously  affected  by 
the  action  of  the  board  (5433) 43 

The  Commissioner  of  Education  will  not  make  an  allowance  for  costs  in  appeal 

cases  as  the  law  does  not  authorize  it  (5245).    School  districts,  Boundaries  of.       692 

The  Department  will  not  interfere  in  a  matter  in  which  the  courts  have  acquired 

jurisdiction  (3974) .     Sites 967 

When  an  appeal  from  a  tax  list  is  not  promptly  taken  and  not  until  after  a  col- 
lector's bond  has  been  filed  and  the  tax  collected,  the  appeal  will  be  dismissed 
(3950) .      Tax    lists gr,8 

Where  an  act  complained  of  is  a  continuing  one,  an  appeal  may  be  taken  any 

time  during  such  continuance    (3576) .     Trustees 1244 

Where  the  issue  in  an  appeal  is  the  regularity  of  the  annual  meeting  and  the 
trustee  elected  resigns,  such  action  does  not  affect  the  status  of  the  appeal 
(5429) .     Voters 1439 

An  appellant  is  estopped  from  complaining  of  action  taken  at  a  district  meeting 

at  his  request  (3787).    Tax  lists 991 

Assessments 

Personal  property  under  the  management  of  executors  or  administrators  must 

be  assessed  in  the  district  where  such  executors  or  administrators  reside 46 

When  a  special  meeting  votes  a  tax  for  building  a  new  schoolhouse,  adjourns  for 
four  weeks  to  consider  proposals  for  building,  and  at  the  adjourned  meeting 
the  district  votes  to  rescind  the  vote  authorizing  such  tax,  such  vote  to  rescind 
is  legal  and  valid  even  though  the  tax  list  has  been  made  out  and  a  part  of 
the  tax  paid 46 

District  trustees  do  not  have  the  power  to  review  in  their  discretion  assessments 
made  by  the  town  assessors.  The  power  of  trustees  to  assess  property  is  only 
incidental  to  their  general  functions  and  is  restricted  to  cases  of  emergency 
or  to  correct  undisputed  errors  (5240) 47 


INDEX   TO   JUDICIAL   DECISIONS  I459 

Assessments  —  continued  page 

Property  which  is  held  by  the  courts  to  be  exempt  from  ascsssment  for  State, 
county  and  town  purposes  is  also  exempt  from  taxation  for  school  district 
purposes     (5381 ) 52 

The  Education  Department  can  not  afford  equitable  relief  from  erroneous  assess- 
ments paid  long  before  the  appeal  was  instituted.  Relief  in  such  cases  must 
come  through  the  courts  (3967) 53 

The   rule   determined   as  to  the  assessment  of   land   lying   in   one   body    (5166, 

3935,    3931) 54,56,57 

An  application  of  the  provisions  of  the  Education  Law  relative  to  the  assessment 
of  lands  owned  by  the  United  Society  of  Shakers  which  lie  in  one  body  but 
in  different  school  districts  (3680,  3700,  3762) 58,  61,  63 

When  several  tracts  of  land  lying  in  one  body  and  occupied  by  one  owner,  but 
located  in  different  school  districts,  should  be  assessed  in  one  school  district 
(4330,  4356)    65,  67 

When   different  parcels  of  land  are  owned  by  one  person  and  located   in  two 

districts,  they  are  assessable  in  each  of  the  school  districts   (3730) 70 

Trustees   are   required   to    follow  the  town  assessment   rolls,    if   such   rolls   are 

correct  in  making  school  district  assessments   (3703) 71 

The  general  rule  laid  down  as  to  the  assessment  of  land  lying  in  one  body  and 

occupied  by  one  person    (4209,  381 1) 7-,  74 

The  general  rule  as  to  the  assessment  of  land  which  lies  in  one  body  but  is 

located  in  different  districts,  and  is  separated  by  railroad  property   (4351) 75 

When  property  is  transferred  from  one  district  to  another  by  proper  order,  but 
such  order  does  not  take  effect  until  three  months  hence,  the  property  to  be 
transferred  is  subject  to  taxation  in  the  district  from  which  it  is  transferred 
prior  to  the  date  on  which  the  order  becomes  operative 79 

A  person  whose  place  of  residence  is  divided  by  a  town  line  may  elect  in  which 

of  the  two  towns  he  will  pay  his  tax  for  school  purposes  (3723) 80 

In  the  assessment  of  railroad  property,  trustees  are  required  to  take  the  valuation 

fixed  thereon  by  town  assessors  (3538) 80 

The  action  of  trustees  in  raising  the  valuation  of  a  piece  of  property  from 
$2500  to  $5000,  without  giving  notice  to  the  party  against  whom  such 
property  was  assessed,  is  illegal   (3946) 81 

The  law  provides  for  an  exemption  of  ministers  of  the  gospel  to  the  amount 
claimed  from  the  value  of  the  property,  real  and  personal,  or  either,  if  the 
valuation  thereof  exceeds  $1500.  In  an  appeal  by  a  minister,  involving  this 
proposition,  he  must  show  in  his  papers  the  property  of  which  he  is  pos- 
sessed in  the  district  and  elsewhere   (4006)    81 

A  tax  upon  personal  property  will  be  set  aside  when  it  appears  that  a  trustee 
made  an  original  assessment  and  did  not  give  to  the  party  assessed  twenty 
days'  notice  of  such  assessment  before  delivering  the  tax  list  to  the  collector 

•  (3551)  :•••:•      ^- 

The  exemption  of  certain  property  of  ministers  of  the  gospel  from  taxation  is 
intended  only  for  persons  who  are  acting  as  such  and  who  derive  their 
support  from  such  employment   (3857)   ^ 

Wlien  the  town  assessors  have  settled  the  question  of  valuation  it  must  not  be 
reopened  by  trustees  because  such  officers  are  of  the  opinion  that  it  is  wrongly 

determined    (4163^^).      Tax    lists 1006 

Board  of  education 

A  board  of  education  is  not  authorized  by  law  to  borrow  money  to  meet  the 
general  expenses  of  maintaining  school,  except  as  specinlly  provided  by  law. 
A  board  of  education  is  not  authorized  to  incur  a  lialiility  in  excess  of  the 
appropriations  voted  by  the  district  or  authorized  by  law  (5202) 86 


1460  THE    UNIVERSITY   OF   THE   STATE   OF    NEW    YORK 

Board  of  education  —  continued  face 

A  board  of  education  will  not  be  permitted  to  delay  the  execution  of  directions 
from  a  district  meeting  or  to  thwart  the  expressed  wishes  of  a  majority  of  the 
legal  voters  of  the  district  by  calling  special  meetings  to  pass  upon  questions 
which  the  district  has  already  decided  three  times    (5187) 87 

The  Commissioner  of  Education  will  not  interfere  with  the  action  of  a  board  of 
education  whose  business  transactions  have  not  conformed  strictly  to  the 
statutes  through  lack  of  knowledge,  when  it  is  shown  that  the  board  acted 
honestly  and  in  good  faith  and  gives  full  publicity  to  the  voters  of  the  district 
of  its  transactions,  and  takes  prompt  action  to  correct  its  errors  as  soon  as 
such  board  understands  the  law  (5289) 91 

The  authorities  of  a  school  district  are  legally  obligated  to  exercise  control  of  the 
expressions  and  the  business  management  of  a  publication  which  is  held  out 
to   represent  the  school    (5142) 94 

The  members  of  a  board  of  education  will  not  be  removed  upon  petition  unless  it 
is  shown  that  the  conduct  complained  of  has  been  wilful  and  intentional.  A 
board  of  education  may  issue  certificates  of  indebtedness  in  anticipation  of 
taxes  levied  but  uncollected    (5161) 95 

An  appeal  in  which  the  method  of  procedure  of  increasing  the  number  of  mem- 
bers of  a  board  of  education  at  an  annual  meeting  is  determined  (5420) 99 

Where  the  action  of  an  annual  meeting  in  increasing  the  number  of  members 

of  a  board  of  education  is  held  to  be  null  and  void  (4276) 102 

The  method  of  voting  to  increase  or  diminish  the  number  of  members  of  a 
board  of  education  must  be  by  taking  and  recording  the  ayes  and  noes  of  the 
voters  present  and  voting  (5018) 105 

The  number  of  members  of  a  board  of  education  of  a  union  free  school  district 
can  not  be  less  than  three  or  more  than  nine.  The  clerk  of  a  board  of  educa- 
tion of  a  union  free  school  district  is  appointed  by  the  board  and  also  acts  as 
clerk  of  the  district    (4896) 107 

An  appeal  in  which  the  method  of  filling  vacancies  in  a  board  of  education  is 

generally  discussed  and  determined  (4404) 108 

A  member  of  a  board  of  education  temporarily  absent  from  the  district,  but  not 
having  removed  therefrom,  did  not  cease  to  be  a  resident  or  inhabitant  of  the 
district,  and  the  action  of  the  board  in  declaring  the  office  vacated  was  illegal 
and    void    (4128) iii 

A  general  interpretation  of  the  Education  Law  as  to  the  right  of  a  board  of 

education,  and  the  method  by  which  such  board  may  fill  vacancies  (4749) 114 

An  application  of  the  law  regulating  the  power  of  boards  of  education  to  fill 

vacancies  thereof   (4343) 117 

The  power  of  a  board  of  education  to  appoint  members  thereof  fully  discussed 

and    determined    (3314) 119 

The  duty  of  a  board  of  education  of  a  city  in  relation  to  opening  and  maintaining 

the  schools  is  fully  determined  (4584) .'.       121 

A  board  of  education  can  not  limit  the  class  of  persons  who  have  reached  the 
required  standard  of  learning  and  ability  to  teach,  from  which  the  teachers 
of  the  school  may  be  selected  (3493).     Teachers  contracts 1210 

A  board  of  education  should  give  greater  weight  to  the  opinion  of  physicians 
officially  charged  with  responsibility  concerning  public  health  than  to  the 
opinions  of  other  physicians  not  charged  with  such  official  responsibility 
(5363)-     (See  Pupils,  expulsion  of) 506 

An  appeal  which  considers  generally  the  law  relative  to  methods  of  voting  in 
union  free  school  districts,  increasing  and  decreasing  the  members  of  the 
board,  etc.     It  is  also  held  that,  where  a  board  consists  of  three  members 


INDEX   TO    JUDICIAL   DECISIONS  I461 

Board  of  education  —  continued  page 

and  the  increase  in  the  number  thereof  was  illegally  made,  the  election  of 

such  trustee  is  void.      (4487) 126 

An   appeal   which    fully   discusses   and   determines   the    method    of   procedure    in 

increasing  the  number  of  members  of  a  board  of  education  (4465).     Meetings      368 
A  minority  number  of  a  board   of   education   may  transact  the  business   of   the 
board  when  vacancies  exist  in  the  majority  of  the  members  of  such  board 

(3793)  •     Officers 435 

It  is  the  duty  of  a  member  of  a  board  of  education  upon  hearing  that  a  disturb- 
ance of  a  serious  nature  is  threatened  in  the  school  not  only  to  notify  the 
teacher  and  advise  him  to  send  for  a  constable,  but  to  remain  at  the  school 
and  see  that  the  peace  is  kept  and  the  order  of  the  school  and  community 

maintained    (3504).     Teachers   contracts 11 18 

A  board  of  education  has  not  the  authority  to  give  direction  to  teachers  as  to  the 
method  of  instruction  which  shall  be  pursued,  or  to  give  orders  to  a  teacher 
or  otherwise  interfere  with  recitations  in  the  schoolroom   (4294).     Teachers 

contracts  1201 

An  appeal  which  interprets  generally  the  right  of  a  board  of  education  to  modify 

rules  which  it  has  prescribed  (3631)-    Textbooks 1227 

Boards  of  education  or  trustees  have  not  the  right  to  make  a  contract  with  the 
teacher   to    furnish   instruction   to   certain   children   upon   the   condition   that 

such   children   shall    pay   tuition    (3764)  •     Tuition I330 

Branch  schools 

Whenever  a  sufficient  number  of  children  are  debarred  from  attending  school  by 
reason  of  the  distance  which  they  are  required  to  travel,  the  establishment  of  a 

branch  school  will  be  authorized  (4164 ^^2 ) I35 

When  a  trustee  exercises  an  unwise  discretion  in  relation  to  the  establishment  of 

a  branch  school,  his  action  will  be  overruled  on  an  appeal 136 

It  is  the  duty  of  the  trustees  to  establish  a  branch  school  when  the  facts  show 
that  it  is  necessary  for  the  due  accommodation  of  the  children  living  in  a 

remote   part  of  the   district    (4340 ^^^ 

When  the  district  has  maintained  a  branch  school  for  two  years  and  at  the  close 
of  that  period  the  conditions  are  the  same  as  when  the  said  school  was 
authorized,  it  is  proper  and  legal  for  the  retiring  trustee  to  make  the  same 
provision  for  continuing  the  branch  school  that  he  may,  under  the  law,  make 

for  the  continuance  of  the  regular  school  district  (5178) •  •  •       '39 

A  trustee  may  establish  a  branch  school  without  regard  to  the  previous  action 
of  a  district  meeting,  but  a  branch  school  should  not  be  established  unless  a 
considerable  number  of  children  are  to  be  accommodated  thereby.  A  branch 
school  should  not  be  established  to  accommodate  three  children  of  a  single 

taxpayer    (5402)    j :"       ^'^^ 

When  a  branch  school  is  established,  the  trustees  of  the  district  may  determine 

what  pupils  of  the  district  shall  attend  such  school  (5405) '45 

Building  committee 

The  law   does   not  authorize  the   appointment  of   a   building  committee.     Such 

committee  can  act  only  in  an  advisory  capacity  (3621 ) •  •  • '47 

There  is  no  legal  objection  to  trustees  employing  members  of  the  building  com- 
mittee to  work  for  the  district  (3621) ••••       ^^^ 

A  building  committee  has  not  the  authority  to  interfere  with  the  trustee  of  the 

district  in  the  construction  of  a  school  building •       '48 

An  annual   meeting  may  accept  repairs  made  by  a  building  committee  if  such 

repairs  were  authorized  and  if  the  cost  of  the  same  is  not  exorbitant  (5227) .  •       I49 


1462  THE    UNIVERSITY   OF   THE   STATE   OF    NEW    YORK 

Building  committee — continued  pagi 

A  district  meeting  can  not  delegate  to  a  building  committee  the  power  to  appoint 
a  member  of  such  committee  to  carry  out  the  wishes  of  the  district  in  case 
the  committee  can  not  agree   (3301 ) 150 

A  building  committee  may  advise  trustees  or  make  suggestions  as  to  the  procedure 
in  erecting  a  building  but  can  act  in  an  advisory  capacity  only  (5179). 
Schoolhouses    810 

An  appeal  in  which  the  powers  generally  of  a  building  committee  and  the  status 

of    such    committee    are    determined    (3648) .      Schoolhouses 830 

Compulsory  education 

This  is  an  appeal  in  which  the  duties  of  the  trustee  in  relation  to  the  enforcement 
of  the  Compulsory  Educaton  Law  are  discussed  and  determined  (5286). 
Officers,  removal  of 443 

When  a  pupil  is  expelled  from  school  and  is  within  the  compulsory  school  age,  it 
is  the  duty  of  the  trustee  to  proceed  against  such  pupil  and  see  that  he  is 
committed  to  a  proper  institution  where  suitable  and  lawful  instruction  will 

be  provided   (5253).     Pupils,  expulsion  of 499 

Contract  system 

A  leading  case  discussing  the  general  provisions  of  the  contract  system  and  the 

obligation  of  parents  to  provide  school  facilities  for  their  children   (5219)...       151 

It  is  the  settled  policy  that  districts  which  contract  must  provide  suitable  trans- 
portation for  the  children  who  live  so  far  from  the  schoolhouse  which  they 
must  attend  as  to  be  unable  to  walk  to  and  from  school  daily  (5241) 155 

The  Commissioner  of  Education  will  not  interfere  with  the  action  of  a  district 
in  voting  to  determine  whether  or  not  a  contract  shall  be  made  for  the 
education  of  their  children.  It  has  been  the  settled  policy  of  the  Department 
for  years  to  encourage  the  maintenance  of  home  schools  (5427) 156 

The  law  requires  the  vote  authorizing  a  contract  for  the  education  of  the  children 
of  a  district  to  be  taken  by  recording  the  ayes  and  noes  of  the  qualified 
voters  present  and  voting    (4499) 158 

The  vote  authorizing  a  contract  for  the  education  of  the  children  of  a  district 
must  be  a  majority  of  those  present  and  voting.  Money  raised  by  a  tax  for 
school  expenses  for  the  ensuing  year  may  legally  be  used  to  meet  the  expenses 
incurred  by  a  district  when  such  district  has  adopted  the  contract  system 
(5220)    160 

When  a  district  authorizes  the  education  of  its  children  in  another  district  under 
the  contract  system,  a  written  contract  must  be  executed.  The  money  which 
a  district  receives  from  the  State  may  be  used  in  the  payment  of  tuition 
of  pupils  and  any  surplus  for  the  transportation  of  children  to  and  from 
schools  where  they  are  taught  (4926) 162 

It  is  the  duty  of  a  trustee  to  execute  a  contract  which  is  authorized  by  a  district 

meeting  for  the  education  of  its  children  in  another  district   (4505) 165 

Trustees  must  provide  safe,  comfortable  and  proper  transportation  for  children 
and  they  are  justified  in  resisting  unreasonable  demands  based  upon  personal 
appeals  (5388)    167 

Schools  may  operate  part  of  the  time  under  the  contract  system  and  part  of  the 
time  by  maintaining  a  home  school.  The  period  of  time  covered  under  the 
contract,  combined  with  the  time  a  home  school  is  maintained,  must  equal 
at  least  160  days.  When  a  district  operates  under  the  contract  system  it  must 
provide  transportation  for  the  children  of  tender  years  who  are  required  to 
travel  long  distances  to  attend  school  (536S) 170 


INDEX    TO    JUDICIAL   DECISIONS  I4b3 

Contract  system  —  continued  page 

When  better  facilities  can  be  afforded  by  contract  with  two  or  more  districts 
instead  of  a  contract  with  one  district,  such  policy  should  be  pursued.     The 

law  encourages  such  policy  by  specifically  authorizing  it  (5375) 17-2 

When  the  district  is  operating  under  the  contract  system,  the  trustee  may 
expend  any  surplus  of  moneys  received  from  the  State,  after  paying  the 
necessary  tuition,  for  the  purpose  of  providing  transportation  for  the  children 

(4924) .      Meetings 363 

Elections 

A  leading  case  setting  forth  the  general  principles  which  are  controlling  in  school 

district  elections   (5218) 175 

Irregularities  in  calling  or  holding  an  election  not  proceeding  from  a  wilful  or 
wrongful  intent  and  not  affecting  the  results  are  not  sufficient  grounds  for 

setting  aside  an  election   (5293) 184 

The  rules  which  are  to  govern  in  cases  where  an  excess  of  ballots  has  been  cast 
for  school  district  officers.     Rules  as  to  the  destruction  of  excess  ballots  at 

general  elections  should  apply  to  school  elections  (5426) 188 

When  two  ballots  are  folded  together  and  it  is  found  that  the  number  of  ballots 
cast  exceeds  the  poll  list  by  one,  the  presumption  is  that  the  vote  is  fraudulent 

and  both  ballots  should  be  rejected  (3564) ^90 

An    appeal    in   which   the   method   of   procedure   is   determined    in   cases    where 

several  ballots  are  folded  together  in  the  ballot  box    (3831) I93 

When  a  ballot  is  being  taken  for  the  election  of  a  trustee  and  votes  are  found 
cast  for  a  person  for  the  office  of  collector,  such  votes  should  not  be  counted 
but,  if  all  the  other  votes  were  for  person  named  for  trustee,  he  should  be 

declared   elected    (5401) ^97 

When  three  trustees  are  to  be  elected  for  a  full  term  and  one  for  the  balance  of 
an  unexpired  term,  the  ballots  must  designate  the  terms  for  which  the  can- 
didates are  to  be  elected.  A  person  who  can  positively  identify  a  ballot  cast 
by  him  for  a  school  officer  will  be  permitted  to  explain  on  appeal  ambiguities 
and  uncertainties  contained  therein  to  the  end  that  his  intent  may  be  ascer- 
tained and  his  vote  counted  in  favor  of  the  candidate  of  his  choice  (5396) . .  19S 
When  it  is  shown  on  appeal  that  all  who  desire  to  vote  at  an  election  were  not 

accorded  that  privilege,  the  election  will  be  set  aside   (5299.  3822) ^ 201,  203 

The  arbitrary  course  of  the  chairman  of  a  district  meeting  in  declaring  himself 

elected  trustee  will  not  be  sustained   (3814) -°-* 

The  result  of  a  district  meeting  will  not  be  set  aside  on  the  mere  charge  of 
illegal   voting.     It   must  be   shown   that  the   illegal   votes   cast   would   have 

changed  the  result  of  the  election  (3656,  3652) 205,  206 

Any  voter  may  freely  challenge  the  right  of  another  offering  to  vote  (3652)....      206 
Where  the  proceedings  of  a  district  meeting  are  characterized  by  such  disorder 
and  confusion  as  to  make  it  clear  that  a  fair  expression  of  opinion  was  not 

obtainable,  the  election  will  be  set  aside  and  a  new  one  ordered  (3820) 207 

The  official  record  of  an  election  will  be  held  as  true  unless  impeached  by  clear 

evidence   (3752) '''"V •        V V ' 

Ille-al  voting  at  school  district  meetings  is  to  be  prevented  by  the  exercise  of  the 

°ri-ht  of  challenge  and  the  exaction  of  the  voter's  oath  as  to  his  qualifications 

and  by  prosecution  of  a  person  who  makes  a  false  affirmation  and  casts  an 

illegal    ballot     (3752) •. ■,■■■■;"■:,"       ^^ 

In  filling  a  vacancy  in  the  office  of  trustee,  a  district  meeting  can  elect  for  the 
unexpired  term  only  and  it  can  not  elect  for  a  shorter  period  than  the 
unexpected  term  (3708)    


1464  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

Elections  —  coiitiuncd  page 

When  a  ticket  voted  at  an  election  for  trustee  contains  a  name  printed  and 
another   name   written,   the   presumption   is   that   the   voter   intended   to   vote 

for  the  latter  and  neglected  to  erase  the  name  of  the  former  (3568) 211 

When  the  ballots  cast  for  trustee  run  two  short  of  the  poll  list  and  two  trustee 
ballots  are   found  deposited  in  another  box,  they  should  be  counted  for  the 

person   whose  name  appeared  thereon    (3568) 211 

An  election  will  be  set  aside  where  it  does  not  appear  that  a  candidate  receives 

a  clear  majority  of  the  legal  votes  cast  (3533) 213 

Where  it  appears  that  an  election  was  determined  by  illegal  votes,  such  election 

will  be  set  aside  and  a  new  election  ordered  (3937) 214 

Method  of  authorizing  the  clerk  to  cast  the  ballot  of  the  district  meeting  where  it 
appears  that  there  is  but  one  candidate  for  an  office  is  not  legal  nor  is  it 
approved.  In  such  cases  the  polls  should  be  open  for  the  reception  of  ballots 
but,  if  it  is  apparent  that  all  present  desire  the  election  of  the  one  candidate 
and  no  objection  is  offered  and  the  chairman  asks  if  all  present  have  voted 
who   desire   to,  the  balloting  may   be  closed  by   unanimous   consent  and  the 

votes  counted  (4395)    • 214 

The  chairman  of  a  district  meeting  has  no  legal  authority  to  declare  officers 
elected  at  such  meeting.  The  duty  of  a  chairman  is  to  declare  to  the  meeting 
the  result  of  each  ballot  as  such  ballot  is  announced  to  him  by  the  inspectors 
of  election  and  the  person  or  persons  having  the  majority  of  votes  respectively 

for  the  offices  voted  for  are  thereby  elected  (4687) 218 

A  school  district  meeting  has  not  the  authority  to  determine  that  a  ballot  taken 

for  the  office  of  trustee  was  illegal  and  order  a  new  ballot  (4302) 221 

A  person  elected  as  trustee  of  a  school  district  by  the  color  or  form  of  an 
election  is  a  de  facto  officer  of  the  district  and,  as  such,  is  authorized  to  and 
required  to  perform  the  duties  of  his  office  until  his  election  is  vacated 
by    a   proper    proceeding   before    the    Superintendent   of    Public    Instruction 

(4302) 221 

The  school  law  does  not  authorize  an  informal  ballot  and,  where  such  ballot  is 
ordered,  it  m.ust  be  regarded  to  be  for  the  purpose  of  obtaining  the  views 
of  the  meeting.     In  such  case,  the  chairman  of  the  meeting  has  no  authority 

to  declare  the  result  of  an  informal  ballot  to  be  an  election  (4375) 224 

An  election  is  illegal  and  void  when  a  person  was  elected  to  fill  an  alleged  vacancy 

and  no  such  vacancy  existed    (4200) 226 

An  election  will  be  set  aside  when  the  successful  candidate  h^  only  one  majority 

and  defective  ballots  have  been  counted  for  him  (4183) 231 

An  election  will  be  set  aside  and  a  new  election  ordered  where  it  appears  that, 
at  an  election  of  a  trustee  at  a  school  meeting,  there  were  rival  candidates 
and  sufficient  opportunity  was  not  afforded  to  get  the  expression  of  the  voters 

present    (3844) 233 

An  appellant  will  be  estopped  from  setting  up  his  claim  to  an  election  under  the 
following  circumstances :  he  was  chosen  trustee  and,  because  but  few  persons 
voted,  he  asked  that  another  election  be  had  in  order,  as  he  said,  to  deter- 
mine the  sense  of  all  voters  present.     This  was  done  and  another  person 

was  elected  (3647) 233 

An  appeal  in  which  the  general  method  of  procedure  as  to  the  counting  of  ballots 
after  an  election  has  been  closed  is   fully  discussed  and  determined    (4261, 

3662)  235,  237 

Irregularities,  mistakes  or  omissions  on  the  part  of  election  officers  will  not 
vitiate  the  election  or  defeat  the  will  of  the  electors  as  shown  by  their 
votes   (4410) 238 


INDEX    TO    JUDICIAL   DECISIONS  I46; 


PAGE 


Elections  —  continued 

School  officers  should  ascertain  the  intent  of  electors  and  give  expression  to 
their  ballot  as  they  intended.  One  Joseph  B.  Johnson  was  named  as  one  of 
two  trustees  and  it  is  not  alleged  that  any  other  person  by  the  name  of 
Johnson  was  a  candidate  and  votes  were  cast  for  Mr  Johnson  and  Johnson, 
such  votes  should  be  counted  for  Joseph  B.  Johnson   (4053) 241 

An  election  will  be  held  to  be  void  where  a  suitable  ballot  box  is  not  provided, 
where  inspectors  of  election  are  not  appointed,  where  a  poll  list  is  not  kept 
by  the  clerk  of  the  meeting  and  the  election  was  not  by  ballot  but  by  a 
viva  voce  vote  (4265) 243 

Where  a  ballot  has  been  taken  for  a  district  officer  and  such  vote  canvassed  by 
the  inspectors  and  the  result  of  the  canvass  announced  and  it  appears  that  a 
candidate  has  a  majority  of  the  votes  cast,  it  is  not  within  the  power  of  the 
meeting  to  order  a  new  ballot   (4379) 245 

The  mere  circumstance  that  improper  votes  are  reveived  at  an  election  will  not 
vitiate  it.  The  fact  must  be  shown  affirmatively  that  a  sufficient  number  of  im- 
proper votes  were  received  by  the  successful  ticket  to  reduce  it  to  a  minority 
if  such  votes  had  been  rejected  or  the  election  must  stand.     (4392,  4315) .  .247.  250 

A  person  knowing  a  person  to  be  unqualified  and  permitting  him  to  vote  without 
challenge  will  not  be  allowed  on  appeal  to  object  to  the  proceedings  of  the 
meeting  because  said  unqualified  person  participated  therein  (4392) 247 

Where  an  election  has  been  held  at  a  school  district  meeting,  the  trustees  chosen 
thereat  have  not  the  power  to  determine  that  they  were  illegally  elected  and 
call  a  new  election  for  the  election  of  other  trustees.  Officers  elected  under 
the  form  and  color  of  an  election  are  entitled  to  perform  their  duties  until  an 
order  of   the   State   Superintendent   declares   such   election  illegal  and   void. 

(4397)     ; •  •  •  • •  •  •       *54 

The  law  requires  a  majority  vote  as  necessary  to  an  election  at  a  district  meeting. 
Where  officers  are  declared  elected  by  a  majority  vote,  the  trustee  has  not 
the  power  after  the  meeting  has  adjourned  to  call  a  special  meeting  for  the 
election  of  officers  on  the  ground  that  the  first  election  was  illegal.  The 
only   authority    to   declare   an    election    illegal    is    the    State    Superintendent. 

(4414)     256 

Where  a  motion  prevails  at  a  district  meeting  to  the  effect  that  the  clerk  shall 
cast  the  vote  of  the  meeting  for  officers  nominated  and  the  clerk  casts  such 
vote  and  an  appeal  is  brought  within  the  prescribed  time,  the  election  will 
be  vacated    (4101 ) ^59 

All  school  district  officers  must  be  elected  by  ballot  in  the  manner  prescribed  by 
the  Education  Law  and  the  persons  having  the  majority  of  votes  respectively 
for  offices  shall  be  elected   (4281 ) _ _■  •  •       262 

The   general   procedure   under   which   an    election   at   a   school    district    meeting 

should  be  conducted   (4881) 265 

Where  a  person  is  elected  to  the  office  of  collector  and  is  ineligible,  but  sucli 
ineligibility  is  not  known  at  the  time  of  the  election,  the  opposing  candidate 
can  not  afterward  be  declared  elected.  A  new  election  must  be  ordered 
(3448)    ■ 268 

Upon  evidence  tending  to  show  that  illegal  ballots  were  cast  at  an  election  for 
officers  of  a  school  district,  it  will  not  be  assumed  that  the  illegal  votes  were 
cast  for  the  successful  candidates •  •  •      269 

The  fact  that  the  votes  of  persons  not  qualified  were  received  at  a  school  meeting 
and  in  a  ballot  taken  thereat,  will  not  vitiate  such  ballot  but.  to  warrant  the 
setting  aside  of  such  ballot,  it  must  appear  confirmatively  that  the  resolution 
and  ballot  have  received  a  sufficient  number  of  improper  votes  to  reduce 
such  vote  to  a  minority  if  the  improper  votes  had  been  rejected  (4407) -7<i 


1466  THE   UNIVERSITY   OF   THE   STATE   OF    NEW    YORK 

Elections  —  continued  p^^e. 

An  appeal  in  which  the  general  qualifications  of  voters  are  determined  and  in 
which  the  question,  real  property,  is  fully  considered.  The  term  "  real 
property,"  as  used  in  the  Education  Law,  may  mean  a  small  parcel  of  land, 
a  tract  of  many  acres,  a  room,  a  fiat,  a  dwelling  house,  a  city  block  and  the 
rent  may  be  payable  in  work,  money,  taxes  or  improvements   (4930) 274 

in  a  school  district  election,  the  chairman  and  clerk  of  the  meeting  can  not  legally 
act  as  inspectors.  Two  qualified  voters  of  the  district  must  be  appointed  as 
inspectors  in  such  manner  as  the  meeting  may  determine   (4885) 277 

In  a  district  election,  the  ballots  for  trustee  need  not  necessarily  contain  the 
caption,  "  for  trustee,"  and  the  action  of  a  chairman  in  declaring  ballots 
illegal  which  did  not  contain  such  caption  will  be  set  aside  (4366) 279 

At  the  annual  school  meeting  in  a  common  school  district,  where  the  trustee  is 
elected  by  ballot  and  the  result  announced  and  one  of  the  candidates  voted 
for  has  a  majority  of  the  votes  cast,  it  is  beyond  the  power  of  the  meeting 
to  authorize  another  ballot  (4371 ) 281 

A  person  receiving  a  majority  of  the  votes  cast  for  trustee  will  be  held  to  have 
waived  his  right  to  the  office  by  participating  without  a  protest  in  a  second 
ballot  upon  which  another  trustee  is  chosen  (3711,  3713,  3736) 283,284,285 

An  appeal   which  discusses  and  determines   the  general  procedure  in   elections, 

challenging  votes,  etc.  at  district  meetings  (4271,  4293,  4370,  4399).  Meetings.      402, 

406,  410,  411 
Equalization  of  values  and  apportionment  of  railroad  values 

Apportionment  of  railroad  property  generally  discussed  and  determined   (3490)  . .       286 

General  discussion  of  the  powers  of  supervisors  to  equalize  assessed  valuations 

of   school  districts    (5446) 287 

Supervisors  have  not  the  power  to  change  values  as  fixed  in  town  assessment 
rolls.  They  may  only  determine  what  proportion  of  a  district  tax  shall  be 
paid  by  each  town  forming  a  joint  district  (3550) 289 

An  appeal   showing  the   conditions   on  which  the   action   of   the   supervisors    in 

equalizing  values  will  be  set  aside   (3763) 290 

An  appeal  in  which  the  duties  of  town  assessors  in  relation  to  the  apportionment 
of  value  of  railroad,  telegraph,  telephone  and  pipe  line  companies'  property 

is  fully  discussed  and  determined  (4358) 292 

Libraries 

Trustees  may  exchange  old  library  books  for  new  ones.  That  part  of  a  district 
library  which  was  purchased  by  a  tax  on  property  of  the  district  belongs 
to  the  district  and  may  be  disposed  of  by  its  voters  as  they  shall  direct. 
That  part  of  the  library  purchased  with   funds  apportioned  by  the  State   is 

the  property  of  the  State  and  can  not  be  disposed  of  by  the  district 295 

Meetings 

An  appeal  which  discusses  in  a  general  way  the  powers  of  school  district  meetings 

and  the  procedure  thereat  (5151) 296 

A  board  of  education  should  have  some  definite  system  for  calling  special  meet- 
ings and  for  the  transaction  of  its  business.  It  is  not  proper  for  a  board  of 
education  to  designate  some  one  not  a  resident  of  the  district  to  call  its 
meetings.  Meetings  should  generally  be  called  by  the  clerk  of  the  board 
(5153)    301 

The  regularity  of  an   annual  meeting  must  hs  determined  by  the  Commissioner 

of  Education    (5430) 302 

A  district  meeting  has  not  the  authority  to  authorize  an  appropriation  to  provide 
for  the  expenses  of  a  trustee  in  taking  a  trip  to  Albany  to  look  after  tin: 
welfare  of  the  district,  where  no  action  or  appeal  is  pending   (5434) 304 


INDEX    TO    JUDICIAL   DECISIONS  I467 

Meetings  —  continued 

PAGE 

When  a  schoolhouse  has  been  destroyed  by  fire,  it  is  the  duty  of  the  trustee  to 

call  immediately  a  special  meeting  of  the  district   (3765) 305 

The  failure  to  adjourn  a  district  meeting  properly,  terminates  the  meeting  and 
has  the  same  effect  upon  the  meeting  as  an  adjournment  without  date 
(5147)    306 

Notice  of  an  adjourned  annual  meeting  is  not  required  when  such  meeting  has 
adjourned  for  less  than  thirty  days.  An  adjourned  meeting  may  transact  any 
business  which  might  legally  be  transacted  at  an  annual  meeting  (5300) 307 

In  certain  instances  the  judgment  of  the  voters  of  the  district  as  to  the  necessity 

of  erecting  a  higher  fence  around  the  school  grounds,  is  conclusive  (5287) 310 

The  majority  of  the  voters  of  a  district  can  not  impose  upon  the  minority  by 

assuming  an  improper  and  illegal  claim  against  the  district  (5190) 311 

The   district  can  not  vote  a  tax  to  reimburse  the  bondsman  of  a  collector   for 

moneys  lost  by  the  collector,  and  paid  by  them  (3304) 313 

This  Department  will  not  interfere  with  the  action  of  a  district  meeting  where 
such  action  appears  to  have  been  legal  and  regular,  and  where  good  cause  is 
shown  to  demand  such  action    (5192) 314 

The  Department  uniformly  refuses  to  interfere  with  the  action  of  a  district  meet- 
ing legally  and  regularly  taken,  unless  it  is  shown  that  such  action  is  detri- 
mental to  the  interests  of  the  district,  or  imposes  a  hardship  upon  a  resident 
of  the  district  desiring  relief   (5188) 316 

An  annual  meeting  of  a  union  free  school  district  whose  boundaries  do  not 
coincide  with  the  boundaries  of  an  incorporated  village  or  city  can  not 
change  the  number  of  trustees  unless  notice  is  given  that  the  proposition  will 
be  brought  before  the  annual  meeting  for  consideration   (5208) 3^7 

A  chairman  of  a  district  meeting,  if  he  is  a  qualified  voter,  is  entitled  to  vote 
when  the  ballot  is  taken  upon  any  question  before  the  meeting;  he  has  not 
the  right  to  vote,  after  the  result  has  been  ascertained,  for  the  purpose  of 
breaking  a  tie   (3910) 320 

The  Department  must  not  be  expected  to  grant  relief  to  persons  who,  through 
their  own  neglect  or  indifference,  do  not  attend  school  meetings  until  long 
after  the  hour  designated  (3909) 3-^ 

Failure  to  give  notice  of  the  time  and  place  for  holding  the  annual  meeting  would 

not  vitiate  the  proceedings  of  the  meeting  (31908) 3~~ 

The  action  of  trustees  in  refusing  to  call  a  special  meeting,  when  no  apparent 

benefit  would  come  to  the  district  by  such  meeting,  would  be  sustained  (3905)       3-- 

The  authorities  of  a  district  will  be  directed  to  call  a  special  meeting  for  the  pur- 
pose of  determining  on  the  construction  of  a  new  schoolhouse  and  to  consider 
the  change  of  the  site,  when  a  request  is  made  by  a  sufficient  number  of  the 
inhabitants  of  the  district  (3855) ;  •       3-3 

The  Department,  when  asked  to  set  aside  the  proceedings  of  school  meetings,  will 

always  inquire  in  the  bona  fides  thereof,  if  a  greater  hardship  may  be  imposed 

upon  individuals  by  the  setting  aside  or  sustaining  such  proceedings    (4327)-      3-^4 

Proceedings    of   a   district   meeting   will   not   be   disturbed    when    regularly   and 

fairly  taken  at  the  proper  time,  only  for  the  reason  that  absent  voters  did 

not  attend  at  the  time  designated  (3810) • 327 

Proceedings  of  a  district  meeting  involving  important  matters,  marked  by  riotous 

conduct  and  confusion,  will  be  set  aside  (3699) ^ 

A  district  meeting  has  the  authority  to  make  an  appropriation  of  funds  for  tiie 

purpose  of  providing  instruction  in  vocal  music  (3710) 329 

Where  the  clerk  named  a  wrong  hour  in  his  notice  of  an  annual  meeting  and  part 
of  the  residents  assembled  at  that  hour,  and  transacted  business,  and  part 


1468  THE   UNIVERSITY    OF    THE   STATE   OF    NEW    YORK 

Meetings  —  continued  page 

assembled  at  the  hour  of  adjournment  and  transacted  business,  both  meetings 
will   be   vacated 330 

If  a  portion  of  the  inhabitants  of  a  district  meet  at  the  time  and  place  designated 
and,  after  waiting  a  reasonable  time  for  the  presence  of  the  trustee  and  clerk, 
organize  the  meeting  and  transact  the  business,  and  a  second  meeting  is 
held  later  by  other  residents,  the  second  meeting  will  be  vacated  (3726) 331 

A  sole  trustee  should  call  a  special  meeting  when  requested  by  a  reasonable  number 
of  the  voters  of  the  district,  to  consider  plans  for  buildings,  etc.  even  after 
a  site  has  been  secured  and  plans  adopted  (3563) 331 

If  an  annual  meeting  is  held  at  the  schoolhouse  as  the  law  requires,  even  though 
there  is  an  irregularity  in  the  notice  of  the  meeting  which  has  not  resulted 
in  misleading  the  electors  of  the  district,  the   meeting  will  not  be  vacated 

(3919)    332 

A  special  meeting  called  by  a  notice  of  but  two  days  will  be  vacated  (3924) 333 

An  appeal  in  which  the  right  of  voters  to  rescind  a  former  resolution  authoriz- 
ing the  construction  of  a  school  building  is  determined  (3925) 334 

Where  a  great  majority  of  the  inhabitants  meet  where  school  has  been  taught 
and  where  previous  meetings  of  the  district  have  been  held  and  transact 
business  of  the  district,  the  action  will  be  sustained  even  if  a  few  electors 
of  the  district  assembled  at  another  place  and  transacted  business  (3926) 335 

Where  an  inhabitant  of  a  joint  district  is  inequitably  assessed,  his  remedy  is  not 
by  an  alteration  of  the  district  but  by  a  proceeding  as  the  law  directs  for  the 
proper  adjustment  of  the  inequality,  and  then  if  necessary  to  file  an  appeal 
(3569)    336 

The  proceedings  of  a  meeting  will  not  be  set  aside  because  a  number  of  voters 
who  knew  of  the  meeting  did  not  attend,  or  because  some  who  attend  did 
not  vote,  or  because  a  prepared  list  of  the  voters  was  incomplete    (3564) . .       338 

The  proceedings  of  a  district  meeting  will  be  vacated  when  it  appears  that  service 

of  notice  upon  a  majority  of  the  voters  was  intentionally  omitted  (3560) ....       339 

The  proceedings  of  a  meeting  will  not  be  vacated  when  transacted  in  an  orderly 
manner  because  certain  voters  of  the  district  remained  on  the  outside  of  the 
room  and  until  the  proceedings  objected  to  had  been  concluded   (3552) 340 

The  proceedings  of  an  alleged  annual  meeting  will  be  set  aside  where  a  long 
established  custom  in  the  district  for  calling  the  people  to  assemble  had  been 
purposely  and  intentionally  omitted,  and  thus  enabling  a  small  majority  of 
those  intending  to  be  present  to  transact  the  business  of  the  meeting  (4000) . .       341 

Where  a  majority  of  the  electors  of  the  district  are  misled  as  to  the  hour  of 

the  meeting,  the  proceedings  of  such  meeting  will  be  set  aside  (3991)... 343 

A  meeting  will  be  sustained  where  the  evidence  offered  as  to  the  irregularities  is 

unsatisfactory  and  contradictory  (3953) 343 

The  proceedings  of  an  annual  meeting  will  be  set  aside  on  the  ground  that  the 

meeting  was  disorderly  and  disgraceful   (3655) 345 

A  district  meeting  may  adjourn  from  time  to  time  and  may  transact  any  business 
at  the  adjourned  meeting  which  it  could  have  transacted  at  the  first  meeting 
held  under  the  call  (3593) 345 

The  proceedings  of  an  annual  meeting  will  not  be  disturbed  upon  an  appeal 
because  notice  thereof  was  not  given  and  the  person  who  acted  as  chairman 
was  not  a  voter,  nor  for  other  irregularities  not  sustained  by  competent 
proof  (3S41)   346 

The  proceedings  of  an  annual  meeting  will  be  set  aside  when  it  appears  that  a 
large  number  of  legal  voters  of  the  district  were  unable  to  gain  admission  to 
the  meeting    (3741 ) 348 


INDEX    TO    JUDICIAL   DECISIONS  I469 

Meetings  —  continued 

TU  •  PAGE 

Ihe  action  of  the  district  in  awarding  a  contract  for  wood  for  the  ensuing  year 

to  the  lowest  bidder  is  sustained  (3740) 349 

No  legal  authority  exists  for  holding  a  district  meeting  before  the  hour  designated 
by  law,  and  no  obligation  rests  upon  the  qualified  voters  who  may  have  as- 
sembled at  .the  proper  hour  to  wait  for  others  before  organizing  the  meeting 
(4406)    350 

An  appeal  in  which  the  method  of  giving  notice  of  meetings  in  union  free  school 

districts  is   fully  determined    (4889) 356 

The  proceedings  of  a  meeting  will  be  vacated  and  a  new  meeting  ordered,  when 
such  meeting  is  convened  before  the  specified  hour,  and  business  transacted 
(5094)    359 

The  voters  at  an  annual  meeting  in  a  union  free  school  district  have  authority  to 
direct  the  board  of  education  not  to  defend  an  action  brought  in  the  courts 
against    the    district    (4922) 360 

A  school  district  meeting  has  authority  under  the  law  to  alter,  repeal  or  modify 

its  proceedings  from  time  to  time  as  action  may  require  (4924) 363 

The  trustee  of  a  school  district  should  call  a  special  meeting  for  the  transaction 
of  any  proper  business  when  petitioned  therefor  by  a  reasonable  number  of 
the  inhabitants  of  the  district    (4445) 366 

An  appeal  which  determines  the  method  of  voting  at  a  school  district  meetini; 

(4465)   368 

While  the  action  for  a  special  meeting  must  be  of  sufficient  importance  to  warrant 
the  trustee  in  assembling  the  inhabitants,  on  the  other  hand  the  trustee  should 
not  refuse  or  neglect  to  call  a  special  meeting  when  the  interests  of  the  dis- 
trict plainly  demand  it  (4497) 376 

The  chairman  of  a  meeting  will  be  sustained  in  declaring  the  meeting  adjourned 
when  such  meeting  becomes  so  noisy  and  disorderly  that  the  transaction  of 
business  is  impossible  (4504) 378 

An  appeal  which  discusses  the  notice  of  meetings  in  districts  organized  under 
special  acts  and  which  also  determines  an  application  of  the  uniform  ballot 

law  (3513) 3^^ 

Bad  spelling  in  a  notice  of  a  meeting  will  not  invalidate  the  proceedings  thereof. 

nor  will  failure  to  give  proper  notice  to  every  voter  of  the  district  (3534)  ■  •  •  •       386 

When  the  person  calling  a  meeting  to  order  arbitrarily  prevents  the  meeting  from 

selecting  its  presiding  officer,  such  meeting  will  be  vacated  (3539) 388 

Boards  of  education  have  no  authority  to  determine  whether  or  not  special  or 

annual  meetings  have  been  legally  conducted   (4201 ) 39° 

After  the  business  of  an  annual  meeting  has  been  transacted  and  it  has  been  ascer- 
tained that  there  are  over  300  children  of  school  age  in  the  district,  tlic 
trustees  have  no  authority  to  assume  that  the  action  of  the  annual  meeting 
was  invalid  and  call  a  special  meeting  for  the  election  of  trustees  (4204) 395 

The  action  of  a  meeting  in  voting  large  sums  of  money  for  various  purposes  under 

a  method  other  than  that  directed  by  law,  is  illegal  and  void  (4240) 400 

Where  it  is  clearly  shown  that  the  action  of  an  annual  meeting  is  contrary  to  the 

law  relating  thereto,  the  proceedings  of  the  meeting  will  be  vacated  (4271 ) 402 

An  appeal  in  which  the  procedure  of  voting  at  a  district  meeting  is  determined 

(4293)    ;••; ;••     ^"^ 

An  appeal  which  determines  the  method  of  votmg  at  a  school  district  meeting 

(4370)    .•; : ,;••••••       410 

Where  the  clerk  of  a  district  fails  to  serve  notice  of  a  special  meetmg,  called  for 
September  6th  until  September  2d,  the  meeting  will  be  declared  illegal  and 
void    (4399)    411 


1470  THE    UNIVERSITY    OF   THE   STATE   OF    NEW    YORK 

Meetings — continued  page 

It  does  not  follow,  of  course,  that  a  petition  to  the  trustees  for  a  special  meeting, 

however  numerously  signed,  is  to  be  granted 415 

In  an  action  to  set  aside  the  proceedings  of  a  school  meeting  upon  the  ground 
that  disqualified  voters  participated  in  the  proceedings,  it  will  be  necessary 
for  the  moving  party  to  remove  every  presumption  that  such  persons  were 
not  qualified  under  the  law  (4203) 415 

The  dulj^  recorded  and  certified  minutes  of  a  district  meeting  included  as  a  part  of 
the  pleadings  of  one  of  the  parties  to  an  appeal  will  be  taken  as  true  unless 
impeached  by  clear  and  convincing  evidence  (5426).     Elections 188 

The  chairman   of   a   school   district   meeting  has   the   right  to  vote   for   officers 

elected  at  such  meeting  (5401).     Elections 197 

The  voters  of  a  school  district  have  not  the  authority  to  authorize  the  trustee 

to  give  the  district  note   (3951).     Officers 431 

The  qualified  voters  of  a  school  district  can  not  legally  vote  to  reimburse  a 
treasurer  for  loss  of  funds  due  to  the  failure  of  the  bank  in  which  such 
funds  were  deposited   (5092).     School  moneys 866 

Unintentional  omission  to  serve  notice  upon  each  school  elector  will  not  render 
void  the  proceedings  of  the  meeting  when  it  does  not  appear  that  anyone 
has  been  injured  by  such  omission   (3509) .     Sites 941 

Where  a  school  district  meeting  has  authorized  a  new  schoolhouse  site  and  the 
construction  of  a  new  building  and  a  tax  to  be  raised  by  instalments  therefor, 
such  action  can  not  be  reconsidered  except  at  an  adjourned  general  or  special 
meeting  to  be  held  within  thirty  days  thereafter.  The  trustees  of  such  district 
had  no  authority  to  call  a  special  meeting  of  the  district  after  such  thirty  days 
had  expired  to  either  directly  or  indirectly  reconsider  the  action  taken  at  the 
former  meeting   (4233) .      Sites 907 

The  proceedings  of  a  district  meeting  will  not  be  set  aside  solely  for  the  reason 

that  the  records  of  the  meeting  were  not  properly  recorded  (3540).    Sites.. ..       955 

When  at  an  annual  school  district  meeting  a  motion  to  adjourn  is  made  and  the 
chairman  neglects  or  refuses  to  call  for  noes  upon  such  motion  and  declares 
the  motion  adopted  and  the  meeting  adjourns  and  he  leaves  the  chair  and 
room,  such  meeting  was  not  legally  adjourned  and  the  qualified  voters  present 
may  legally  elect  another  chairman  and  proceed  with  the  regular  business  of 
the  meeting  (4510).     Union  free  school  districts,  treasurer,  etc 1403 

A  district  meeting  possesses  the  power  to  rescind  the  action  taken  at  a  previous 

meeting  (39S7).     Schoolhouses 835 

A  district  meeting  may  authorize  the  appointment  of  a  janitor  to  live  on  the  prem- 
ises where  the  schoolhouse  is  located  in  an  isolated  place  in  order  to  prevent 
the    recurrence    of    depredations    and    injuries    to    school    property    (3657). 

Schoolhouses    84S 

Normal  schools 

The  relation  between  district  i  of  New  Paltz  and  the  New  Paltz  State  Normal 

School  is  fully  discussed  and  determined  in  this  appeal  (3994,  3998) 418,  420 

Officers 

A  district  trustee  can  not  assume  or  declare  the  office  of  collector  vacant  and  fill 

the  position  by  appointment    (3958) 423 

The  trustee  is  the  proper  officer  to  pass  upon  the  sufficiency  of  the  bond  of  the 

collector  and  if  satisfied  with  such  bond,  should  approve  it  (4024) 423 

A   collector   who    fails    to    furnish    a    sufficient   bond    satisfactory   to   the   trustee 

vacates   his   office    (4024) 423 


INDEX    TO    JUDICIAL   DECISIONS  I47I 

Officers  —  continued 

PAGE 

Collectors  are  the  proper  custodians  of  district  funds  and  they  need  not  pay  them 
over  to  trustees.  They  should  pay  only  on  a  written  order  of  the  trustee,  or 
the   majority   of  trustees 424 

When  property  in  the  possession  of  public  officers  is  stolen  or  destroyed  without 

negligence  on  their  part,  they  are  not  bound  to  make  good  the  loss 425 

Trustees  must  require  a  bond  of  the  collector  for  the  faithful  discharge  of  his 
duties  before  placing  a  warrant  for  the  collection  of  the  district  taxes  in 
the  hands  of  such  collector.  Neglecting  this  duty,  a  trustee  is  liable  to  the  dis- 
trict for  any  loss  resulting  from  such  neglect 425 

The  acts  of  trustees  de  facto  holding  office  under  color  of  an  election  subsequently 

declared  void  and  set  aside,  are  valid  and  binding  upon  their  successors 425 

The  acts  of  an  officer  de  facto  are  valid  so  far  as  the  public  and  third  parties  are 

concerned     426 

The  collector  of  a  school  district  is  answerable   for  moneys  lost  to  the  district 

for  his  neglect,  though  he  may  not  have  given  a  bond  to  the  trustee 427 

If  the  term  of  service  of  the  trustees  and  collector  has  expired  and  the  warrant 
for  the  collection  of  a  school  bill  has  run  out,  the  successors  of  such  trustees 
must  renew  the  warrant  and  direct  it  to  the  new  collector 427 

The  Superintendent  of  Public  Instruction  is  the  only  person  authorized  to  pass 

upon  the  eligibility  of  a  collector   (4455) 427 

If  a  collector  resigns  or  refuses  to  serve,  or  the  term  of  his  office  is  otherwise 
vacated,  the  trustees  of  a  district  should  call  a  meeting  to  fill  such  vacancy 

(4455)   427 

An  appeal  in  which  the  question  as  to  whether  or  not  a  member  of  a  manufactur- 
ing corporation,  who  is  on  the  board  of  education,  subjects  himself  to  the 
penalty  of  removal  from  office,  if  the  board  of  education  makes  a  contract 
with  the  manufacturing  corporation    (3954) 4^9 

The  expenses  of  a  district  collector  incurred  by  him  in  defending  an  action 
brought  against  him  in  his  official  capacity,  when  a  bill  therefor,  verified  by 
affidavit,  is  presented  to  a  district  meeting,  will  be  allowed  (3950 43^ 

A  person  elected  trustee  of  a  school  district  can  not  then  be  challenged  as  to 
his  eligibility  to  hold  the  office,  and  required  to  be  sworn  and  show  his  quali- 
fications. A  challenge  is  legal  only  at  the  time  a  person  offers  his  vote 
(3578)     •.•••;•       433 

Where  an  action  is  brought  in  the  courts  agamst  a  collector  of  a  school  district 
for  his  official  acts  in  the  levy  and  sale  of  property,  the  school  district  has 
authority  to  vote  a  tax  to  pay  such  collector  for  the  reasonable  expenses 
incurred  in  defending  such  suit  (4340) • ;  •      433 

This  is  an  appeal  in  which  four  members  of  a  board  of  education  are  sustained  in 
transacting  the  business  of  the  board,  notwithstanding  the  fact  that  there  were 
five  vacancies  on  such  board  (3793) •  •  •; 435 

A  district  clerk  is  the  custodian  of  the  official  records  of  the  district  and  is  re- 
quired to  permit  any  qualified  voter  of  the  district  to  examine  such  records 

(4192)     ■.•••.••       ^^^ 

Redress  against  a  district  officer  for  wrongfully  retaining  money  of  the  district 
is  through  an  action  in  the  courts  and  not  an  appeal  to  the  State  Superin- 
tendent    (3611).      Appeals ;         ^7 

A  school  district  may  authorize  the  payment  of  a  claim  for  legal  services  incurred 

by  district  officers  in  defending  an  appeal  (3940-    Appeals 27 

A  trustee  is  removable  from  office  for  failure  to  execute  a  contract  authorized  by 
the  district  meeting  providing  that  instead  of  maintaining  a  home  school  the 
district  shall  contract   for  the   education  of   its   children    (4505)-      Contract 

165 

svstem    


1472  THE    UNIVERSITY   OF   THE   STATE   OF    NEW    YORK 

Officers  —  continued  p^^^ 

Sufficient  ground  is  afforded  for  the  removal  of  a  district  clerk  upon  whom  a 
copy  of  appeal  is  served  and  who  colludes  with  the  appellant  to  keep  all 
knowledge  of  such  service  from  the  respondent   (3564).     Elections iqo 

The  voters  at  a  union  free  school  district  meeting  have  no  authority  under  the 

law  to  elect  a  district  clerk   (4:200) .     Elections   226 

A  district  officer  or  his  bondsmen  can  not  be  reimbursed  by  vote  of  the  district  for 

funds  lost  through  his  negligence  (3304).    Meetings 313 

A  trustee  will  not  be  removed  from  office  for  not  pursuing  an  established  custom 
in  vogue  in  the  district  for  several  years,  when  the  act  does  not  proceed  from 
a  wilful  intent  and  no  wrong  or  injustice  is  perpetrated  (5300).    Meetings 307 

The  treasurer  of  a  union  free  school  district  is  a  public  officer  having  custody  of 
public  funds  and  is  liable  for  the  loss  thereof,  although  occurring  without  his 
fault  or  negligence  (5092) .    School  moneys 866 

A  collector  who  refuses  to  furnish  a  bond  within  ten  days  after  proper  notice  from 
the  trustee,  vacates  his  office  and  the  trustee  may  fill  such  vacancy   (3787). 


Tax    lists 


991 


A  trustee  is  guilty  of  gross  neglect  of  duty  in  delivering  a  tax  list  and  warrant  to 
the  collector  before  a  satisfactory  bond  has  been  furnished  (3575).  Teachers 
contracts    1 142 

A  collector  who  voluntarily  pays  over  the  district  money  to  the  trustee  is  personally 
liable  therefor  and  the  trustee  is  censurable  for  receiving  it  (3575).  Teachers 
contracts    1 142 

The  question  of  the  eligibility  of  a  person  to  a  district  office  can  not  be  raised 

and  passed  upon  collaterally   (3849) .     Trustees 1243 

An  appeal  in  which  the  right  to  remove  a  school  officer  is  fully  considered  and 
determined.  A  treasurer  was  removed  for  improper  use  of  district  funds 
and  for  failure  to  keep  proper  accounts,  etc.  (5371).  Union  free  school  dis- 
tricts,  treasurer   etc 1398 

A  board  of  education  can  not  remove  a  treasurer  when  such  board,  in  appointing 
the  treasurer,  appointed  him  for  the  ensuing  year,  unless  such  officer  is  guilty 
of  some  offense  sufficient  to  warrant  such  action.  While  the  law  authorized 
the  appointment  of  a  treasurer  subject  to  the  pleasure  of  the  board,  the  board 
will  be  deemed  to  have  exercised  its  pleasure  when  it  appoints  the  office  for 
the  ensuing  year  (4418).    Union  free  school  district,  treasurer  etc 1409 

Where  it  is  established  to  the  satisfaction  of  the  Superintendent  of  Public  In- 
struction that  the  trustee  of  a  school  district  has  been  guilty  of  a  wilful 
violation   or  neglect  of   duty,   such   trustee  should   be   removed    from   office 

(4257).       Voters    1444. 

Officers,  removal  of 

When  the  moving  papers  of  a  proceeding  to  remove  a  school  officer  are  indefinite 
and  do  not  show  clearly  an  offense  for  which  such  officer  should  be  removed, 
the  proceeding  will  be  dismissed   (5326) 440 

A  school  commissioner  will  not  be  removed  from  office  for  acts  which  are  fair, 
above  board  and  open  in  every  particular,  and  in  which  he  exercised  his 
discretion  wisely    (5184) 440 

The  fact  that  a  school  commissioner  applied  for  and  received  money  from  the 
State  to  apply  toward  the  expenses  of  a  teachers  institute,  and  he  kept  this 
money  for  three  months  during  which  time  he  was  in  frequent  contact  with 
the  officials  to  which  this  money  was  to  be  paid,  is  sufficient  ground  for  his 
removal    from   office 441 


INDEX    TO    JUDICIAL   DECISION'S  I473 


PAGE 


Officers,  removal  of  —  continued 

A  trustee  who  fails  to  provide  for  his  own  children  the  education  prescribed  by  the 
compulsory  education  law  is  guilty  of  violation  of  law  and  wilful  neglect  of 
duty,  and  should  be  removed  from  office  (5286) 443 

When  trustees  of  a  common  school  district  are  directed  to  expend  $2000  in  the 
erection  of  a  building,  and  such  officers  expend  $4000  for  the  erection  of  such 
building,  they  are  guilty  of  a  violation  of  law  and  of  official  duty.  The  Penal 
Code  prohibits  trustees  from  becoming  interested  personally,  either  directly  or 
indirectly,  with  a  contract  which  they  are  authorized  to  make  for  the  district 
(S170)     448 

A  trustee  who  reports  a  claim  against  the  district  as  paid,  when  in  fact  it  is  not 
paid,  and  who  receives  district  moneys  into  his  own  hands  to  pay  the  same 
and  then  liquidates  the  debt  by  giving  his  own  promissory  note,  is  guilty  of  a 
proceeding  which  should  not  be  sustained  izi^l) 456 

An  appeal  in  which  the  conduct  of  members  of  a  board  of  education  in  relation  to 

wilful  violation  of  duties,  etc.,  is  fully  discussed  and  determined  (5441). 457 

A  proceeding  to  impeach  the  official  action  of  a  board  of  education,  without  show- 
ing definite  knowledge  of  wrongdoing  on  the  part  of  such  board,  and  without 
supplying  proof  to  sustain  alleged  charges,  will  be  dismissed  (5338) 462 

A  trustee  who  places  himself  in  an  equivocal  position  as  between  the  district  whose 
interests  he  must  protect  and  a  contractor  doing  work  for  the  district,  by 
accepting  employment  from  the  contractor  for  such  work,  should  be  removed 
from  office   (3907) 463 

In  a  petition  for  the  removal  of  school  officers  it  must  be  established  by  preponder- 
ance of  proof  that  such  officers  have  acted  intentionally  with  a  wrongful  pur- 
pose   (4773)    464 

An  appeal  in  which  the  State  Superintendent  held  that  certain  members  of  a  board 
of  education  were  guilty  of  wilful  violation  of  duty,  and  removed  them  from 
office     (4576) 467 

The  removal  of  a  trustee  can  not  be  predicated  upon  moral  grounds  but  only  on 

wilful   violation   and  neglect   of   duty    (4325) 470 

A  petition  for  the  removal  of  a  trustee  from  office  for  not  agreeing  with  his  as- 
sociates and  for  the  use  of  rude  and  discourteous  language  toward  them,  will 
be    denied    470 

For  wilful  violation  of  duty  in  accepting  the  lowest  bidder  without  responsible 

surety  the  trustee  should  be   removed 471 

The  State  Superintendent  may  remove  a  trustee  for  the  wilful  violation  of  his 

duty  471 

An  appeal  which  distinguishes  between  wilful  and  intentional  violatior.  of  law  and 
conduct  resulting  from  ignorance,  neglect,  omission,  misapprehension  or  inad- 
vertence  (4297,  4173,  4380) 47-.  476,  478 

A  trustee  who  fails  to  maintain  a  school  as  required  by  law  will  be  guilty  of  a 

wilful  violation  or  neglect  of  official  duty 481 

A  trustee  who  has  not  been  charged  with  dishonesty  or  immoral  conduct  will  not 
be  removed  from  office,  because  he  has  neglected  to  repair  the  schoolhouse  and 
improve  its  surroundings,  etc.   (3695) 483 

The  reelection  of  a  trustee  after  neglect  to  carry  out  the  directions  of  a  prior 
district  meeting  is  good  reason  for  refusing  to  remove  him  from  office  for 

such  neglect  (3674) ^84 

A  district  clerk  who  denies  a  qualified  voter  the  right  to  examine  the  district 
records  and  who  uses  vulgar  and  profane  language  in  expressing  such  refusal 
should  be  removed  from  olfice   (4102) 485 


1474  the  university  of  the  state  of  new  york 

Outbuildings  p^^je 

Where  the  outbuildings  of  a  school  district  are  within  the  bounds  of  a  property 

owner,  they  constitute  an  obstruction  which  must  be  removed  (3979) 488 

The  expense  of  erecting  outbuildings  can  not  be  lawfully  levied  without  a  vote  of 
the  district,  excepting  the  same  shall  have  been  approved  by  the  school  commis- 
sioner  (3773)    485 

Where  a  trustee  in  good  faith  erected  additional  outbuildings,  intending  to  comply 
with  the  health  and  decency  act,  and  the  charge  for  the  same  is  just  and  rea- 
sonable, the  trustee  will  be  sustained  although  the  school  commissioner  refuses 
to  approve  the  bill  (3749) 490 

When  a  board  of  education  and  a  district  meeting  have  decided  that  outbuildings 
are  suitable  for  use  for  one  year,  the  mere  allegation  by  a  layman  that  such 
outbuildings  are  in  an  unsanitary  condition,  is  not  competent  proof    (5161). 

Board  of  education 95 

Pupils  —  corporal  punishment  of 

Corporal  punishment  has  no  sanction  but  usage.    Teacher 1026 

The  right  to  inflict  corporal  punishment  is  left  to  the  judgment  and  discretion  of 

the  trustee   (4355) .     Teachers  contracts 1 147 

An  appeal  in  which  the  power  of  a  teacher  to  inflict  cruel  punishment  is  fully  dis- 
cussed and  determined   (4252,  4936) .     Pupils 492,  495 

Pupils,  expulsion  of 

An  appeal  in  which  the  power  of  school  authorities  to  expel  pupils  from  school  is 

discussed  and  determined  (5253) 499 

Pupils,  school  privileges  of 

An  appeal  in  which  the  general  right  of  children  to  receive  an  education  is  fully 

discussed  and  determined   (5238) 501 

A  girl  18  years  of  age  who  has  abandoned  her  parental  home  and  resides  with  her 
grandmother  is  entitled  to  attend  school  in  the  district  in  which  her  grand- 
mother resides,  without  the  payment  of  tuition   (5387) 505 

A  board  of  education  is  not  justified  in  barring  from  school  children  who  are 
alleged  to  have  had  a  contagious  disease  when  the  health  authorities  have 
formally  declared  that  such  children  did  not  have  the  alleged  disease  (5363)..       506 

It  is  the  duty  of  the  people  of  every  school  district  to  provide  public  school  accom- 
modations for  all  children  of  school  age  in  the  district,  desiring  to  attend  the 
public  school  (3520) .    Religious  garb 533 

A  pupil  may  be  removed  from  school  for  vicious  and  disturbing  conduct  (3678). 

Teachers  contracts  1 188 

Pupils  —  nonresident 

A  teacher  has  not  the  authority  to  determine  whether  or  not  nonresident  pupils 

shall  be  admitted  to  school  (5225).    Teachers  contracts 1096 

Pupils,  suspension  of 

In  the  suspension  of  a  pupil  from  school,  a  board  of  education  is  not  required  to 
proceed  with  the  formality  of  a  trial.  The  action  of  a  board  in  suspending  a 
pupil,  pending  an  apology  to  a  teacher  to  whom  she  had  been  impudent  and 
obstinate,  should  be  sustained  (531 1) 509 

Suspension  from  school  for  more  than  a  year  is  sufficient  punishment  for  using 

language  unbecoming  a  gentleman 511 

Colored  children  are  entitled  to  attend  the  common  schools  in  this  State  in  all  dis- 
tricts except  those  in  which,  by  law,  provision  is  made  for  their  education  in 
separate  schools 511 


INDEX    TO   JUDICIAL   DECISIONS  1475 

Pupils,  suspension  of  —  continued  p^^.^ 

The  authority  of  a  trustee  and  of  teachers  over  pupils  ceases  after  the  close  of 

school  and  their  departure  from  school  grounds 513 

The  infliction  of  cruel  punishment  on  pupils  is  not  sustained 513 

The  right  of  a  pupil  to  wear  her  hair  in  school,  according  to  the  taste  of  the  parent, 

maintained    514 

Rights  of  children  residing  on  lands  within  a  district  which  had  been  ceded  to  the 

United  States  to  attend  school  in  the  district,  discussed  and  determined 514 

Trustees  have  no  power  to  impose  a  fine  upon  a  pupil  and  suspend  him  from  school 

until  such  fine  has  been  paid 515 

An  abuse  of  discretion  in  the  enforcement  of  discipline  will  be  rebuked 515 

Where  a  child  is  excluded  from  school  by  a  teacher,  on  the  approval  of  a  trustee, 
upon  the  ground  that  such  child  is  idiotic,  lacks  capacity,  etc.,  and  evidence 
oflfered  before  the  school  commissioner  does  not  sustain  such  charges  but 
refutes  them,  it  is  ordered  that  the  boy  shall  be  admitted  to  the  school  (3891) .       516 

A  boy  who  has  been  expelled  from  school  for  several  weeks  for  a  breach  of  dis- 
cipline, but  who  shows  proper  repentance  therefor,  should  be  admitted  to 
school  (3861 )    517 

The  action  of  a  teacher  and  the  board  of  education  in  suspending  a  pupil  will  be 
upheld  when  it  is  shown  that  the  pupil  was  disorderly  and  refused  to  obey 
the  teacher  and  properly  deport  himself  in  school   (3689) 518 

A  teacher  has  no  claim  upon  a  pupil's  time  during  the  recess  and  can  not  deny  a 
pupil  school  privileges  because  the  pupil  left  the  school  grounds  during  the 
noon  period  (3698) 520 

When  a  pupil  has  been  suspended  from  school  for  bad  conduct,  and  public  an- 
nouncement has  been  made  that  such  pupil  might  return  to  school,  an  appeal 
taken  thereafter  will  not  be  sustained  (3574) 521 

A  trustee  will  be  sustained  in  suspending  pupils   for  improper  acts;   for  using 

obscene,  indecent  and  vile  language  (4362) 522 

Religious  exercises  in  school 

Trustees  have  no  warrant  in  law  for  directing  religious  exercises  to  be  conducted 
in  the  school  during  school  hours  or  for  excluding  pupils  from  the  school 
altogether  on  the  ground  of  their  declining  to  be  present  at  such  exercises.  ...       524 

Trustees  can  not  be  required  to  open  the  schoolhouse  for  religious  exercises.  Such 
officers  will  not  be  ordered  by  this  Department  to  open  the  schoolhouse  for 
religious  meetings.  Schools  may  be  opened  with  prayers  provided  this  course 
is  pursued  before  school  hours  and  provided  there  is  no  compulsion  to  enforce 
the  attendance  of  pupils 525 

Religious  exercises  are  not  a  part  of  district  school  exercises  and  therefore  no 

portion  of  the  regular  school  hours  is  to  be  consumed  in  conducting  them 526 

The  rule  in  relation  to  religious  instruction  is  that  such  instruction  may  not  be 
given  in  the  public  schools  as  a  part  of  the  prescribed  course  of  instruction 
therein;  that  religious  services,  consisting  of  prayer,  reading  of  the  Bible  and 
singing  of  hymns  shall  not  be  held  during  the  hours  customarily  allotted  to 
the  performance  of  school  work;  that  the  pupils  of  the  schools,  may  not  be 
compelled  to  attend  such  services  when  held  (544°) 527 

Appeal  in  which  the  general  policy  of  the  State  in  relation  to  the  conduct  of  re- 
ligious   exercises    in   the   public    schools    is    fully    discussed    and    determined 

(1985)     .-. 528 

Reading  the  Scriptures  and  repeating  prayers  are  held  to  constitute  no  legitimate 

part  of  the  business  of  the  public  schools 531 


14/6  the  university  of  the  state  of  new  york 

Religious  garb  page 

Wearing  an  unusual  and  distinctive  garb,  one  used  exclusively  by  members  of  a 
certain  religious  sect  and  for  the  purpose  of  indicating  membership  in  that  sect 
by  public  school  teachers,  constitutes  a  sectarian  influence  prejudicial  to  the 
interests  of  the  public  school  system  and  must  not  be  persisted  in  (3520) 533 

Where  teachers  in  a  public  school,  who  are  members  of  any  religious  sect  or 
order,  wear  the  distinctive  garb  or  dress  of  such  order,  it  is  the  duty  of  the 
school  authorities  to  require  such  teacher  to  discontinue  while  in  the  public 
schoolroom  and  in  the  performance  of  their  duties  as  teachers  therein  the 
wearing  of  such  garb  or  dress   (4516) S38 

It  is  the  duty  of  trustees  of  school  districts  to  require  teachers  to  discontinue  the 
use  in  the  public  schoolroom  during  school  hours  of  the  distinguishing  dress  or 
garb  of  the  religious  order  to  which  they  belong  (4546) 554 

An  appeal  in  which  the  right  of  teachers  to  wear  an  unusual  garb  worn  exclusively 

by  members  of  one  religious  sect  is  fully  discussed  and  determined  (4722) ....       560 

The  wearing  of  an  unusual^  garb  worn  exclusively  by  members  of  one  religious 
denomination  for  the  purpose  of  indicating  membership  in  that  denomination 
by  the  teachers  in  the  public  schools  during  school  hours,  while  teaching 
therein,  constitutes  a  sectarian  influence  which  ought  not  to  be  persisted  in 

(4642,    5010)     568,  572 

Residence 

The  facts  which  are  necessary  to  constitute  a  residence  are  fully  discussed  and 

determined    (4901 )    575 

Where  a  person  acquires  a  domicile  or  residence  in  a  school  district  in  the  State 
and  has  children  of  school  age  and  such  person  enters  the  service  of  the 
United  States,  he  does  not  lose  his  domicile  or  residence  in  such  school  district 
by  reason  of  his  employment  in  the  service  of  the  United  States  and  is  still  en- 
titled to  send  his  children  to  school  in  the  school  district  in  which  he  had 
acquired  such  domicile  or  residence  (4229) 577 

A  person  who  has  acquired  a  residence  or  domicile  within  a  school  district  and 
necessarily  takes  him  away  from  the  district  a  large  part  of  the  time  and 
whose  family  are  also  temporarily  absent  from  such  district,  does  not  lose  his 
residence  or  domicile  in  said  district,  and  his  child  is  entitled  to  attend  school 
in  the  district  without  the  payment  of  tuition  (4238) 578 

Renting  a  room  in  a  school  district  for  the  purpose  of  storing  household  goods  is 
not  sufficient  to  maintain  a  residence  in  the  district  when  a  home  is  main- 
tained elsewhere  (5259)    579 

A  man  who  hires  a  house  and  lives  in  a  district  for  a  portion  of  the  time  for  the 
"  comfort  and  convenience  of  business  "  is  not  necessarily  a  resident  of  such 
district.  If  such  arrangement  is  only  temporary  and  he  has  a  permanent  home 
elsewhere,  his  residence  must  be  regarded  in  the  district  of  such  permanent 
home  (5228)    580 

When  the  home  of  children  has  been  broken  up  and  they  are  brought  to  the  resi- 
dence of  one  who  stands  in  the  place  of  parents,  such  children  become  resi- 
dents of  the  district  in  which  such  person  resides  (4084) 581 

When  a  child  comes  from  another  state  to  stop  temporarily  with  her  grandfather 
and  her  residence  is  subject  to  be  determined  at  the  option  of  her  parents  and 
the  grandfather  does  not  occupy  the  relation  of  a  parent  or  guardian,  such 
child  is  not  entitled  to  the  privileges  of  the  school  in  the  district  where  her 
grandfather    resides    (4088) 5S2 


INDEX   TO    JUDICIAL   DECISIONS  I477 


PAGE 


Schools 

An  appeal  in  which  the  board  of  education  of  the  city  of  Elmira  is  directed  to  open 
the  schools  and  in  which  the  corporate  authorities  are  directed  to  levy  a  tax 
for  the  amount  needed  for  school  purposes  for  the  school  year  (3993) 588 

The  general  policy  and  authority  of  the  State  to  direct  a  municipality  to  open  and 

continue  schools  is  fully  discussed  and  determined 588 

School  may  be  closed  because  of  the  prevalence  or  fear  of  an  epidemic  disease 

(3706) 592 

A  school  district  has  not  the  authority  to  direct  the  trustee  to  close  the  district 
school.  The  law  makes  it  the  duty  of  the  trustee  to  conduct  a  school  and  the 
action  of  the  district  in  such  case  is  not  controlling  upon  him  (3973) 593 

Boards  of  education  are  not  authorized  by  law  to  determine  whether  a  teacher  shall 
attend  a  teachers  institute  or  shall  not  attend  such  institutes.  These  officers 
have  no  discretion  in  such  matters.  The  law  directs  that  schools  shall  be  closed 
during  the  time  a  teachers  institute  is  being  held.  It  requires  the  attendance  of 
teachers  without  loss  of  pay  (3794) f 594 

The  school  system  of  a  city  is  a  state  and  not  a  local  system  and  is  under  the 
general  supervision  and  management  of  the  State  Superintendent  of  Public 
Instruction   (4584).     Board  of  education 121 

The  courses  of  study  given  in  any  school  district  must  be  free  to  the  residents  of 

such  district  (4264) .     Tuition 1305 

A  board  of  education  has  not  the  authority  to  prescribe  a  rule  which  will  require 
resident  students  to  pay  tuition  for  pursuing  any  course  of  study  given  in  the 

school    (3984).     Tuition I3i5 

School  district 

It  has  been  held  that  a  district  in  which  a  union  free  school  has  been  established 
is  still  an  ordinary  district  except  so  far  as  the  inhabitants  and  officers  thereof 
are  invested  with  additional  powers  and  privileges  (5293).    Elections 1S4 

When  a  common  school  district  is  changed  to  a  union  free  school  district  by  action 
of  a  district  meeting,  such  common  school  district  ceases  to  exist  except  for 

the  purpose  (4750).    Union  free  school  districts I390 

School  district  records 

The  records  of  a  school  district  are  open  to  the  inspection  of  any  resident  of  the 
district  during  reasonable  hours  and  it  is  the  duty  of  the  collector  to  accord 

residents  of  the  district  this  privilege  (.4192).    Officers 438 

School  districts  —  alteration  of 

The  object  in  requiring  three  months'  notice  to  trustees  when  an  alteration  of 

school  district  boundaries  is  made  is  for  the  protection  of  trustees,  etc 597 

When  the  boundaries  of  a  school  district  have  been  determined  on  an  appeal  before 
the  Department,  local  officers  have  not  the  authority  to  modify  such  boundaries 
until  after  the  lapse  of  at  least  three  years  without  express  permission  from 
the  Department  598 

It  is  against  the  settled  policy  of  the  Department  to  allow  real  property  to  be  trans- 
ferred from  a  comparatively  weak  district  to  a  stronger  district  when  it  is  not 
clearly  shown  that  such  action  would  give  increased  convenience  to  the  persons 
occupying  the  transferred  territory  (4917) 599 

A  trustee  has  not  the  authority  to  consent  to  the  alteration  of  a  school  district 

which  transfers  his  property  to  another  district   (4917.  3938) 599,  600 

The  Department  does  not  favor  the  alteration  of  school  districts  by  taking  prop- 
erty from  a  comparatively  weak  district  financially  and  annexing  it  to  a 
district  financially  strong   (4903,  3693) ^^'  ^^ 


14/8  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

School  DISTRICTS  —  alteration  of  —  continued  page 

An  appeal  in  which  a  school  commissioner  is  ordered  to  divide  the  boundaries  of 

a  district  in  accordance  with  the  county  line   (3774) 605 

An  appeal  in  which  the  whole  general  procedure  in  relation  to  the  alteration  of 

school  district  boundaries  is  generally  discussed  and  determined  (4909) 606 

The  action  of  a  school  commissioner  in  altering  the  boundaries  of  a  district  will 
not  be  interfered  with  unless  there  is  a  preponderance  of  evidence  that  the 
action  taken  was  unwise  or  adverse  to  the  interest  of  education,  etc.  (3642)  610 

The  Department  has  uniformly  held  that  an  order  of  a  school  commissioner  alter- 
ing the  boundaries  of  a  school  district  should  be  sustained  when  the  com- 
missioner has  acted  in  good  faith  and  by  the  order  has  restored  to  a  district 
territory  which  has  been  unintentionally  and  under  a  misapprehension  of 
facts  set  off  from  such  district  (4923,  3518) 612,      614 

Vlie  action  of  a  school  commissioner  in  setting  off  a  portion  of  one  district  and 
annexing  it  to  another  and  by  so  doing  providing  better  school  facilities  and 
increased  convenience  to  the  persons  occupying  the  territory  transferred  and 
leave  the  district  from  which  such  territory  was  taken  with  sufficient  resources 
to  maintain  a  satisfactory  school,  will  not  be  interfered  with  (4314,  3705) .  .616,      618 

The  State  Superintendent  will  order  the  setting  off  of  land  from  one  district  and 
annexing  the  same  to  another  when  such  action  will  give  the  occupant  of  the 
land  transferred  better  school  advantages  and  will  not  materially  weaken  the 
district  from  which  the  territory  was  taken   (3893,  3669,  3813) 619,  620,  621 

Territory  may  properly  be  detached  from  one  district  and  annexed  to  adjoining 
district  when  it  appears  that  such  territory  is  in  close  proximity  to  the  school- 
house  in  the  district  to  which  the  territory  is  transferred  and  a  very  consider- 
able distance  from  the  schoolhouse  in  the  district  in  which  it  was  located 
(3795)  622 

An  appeal   in  which  the  preliminary  order  and  the  confirmatory  order  by   the 

local  board  are  fully  discussed  and  the  procedure  determined   (4534) 624 

An  appeal  which  determines  the  method  of  describing  school  district  boundaries 

when  alterations  are  made,  etc.  (4544) 627 

In  the  alteration  of  school  districts,  the  equalization  of  values  may  be  an  element 

for  consideration  but  should  not  be  the  controlling  one  (4427) 630 

School  commissioners  have  not  the  authority  to  divide  a  school  district  upon 
which  there  is  an  outstanding  bonded  indebtedness.  In  this  appeal  the  method 
of  procedure  in  relation  to  preliminary  orders  and  confirmatory  orders  is  also 
discussed  and  determined  (4453) 631 

This  is  an  appeal  in  which  the  law  relative  to  the  alteration  of  school  district 
boundaries  is  fully  discussed  and  interpreted.  It  is  also  held  that  the  altera- 
tion of  a  school  district  is  a  purely  statutory  procedure  and  that  the  law 
relative  thereto  must  be  strictly  followed  (3512) 634 

A  failure  to  follow  strictly  the  provisions  of  the  law  relative  to  the  division  of 
school  districts  is  sufficient  ground  to  vacate  such  order.  The  advisability  of 
dividing  a  village  into  two  districts  with  two  small  schools  instead  of  con- 
tinuing as  one  district  with  a  good-sized  school  is  disapproved  (3635) 638 

Trustees  are  not  required  to  call  a  special  meeting  of  the  district  for  the  considera- 
tion of  the  question  of  dividing  such  district.  The  action  of  trustees  in  calling 
a  special  meeting  for  this  purpose  is  entirely  proper  but  the  responsibility  for 
dividing  the  district  rests  with  the  trustees  of  the  district  and  the  school 
commissioner  having  jurisdiction   (3620) 641 

Where  the  order  of  a  school  commissioner  in  altering  the  boundaries  of  a  district 
operate  as  a  hardship  such  order  may  on  direction  of  the  Commissioner  of 
education  be  modified  to  correct  an  inequality  without  a  repealing  of  the 
original  order   (5440) 643 


INDEX    TO    JUDICIAL   DECISIONS  I479 

School  districts  —  alteration  of  —  continued  i'age 

The  fact  that  certain  residents  of  a  district  will  be  somewhat  farther  removed 
from  a  schoolhouse  but  still  within  a  reasonable  distance  of  one  as  such 
distances  are  generally  determined  in  country  districts  is  not  sufficient  ground 
to  defeat  the  object  of  providing  better  school  facilities  for  a  community 
(5354)   646 

A  school  commissioner  will  be  directed  to  make  an  order  annexing  to  an  adjoining 
village  district  a  portion  of  a  school  district  which  will  afford  the  residents 
thereof  better  school  facilities  and  still  leave  the  district  with  sufficient 
property  and  sufficient  children  to  maintain  a  good  school    (5341) 648 

Where  the  consent  of  trustees  to  the  alteration  of  a  district  is  obtained  by 
consulting  the  members  of  the  board  individually  and  not  at  a  regularly  called 
meeting  and  a  school  commissioner  makes  an  order  of  alteration  based 
thereon,  such  order  will  be  vacated   (4376) 649 

A  school  commissioner  has  not  the  authority  to  transfer  any  portion  of  a  school 
district  which  has  a  bonded  indebtedness  to  another  school  district  (4363, 
4013)     651,      655 

The  action  of  a  local  board  in  declining  to  confirm  an  order  of  alteration  of  a 
school  commissioner  will  be  sustained  when  it  appears  by  the  proof  presented 
to  the  board  that  no  valid  reason  exists  for  the  alteration  of  such  district 
(4384,  4353) .656.      658 

When  the  boundaries  of  a  school  district  are  estabhshed  by  a  special  act  and 
definitely  set  forth,  the  boundaries  can  be  altered  by  act  of  the  Legislature 
only  (3918) 661 

A  school  commissioner  who  fails  to  file  a  confirmatory  order  made  by  him  may 
correct  such  negligence  by  filing  the  order  later.  Failure  to  give  proper  notice 
of  the  meeting  to  hear  objections  is  waived  by  the  appearance  at  the  meeting 
without  objection  of  all  the  parties  entitled  to  notice.  The  effect  of  the 
consent  of  trustees  to  an  order  altering  the  boundaries  of  a  district  is  fully 
discussed  here  (3534) 662 

An  appeal  from  the  refusal  of  a  district  meeting  to  adopt  a  motion  directing  trus- 
tees to  consent  to  the  alteration  of  the  district  so  as  to  transfer  certain 
lands  is  not  a  proper  remedy.  The  course  in  such  case  is  to  bring  the  matter 
directly  to  the  school  commissioner.  This  officer  may  act  without  consent. 
Upon  his  determination,  an  appeal  will  lie   (3646) 664 

It  is  not  essential  to  the  validity  of  proceedings  to  alter  a  school  district  that 
the  trustees  should  in  words  either  give  or  refuse  to  consent  to  the  altera- 
tion. If  the  trustees  consent  in  writing,  the  commissioner  may  take  one 
course;  if  consent  is  not  given,  though  no  formal  refusal  is  made,  tlie 
commissioner  may  proceed  in  another  way   (3800) 665 

The  advisability  of  transferring  from  one  school  district,  having  an  assessed 
valuation  of  $58,000,  certain  lands  having  a  valuation  of  $6000  and  constituting 
such  territory  a  separate  district,  is  questioned   (3862) 666 

Where  school  commissioners  are  directed  in  an  order  made  in  an  appeal  to 
divide  the  district  by  the  county  line  and  the  local  board  refuses  to  confirm 
such  order,  the  school  commissioners  will  be  directed  to  make  a  confirmatory 
order  as  proposed  by  the  preliminary  order  (3792) 668 

A  school  commissioner  in  declining  to  set  off  a  taxpayer  from  one  district  to 
another  for  the  reason  that  such  taxpayer  presumed  when  he  purchased  land 
that  he  was  included  in  the  district  to  which  he  desires  to  be  transferred, 
will   be   sustained    (3S16) •••• 669 

A  preliminary  order  changing  the  boundaries  of  a  joint  school  district  may  be 
made  by  the  school  commissioner  of  the  district  in  which  such  territory  is 


1480  THE   UNIVERSITY   OF   THE    STATE   OF    NEW    YORK 

School  districts  —  alteration  of  —  continued  page 

located,  provided  the  whole  of  such  territory  lies  in  such  school  commis- 
sioner's district.  The  confirmatory  order  in  such  case  must  be  a  joint  order 
by  the  commissioners  in  whose  districts  the  school  districts  affected  lie 
(5252)    671 

When  the  commissioners  having  jurisdiction  over  a  joint  district  can  not  agree  to 
make  an  alteration  of  the  district,  the  State  Superintendent  will  not  interfere 
unless  the  propriety  of  the  change  is  clearly  manifest  and  where  a  refusal 

to  so  order  would  necessarily  work  an  injustice  (3569).    Meetings 336 

School  districts — boundaries  of 

Where  inhabitants  have  been  properly  set  off  from  one  district  to  another  and 
the  town  clerk  has  omitted  to  record  the  order,  they  will  be  regarded  as 
inhabitants  of  the  district  to  which  they  have  been  annexed  after  it  has  been 
acquiesced  in  for  years 674 

Where  an  appeal  is  taken  from  an  order  of  a  school  commissioner  defining  the 
location  of  a  farm  as  regards  the  boundaries  of  certain  school  districts  on 
the  ground  that  the  order  makes  an  alteration  in  school  districts,  the  burden 
is  upon  the  appellants  to  establish  their  contention  by  preponderance  of  proof 

(4241)  674 

Where  a  school  commissioner  makes  an  order  defining  the  boundary  of  a  school 
district  when,  in  fact,  the  order  is  an  alteration  of  the  school  district  and 

other  school  districts  adjoining,  said  order  should  be  vacated  (4246) 676 

A  school  commissioner  has  full  authority  to  make  an  order  to  amend  the 
boundaries  of  a  school  district  or  to  make  an  amended  record  of  the  boundary 

where  said  order  does  not  alter  the  boundaries  of  the  district  (4388) 679 

An  order  of  a  school  commissioner  intended  to  determine  indefinite  and  defective 
boundaries  will  be  vacated  when  the  order  seeks  to  change  the  boundaries 
of  the  district  or  operate  so  as  to  transfer  territory  from  one  district  to 
another.     Appellant's  pleadings  are  required  to  be  served  upon  real  parties 

in  interest  only  (3673) 682 

An  order  of  a  school  commissioner,  intended  to  define  obscure  boundary  lines  of 
a  district  but  which,  in  effect,   sets  off  a  large   farm   from   one  district  to 

another,  is  irregular  and  will  be  vacated  (4004) 684 

A  school  commissioner's  order  changing  the  boundaries  of  a  district  will  not  be 
sustained  when  such  order  is  made  without  the  consent  of  the  trustees  of  the 

districts  affected  thereby    (3676) 685 

General  acquiescence  for  a  long  period  of  years,  supported  by  a  parol  evidence  that 
certain  lands  form  a  part  of  a  school  district,  is  sufficient  to  sustain  the  theory 
that  the  lands  in  question  were  regularly  set  in  the  district  and  constitute  a 

part  thereof    (3929) 686 

In  ascertaining  the  boundary  lines  of  a  school  district  for  the  purpose  of  an  assess- 
ment of  a  parcel  of  land  in  the  proper  district,  public  records  are  decisive  in 

the  question  and  can  not  be  changed  by  outside  proof  (4022) 687 

An  order  made  by  school  commissioners  more  than  twenty-five  years  ago,  alter- 
ing district  boundaries,  acquiesced  in  by  repeated  acts  by  one  who  now  collat- 
erally raises  the  question  of  its  regularity,  will  be  upheld  (3821) 688 

The  presumption  is  that  a  school  commissioner  has  acted  regularly  and  discreetly 
in  defining  a  disputed  boundary  line  and  will  be  upheld  in  the  order  which  he 
makes,  unless  it  is  clearly  made  to  appear  that  he  acted  otherwise  (3804) ....  690 
An  appeal  in  which  the  general  power  of  a  school  commissioner  to  make  an  order 
correcting  or  amending  the  boundaries  of  a  district  is  generally  discussed  and 
determined    (5156) 691 


INDEX    TO    JUDICIAL   DECISIONS  I481 

School  districts  —  boundaries  of  —  continued  page 

When  a  school  commissioner  extends  the  boundaries  of  a  school  district  to  include 
taxable  property  not  within  such  district,  the  expense  thereof  is  a  charge  upon 
such  district  and  should  be  paid  by  the  trustee  upon  the  certificate  of  the 
school  commissioner  (5245) 6q2 

A  school  commissioner  who  refuses  to  make  an  order  simply  to  correct  an  irregu- 
larity in  boundary  lines  and  not  serving  any  good  educational  purpose,  will 

be  sustained   (5367) 694 

School  districts  —  consolidation  of 

A  school  commissioner's  action  in  consolidating  weak  districts  will  be  regarded 
wise  and  sustained  when  such  action  will  result  in  giving  all  parties  con- 
cerned better  school  facilities,  without  imposing  unjust  burdens  or  hardships 
upon  anyone.  An  equitable  adjustment  of  taxation  should  not  be  the  con- 
trolling influence  in  the  consolidation  of  school  districts  (5 191) 696 

An  appeal  in  which  the  general  provisions  of  the  law  in  relation  to  the  consolida- 
tion of  school  districts  are  discussed  and  determined   (4481) 699 

A  school  commissioner's  order  in  consolidating  school  districts  will  be  set  aside 
where  it  is  clearly  shown  that  the  order  is  prejudicial  to  a  large  number  of 
families  having  children  of  school  age  residing  therein   (4015) 702 

A  school  commissioner's  order  in  consolidating  school  districts  which  has  been 
regularly  made  will  be  upheld  unless  it  is  shown  by  a  preponderance  of  proof 
to  be  unwise  and  is  opposed  to  the  best  educational  interests  of  the  terri- 
tory affected    (3847) 703 

The  action  of  a  school  commissioner  in  consolidating  two  school  districts  which 
were  weak  and  unable  to  sustain  good  schools  will  not  be  disturbed  when  it 
is  shown  that,  by  the  consolidation,  a  district  has  been  formed  of  sufficient 
strength  to  maintain  a  good  school.  The  consent  of  a  district  meeting  is  not 
in  compliance  with  the  law.  Such  consent  must  be  by  the  trustees  of  the 
districts  affected   (3660) • 70S 

When  a  school  commissioner  makes  an  order  consolidating  school  districts  and 
the  effect  of  such  order  is  greatly  to  inconvenience  children  who  would 
naturally  attend  the  school  and  a  majority  of  the  electors  of  one  of  the 
districts  is  clearly  opposed  to  consolidation  and  the  district  affected  by  the 
order   is    sufficiently   strong  to   maintain   proper   schools,   the   order   will   be 

vacated    (3904) ; ''"^ 

The  action  of  a  school  commissioner  in  consolidating  two  districts  which  pro- 
motes the  educational  interests  of  all  parties  concerned  without  placing 
improper  burdens  upon  the  residents  of  either  district  and  witliout  the  opera- 
tion of  a  hardship  upon  any  of  the  residents  of  these  districts,  will  be  sus- 
tained   (5351) ^°^ 

School  districts  —  dissolution  OF  ...        r     ,     i  j- 

An  appeal  in  which  the  whole  general  policy  as  to  the  dissolution  of  school  dis- 
tricts is  fully  discussed  and  determined   (5181 ) •       709 

To  justify  the  dissolution  of  a  school  district  possessing  a  sufficient  number  of 
children  and  the  financial  resources  to  maintain  a  satisfactory  school,  when 
the  residents  of  such  district  are  unanimously  opposed  to  such  action,  some 
overwhelming  educational  necessity  should  be  shown  to  exist  (5328) 7i5 

An  appeal  which  treats  very  fully  the  consideration  which  should  be  given  to  the 
opposition  offered  by  the  electors  of  a  district  to  its  dissolution  and  annexa- 
tion to  another  district    (5399) '.'"; '■" 

A  district  having  sufficient  property  and  children  to  mamtam  an  ideal  country 

.       school  should  not  be  dissolved  when  such  action  is  opposed  by  a  majority  ot 

the  residents  of  the  district.    In  determining  the  propriety  of  dissolvmg  a  dis- 


1482  THE    UNIVERSITY    OF    THE   STATE   OF    NEW    YORK 

School  districts  —  dissolution  of  —  continued  page 

trict,  it  is  necessary  to  provide  adequate  facilities  for  the  younger  children 
of  the  district  as  well  as  for  the  older  or  those  qualified  to  do  academic  work 
(5278)    720 

An  order  dissolving  a  school  district  and  annexing  its  territory  to  other  districts 
will  not  be  set  aside  on  the  sole  ground  that  some  of  the  residents  of  the 
district  are  inconvenienced  by  their  assignment  to  the  other  district  (5456, 
5439)   723,      725 

When  a  school  commissioner  divides  one  district  into  two  districts  and  there  is 
no  controversy  as  to  the  necessity  of  such  action,  the  order  of  the  school 
commissioner  will  not  be  set  aside  where  it  appears  that  there  is  no  material 
discrimination  in  favor  of  one  district,  etc.     (5439) 727 

An  appeal  which  discusses  fully  certain  irregularities  in  the  procedure  of  a  school 
commissioner  in  making  an  order  to  dissolve  a  district  and  where  the  action 
of  such  school  commissioner  is  vacated   (4707) 730 

An  appeal  in  which  the  power  of  a  school  commissioner  to  dissolve  districts  is 
generally  determined  and  which  also  determines  fully  the  forms  of  orders, 
descriptions  of  boundaries,  etc.      (4849) 732 

An  appeal  which  distinguishes  between  the  dissolution  of  a  school  district,  forma- 
tion of  new  districts  and  the  alterations  of  boundaries  in  new  districts,  and 
makes  a  general  application  of  the  law  to  these  three  procedures  (4904) 735 

Where  no  irregularity  is  averred  in  relation  to  a  school  commissioner's  order 
annulling  a  district  and  when  in  such  case  a  district  refuses  to  maintain  a 
suitable  building,  the  action  of  the  commissioner  will  be  sustained   (3915)..       737 

Where  all  the  trustees  of  a  district  concerned  have  consented  to  the  dissolution 
of  such  district,  the  order  of  the  commissioner  will  be  sustained  unless  it  is 
clearly  shown  by  decisive  proof  that  the  dissolution  was  inadvisable  (3685)  . .       738 

The  action  of  a  school  commissioner  in  annulling  a  district  will  be  set  aside  when 
it  appears  undisputably  that  the  district  is  able  to  maintain  a  school  and  that 
the  sentiment  of  the  district  is  substantially  unanimous  against  dissolution 
and  when  the  proposed  dissolution  would  necessitate  the  children  of  the 
district  going  a  long  distance  to  secure  school  privileges    (3916) 739 

When  it  is  shown  in  an  appeal  that  a  school  district  owns  a  site  and  schoolhouse, 
is  free  from  debt,  maintains  a  good  school  and  that  the  taxpayers  are 
unanimous  and  willing  to  support  the  schools,  the  action  of  a  commissioner 
in  dissolving  such  district  will  be  vacated   (4012,  4018) 739,  74° 

Where  the  order  of  a  school  commissioner  is  clearly  illegal  and  not  made  in 
accordance  with  the  provisions  of  the  law,  the  procedure  is  to  vacate  such 
order  and  not  to  undertake  to  perfect  it  (3788) 742 

In  the  alteration  or  dissolution  of  a  joint  school  district,  the  commissioners  of 
such  district,  or  a  majority  of  them,  must  act.  In  the  dissolution  of  a  joint 
district  without  the  consent  of  the  trustees,  what  is  known  as  the  local 
board  must  give  a  hearing  to  objections  which  are  offered  in  relation  thereto 

(5063)    743 

School  districts — organization  of 

If  a  district  has  been  recognized  as  legal  for  a  length  of  time,  regularity  in  its 
organization  will  be  presumed  in  the  absence  of  the  proper  records  and 
commissioners  of  common  schools  can  not  bound  the  district  anew  and  order 
an  election  of  officers  under  such  circumstances 746 

In  the  formation  of  school  districts,  this  Department  will  not  interfere  with  the 
discretion  which  the  law  reposes  in  the  school  commissioner  where  the 
convenience  of  individuals  alone  is  affected  and  where  no  material  interest 
of  such  individuals  or  of  the  district  is  involved  (4166) 74^ 


INDEX    TO    JUDICIAL   DECISIONS  I483 

School  districts  —  organization  of  —  continued  page 

The  formation  of  weak  school  districts  will  not  be  upheld  when  it  is  made  to 

appear  that  the  best  interests  of  education  do  not  warrant  it  (3517) 750 

An  appeal  which  discusses  in  a  general  way  the  conditions  under  which  the  order 

of  a  school  commissioner  forming  a  new  district  will  be  set  aside  (4248)  ....       751 

Where  a  sufficient  number  of  school  children  and  a  sufficient  amount  of  property 
exists  to  warrant  the  authorization  of  a  new  district,  it  is  the  duty  of  the 
school  commissioner  to  take  such  action   (4014) 755 

There  must  be  overwhelming  proof  to  justify  the  Superintendent  in  overruling 
the  action  of  two  school  commissioners  in  refusing  to  sanction  the  forma- 
tion of  a  new  district  out  of  parts  of  two  districts  lying  in  different 
counties   (3828) 755 

A  clear  case  must  be  estabhshed  to  justify  the  Superintendent  in  overruling 
the  action  of  a  local  board  in  deciding  not  to  confirm  an  order  of  a  school 
commissioner  in  forming  a  new  district   (3851) 756 

This  is  an  appeal  in  which  the  general  conditions  which  will  justify  a  school 

commissioner  in  forming  a  new  district  are  determined  (4317) 757 

The  action  of  a  school  commissioner  in  establishing  a  new  school  district  which 
promotes  the  educational  interests  of  a  majority  of  the  residents  affected  will 
be  sustained.  It  is  not  absolutely  necessary  that  the  confirmatory  order 
shall  be  identical  in  terms  with  the  preliminary  order  (5298) 7^0 

In  forming  a  new  district,  the  confirmatory  order  should  be  identical  with  the 
terms  of  the  original  order,  but  a  person  who  secures  a  slight  modification 
of  an  order  and  gives  his  acquiescence  to  such  modification  is  not  in  a  position 
to  question  the  validity  of  the  confirmatory  order  because  of  such  modifica- 
tion (3527) '^-^ 

When  a  school  commissioner  makes  an  order  which  establishes  a  new  school 
district  out  of  a  portion  of  a  district  which  has  been  dissolved  and  does 
not  dispose  of  the  remaining  territory  of  the  dissolved  district  nor  show  the 
alteration  of  the  boundaries  of  the  other  districts  to  which  it  is  assumed 
such  remaining  territory  has  been  annexed,  it  is  defective  and  must  be  set 
aside   (5407) •  •  •  • 7^4 

An  appeal  which  discusses  the  organization  of  a  union  free  school  district  (4380). 

Officers,  removal  of 47° 

School  equipment 

When  a  trustee  of  a  school  district  has  purchased  for  the  district  upon  his  own 
motion  and  paid  therefor  $15  for  a  set  of  school  charts  for  which  he  desired 
reimbursement  which  was  refused  by  the  district,  his  claim  will  be  allowed 

and  payment  ordered    (3936) 7  7 

School  funds 

An  appeal  which  determines  the  duties  of  trustees  in  relation  to  protecting  the 

funds   of   the   district    (3659) u"VJ'"i 

A  district  meeting  is  not  authorized  to  authorize  trustees  to  use  the   funds  ot 

the  district  in  their  discretion  (3714) 77*^' 

An  appeal  which  interprets  the  meaning  of  a  special  statute  in  relation  to  trust 

funds,    etc.     (3690) , ;      ^^' 

An  appeal  which  determines  the  right  of  the  district  to  vote  a  large  sum  of 
money  for  the  payment  of  costs  incurred  by  ^the  board  in  defendmg  actions 
brought  in  the  courts  against  trustees  for  libel  alleged  to  have  been  contained      ^^^^ 

in  their  report   (4995) ; '". " 

An  appeal  which  interprets  the  law  regulating  an  apportionment  of  mcome  or 

proceeds  from  gospel  and  school   funds    (3^37'^ ' * " 


1484  THE    UNIVERSITY    OF    THE   STATE   OF    NEW    YORK 

School  funds  —  continued  p^^.^ 

In  a  district  which  is  divided  and  that  portion  of  the  district  in  which  a  branch 
school  was  maintained  is  made  into  a  separate  district,  an  equitable  proportion 
of  the  public  monej^  must  be  paid  to  the  new  district   (3543) 782 

The  practice  of  a  trustee  in  drawing  funds  from  the  collector  and  holding  the 
same  for  the  purchase  of  incidentals  as  needed,  is  not  founded  on  legal  right 
or  good  business  methods   (5300) .     Meetings 307 

The  funds  of  the  district  can  be  used  for  proper  purposes  only  and  a  majority 

of  the  voters  can  not  direct  their  use  for  other  purposes  (5190).     Meetings..       311 

Funds  received  by  a  school  district  as  an  award  of  condemnation  proceedings  in 
which  the  site  of  the  district  is  taken  for  public  purposes  must  be  used  in 
purchasing  a  new  site  and  in  erecting  a  new  schoolhouse  and  furnishing  and 
improving  such  site  and  house  and  other  appendages,  and  in  purchasing 
school  apparatus  and  for  the  support  of  the  school  (5170).  Officers, 
removal  of  448 

Collectors  are  the  proper  custodians  of  district  moneys  and  they  need  not  pay  them 
over  to  trustees.  They  should  pay  only  on  the  written  order  of  the  trustee 
or  a  majority  of  the  trustees,  and  the  order  should  state  the  purpose  for 

which  the  money  is  to  be  paid.     Officers 423 

School  furniture 

An  appeal  which  defines  in  general  terms  the  power  of  the  school  commissioner 

to  direct  a  trustee  to  purchase  new  furniture   (4629) 786 

An   appeal   in   which   the   order  of   the   school   commissioner    condemning   seats 

and  desks  in  the  schoolhouse  is  sustained   (4197,  3848,  3744) 788,  791,      792 

A  trustee  must  cause  repairs  to,  or  purchase,  furniture  for  the  school  building 
to  the  extent  of  $100  when  ordered  to  do  so  by  the  school  commissioner 
(3772)    793 

Where  a  board  of  education  has  made  expenditures  in  providing  a  heating  system 
for  the  building  and  it  is  found  that  they  acted  in  good  faith  and  without 
fraud  and  in  a  manner  to  protect  the  interests  of  the  district,  their  action 
will  not  be  interfered  with    (3978) 795 

The  order  of  a  school  commissioner  directing  a  furnace  to  be  purchased  in  order 

to  render  a  schoolhouse  comfortable  for  use,  will  be  sustained  (3729) 796 

School  grounds 

School  authorities  should  aid  in  the  preservation  of  trees  upon  school  grounds 
and  should  plant  trees  upon  such  grounds  whenever  there  is  opportunity  to 
do  so  and  when  additional  trees  will  add  to  the  beauty  and  attractiveness 
of  the  grounds.  School  authorities  will  be  prohibited  from  cutting  trees 
upon  school  grounds  unless  good  cause  exists  therefor  (5305) 798 

School  districts  are  governed  by  the  same  rules  regarding  the  construction  and 
maintenance  of  division  fences  as  are  all  other  owners  of  property.  The 
owners  of  adjoining  lands,  if  inclosed,  can  be  required  to  construct  one- 
half  the  dividing  fence  or  contribute  in  that  proportion  toward  the  same 
(3895)    • 799 

A  trustee  has  no  authority  to  purchase  land  or  to  bind  a  district  to  maintain  a 

division  fence  or  to  charge  for  personal  services  in  making  repairs   (3790)  • .       800 

An  appeal  which   discusses  the  right  of  the  district  to  vote  funds   for  fencing 

the  school  grounds    (5287).     Meetings 310 

SCHOOLHOUSES 

There  can  be  no  partnership  in  the  erection  of  a  district  schoolhouse 803 

Trustees  will  not  be  required  to  let  the  building  of  the  schoolhouse  to  the  lowest 

bidder  unless  instructed  to  do  so  by  a  vote  of  the  district 804 


INDEX    TO    JUDICIAL   DECISIONS  I485 

ScHOOLHOuSES  —  Continued  „.^^ 

PAGE 

A  district  can  not  be  compelled  to  rebuild  where  the  schoolhouse  has  been 
destroyed,  but  when  it  fails  to  do  so  for  a  long  period  of  time,  the  district 
may  be  annulled 804 

It  is  the  settled  policy  of  the  State  that  school  districts  shall  own  their  school 
buildings  and  sites  and  are  not  authorized  to  rent  school  property  except  to 
meet  emergencies    (4845) 805 

The  action  of  a  district  meeting  in  granting  an  extra  allowance  to  contractors  will 
not  be  sustained  unless  the  voters  had  notice  that  such  proposition  would  be 
submitted    (3731) 807 

A  district  meeting  voted  to  repair  a  schoolhouse  but  the  trustees  had  awarded  no 
contracts  and  a  district  liability  had  not  been  created.  Under  such  conditions 
the  district  could  legally  change  its  plan  and  vote  a  tax  for  the  erection 
of  a  new  building  (5194) 809 

An  appeal  which  discusses  and  determines  the  law  generally  as  to  the  construc- 
tion   of    school   buildings,    the    rights    of    trustees,    building   committees,    etc. 

(5179)    8io 

An  appeal  which  defines  the  duties  of  trustees  where  appropriations  have  been 

made  for  the  erection  of  school  buildings   (5436) 815 

The  Commissioner  of  Education  is  not  justified  in  vacating  the  action  of  a 
meeting  which  determined  by  a  vote  of  34  to  14  that  a  building  was  not 
necessary    (5390H) ^ 817 

An  appeal  which  determines  generally  the  provisions  of  law  relating  to  the  plans 
and  specifications  for  school  building,  the  heating  and  lighting  of  buildings, 
etc.      (5382) 818 

A  board  of  education  is  not  justified  in  awarding  a  contract  for  a  proposed 
addition  to  a  school  building  at  a  cost  of  $75,000  when  the  voters  of  the 
district  have  had  no  opportunity  to  examine  the  plans  and  specifications 
therefor    (5390) 8_'3 

When  the  trustee  of  a  district  submits  to  the  Commissioner  of  Education  plans 
and  specifications  for  a  new  building  to  replace  one  destroyed  by  fire  and  the 
trustee  is  authorized  to  proceed  with  the  erection  of  the  building  but  to 
modify  the  plans  in  minor  details,  and  the  trustee  acts  in  accordance  with 
such  instruction,  the  trustee   will  be  sustained    (5365) ^-7 

The  action  of  a  meeting  in  voting  to  erect  a  new  school  building,  but  not  con- 
forming to  the  provisions  of  law,  will  be  set  aside  (391 0 ^-8 

The  action  of  a  trustee  in  constructing  a  new  school  building  in  conformity  with 

the  commissioner's  order  will  be  sustained   (3883) 829 

An  appeal  which  discusses  the  right  of  a  district  to  provide  plans  and  specifica- 
tions, powers  of  building  committee,  etc.  (3648) 830 

The  action  of  the  district  meeting  in  authorizing  a  new  building  affording  accom- 
modations for  more  children  than  there  are  residing  in  the  district  will  be 
sustained  when  it  is  shown  that  the  population  of  the  district  is  rapidly  in- 
creasing  (3613)    ;••     ^■'" 

The  lowest  bidder  on  constructing  a  schoolhouse  must  conform  to  the  require- 
ments on  which  the  bid  must  be  submitted.  In  choosing,  the  board  is  not 
bound  to  accept  such  bid.     (3584) ;  •  • ^-^-^ 

Where  a  district  meeting  authorizes  the  construction  of  a  new  building  but  no 
action  is  taken  by  the  trustees,  and  at  another  meeting  a  similar  appropriation 
is  authorized  for  the  same  purpose  and  a  building  is  erected  in  accordance 
therewith,  the  action  of  the  trustees  will  be  sustained   (3987) •• 835 

The  action  of  a  board  of  trustees  in  accepting  a  school  building  which  is  well 
and  properly  constructed,  wortli  the  cost  of  the  same,  and  where  there  has 


i486  THE   UNIVERSITY    OF   THE   STATE   OF    NEW    YORK 

ScHOOLHOusES  —  continued  p^,,^ 

been  a  substantial  compliance  with  the  terms  of  the  contract,  will  be  sustained 

(3942) • .  • 836 

In  the  construction  of  a  costly  school  building  the  very  best  architectural  help 
should  be  employed  and  the  opinions  of  the  electors  of  the  district  respected 

(3955)    837 

The  voters  of  the  school  district  possess  the  power  to  authorize  the  erection  of 
a  new  schoolhouse  even  if  such  schoolhouse  has  not  been  condemned  by 
the  school  commissioner   (4337) 839 

Where  the  plans  and  specifications  for  the  ventilating,  lighting  and  heating  of 
the  school  building  are  adequate,  it  is  the  duty  of  the  school  commissioner 
to  approve  the  same  (4225) 843 

An  annual  school  meeting  may  vote  a  tax  to  fit  up  part  of  the  school  building, 

although  special  notice  of  such  proposed  action  was  not  given  (3657) 84S 

While  the  law  authorizes  the  sale  of  an  old  school  building  it  does  not  require  it, 
and  trustees  should  not  sell  an  old  building  until  directed  to  do  so  by  a 
district  meeting  (3663) 847 

An  old  school  building  need  not  be  disposed  of  until  the  new  schoolhouse  is 

completed  upon  another  site   (3614) 847 

The  action  of  the  school  commissioner  in  condemning  a  building  as  unfit  for  use 
and  not  worth  repairing  will  be  upheld  unless  overwhelming  proof  is  adduced 
that  it  should  not  be  (3720,  3869) 848,  849 

In  condemning  a  schoolhouse,  the  order  of  the  school  commissioner  must  specify 
as  the  law  requires  that  such  building  is  "  wholly  unfit  for  use  and  not  worth 
repairing"    (5015)    850 

Where  it  is  shown  conclusively  that  the  school  commissioner  has  unwisely  exer- 
cised the  official  power  in  his  discretion  in  condemning  a  school  building, 
his  order  of  condemnation  will  be  vacated  (4250) 852 

If  a  schoolhouse  has  been  condemned  by  a  school  commissioner  and  no  appeal 
has  been  taken  from  his  action,  the  building  is  no  longer  a  schoolhouse  within 
the  meaning  of  that  term  as  used  in  the  Consolidated  School  Law  (5076, 
5074) 858,      861 

The  policy  of  the  State  is  to  require  school  districts  to  own  the  buildings  in  which 
their  schools  are  maintained.  The  law  does  not  favor  the  hiring  of  rooms 
except  to  meet  emergencies,  or  when  the  building  is  not  in  proper  repair, 
or  has  been  injured  or  damaged,  or  has  not  sufficient  capacity  to  accommodate 
the  children  (4890) .    Appeals 40 

Where  a  district  votes  to  erect  a  new  building  and  then  adjourns  for  four  weeks 
to  consider  proposals  for  the  construction  of  the  building,  and  at  such 
adjourned  meeting  votes  to  rescind  the  vote  of  the  original  meeting  authoriz- 
ing the  levying  of  a  tax  for  the  construction  of  such  building,  the  vote  to 
rescind  is  legal  and  binding.    Assessments 46 

When  the  schoolhouse  has  been  regularly  condemned  by  a  school  commissioner, 
the  school  district  has  no  authority  to  direct  the  repair  or  equipment  of  such 
building    (5151).     Meetings 296 

An  appeal  which  discusses  the  right  of  a  school  meeting  to  rescind  the  action  of 
a  previous  meeting  in  authorizing  the  construction  of  a  school  building 
(3925).    Meetings 334 

It  is  the  policy  of  the  school  law  that  each  of  the  school  districts  of  the  State 
should  become  the  owner  of  a  schoolhouse  or  schoolhouses  or  school  building 
or  buildings  either  by  purchase  or  by  building  upon  a  suitable  site  or  sites 
and,  where  power  is  given  to  rent  a  room  or  rooms,  it  is  only  for  a  limited 
time  to  provide  for  an  emergency  (4516).    Religious  garb 538 


INDEX    TO    JUDICIAL   DECISIONS  I487 

ScHOOLHOUSES  —  Continued 

Since  1894  "t  has  been  the  settled  policy  of  the  State  to  require  localities  to  own 
school  buildings  in  which  the  public  schools  are  conducted.  The  leasing  and 
renting  of  rooms  and  buildings  for  school  purposes  are  not  authorized 
except  under  extraordinary  conditions  and  to  provide  for  emergencies  (4722, 
4642,  5010).     Religious  garb 560,  568,  572 

The  notice  to  designate  a  site  and  to  authorize  the  construction  of  a  new  building 
need  not  necessarily  prescribe  the  specific  amount  to  be  used  for  each  purpose 
(3639)  •     Sites 949 

The  plans  for  the  schoolhouse  should  be  determined  upon  at  a  district  meeting  and 

the  building  erected  in  accordance  therewith  (3962) .    Tax  lists 999 

Under  the  provisions  of  the  liquor  tax  law  of  the  State  the  traffic  in  liquor  can 
not  be  permitted  in  any  building  which  shall  be  on  the  same  street  or  avenue 
and  within  200  feet  of  a  building  occupied  exclusively  as  a  church  or  school- 
house   (5073^)-     Sites 928 

School  moneys 

Moneys  lost  or  embezzled  by  district  officers  are  recoverable  in  the  first  place 
from  such  officers  and  in  the  second  place  from  the  sureties  on  the  official 
bond  given  by  such  officers   (5092) 866 

The  treasurer  of  a  union  free  school  district  is  a  public  officer  having  custody  of 
public  moneys  and  is  therefore  an  insurer  of  the  same  and  liable  for  the 
loss  thereof,  although  occurring  without  his  fault  or  negligence  (5092) 866 

Under  the  law,  supervisors  of  towns  and  collectors  of  school  districts  are  the 
legal  custodians  of  the  public  moneys  of  the  State  apportioned  to  school 
districts  and  of  moneys  collected  upon  tax  list  or  received  by  them  from  the 
county  treasurer  or  boards  of  supervisors  for  taxes  returned,  and  these  officers 
can  pay  out  such  moneys  upon  the  written  order  of  the  trustee  or  a  majority 
of  the  board  of  trustees  to  the  person  entitled  to  receive  the  same  (4441) 868 

There  is  no  provision  of  law  for  a  division  of  common  property  when  a  new 
district  is  set  off  from  an  old  one  and  the  taxes  levied  and  collected  before 
the  formation  of  a  new  district  can  not  be  apportioned   (3543) 872 

A  trustee  is  not  a  proper  custodian  of  district  funds  (3575)-    Trustees 1293 

School  property,  use  of 

Schoolhouses  can  not  be  used  for  any  other  than  common  school  purposes  except 

by  general  consent  °77 

When  the  schoolhouse  is  used  for  religious  services  by  permission  of  trustee, 
and  such  use  is  objected  to  by  a  legal  voter  of  the  district,  it  must  be  dis- 
continued   (3651) /  • ;  •  •       ^7^ 

The  action  of  a  school  district  trustee  in  permitting  the  use  of  a  school  building 
for  religious  purposes  which  did  not  interfere  with  the  school  or  prove 
detrimental  in  any  way  to  the  property,  will  not  be  interfered  with    (4021, 

3707)   .....     879.880 

Where  the  use  of  a  schoolhouse  is  for  any  other  purposes  than  a  school,  or  for 
holding  school  meetings,  and  where  such  use  interferes  with  the  use  of  the 
building  for  school  purposes,  or  where  the  property  is  injured,  or  where 
difference  of  opinion  among  the  qualified  voters  of  the  district  as  to  such  use 
exists,  it  is  the  duty  of  the  State  Superintendent  to  observe  and  enforce  the 

law  strictly  in  relation  thereto   (4653) ^^ 

The  term  "branch  of  instruction  and  learning"  contained  in  the  law  means 
secular  education  and  learning  such  as  is  taught  in  the  schools,  academies 

and  colleges,  and  not  religious  instruction  or  learning  (4522,  4419) 882,  883 

.  An  appeal  which  determines  fully  the  provisions  of  the  law  relative  to  the  use 

of  school  buildings  (4450) ^7 


1488  THE    UNIVERSITY   OF   THE    STATE   OF    NEW   YORK 

School  property,  use  of  —  continued  p^ot 

The  trustee  of  a  school  district  is  the  legal  custodian  of  the  schoolhouse  but 
he  can  not  regard  the  schoolhouse  as  his  private  property  and  put  it  to  such 
use  as  he  sees  fit.  The  use  of  a  schoolhouse  for  any  purpose  other  than 
that  permitted  by  law,  no  matter  how  laudable,  can  not  be  sustained  when 
objection  thereto  is  interposed  by  interested  parties  (3577) 890 

Schoolhouses  may  be  used  out  of  school  hours,  when  not  in  use  for  district 
purposes,  for  religious  meetings,  Sunday  schools,  intellectual  or  moral  pur- 
poses, with  the  appropriation  of  a  majority  of  the  district  or  consent  of  the 
trustee    (4164) 892 

In  an  appeal  from  the  action  of  a  trustee  of  a  school  district,  his  action  in  per- 
mitting the  schoolhouse  to  be  used  by  an  association  known  as  "  The  Patrons 
of  Industry  of  the  State  of  New  York  "  will  not  be  sustained   (4334) 894 

An  appeal  which  determines  generally  the  purposes  for  which  a  school  district 

building  may  be  used    (4941 ) 899 

The  trustees  of  a  district  have  not  the  right  to  permit  the  schoolhouse  to  be 
used  as  a  place  for  meetings,  suppers,  entertainments,  etc.  to  be  given  by  an 
organization  called  the  Grangers   (3968) 902 

The  objection  of  a  single  elector  to  the  action  of  a  trustee  of  a  district  in 
permitting  the  schoolhouse  and  grounds  to  be  used  on  a  certain  evening  by 
a  local  military  band  composed  of  pupils  of  the  school  for  the  purposes  of 
a  musical  entertainment  will  not  be  maintained    (3999) 903 

It  does  not  appear  proper,  nor  does  the  law  sanction  the  appropriation  of  district 

funds  for  the  erection  of  horsesheds  upon  a  schoolhouse  site   (5221) 904 

School  publication 

A  publication  standing  for  a  high  school  and  appealing  to  the  constituency  of 
that    school    on    such    ground,    is    not    a    private    or    personal    affair,    but    a 
public  affair  and  subject  to  public  authority    (5142).     Board  of  education..        94 
Sites 

The  law  intends  that  the  record  of  the  vote  to  change  the  site  of  a  schoolhouse 
shall  be  preserved  and  that  the  record  of  how  each  voter  present  voted  upon 
the  question  shall  be  incorporated  in  the  minutes  of  the  meeting   (3383)....       906 

When  it  is  shown  that  a  schoolhouse  site  regularly  designated  at  a  school  meeting 
is  unfit  in  a  sanitary  sense  and  because  it  is  located  so  near  swamps  and 
lowlands  as  to  render  the  site  dangerous  because  of  liability  of  malarial 
infection,  the  action  of  ^he  meeting  will  be  set  aside  (4233) 907 

The  action  of  a  district  meeting  in  designating  a  site  will  not  be  set  aside  on 
the  mere  allegation  that  the  purchase  price  of  such  site  is  excessive.  A 
site  is  worth  as  much  for  school  purposes  as  it  would  be  worth  for  manu- 
facturing or  other  purposes    ( 5209) 91 1 

A  site  is  not  legally  designated  unless  a  resolution  is  adopted  describing  the 
boundaries  of  such  site  in  metes  and  bounds  and  the  vote  is  taken  by  record- 
ing the  ayes  and  noes   (5189) 914 

The  action  of  a  meeting  in  designating  a  site  so  far  .  from  the  center  of  the 
district  as  to  operate  as  a  hardship  to  a  portion  of  the  children  and  to  inter- 
fere with  their  regular  attendance,  will  be  vacated  (5270) 915 

The  site  for  a  schoolhouse  in  a  populous  district  rapidily  developing  and  increas- 
ing in  population  should  be  selected  so  as  to  equalize,  so  far  as  possible, 
the  distance  which  pupils  residing  in  all  sections  of  the  district  will  be  required 
to  travel    (5234) 917 

The  general  rule  of  the  Department  has  been  that  before  its  aid  would  be  invoked 
to  interfere  with  the  action  of  a  district  meeting  in  designating  a  site,  it  must 
be  shown  that  such   site  is   unsanitary,   does  not  afford  adequate   facilities, 
1,  operates  as  a  hardship  upon  the  children,  etc.   (5321,  5345) 918,  920 


INDEX    TO   JUDICIAL   DECISIONS  I489 

Sites  — •  continued 

„,,,..  PACK 

bchool  authorities  are  required  to  provide  school  buildings  erected  to  meet  the 
sanitary  requirements  so  that  the  health  of  children  shall  not  be  in  danger. 
They  must  be  governed  by  the  same  principle  in  selecting  sites.  If  the  site 
selected  subjects  children  to  undue  risks,  it  is  an  improper  one  and  the  district 
should  not  erect  a  new  building  thereon   (5186) 921 

An  appeal  in  which  the  law  relating  to  the  designation  of  sites  is  generally 
determined,  including  the  accessibility  of  site,  notice  of  meeting,  consent  of 
school  commissioner,  description  of,  etc.     (5455) 923 

The  voters  of  a  school  district  have  the  authority  to  designate  the  particular 
portion  of  a  site  where  a  new  building  shall  be  erected.  In  the  absence  of 
such  designation  by  the  district  meeting,  trustees  or  boards  of  education  have 
authority  to  designate  the  place  upon  the  site  where  the  building  is  to  be 
constructed  (454?) 927 

An  appeal  which  describes  fully  the  notice  of  meetings  called  for  the  purpose  of 
designating  a  site  and  the  form  of  resolution  which  must  be  adopted  thereat 
(5073^)    928 

The  Department  will  not  enjoin  trustees  from  proceeding  to  erect  a  new  building 
upon  an  old  site  in  order  to  afford  time  to  work  up  sentiment  for  a  change 
of  site  (3525) 232 

When  trustees  purchase  a  site  designated  by  the  district,  an  appeal  from  their 
action  will  not  lie.  Such  appeal  should  have  been  brought  from  the  action 
of  the  district  meeting 933 

The  action  of  a  supervisor  or  school  commissioner  in  refusing  to  consent  to  a 
change  of  the  old  schoolhouse  site  will  be  sustained  when  it  appears  that  the 
district  meeting  has  neglected  definitely  to  designate  a  site.  A  district  meet- 
ing can  not  delegate  authority  to  a  committee  to  purchase  a  site  and  to 
take  as  much  land  as  may  be  necessary.     (3675) 933 

Until  a  new  site  has  been  designated,  a  supervisor  or  school  commissioner  is  not 
bound  to  consent  to  a  change  of  site.  A  mere  resolution  in  favor  of  the 
purchase  of  a  site  is  insufficient   (3681 ) 935 

A  supervisor  or  school  commissioner  should  approve  the  action  of  a  district 
meeting  in  voting  to  change  a  site  unless  some  substantial  reason  exists  for 
declining    to    make    such    approval    (3644) 937 

The  action  of  a  district  meeting  in  designating  a  site  will  not  be  set  aside  when 
it  appears  that  every  possible  effort  was  made  to  give  notice  of  the  meeting 
to  all  voters  and  all  voters  attended  the  meeting  but  three,  and  these  three 
had   received   notice  of    such   meeting    (3555) 938 

The  action  of  a  trustee  in  refusing  to  call  a  special  meeting  to  locate  a  site  for  a 

new  schoolhouse  will  be  reversed  and  a  meeting  ordered  (3629) 939 

The  proceedings  of  a  district  meeting,  properly  called  and  conducted,  changing  a 
schoolhouse  site,  will  not  be  disturbed  unless  it  is  shown  that  the  site  selected 
is  unsuitable,  etc.  (3542) 94° 

The  State  Superintendent  will  not  dictate  as  to  the  site  which  a  district  shall  select. 
The   designation  of  a  schoolhouse  site  should  be  controlled   by  the  school 

district    (3509)     •. -. ^^ 

A  district  meeting  having  authorized  a  trustee  to  purchase  a  specific  site  for  a 
reasonable  compensation  has  not  authorized  the  trustee  to  submit  the  question 
of  proper  compensation  to  arbitration.  In  so  doing  the  trustee  acted  without 
authority  and  his  action  is  reversed   (3637) 944 

A  district  meeting  having  designated  regularly  one  site  and  raised  necessary  funds 
to  pay  for  the  same  and  acquire  title  thereto,  may  at  another  meeting  regu- 
larly held  and  generally  attended  by  the  voters  of  the  district,  designate  a  new 
site  and  direct  the  sale  of  the  first  site  designated  (3667) 94^ 


1490  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

Sites  —  continued  p^^g 

An  appeal  in  which  it  was  held  that  a  notice  which  did  not  specify  the  amount 
which  would  be  raised  for  the  purchase  of  a  site  and  the  amount  for  the 
schoolhouse  in  separate  items  was  sufficient   (3639) 949 

Land  to  be  rented  for  school  district  purposes  must  be  clearly  described  so  as  to 

guide  the  trustee  in  carrying  out  the  intent  of  the  district  meeting  (3906) 951 

Where  the  failure  to  give  notice  of  a  meeting  to  change  a  site  prevented  the 
attendance  of  certain  voters,  and  it  appeared  that  the  vote  was  nearly  even 
for  and  against  the  site  designated,  the  action  will  be  set  aside  and  a  new 
meeting   ordered    (3612) 951 

The  action  of  a  district  meeting  in  changing  a  district  site  will  be  set  aside  when 
it  is  shown  that  a  series  of  meetings  had  been  held  and  a  different  site  named 
at  each,  and  that  at  the  last  meeting  but  few  voters  were  present  and  it  was 
not  understood  that  an  attempt  would  be  made  to  change  the  site  previously 
selected    (3809) 953 

When  a  district  meeting  is  held  on  a  very  stormy  night  and  at  a  time  when  the 
roads  in  that  district  are  almost  impassable  and  many  voters  are  unable  to 
attend  and  it  is  decided  by  a  close  vote  to  change  a  site,  the  action  of  the 
meeting  will  be  set  aside  and  a  new  meeting  ordered   (3587) 954 

A  district  meeting  can  not  delegate  the  authority  to  select  a  site  by  designating  a 
committee  for  that  purpose.  The  site  selected  must  be  designated  through  the 
district  meeting  (3549) 955 

The  action  of  a  district  meeting  in  selecting  a  site  will  be  vacated  when  it  clearly 
appears  that  a  majority  of  the  inhabitants  present  and  voting  against  the 
selection  of  the  site  and  when  it  further  appears  that  the  site  was  not  suffi- 
ciently  described    (3779) 957 

The  action  of  a  district  meeting  in  designating  a  site  will  not  be  vacated  when 
it  is  not  shown  that  the  meeting  was  irregular,  or  that  there  is  valid  objection 
to  such  site,  or  that  the  parties  making  the  objection  are  in  any  way  injured 
(4262)     959 

The  Department  will  not  be  justified  in  vacating  the  action  of  a  large  majority 
of  the  voters  of  a  district  in  designating  a  site,  unless  it  appears  clear  that 
such  majority  acted  contrary  to  the  interests  of  the  district.  In  rural  school 
districts  some  of  the  children  must  be  farther  from  the  schoolhouse  than 
others  and  thus  be  inconvenienced  by  the  longer  distance  (4319) 961 

An  appeal  in  which  the  law  relative  to  the  designation  of  a  site  by  a  union  free 
school  district,  whose  limits  do  not  correspond  to  those  of  an  incorporated 
village  or  city  is   determined    (4915) 964 

An  appeal  which  determines  the  provisions  of  a  special  law  relative  to  the  designa- 
tion of  a  site   (3974) 967 

The  action  of  a  meeting  in  designating  a  site  will  not  be  reversed  on  the  ground 
that  there  was  confusion  at  the  meeting,  when  it  is  not  shown  that  the  proceed- 
ing.«  were  irregular   (3798,  3852) 967,  968 

The  inconvenience  of  a  few  families  when  a  large  majority  of  the  district  are 
suited  in  the  designation  of  a  site  is  not  sufficient  reason  for  reversing  the 
action  of  the  district  meeting  (3668) 969 

The  action  of  a  district  meeting  in  changing  a  site  will  not  be  set  aside  when  all 
provisions  of  law  have  been  complied  with,  upon  the  mere  allegation  that  the 
site  determined  upon  is  unhealthy   (3648) 970 

A  district  meeting  must  decide  definitely  upon  a  proposed  site  for  the  schoolhouse 

so  that  the  trustee  will  know  precisely  what  land  he  is  to  purchase  (3745) 970 

When  there  are  doubts  with  regard  to  a  change  of  site,  it  is  better  to  retain  the 
old  site  until  the  doubts  are  removed  and  a  clear  majority  of  the  electors  favor 
a  change   (4001 ) 971 


INDEX   TO   JUDICIAL   DECISIONS  I49I 

Sites  —  continued  page 

The  action  of  a  supervisor  in  refusing  to  consent  to  a  change  of  site,  which  is 
sustained  by  the  trustee  and  a  large  number  of  taxable  inhabitants,  will  not  be 

interfered  with   (3610) 973 

When  it  is  made  to  appear  that  the  site  selected  for  the  schoolhouse  is  not  ad- 
vantageously situated,  the  action  of  the  meeting  in  selecting  such  site  will  be 

vacated   (3733) 974 

The  action  of  a  district  meeting  changing  a  schoolhouse  site  will  not  be  sustained 
unless  the  record  of  the  meeting  shows  that  the  vote  was  taken  as  the  law 

directs    (3721)    975 

The  action  of  a  district  meeting  in  designating  a  site  which  results  in  a  tie  vote, 
the  chairman  having  voted,  and  such  tie  vote  being  broken  by  the  chairman 

voting  again,  will  be  set  aside   (3677) 975 

Where  a  district  meeting  authorizes  a  trustee  to  purchase  such  amount  of  land  for 
a  school  site  as  he  may  see  fit,  and  to  pay  therefor  such  amount  as  he  may 
determine  to  be  proper,  such  action  is  not  in  accordance  with  the  law  and  will 

be   set   aside    (3767) 976 

Where  the  action  of  a  district  meeting  in  selecting  a  site  by  a  large  majority 
appears  to  be  proper,  but  that  a  few  of  the  inhabitants  received  no  notice  of 
the  meeting,  but  without  wilful  intent  on  the  part  of  the  officer  giving  such 

notice,  the  action  of  the  meeting  will  not  be  interfered  with  (3778) 978 

When  the  action  of  a  meeting  in  designating  a  site  is  not  sufficiently  descriptive  to 

comply  with  the  law,  the  action  will  be  vacated  (3780) 981 

The  proceedings  of  a  district  meeting  in  deciding  by  a  strong  affirmative  vote  to 
change  a  schoolhouse  site  and  build  a  new  schoolhouse  will  not  be  disturbed 
for  irregularities  at  the  meeting  which  are  not  specified  with   clearness  in 

proof    (3600)    981 

The  site  of  a  schoolhouse  selected  by  the  district  meeting  and  satisfactory  to  a 
large  majority  will  not  be  disturbed  unless  the  selection  was  brought  about 

by  illegal  or  improper  means   (3853) 983 

The  fact  that  a  newly  selected  school  site  is  inconvenient  for  some  persons  is  not 

sufficient  reason  for  setting  asijde  the  action  selecting  it  (3816) •  •       983 

An  incumbrance  upon  a  site  designated  by  a  district  meeting,  provided  such  m- 
cumbrance  may  be  removed,  does  not  furnish  sufficient  ground  upon  which 
the  district  may  refuse     to  complete  a  contract  of  purchase  (5187)-     Board 

of  education   ' 

A  resolution  adopted  at  a  district  meeting  which  provided  for  a  change  of  the 
"location  of  the  schoolhouse  to  the  center  of  the  district"  and  did  not 
describe  the  proposed  site  by  metes  and  bounds,  is  plainly  defective  (5401). 

Elections    ; ' ' '.' 

The  action  of  the  district  in  selecting  a  site  will  be  set  aside  when  such  site  is 

unsafe  for  school  purposes  and  the  price  paid  is  exorbitant  (5188).    Meetings      316 
When  the  schoolhouse  has  been  condemned  by  a  school  commissioner,  the  district 
does  not  then  vacate  the  site  upon  which  there  is  a  school  building  or  a 
building  in  the  process  of  erection  as  the  term  school  building  is  used  within 

the  meaning  of  the  Education  Law  (5076).    Schoolhouses •  •  ■  •  ■       ^08 

Where  a  district  adopted  a  site  at  a  special  meeting  and  later  changed  such  site  at 
another  meeting,  and  it  is  shown  on  an  appeal  that  the  district  would  probably 
not  have  authorized  an  appropriation  for  the  new  building  had  it  been  known 
that  such  building  would  be  erected  upon  the  latter  site,  tlie  action  m  designat- 
ing such  site  will  be  set  aside  and  a  new  meeting  ordered  (3761).    Tax  lists..       994 


1492  the  university  of  the  state  of  new  york 

State  scholarships  page 

Students  in  the  College  of  the  City  of  New  York  are  not  eligible  to  state  scholar- 
ships in   Cornell  University   (3887) 984 

Students  holding  a  state  scholarship  at  Cornell  University  who  fail  in  term  exam- 
inations and  consequently  are  required  to  leave  the  institution,  are  deemed 

to  have  abandoned  their  rights  to  the  scholarship  (3879) 984 

Tax  list 

An  appeal  which  holds  that  under  a  special  law  certain  taxpayers  are  authorized  to 
give  notice  in  which  of  two  towns  they  will  pay  taxes,  and  are  to  pay  their 
school  taxes  in  accordance  with  such  special  act  (3531 ) 988 

The  acceptance  and  adoption  of  a  trustee's  report  containing  reference  to  an  item 
of  expense  does  not  authorize  the  insertion  of  such  item  in  a  tax  list.  A  tax 
must  be  specifically  voted.  There  is  no  law  authorizing  a  tax  for  "  incidentals  " 
(3625)     989 

Trustees  may  include  in  a  tax  list  the  salary  due  a  teacher  without  a  vote  of  the 

district    (3625)     989 

When  irregularities  in  issuing  a  tax  list  are  insufficient  to  vacate  such  tax  list 

(3787) 991 

Although  a  site  may  have  been  changed  since  a  tax  for  building  a  schoolhouse  was 
voted,  such  action  will  be  held  not  to  prevent  the  enforcement  of  the  tax 
(3761)    994 

The  tax  list  and  warrant  may  be  delivered  to  a  collector  at  any  reasonable  time 
after  the  lapse  of  thirty  days  after  the  meeting  at  which  the  tax  was  voted. 
The  tax  list  and  warrant  can  not  be  issued  to  a  collector  until  the  board  of 
trustees  has  regularly  met  and  approved  such  collector's  bond  (3932) 996 

District  tax  lists  must  contain  a  proper  heading  enumerating  the  several  items 
for  which  the  tax  is  to  be  levied  and  specifying  the  amount  of  each  item 
(3948)     996 

The  items  included  in  the  tax  budget  should  be  separately  stated  in  the  heading 
of  the  tax  list.  The  tax  list  is  illegal  if  given  to  the  collector  before  that 
officer  gives  the  required  bond   (4035) 997 

Where  a  levy  and  sale  has  taken  place  under  the  warrant  to  satisfy  a  tax  and  the 
amount  of  the  tax  has  been  collected,  an  appeal  from  the  tax  list  containing 
items  not  authorized  by  statute  will  not  be  considered   (3950,  3962) 998,  999 

Where  land  has  been  taxed  in  a  particular  school  district  for  a  long  period  of 
years,  it  will  be  held  that  such  land  is  taxable  in  such  district  until  by  clear 
and  preponderating  evidence  it  is  established  that  the  property  is  located  in 
another  district  (3964) looi 

The  preparation  of  a  district  tax  list  from  a  town  assessment  roll  which  was 
.  not  at  the  time  of  such  preparation  the  last  revised  assessment  roll  of  the 
town,  is  irregular    (3986) 1002 

A  majority  of  a  board  of  trustees  will  not  be  required  to  sign  a  tax  list  and 
warrant  for  the  collection  of  taxes  when  the  list  contains  an  item  not  author- 
ized by  law.  The  majority  will  be  asked  and  ordered  to  prepare  a  tax  list  for 
the  legal  items  voted  by  a   meeting    (3553) 1002 

A  general  allegation  that  a  tax  list  is  erroneous,  without  specifying  the  error, 

will  not  be  sustained  (3608) 1003 

In  a  union  free  school  district,  trustees  will  be  required  to  sign  a  tax  list  and 
warrant  to  raise  money  voted  at  a  district  meeting  more  than  thirty  days 
since    (3634) 1004 

It  is  the  policy  of  the  school  law  to  require  trustees  of  school  districts,  when 

making  out  a  tax  list,  to  follow  the  last  revised  town  assessment  roll  (4163^) .     1006 


INDEX    ro   JUDICIAL  DECISIONS  I493 

Tax  list  —  continued 

PAGE 

An  appeal  which  determines  generally  the  law  relative  to  the  issuance  of  tax  lists 

(4408)     1009 

School  authorities  will  not  be  interfered  with  when  a  tax  list  has  been  issued 
without  specifying  in  the  heading  thereof  the  items  of  the  tax,  and  when  all 
taxpayers  have  paid  their  taxes  and  the  money  has  been  disbursed  (3786) . .     1012 

The  law  is  not  mandatory  upon  trustees  in  requiring  them  to  renew  a  warrant  to 

collect  district  taxes   (3826) 1012 

The  action  of  a  trustee  in  issuing  a  tax  list  based  upon  the  last  town  assessment 
roll,  and  issued  in  good  faith  and  prior  to  action  of  supervisors  of  the  towns 
in  determining  a  basis  of  equalization  for  levying  taxes,  will  be  upheld  (3818).     1014 

A  tax  list  prepared  by  one  of  three  trustees,  without  consultation  with  the  others, 
and  signed  by  two  of  such  trustees  without  the  third  trustee  having  been  in 
any  manner  consulted,   is  void    (3737) 1015 

In  preparing  a  tax  list,  trustees  are  required  to  follow  the  statutory  provisions 

strictly ;  otherwise  the  warrant  can  not  be  enforced  (3702) 1015 

The  action  of  trustees  in  issuing  a  tax  list  to  raise  money  to  pay  counsel  fees  and 
the  expenses  of  the  prosecution  of  a  criminal  action,  will  not  be  interfered 
with  when  it  appears  that  the  prosecution  of  such  action  and  the  employment 
of  counsel  was  directed  at  a  district  meeting  (3836) 1016 

A  trustee  will  not  be  required  to  include  in  a  tax  list  a  tax  upon  personal  property 
against  himself,  although  he  is  assessed  therefor  upon  the  town  assessment 
roll,  when  it  is  clearly  shown  that  he  is  not  the  owner  of  personal  property 
liable  to  taxation   (3882) 1017 

Where  a  trustee  in  preparing  a  tax  list  has  followed  the  town  assessment  roll, 
although  it  is  alleged  that  certain  residents  are  not  assessed  for  personal 
property,  the  action  of  the  trustee  will  not  be  interfered  with  (3860) 1018 

The  action  of  a  trustee  who  has  in  good  faith  followed  the  town  assessment  roll  in 
preparing  a  tax  list,  or  omitted,  as  the  town  assessors  did,  a  small  piece  of 
property  of  little  value  the  including  of  which  would  have  made  but  a  trivial 
reduction  in  the  tax  rate  and  the  appellant  neglected  to  move  immediately, 
will   not  be   disturbed    (3742) ioi9 

A  tax  list  issued  by  a  board  of  education  of  a  union  free  school  district  to  collect 
any  sum  of  money  where  the  authorization  to  levy  the  tax  was  by  viva  voce 
vote  or  taken  by  acclamation  will  be  set  aside  upon  appeal  (4390 1021 

The  action  of  a  resident  of  a  district  in  declining  to  pay  his  school  taxes  upon 
the  ground  that  his  child  was  suspended  from  the  privileges  of  the  school  for 
cause,  will  not  be  sustained   (37^9) '°^4 

The  failure  of  a  collector  to  post  a  copy  of  the  collector's  notice  of  the  collection 
of  taxes  on  the  door  of  a  schoolhouse  does  not  nullify  the  tax  list  and  warrant 
(5433).     Appeals   • 43 

In  preparing  a  tax  list,  trustees  must  use  the  last  town  assessment  roll  after  cor- 
rection by  the  assessors  (355o).    Equalization  of  values,  etc 289 

A  tax  list  which  does  not  specify  in  its  heading  the  items  for  which  a  tax  is  to 
be  collected  will  be  held  to  be  defective  and  the  trustee  directed  to  withdraw 
and  correct  the  same  (3772).     School  furniture •  •       793 

A  district  meeting  has  the  authority  to  vote  a  tax  to  meet  expenses  incurred  in 
defending  an  action  brought  against  the  district  and  such  item  should  be  in- 
cluded in  the  tax  list  (3849)-    Trustees 1243 

Teachers 

An  appeal  in  which  the  rights  of  a  teacher  under  a  contract  are  fully  determined, 
and  the  right  of  a  board  of  education  to  dismiss  a  high  scliool  prmcipal  is 
also   determined    (5251)    


1494  THE    UNIVERSITY   OF   THE    STATE   OF    NEW    YORK 

Teachers  —  continued  p^j,^ 

Where  a  teacher  resigns  because  of  ill  health  and  upon  the  advice  of  a  physician, 
and  it  appears  that  such  teacher  has  not  taught  elsewhere,  it  will  be  held 
that  the  district  is  indebted  to  him  for  salary  for  such  portion  of  the  time 
as  he  taught  and  will  be  ordered  to  pay  the  same  (5366) 1031 

The  principal  of  a  Regents  school  is  the  proper  person  to  conduct  Regents  exam- 
inations. It  is  his  duty  to  be  familiar  with  such  rules  and  to  enforce  a  strict 
observance  thereof.  He  is  not  entitled  to  extra  compensation  for  conducting 
such  examinations   (5335) 1032 

In  the  case  of  a  teacher's  inability  to  discharge  her  duties  for  several  days  of  a 
term  of  school  because  of  illness,  the  proper  authority  to  select  a  substitute 
for  the  period  is  the  trustee  (4003) 1035 

A  teacher  should  not  be  questioned  by  the  supervisors  as  to  his  religious  opinions, 
but  a  person  who  openly  derides  all  religions  should  not  be  employed  as  a 
teacher    1036 

Colored  persons  should  not  be  employed  to  teach  white  children 1037 

A  teacher  is  responsible  for  the  maintenance  of  discipline  in  his  school  and  his 
government  should  be  mild  and  parental.  If  he  inflicts  unnecessarily  severe 
punishment  on  a  pupil,  he  is  answerable  for  damages 1037 

The  Department  will  not  interfere  with  teachers  generally  in  small  matters  of 
school  discipline  where  no  charges  are  made  against  the  character  or  com- 
petency of  teachers,  and  where  children  have  not  been  punished  or  deprived 
of  the  privileges  of  the  school  (4048) 1039 

A  teacher  acts  entirely  within  her  legal  rights  in  closing  school  until  fuel  is  pro- 
vided so  that  the  schoolroom  may  be  placed  in  a  safe  and  comfortable  con- 
dition   (5178).     Branch    schools 139 

The  method  to  be  pursued  in  imparting  instruction  is  given  under  the  law  to 
teachers  and  a  visiting  committee  of  the  board  has  no  authority  to  interfere 
with    the    methods    of    instruction    pursued    by    teachers    (4294).      Teachers 

contracts   1201 

Teachers  certificates 

A  single  case  of  undue  severity  in  the  case  of  a  pupil  who  was  disobedient  and 
resisted  the  teacher  in  the  exercise  of  his  proper  authority  is  not  sufficient  to 
justify  the  revocation  of  his  certificate   (5406) 1039 

To  warrant  the  revocation  of  a  teacher's  certificate  upon  the  charge  of  severe 

punishment  of  a  pupil,  such  charge  must  be  conclusively  sustained  (5451)  ....     1041 

The  infliction  upon  a  pupil  of  unnecessary  and  cruel  punishment  is  good  cause  for 

annulling  a   teacher's  certificate 1042 

A  teacher's  certificate  should  not  be  annulled  for  moral  delinquencies  known  to  the 
commissioner  at  the  time  of  issuing  the  certificate  and  where  no  departure 
from  moral  standards  is  shown  to  have  occurred  since 1042 

An  appeal  in  which  the  procedure  relative  to  the  revocation  of  a  teacher's  certifi- 
cate is   outlined    (3496). 1043 

General  charges  of  immoral  character  are  not  sufficient  to  put  a  teacher  upon  the 
defensive.  The  charges  must  state  the  immoral  acts  of  the  teacher  and  should 
be  drawn  with  care  and  distinctness   (3510) 1044 

A  board  of  education  can  not  discharge  a  teacher  who  was  hired  for  a  stated 
time  upon  the  ground  of  incompetency  if  such  teacher  holds  a  state  certifi- 
cate   (3501)     1046 

Holders  of  state  certificates  are  not  exempt  from  examinations  of  school  commis- 
sioners and  city  superintendents  in  places  where  they  seek  situations  as 
teachers 1047 


INDEX    TO    JUDICIAL   DECISIONS  1493 

Teachers  certificates  —  continued 

The  annulment  of  a  teacher's  certificate  will  not  be  upheld  when  the  commissioner's 
action  was  based  solely  on  the  ground  that  the  teacher  was  impecunious  and 
failed  to  liquidate  certain  debts   (3686) 1048 

The  school  commissioner's  order  annulling  a  teacher's  license  will  not  be  sustained 
unless  for  cause  sufficiently  grave  to  justify  a  public  and  permanent  revocation 
of  the  right  to  teach  (3572) 1049 

The  order  of  a  school  commissioner  annulling  a  teacher's  certificate  in  the  middle 
of  the  term  of  employment  on  the  ground  of  insufficient  ability  to  teach,  will 
be  set  aside   (3959) 1050 

A  teacher's  license  should  be  revoked  for  using  scurrilous  and  obscene  language  in 

a  letter  addressed  to  the  school  commissioner  (3928) 1051 

Falsification  of  the  register  of  attendance  by  a  teacher  is  sufficient  ground  for  the 

revocation  of  his  license  (3853^) 1052 

An  appeal  in  which  the  action  of  the  school  commissioner  in  declining  to  indorse 

a  teacher's  certificate  was  upheld  (3750) 1052 

Where  it  is  shown  that  a  public  school  teacher  is  interperate  and  a  frequenter 
of  saloons  and  disreputable  places  and  has  inflicted  cruel  and  severe  ounish- 
ment  upon  pupils,  his  certificate  should  be  revoked  (3863) 1053 

The  action  of  a  school  commissioner  in  revoking  the  license  of  a  teacher  who 
engaged  in  other  pursuits  while  under  contract  to  teach  and  thereby  neglected 
his  school  work  is  sustained  (3886) 1054 

The  license  of  a  teacher  engaged  in  a  dishonorable  vocation  should  be  revoked 

(3866)   1055 

An  appeal  which  sets  forth  the  grounds  upon  which  a  school  commissioner  may 

refuse  to  indorse  a  training  class  certificate  (5262) 1056 

A  state  certificate  is  ample  authority  to  the  holder  thereof  to  teach  in  the  city  of 
New  York  and  the  holder  of  such  certificate,  if  regularly  employed,  can  not 
be  removed  from  his  position  except  by  the  revocation  of  his  certificate  (3885) .     1058 

A  school  commissioner  may  withhold  from  a  person  who  has  passed  the  required 

examination  a  teacher's  certificate    (3775) 1059 

Since  1894  school  commissioners  have  not  possessed  the  power  to  reexamine  teach- 
ers before  the  expiration  of  their  certificates   (4268) 1060 

Where  a  school  commissioner  refuses  to  issue  a  certificate  to  a  teacher  without  set- 
ting forth  sufficient  reason  therefor,  his  action  will  be  reversed  (3614) 1064 

The  action  of  a  school  commissioner  in  refusing  to  issue  a  certificate  to  a  teacher 
for  a  specific  district  will  be  sustained  unless  it  is  clearly  shown  that  the 
commissioner  acted   from  improper   motives    (3597) ^°^5 

A  school  commissioner  will  be  sustained  in  refusing  to  indorse  the  certificate  issued 

by  the  commissioner  of  another  district    (4728) 1066 

An  appeal  in  which  the  right  of  a  school  commissioner  to  refuse  to  indorse  a 
certificate  issued  by  another  commissioner  is  fully  discussed  and  determined 

(4743)  ,•••••     '°^7 

A  school  commissioner  is  justified  in  withholdmg  a  certificate  from  an  applicant 

whose  moral  character  is  not  affirmatively  shown  (4202) 1070 

An  appeal  in  which  the  action  of  a  commissioner  in  annulling  a  teacher's  license 

was  overruled  and  in  which  the  commissioner  was  sustained  in  withdrawing 

his  indorsement  of  a  teacher's  certificate  (3952) '07i 

A  school  commissioner  who  acts  with  good  purpose  and  intent  in  refusing  to 

grant  a  teacher's  certificate  will  be  sustained  (3817) '"72 

A  general  charge  of  immoral  character  is  not  sufficient  to  put  an  accused  teacher 

upon  trial   (3510) ^"'-^ 


1496  THE   UNIVERSITY   OF   THE   STATE   OF    NEW    YORK 

Teachers  certificates  —  continued  py^^E 

Trustees  or  boards  of  education  do  not  possess  the  power  to  establish  requirements 

for  teachers  certificates  in  addition  to  those  prescribed  by  law  (501 1) 1075 

The  trustees  of  a  common  school  district  and  boards  of  education  in  union  free 
school  districts  do  not  possess  the  power  to  establish  requirements  for  persons 
to  be  employed  as  teachers  other  than  and  in  addition  to  those  prescribed  by 

law   (5011),     Teachers  certificates 1075 

Teachers  contracts 

An  appeal  involving  the  contractual  right  of  a  teacher  who  has  been  dismissed, 
not  having  been  taken  within  a  reasonable  time  and  valid  reason  for  such  delay 
not  having  been  given,  will  be  dismissed  (3628).    Appeals 21 

When  no  regular  meeting  of  a  board  is  held,  the  individual  members  of  such 
board  can  not  jointly  enter  into  a  contract  with  a  person  to  teach  (3581). 
Trustees  1288 

A  contract  requiring  a  teacher  to  board  with  the  trustee  is  not  enforceable  against 

the  teacher   (3575).     Trustees 1293 

The  holder  of  a  first  grade  uniform  teachers  certificate  is  legally  qualified  to  con- 
tract to  teach  in  another  school  commissioner  district  and  the  commissioner 
of  such  district  must  indorse  the  certificate  or  give  good  reason  for  failing 
to  do  so.     Trustees .■ 1237 

A  contract  between  a  teacher  and  a  board  of  trustees  expresses  reciprocal  re- 
lations. A  board  of  education  will  not  be  allowed  to  avoid  the  provisions  of 
the  statute  through  an  illegal  contract  and  will  not  be  sustained  in  its  efforts 
to  inflict  severe  punishment  upon  a  party  to  such  contract  for  a  breach 
thereof  (5369)    1081 

The  law  requires  teachers  contracts  to  be  in  writing  and  gives  its  favor  to  such 
as  are.  Evidence  to  change  the  construction  of  a  written  contract  might  be 
considered  but  the  burden  of  proof  is  upon  the  party  offering  such  evidence 
(5150)   10S3 

While  the  law  does  not  ignore  a  verbal  contract,  it  does  not  favor  one.  The  re- 
corded action  of  a  board  reappointing  a  teacher  would  have  bound  the  board 
if  the  teacher  had  taken  any  steps  which  clearly  indicated  to  the  board  an 
acceptance  of  the  position   (5143) 1086 

Trustees  of  school  districts  have  the  authority  to  employ  a  person  duly  qualified 
under  the  school  law  to  teach  in  their  respective  districts  for  the  entire  school 
year  or  for  any  less  term  of  time  during  the  year,  provided  such  period  is  not 
less  than  ten  weeks  or  is  to  fill  out  an  unexpired  term  (4767) 1087 

An  alleged  contract  never  having  been  fulfilled  by  a  teacher,  her  remedy  would  be 
for  damages  upon  a  breach  of  contract.  It  is  not  the  policy  of  the  State 
Department  to  measure  damages  for  a  breach  of  contract  when  the  extent 
thereof  is  altogether  indefinite  and  uncertain   (3768) 1090 

The  contractual  rights  of  the  teacher  may  be  enforced  by  the  institution  of  any 
proceeding  necessary  to  protect  such  rights.  A  teacher's  contract  may  be 
vacated  at  any  time  after  its  execution  for  conduct  inimical  to  the  welfare  of 
the  school.  The  action  of  any  board  which  prevents  a  teacher  from  entering 
upon  her  term  of  service  and  completing  it  is  in  fact  a  dismissal  (5288) 1091 

The  refusal  of  a  teacher  to  give  instruction  to  nonresident  pupils  admitted  by  the 
trustee  is  sufficient  ground  for  dismissal.  The  dismissal  of  school  for  a  single 
day  without  cause  or  without  the  consent  of  the  trustee  is  a  breach  of  contract 
sufficient  for  dismissal   (5225) 1096 

A  contract  between  a  trustee  and  a  teacher  which  knowingly  and  purposely  sub- 
ordinates the  interest  of  the  whole  district  to  thie  personal  interest  and  con- 
venience of  the  teacher  will  be  vacated  (5231) 1098 


INDEX    TO    JUDICIAL   DECISIONS  1497 

Teachers  contracts  —  continued  page 

When  two  members  of  a  board  of  trustees  sign  the  contract  simply  as  a  matter 
of  convenience  but  without  official  direction  by  the  board  and  the  teacher  is 
fully  and  promptly  advised  in  the  matter,  the  transaction  was  held  to  fall 
short  of  the  contract  (5148) i099 

A  teacher  will  not  be  reinstated  when  it  appears  from  her  own  statement  that  she 

was  unable  to  maintain  discipline  in  the  school   (S3o8) i  lOl 

The  term  month  will  be  interpreted  to  mean  calendar  month  in  the  contract  to 
both  parties  if  the  contract  shows  that  they  mutually  understood  this  term  to 
mean  a   month    (5173) ''"^^ 

The  approval  of  a  district  meeting,  regularly  convened,  is  absolutely  essential  to 
a  valid  contract  when  relationship  of  any  degree  whatever  exists  between 
the  trustee  and  the  teacher.  A  written  statement  signed  by  every  legal  voter 
of  the  district  approving  the  contract  between  related  parties  does  not  satisfy 
the  requirements  of  the  law   (s^SS) ^^°^ 

A  trustee  can  not  dismiss  a  teacher,  under  legal  contract,  for  laches  under  a  pre- 
vious contract  which  has  terminated.  A  teacher  having  earned  a  certificate 
and  having  received  official  notice  thereof  is  qualified  to  teach   (5295) ^^^3 

An  appeal  in  which  the  right  of  a  teacher  under  a  contract  and  the  right  of  a 
board  of  education  to  transfer  a  teacher  and  the  general  treatment  of  a 
teacher  by  a  board  are  fully  discussed  and  determined  (5454) ^'°^ 

The  authority  of  a  board  of  education  to  transfer  a  teacher  in  its  employ  from  one 
position  to  another  where  there  is  no  reduction  of  compensation  and  which 
seems  to  such  board  to  promote  the  efficiency  of  the  schools  will  be  upheld 

(3898) 

Where  a  teacher  has  been  paid  in  full  and  dismissed  by  the  board  of  education 
for  cause  which  does  not  affect  her  reputation  as  a  teacher,  the  Commissioner 

of  Education  will  not  interfere  (5416) •     ^ 

A  contract  of  employment  between  a  trustee  and  teacher  "for  one  day  only  and 
to  close  every  night"  is  void  as  being  in  conflict  with  the  spirit  of  the  school 

laws  and  against  sound  policy    (3603) "."",'/ 

Where  a  teacher  after  teaching  three  days  of  his  term  found  the  schoolhousc 
locked  against  him  and  he  left  and  made  no  demand  for  opportunity  to  con- 
tinue his  school  until  fifteen  days  afterward,  it  will  be  held  that  the  teacher 

abandoned   the   contract  voluntarily ,' '," '  i,'  l"  '  i  "  '^     '  "^ 

A  teacher  is  entitled  to  pay  for  services  during  the  time  the  school  shall  be  closed 
by  the  trustee  on  account  of  an  infectious  or  contagious  disease  m  the  district 
when  such  closure  occurs  during  the  time  for  which  the  teacher  was  employed. 
A  teacher  may  teach  another  school  or  engage  in  any  other  occupat^n  during 
vacation  time  between  terms  for  which  such  teacher  was  hired  (3468) ...  -^  1114 
Where  one  of  the  members  of  a  board  of  education  is  delegated  to  make  knovjn 
to  teachers  the  conditions  of  engagement  to  teach,  he  acts  as  ag^^^/;'';/^^ 
whole  board  and  the  board  is  bound  by  the  terms  of  agreement  as  stated  by     ^^^^ 

him  and  accepted  by  the  teachers • • •  •  •  ••.■•.;  •_■■., 

A  teacher  can  be  employed  only  by  the  trustees.    A  vote  taken  at  a  district  meet 
ing  to  dismiss  a  teacher  and  engage  another  in  her  place  is  void. ....  •.•  •  • -^ - 
A  teacher  who  closes  school  upon  other  than  legally  -^horized  days         cos  d 

without  the  consent  of  the  trustees,  abandons  his  contract  and  is  liable  ^^^^ 

wh::rs^tt;;;i;v;ii;-a;Vdisdpi;na;ianand-p-n^^^ 

to  detect  and  search  out  the  beginnings  of  disorder,  the  board  of  education     ^^^^ 
will  be  sustained  in  discharging  him  (3504) 


1498  THE    UiXIVERSlTY    OF    THE   STATE   OF    NEW    YORK 

Teachers  contracts  —  continued  page 

An  appeal  in  which  the  right  of  a  board  of  education  to  dismiss  a  teacher  after 
the  payment  of  damages  when  such  action  is  authorized  by  a  vote  of  the 
district  is  affirmed   (3732) 1120 

An  appeal  which  interprets  a  teacher's  contract  which  contains  a  provision  as  to 

annual  compensation   to  be  paid  monthly    (5422) I124 

An  appeal  in  which  the  dismissal  of  a  teacher  for  alleged  insubordination  is  not 

sustained    (S437)    1126 

A  trustee  is  justified  in  dismissing  a  teacher  for  lack  of  punctuality  (5458) 1127 

The   failure  of  a  teacher  to  maintain  order,  good  government  and  discipline  in 

the  school  is  sufficient  ground  for  dismissal   (4349) 1 129 

A-  board  of  education  can  not  dismiss  a  teacher  without  cause 11 32 

The  employment  of  a  teacher  by  one  or  two  trustees  without  consulting  the  third 

is  illegal  (3824) 1137 

A  teacher  will  not  be  removed  by  the  State  Department  on  the  ground  that  he 
disregards  the  wishes  and  directions  of  a  board  of  education.  If  a  teacher  is 
guilty  of  insubordination  sufficient  to  justify  that  action,  the  board  may  dis- 
miss him    (3565) 1 138 

When  the  trustees  of  a  district  are  authorized  by  the  voters  of  the  district  to 
contract  with  a  teacher  related  to  them  by  blood  or  marriage,  the  board  has 
authority  to  make  a  further  contract  with  such  teacher  for  the  ensuing  year 
without  further  action  on  the  part  of  the  voters   (4588) 1138 

The  defect  in  a  contract  made  by  a  trustee  with  a  teacher  related  to  him  without 
authorization  from  the  district  is  cured  by  the  subsequent  action  of  the  voters 
approving  such  employment.  The  trustee,  the  teacher  and  their  relatives,  if 
qualified  voters  of  the  district,  may  vote  upon  the  question  as  to  whether  or 
not  such  contract  may  be  made  (3758) 1 141 

A  trustee  can  not  incorporate  in  his  contract  with  a  teacher  a  provision  to  the 

effect  that  such  teacher  is  to  board  with  the  trustee   (3575) 1142 

The  failure  to  give  a  written  memorandum  to  a  teacher  at  the  time  a  contract  is 

made  does  not  invalidate  the  contract   (3640) 1144 

A  trustee  is  justified  in  dismissing  a  teacher  who  fails  to  receive  a  renewal  of 

her   certificate    (4002) 1145 

The  contract  of  hiring  made  between  a  de  facto  trustee  and  a  teacher  who  entered 

into  the  performance   of  her  contract  is  sustained    (3586) 1 146 

Where  it  is  shown  by  a  preponderance  of  proof  that  the  teacher  failed  to  main- 
tain order  and  good  government  and  fails  as  a  disciplinarian,  the  trustees 
are  justified  in  dismissing  him   (4355) 1 147 

An  appeal  in  which  the  right  of  a  sole  trustee  to  contract  for  the  ensuing  school 

year   is  determined    (431 1) 1151 

An  appeal  in  which  a  clause  in  the  contract  relative  to  compensation  is  determined 

(4244)    1158 

An  appeal  in  which  a  dismissed  teacher  was  reinstated  and  general  rule  applying 

to  such  cases  (4244) 1153 

An   appeal  in  which  the  general  contractual  rights   of  teachers   are  determined 

(4221)    1158 

Where  a  board  adopts  at  a  regular  meeting  a  resolution  to  employ  a  teacher, 
setting  forth  the  terms  of  employment,  and  a  tender  of  contract  is  made  to 
the  teacher  which  is  accepted  in  writir^,  the  board  can  not  later  withdraw 
the  offer   (4774) 1162 

Where  a  conditional  contract  is  made  for  a  period  of  thirteen  weeks,  and  to 
extend  for  a  further  period  of  thirty-seven  weeks,  and  at  the  end  of  such 
thirteen  weeks  the  teacher  is  allowed  to  continue  without  any  notice,  it  will 
be  held  that  the  contract  is  binding  for  the  thirty-seven  weeks  (5000) 1163 


INDEX    TO    JUDICIAL   DECISIONS  I499 

Teachers  contracts  —  continued 

Betore  a  teacher  can  enforce  the  payment  of  salary  it  is  necessary  for  her  to 

verify  and  file  her  register  as  the  law  requires   (3838) 1 166 

Where  the  contract  provides  that  a  teacher  is  to  be  paid  at  the  rate  of  $5  a  week 
if  she  provides  her  own  board  and  $3.50  if  she  boards  with  the  district  and 
the  teacher  boards  at  home,  she  is  entitled  to  $5  a  week  (3717) 1166 

Where  it  is  agreed  between  the  trustees  and  the  teacher  that  a  vacation  shall  be 
ordered  by  the  board  and  that  the  time  of  vacation  should  not  become  part 
of  the  term  of  employment,  the  teacher  is  not  entitled  to  pay  for  such  vaca- 
tion period  (3696) 1 167 

Where  a  contract  is  made  at  a  stipulated  price  for  a  stated  term  but  the  school 
building  is  not  ready  for  occupancy,  the  teacher  is  entitled  to  compensation 
for  a  full  period  from  the  time  he  was  to  begin  to  teach  (3017) 1168 

A  teacher  is  entitled  to  pay  for  the  time  school  is  closed  by  the  trustees  in  order 

to  prevent  the  spread  of  a  contagious  disease  (3840) 1 169 

A  teacher  who  is  not  paid  as  often  as  once  each  month  during  the  term  of  employ- 
ment, as  required  by  law,  is  entitled  to  interest  on  the  several  monthly  pay- 
ments which  have  been  withheld  from  the  time  when  payable  (3803) 1 170 

Teachers  employed  in  the  usual  way  by  a  board  of  education  are  entitled  to  their 
pay  from  the  time  they  are  prevented  from  fulfiling  their  contract  because 
of  a  disagreement  on  the  part  of  the  board  and  failure  thereby  to  open  the 
school    (3679) 1 171 

A  teacher  will  be  entitled  to  pay  for  the  week  during  which  school  was  closed 
in  consequence  of  a  teachers  institute  having  been  designated  for  that  week 
but  not  held  because  of  storms  and  floods  which  rendered  it  impossible. 
Such  teacher  is  also  entitled  to  compensation  for  the  week  to  which  the 
institute  was  adjourned  and  held,  provided  school  is  closed  (362^) 1173 

Trustees  are  required  to  allow  a  teacher  the  week  of  institute  and  to  pay  the  teacher 
for  such  week.  A  contract  can  not  be  made  to  avoid  such  payment  to  the 
teacher   (3892)    1174 

A  teacher  who  neglects  to  attend  the  session  of  the  teachers  institute  held  dur- 
ing her  term  of  school  is  not  entitled  to  compensation  for  that  week  even  if 
school  is  closed  by  direction  of  the  trustee  because  of  the  prevalence  of  a  con- 
tagious disease  in  the  vicinity  (3829) i  '75 

The  rule  of  a  board  of  education  which  provides  that  all  contracts  made  with 
teachers  should  be  subject  to  termination  by  either  party  on  one  week's 
official  notice  to  the  other  party,  does  not  apply  to  a  teacher's  contract  unless 
it  is  clearly  shown  that  the  teacher  had  notice  of  the  rule  at  the  time  the 
contract  was  entered  into    (3524) ' '"7 

An  appeal  which  determines  the  time  when  compensation  shall  be  paid  and  inter- 
prets the  law  as  to  a  school  month  and  a  calendar  month   (45-0 ""^ 

An   appeal   which   interprets   a   clause   reading   "  employment    for   one  year  at   a 

weekly  compensation  of  $15,  payable   monthly"   (3965") ^'^ 

Where  the  evidence  shows  that  there  is  collusion  between  a  trustee  and  a  teacher 

in  relation  to  a  contract,  the  contract  may  be  set  aside  (3961 ) 1 181 

A  contract  between  a  trustee  and  a  teacher  for  one  day  only  and  to  terminate  every 
night  is  without  the  sanction  of  law  and  good  usage  and  is  against  sound 
policy   (3603) ••     "^^ 

The  law  does  not  contemplate  the  employment  of  teachers  "  for  such  tmie  as  she 
suits."  In  the  absence  of  a  statutory  regulation,  a  reasonable  length  of  time 
would  depend  upon  the  custom  in  each  district  (3735) • "^5 

An  agreement  between  trustees  and  teachers  that  either  party  may  terminate  the 
contract  at  any  time  is  against  public  policy.  The  employment  should  be  for 
a  specified  time   (3678) "^ 


1500  THE    UNIVERSITY   OF    THE    STATE    OF    NEW    YORK 

Teachers  contracts  —  continued  «»^^ 

The  dismissal  of  a  teacher  in  the  middle  of  a  term   for  incompetency  and  lax 

discipline  in  the  school,  which  is  clearly  established  will  be  sustained  (3850) ..     1188 

Where  a  teacher  had  been  employed  by  a  board  of  education  for  several  years 
and  was  reemployed,  it  was  held  that  the  teacher  was  justified  in  regarding 
such  employment  for  the  full  year   (3864) 1 190 

A  written  contract  to  teach  for  a  period  of  forty  weeks  during  which  time  a 
holiday  vacation  of  one  week  occurred  will  not  entitle  a  teacher  to  pay  for 
for  that  week  when  it  is  known  by  the  teacher  to  be  the  custom  observed  in 
the  district  to  teach  forty  weeks  exclusive  of  such  holiday  week  (3748) 1193 

Where  a  loss  of  time   occurs  through   no   fault  of   the  teacher,  the   teacher   is 

entitled  to  pay  at  the  same  rate  as  if  school  had  been  in  session  (3791) 1194 

It  is  against  sound  policy  for  a  trustee  to  continue  an  unlicensed  teacher  in  school 
even  though  she  teaches  without  compensation.  A  board  of  education  can 
not  enter  into  a  legal  contract  with  persons  to  teach  who  do  not  possess 
certificates  authorizing  them  to  teach  (3854-3670) 1 195,     1 196 

Where  an  alleged  contract  has  not  been  fulfilled,  the  claim  of  the  teacher  would 
be  for  damages  upon  breach  of  contract  and  the  remedy  of  such  teacher 
would  be  action  in  the  courts  and  not  an  appeal  to  the  Department  (4744, 
3716,  4724)   1 197,  1 199,     1200 

A  board  of  education  may  remove  a  teacher  for  neglect  of  duty  or  for  immoral 
conduct  but  a  teacher  must  have  notice  of  charges  preferred  against  her  and 
an  opportunity  to  be  heard  thereon  when  such  charges  affect  the  moral  char- 
acter or  responsibility  of  the  teacher    (4294) 1201 

Where  a  teacher  is  dismissed  by  a  board  during  the  term  of  employment  without 
opportunity  to  be  heard  and  without  sufficient  cause,  such  teacher  is  entitled 
to  pay  for  the  time  she  was  deprived  from  teaching  and  the  dismissal  will 
be  held   to   be  void    (4294) 1201 

The  local  school  authorities  have  no  right  to  limit  the  class  of  persons,  who  have 
reached  the  required  standard  of  learning  and  ability  to  teach,  from  which 
the  teachers  of  the  school  may  be  selected  with  the  idea  of  employing 
teachers  from  the  class  commonly  called  "  sisters  "  (3493) 1210 

A  teacher  holding  a  uniform  teachers  first  grade  certificate  was  legally  qualified 
to  contract  to  teach  in  a  commissioner  district  other  than  the  one  for  which 
the  certificate  was  issued,  provided  the  school  commissioner  of  such  district 
had  not  prescribed  additional  qualifications  for  a  certificate  of  that  grade, 
but,  before  entering  on  the  service  of  such  contract,  the  holder  of  such  certifi- 
cate should  present  it  to  the  commissioner  having  jurisdiction,  for  indorse- 
ment  (4488)    1211 

While  a  teacher  did  wrong  in  accepting  a  more  desirable  offer  without  being 
released  from  a  prior  engagement,  under  the  particular  circumstances  in  such 
case,  the  Commissioner  of  Education  declines  to  go  to  the  length  of  revoking 
her  certificate  and  putting  a  dark  mark  upon  her  life   (5172) 1220 

A  board  of  education  can  not  enter  into  a  contract  which  binds  them  to  employ 
teachers  from  a  specific  class  contrary  to  the  spirit  of  the  school  law  and 
against  public   policy    (3493) 1210 

When  no  regular  meeting  of  a  board  is  held,  the  individual  members  of  such 

board  can  not  jointly  enter  into  a  contract  with  a  person  to  teach  (3581) 1288 

A  contract  requiring  a  teacher  to  board  with  the  trustee  is  not  enforceable  against 

the  teacher   (3575) 1142 

The  holder  of  a  first  grade  uniform  teachers  certificate  is  legally  qualified  to 
contract  to  teach  in  another  school  commissioner  district  and  the  commissioner 
of  such  district  must  indorse  the  certificate  or  give  good  reason  for  failing 
to   do    so.      Trustees 1237 


index  to  judicial  decisions  i50i 

Textbooks 

PAGE 

An  appeal  which  interprets  the  law  generally  as  to  the  adoption  of  textbooks  in 

school   districts    and   cities    (3583,    3631) 1222,  1227 

Where  a  trustee  and  teacher  have  changed  a  textbook  authorized  by  a  district 
meeting  more  than  five  years  previous  thereto  and  it  is  made  to  appear  that 
the  change  has  been  beneficial,  the  action  will  not  be  disturbed  (3691) 1231 

A  textbook  which  has  been  adopted  for  use  by  the  actions  of  a  school  district 
pursuant  to  law  can  not  be  changed  within  five  years  except  by  a  three-fourths 
vote  of  the  board  of  education.  Writing  books  are,  within  the  meaning  of  the 
statute,  textbooks  (3743) 1232 

In  the  adoption  of  textbooks,  a  board  of  education  should  be  governed  by  a  desire 
to  put  in  the  possession  of  the  children  and  teachers  of  its  school  the  best 
textbooks  to  be  procured.  In  adopting  textbooks,  a  board  of  education 
should  not  be  influenced  by  a  proposition  from  publishers  to  donate  certain 

books  for  the  district  library  (5153).    Meetings 301 

Transportation 

An  appeal  which  interprets  generally  the  meaning  of  the  law  regarding  the 
transportation  of  children  and  the  duty  of  parents  in  relation  thereto  (5398, 

5236)    1233,  1234 

Trustees 

In  a  proposition  involving  the  increase  in  the  number  of  trustees  at  a  district  meet- 
ing, the  law  regulating  the  method  of  voting,  notices  to  be  given,  etc.,  must 
be  strictly  complied  with    (5355) 1237 

A  resolution  adopted  by  acclamation  at  an  annual  school  meeting,  to  change  from 

one  to  three  trustees,  will  be  vacated  by  appeal  in  due  form  (3934,  3845) . .  1239,     1240 

An  appeal  which  defines  the  method  of  procedure  where  the  district  desires  to 

change  the  number  of  trustees  from  one  to  three  (4887) 1241 

The   ineligibility  of   a   trustee  can   not  be   raised   and   passed   upon   collaterally 

(3849)    1243 

Where  the  law  imposes  a  duty  upon  a  board  of  trustees,  the  board  has  not  the 
authority  to  delegate  that  authority  to  other  persons  at  the  expense  of  the 
district  (3576) i-44 

Where  the  proofs  fail  to  establish  the  allegation  that  a  trustee  was  not  legally 

elected,  the  action  of  the  meeting  will  not  be  disturbed  (3989) ^248 

Where  it  occurs  at  an  annual  meeting  that  a  trustee  is  elected  by  viva  voce  vote 
and  that  afterward  another  trustee  is  elected  by  ballot,  the  officer  elected  by 
ballot  will  be  sustained    (3715) .•••.••     '""^^ 

A  trustee  who  is  not  able  to  establish  that  he  is  a  qualified  voter  in  the  district 

is  ineligible  to  hold  the  office  (397°) _ _ ^^50 

While  a  trustee  as  a  general  rule  should  respect  the  wishes  of  the  inhabitants  of 
the  district  in  the  employment  of  a  teacher,  he  is  not  bound  by  any  action 
which  a  district  meeting  may  take  in  regard  to  the  teacher  to  be  employed 

(5273)  :••. : '''' 

Trustees  have  full  authority,  when  authorized  by  a  district  meeting,  to  cause  a 
well  to  be  dug  on  the  schoolhouse  site  and  to  provide  drinking  water  for  pupils 

and  teachers  (4894) j'""     ^^^^ 

It  is  not  only  against  public  policy  but  it  is  a  direct  violation  of  law  for  a  district 
trustee  to  engage  in  school  work  for  which  he  is  to  receive  compensation 

-o  „>,  1254,    1256 

(3897, 3783) y  :: 

A  trustee  has  no  right  to  sell  lumber  to  himself  or  to  employ  his  own  team  upon 
school  work  or  to  perform  other  labor  for  the  district  for  which  he  expects 
to  be  paid    (3846) ^^=^ 


1502  THE    UNIVERSITY   OF   THE    STATE    OF    NEW    YORK 

Trustees  —  continued  page 

A  trustee  can  not  legally  take  a  subcontract  upon  district  work  (3753) 1257 

The  law  directing  town  superintendents  or  supervisors  to  pay  out  public  money 
only  to  qualified  teachers  upon  the  order  of  trustees  was  enacted  to  prevent 
embezzlement  by  trustees,  and  if  they  pay  public  money  otherwise  than  thus 
provided,  they  do  so  at  their  peril 1259 

A  trustee  will  not  be  removed  from  office  upon  charges  which  are  too  general  or 

trivial    (3868) 1260 

It  is  within  the  power  of  a  district  meeting  to  advise  and  direct  the  action  which 
a  trustee  should  take  in  relation  to  the  erection  of  a  new  school  building  and 
it  is  the  duty  of  the  trustee  to  carry  out  such  directions  (3580) 1261 

It  is  the  duty  of  a  trustee  to  make  repairs  in  obedience  to  the  order  of  the  school 

commissioner   (3413)    I-261 

A  trustee  elected  at  a  special  meeting  called  after  a  district  failed  to  hold  its 

annual  meeting  is  entitled  to  hold  the  office  (3927) 1262 

It  is  the  duty  of  a  trustee  to  carry  out  the  directions  of  a  commissioner's  order 
and  to  provide  by  tax  for  the  payment  of  the  salary  of  the  teacher,  and 
general  neglect  in  performing  this  duty  is  sufficient  ground  for  his  removal 
(3870,    4008)     1263,  1264 

A  trustee  will  be  removed  from  office  for  persistently  and  wilfully  disobeying  and 

violating  the  orders  and  directions  of  the  State  Superintendent  (4010) 1265 

The  practice  of  trustees  in  reporting  a  less  balance  on  hand  at  the  annual  meeting 
than  they  really  possess  is  a  reprehensible  and  pernicious  custom  and  inexcus- 
able  (3956)    1267 

To  remove  a  trustee  from  office  on  the  ground  of  ineligibility,  the  charge  must 

be  clearly  established   (3755) 1268 

The  office  of  trustee  does  not  become  vacant  by  reason  of  neglect  or  malfeasance 

until  charges  have  been  preferred  and  the  trustee  is  properly  removed  (3701).      1269 

A  trustee  who  persistently  neglects  to  make  repairs  to  the  school  building  which 
are  necessarj'  and  which  have  been  ordered  by  the  commissioner,  is  subject 
to  removal  from  office  (3894) 1270 

Where  a  trustee  is  charged  with  ineligibility  to  office  and  files  an  answer  in  which 
he  states  fully  his  qualifications  and  swears  to  the  same,  such  affidavit  will 
be  conclusive,   unless   disproved    (3960) 1270 

A  trustee  who  is  duly  elected  at  a  district  meeting  is  entitled  to  the  office  even 
if  he  did  say  he  did  not  care  for  the  office  and  the  district  then  proceeded 
to  elect  another  trustee    (3834) 1271 

A  person  incapable  of  transacting  business  on  account  of  advanced  age  and  who 
is  wholly  irresponsible  and  living  on  charity  and  who  has  refused  or  neg- 
lected to  carry  out  the  directions  of  the  district  for  a  long  time  is  unfit  to 
hold  the  office    (3725) 1272 

If  a  person  who  is  chosen  trustee  subsequently  accepts  the  office  of  collector,  he 

thereby  vacates  the  office  of  trustee  (3939) 1273 

When  a  trustee  resigns  but  fails  to  give  notice  to  the  district  clerk  as  required 
by  law,  the  school  commissioner  can  not  legally  fill  such  vacancy  by  appoint- 
ment  (4028)    127s 

Where  a  trustee  announces  to  his  associate  members  that  he  resigns  his  position, 
and  leaves  the  meeting  of  the  board  and  then  publicly  announces  that  he  has 
abandoned  the  office  he  will  be  regarded  as  having  vacated  the  office  (3921)  . .     1276 

Where  a  person  chosen  to  the  office  of  trustee  publicly  expresses  doubts  as  to 
his  eligibility  and  declares  that  he  will  not  serve,  who  circulates  a  petition  to 
a  school  commissioner  to  fill  a  vacancy  in  the  office  and  who  afterwards  calls 
a  special  meeting  to  fill  such  office,  he  will  be  deemed  to  have  vacated  the 
office     (4286) 1278 


INDEX    TO    JUDICIAL   DKClSiUAS  I503 

Trustees  —  continued 

PAGE 

Where  a  trustee  advises  the  school  commissioner  that  he  will  resign  and  the  com- 
missioner also  advises  the  district  clerk  and  a  special  meeting  is  called  and  the 
vacancy  filled,  the  action  will  be  sustained  (3957) 1281 

Where  a  trustee  announces  his  intention  to  remove  from  the  district,  his  refusal 
to  serve  longer  in  the  office,  and  files  notice  with  the  district  clerk,  together 
with  his  resignation,  he  will  be  regarded  as  having  vacated  the  office  (3871)..     1283 

A  trustee  will  not  be  removed  from  office  upon  allegations  which  are  too  general 

in  character   (3630) 1284 

A  supervisor  of  a  town  has  not  authority  to  accept  a  resignation  of  a  trustee 1285 

Where  the  resignation  of  a  trustee  is  void,  no  vacancy  exists  and  an  attempt  to 

fill  such  vacancy  will  not  be  sustained  (4338) 1285 

A  supervisor  has  not  authority  to  fill  a  vacancy  in  the  office  of  trustee  (3873) 1287 

Where  a  member  of  a  board  of  trustees  is  chosen  clerk  of  the  board,  he  can 
not  be  removed  from  membership  in  the  board  because  of  neglect  of  duty 
as  clerk   (3581) 1288 

The  trustees  of  a  district  which  maintains  two  schools  have  the  authority  to 
determine  in  which  of  the  schools  the  several  children  of  the  district  shall 
attend  (3805) 1291 

The  wisdom  of  the  action  of  the  trustee  in  establishing  two  departments  in  a 

school  in  which  the  attendance  is  not  large  will  not  be  sustained   (4005)....     1291 

A  person  assuming  to  be  trustee  without  the  color  of  an  election  is  neither  a 

de  facto  nor  a  de  jure  officer  and  a  tax  list  issued  by  him  is  void  (4044) . .     1292 

A  trustee  can  not  be  the  custodian  of  public  money  nor  can  a  trustee  insist 
upon  including  in  the  contract  with  a  teacher  a  provision  to  the  effect  that 
such  teacher  shall  board  with  him  (3575) 1293 

Trustees  have  the  right  to  specify  the  subjects  which  shall  be  taught  in  common 
schools  and  the  action  will  not  be  interfered  with  unless  it  is  an  abuse 
of   discretion    (2979) 1293 

Trustees  can  not  impose  by  contract  a  duty  upon  a  teacher  which  the  law  makes 

it  the  duty  of  the  trustees  to  perform 1293 

The  expenses  incurred  by  a  trustee  in  his  wilful  determination  to  evade  the 
directions  of  a  district  meeting  will  not  be  allowed,  and  a  meeting  of  the 
district  can  not  legally  authorize  the  payment  of  the  bills  therefor  (SisO- 
Meetings  296 

The  acts  of  trustees  de  facto,  holding  office  under  color  of  an  election  sub- 
sequently declared  void  and  set  aside,  are  valid  and  binding  upon  tlicir 
successors.     Officers   4^3 

Trustees    are   barred   by   law    from   being   interested   in   any   contract   made   by 

the  district  (4380) .    Officers,  removal  of 478 

The  law  requires  a  trustee  to  maintain  a  school  and  it  is  the  duty  of  a  trustee 

to  employ  a  teacher  for  this  purpose  (4325).    Officers,  removal  of 481 

A   trustee  has  no  right  to  charge   for  his  personal  services  upon  district  work 

(3772) .     School  furniture 793 

Trustees  are  not  always  required  to  let  the  contract  for  the  construction  of  the 

schoolhouse  to   the   lowest  bidder.     Schoolhouses 803 

A  district  meeting  can  not  restrict  the  power  of  the  trustee  to  determine  the 
number  of  teachers  which  shall  be  employed  in  the  district  (5179)-  School- 
houses  : 8^° 

Where  the  trustee  violates  no  instruction  from  the  district  but  exercises  his  best 
judgment  on  the  course  to  pursue  even  if  that  judgment  is  faulty,  his  action 
does  not  constitute  sufficient  cause  for  his  removal  from  office  (5i79)- 
Schoolhouses    


1504  THE    UNIVERSITY    OF    THE    STATE    OF    NEW    YORK 

Trustees  —  continued  page 

The  trustees  of  school  districts  have  no  legal  authority  to  receive  or  to  retain 

in  their  custody  school  moneys  (4441).    School  moneys 868 

A  trustee  of  a  school  district  can  not  legally  receive  pay  for  the  services  done 
and  performed  by  him  as  trustee  and  required  to  be  performed  by  him  under 

the  law   (4408) .     Tax  lists loog 

Trustees  are  not  authorized  to  prescribe  qualifications  for  teachers  other  than 
and  in  addition   to  those  prescribed  by   the  general  law    (5011).     Teachers 

certificates    1075 

A  trustee  de  facto  may  make  a  contract  with  a  teacher  which  is  binding  upon 

the  district  (3586).    Teachers  contracts 1146 

A  person  who  is  not  a  citizen  of  the  United  States  is  not  a  legal  voter  and  is 

therefore  not  eligible  to  the  office  of  trustee   (4498).     Voters 1435 

Boards  of  education  or  trustees  have  not  the  right  to  make  a  contract  with  the 
teacher  to    furnish   instruction  to   certain   children   upon   the  condition   that 

such  children  shall  pay  tuition    (3764).     Tuition 1330 

Tuition 

Where  children  whose  homes  have  been  broken  up  are  brought  to  the  residence 
of  a  grandfather  to  find  care  and  protection  for  an  indefinite  period,  they 

become  residents  of  the  district  in  which  such  grandparent  lives 1296 

Where  a  child  goes  into  a  district  to  get  employment  and  not  for  the  purpose 
expressly  of  attending  school,  he  is  a  resident  of  the  district  and  is  entitled 
to   a  portion  of  the  public   money  apportioned  to  the  district  and  also   to 

share  in  the  privileges  of  the  school 1296 

A  general  guardian  may  constitute  his  own  district  the  residence  of  his  ward  by 
removing  him  thereto.  Children  residing  with  their  grandmother  as  part 
of  her   family  and  for  her  convenience  and  support  are  entitled  to  attend 

school  in  the   district  as  resident  pupils 1296 

Where  the  facts  in  a  case  establish  such  a  substantial  adoption  of  a  child  as  to 
make  her  a  resident  of  a  district,  such  child  is  entitled  to  the  privileges  of 

the    school    (3386) 1298 

A  minor  child,  whose  parents  reside  in  one  district  and  who  permitted  her  to  live 
in  another  district  with  her  grandparents  for  the  purpose  of  securing  better 
school  accommodations  than  in  the  district  in  which  the  parents  reside, 
should  be   held   to   be   a  nonresident   pupil   and   liable    for  the   payment   of 

tuition  (3877) 1298 

Where  a  child  14  years  of  age,  resides  in  a  district  with  a  brother  by  whom 
he  is  supported  and  cared  for,  his  parents  living  without  the  district  and  as  a 
separate  family  and  not  supplying  the  other  necessary  support  for  such  child, 
it  will  be  held  that  the  boy  is  entitled  to  attend  school   in  the   district  in 

which  his  brother  resides.     (3878) 1299 

The  residence  of  a  ward  is  not  necessarily  the  same  as  that  of  his  guardian. 
A  minor  born  in  a  district  and  living  there,  whose  parents  resided  there 
until  their  decease,  who  owns  real  and  personal  property  in  the  district, 
whose  intention  it  is  to  make   the   district  his  home,   will  be  held  to  be  a 

legal   resident   of   such   district.      (3876) 1300 

A  minor  residing  with  a  sister  who  is  a  resident  of  a  school  district,  and  by 
whom   she    is    supported,    is    entitled   to   attend    school    although   parents    be 

nonresidents    (3843) 1301 

A  residence  of  a  minor  child  is  held  to  be  with  its  parents  unless  the  contrary  is 

clearly  established    (3704) 1302 

On  questions  affecting  the  right  of  a  child  to  attend  school,  the  decision  of  the 
Department  will  be  liberally  construed  in  favor  of  sucli  child.     Where  it  is 


INDEX    TO    JUDICIAL   DECISIONS  I505 

Tuition  —  continued 

clearly  established,  however,  that  a  child  of  scliool  age  moves  into  a  particular 
district  for  the  sole  purpose  of  securing  the  benefits  of  the  school  and  intends 
to  remain  there  only  temporarily,  such  child  should  be  deemed  to  be  a  non- 
resident   pupil.      (3769) 1302 

A  case  in  which  it  was  held  that  a  child,  who  went  into  a  district  to  live  with 
her  grandmother  who  was  in  a  feeble  condition,  was  entitled  to  attend  the 
school  in  such  district  without  the  payment  of  tuition     (4344) 1304 

Where  a  board  of  education  establishes  a  department  of  stenography,  typewriting 
etc.  in  the  school,  the  board  has  not  authority  to  charge  resident  pupils 
tuition   for  pursuing  such  courses    (4264) 1305 

An  appeal  in  which  it  is  held  that  a  minor  wlio  came  from  another  state  to 
this  State  is  not  a  resident  of  the  district  and  therefore  not  entitled  to 
free  tuition   (4226) 1308 

An   appeal   in   which   the   conditions   necessary   to   acquire   a   residence   are   fully 

determined    (4167) 1311 

The   residence   of   a   minor   is   generally   identical   with   that   of   his  parents    but 

it  may  be  elsewhere  by  their  consent  (3596) 13 13 

The  law  provides  that  the  public  school  shall  be  free  to  all  resident  pupils  between 
the  ages  of  5  and  21  years.  Boards  of  education  can  not  enforce  a  rule  which 
abridges  this  right  in  any  way  (3984) 1315 

Where  a  child  16  years  of  age  goes  from  one  district  to  another  to  live  with 
her  brother  and  this  brother  offers  lier  a  home  which  she  accepts,  she  is 
entitled  to  attend  school  in  the  district  without  the  payment  of  tuition 
(3791^,   4850) 1317 

Where  it  appears  that  a  child  has  no  regular  home  and  goes  into  a  district  to 
reside  with  persons  other  than  her  parents,  she  will  be  entitled  to  free 
school  privileges   (3977) 13^9 

Where  the  local  authorities  determine  that  a  child  is  a  nonresident  of  the  district, 
their  decision  will  be  sustained  upon  appeal  unless  a  preponderance  of  evi- 
dence  shows  the  contrary  to   be  true    (3945) i3-0 

An  appeal  which  determines  the  action  which  is  necessary  in  order  for  a  parent 

legally  to  emancipate  a  minor  son  (4536) i3-0 

Where  it  appears  that  a  parent  has  emancipated  a  minor  son.  such  son  is 
entitled  to  adoption  in  a  new  family  and  to  school  privileges  in  the  district 
in  which  such   family  resides    (4855) 13-4 

^^'here  a  minor,  with  the  consent  of  her  father,  resides  with  a  family  in  a  school 
district,  such  residence  with  such  family  being  in  accordance  with  the  request 
and  wish  of  the  child's  deceased  mother,  it  will  be  held  that  the  arrangement 
is  not  temporary  in  order   to   secure  school  privileges    (4460) 13-6 

^\■llere  a  minor  for  the  purpose  of  attending  school  in  a  school  district  other 
than  that  in  which  his  parents  reside,  agrees  to  perform  services  for  his 
board  while  attending  school,  such  minor  does  not  become  a  resident  of  the 
district  and  is  not  entitled  to  attend  school  without  the  payment  of  tuition 
(4526)    .........     13^ 

A  practice  of  allowing  a  teacher  the  privilege  of  teaching  a  subject  and  charging 

pupils  tuition  is  illegal    (3764) .■■■."■■. '."     ^^^'^ 

All  instruction  given  in  a  public  school  to  the  residents  of  the  district  in  which 

such  school  is  maintained  must  be  free   (3764)-     Tuition '330 

Union  free  school  districts  —  division,  dissolution  of 

The  State  is  directly  interested  in  every  school  within  its  borders  and  will  not 
consent  to  the  destruction  of  a  strong,  efficient  school,  meeting  fully  the  needs 

48 


1506  THE   UNIVERSITY   OF   THE    STATE    OF    NEW   YORK 

Union  free  school  districts  —  division,  dissolution  of  —  continued  page 

of  a  community,  for  the  purpose  of  establishing^  two  of  inferior  grade,  neither 
of  which  does  meet  such  needs    (5193) 133J 

A  school  commissioner  possesses  the  power  to  alter  or  change  the  boundaries 

of  a  union   free  school  district    (3526) 1335 

An  interpretation  of  the  law  which  authorizes  the  trustees  of  a  village  to  call 
a  special  meeting  of  the  electors  of  such  village  to  determine  upon  the  division 
of  the  district  into  two  union  free  school  districts  (5460) 1338 

A  school  commissioner  will  be  sustained  in  vacating  an  order  which  he  has  made 
transferring  a  portion  of  the  territory  of  one  union  free  school  district  to 
another  when  the  district  from  which  the  territory  was  transferred  has  an 
outstanding  bonded  indebtedness   (4381 ) 134c 

When  a  local  board  by  a  tie  vote  declines  to  confirm  the  preliminary  order  made 
by  a  school  commissioner  in  altering  the  boundaries  of  a  union  free  school 
district,  the  procedure  is  to  institute  a  new  proceeding  (4253) 1341 

An  appeal  in  which  the  school  commissioner  was  reversed  in  his  action  in  dis- 
solving a  school  district  against  the  almost  unanimous  consent  of  the 
voters  of  such  district  and  annexing  the  territory  of  such  district  to  a  union 
free  school  district    (4170,  4451 ) 1347.     1353 

An  appeal  which  interprets  the  law  giving  school  commissioners  power  to  alter 

the  boundaries  of  union   free  school   districts 1357 

A  school  commissioner  possesses  the  authority  to  dissolve  a  district  and  annex  a 
portion  thereof  to  an  adjoining  union  free  school  district  and  form  a  new 
district  out  of  the  remaining  territory  of  the  district  dissolved  without  appl}'- 
ing  for  and  obtaining  the  consent  of  the  trustees  of  the  dissolved  district  or 

the  union  free  school  district  (5036) 1359 

Union  free  school  districts  —  organization  of 

An  appeal  which  enumerates  some  of  the  conditions  on  which  the  establishment 

of  a  union  free  school  district  may  be  overruled  (4046) 1363 

An  appeal  in  which  the  action  of  the  voters  of  two  school  districts  in  voting  to 
consolidate    to    establish    a    union     free    school    district    is    vacated     (3980, 

3947)     1363,     1364 

An  appeal  in  which  the  Department  refused  to  overrule  the  action  of  a  meeting 
which  decided  to  organize  a  district  into  a  union  free  school  district  (3982, 
3988) 1364.     1306 

An  appeal  which  interprets  the  law  generally  relative  to  the  procedure  in  voting 

to  organize  a  union  free  school  district  (3766) 1367 

Where  the  action  of  a  meeting  in  voting  to  organize  a  union  free  school  district 
is  irregular  and  disorderly  and  the  meeting  is  disorderly  and  it  appears  upon 
appeal  that  a  large  majority  of  the  voters  are  opposed  to  such  action, 
the  action  of  the  meeting  will  be  vacated    (3899) 1368 

An  appeal  which  describes  fully  the  method  of  calling  a  meeting  of  the  electors 
of  two  or  more  adjoining  districts  for  the  purpose  of  determining  the  con- 
solidation of  such  districts  into  a  union  free  school  district    (4267) 1370 

An  appeal  which  determines  the  method  of  calling  a  meeting  in  a  single  district 

for  the  purpose  of  organizing  a  union  free  school  district   (4306,  4305), .1377,     1381 

When  a  joint  meeting  of  two  or  more  districts  is  held  for  the  purpose  of 
determining  on  the  consolidation  of  such  districts  into  a  union  free  school 
district,  it  is  sufficient  if  fifteen  of  the  voters  of  each  district  are  present 
and  a  majority  of  the  qualified  voters  present  and  voting  are  in  favor  of 
such  consolidation   (4178) 1384 

The  action  of  a  meeting  in  the  establishment  of  a  union  free  school  district  in 
a  common  school  district  or  the  consolidation  of  two  or  more  school  districts 


INDEX   TO    JUDICIAL   DECISIONS  I507 

Union  free  school  districts  —  organization  of  —  coutinued  .  , 

1        1     J-        •        •  PACK 

into  a  union  school  district  is  a  statutory  proceeding  and  the  provisions  of 

law  must  be  strictly   followed    (4350) 1333 

When  a  union  free  school  district  is  organized  and  a  board  of  education  is 
elected  as  the  law  provides,  this  board  becomes  the  governing  body  of  the 
district  and  supersedes  the  trustees  of  the  common  school  district  or  districts 

from  which  the  union  free  school  district  is  formed   (4750) 1390 

Where  the  notice  given  of  a  meeting  to  determine  whether  or  not  a  union  free 
school  district  shall  be  organized  is  defective  and  had  not  been  given  the 
required  period  of  time,  the  action  of  the  meeting  in  voting  to  organize  into 

.a  union  free  school  district  will  be  vacated  (3985,  4365) 1394,     13,^5 

Union  free  school  districts  —  clerk,  collector,  treasurer 
Clerk 

The  clerk  of  a  board  of  education  can  not  legally  hold   the  office  of  treasurer 

or  collector  (4510) 140J 

Collector 

The  collector  of  a  uni«n  free  school  district  must  be  a  taxable  inhabitant  uf  the 

district  and  can  not  legally  hold  the  office  of  treasurer   (4510) 1403 

A  board  of  education  can  not  legally  appoint  one  of  its  members  collector  (4984) . .     1417 
1  rcasurer 

An  appeal  which  determines  fully  the  moral  and  legal  obligations  of  the  treasurer 

of  a  union  free  school  district  (5371 ) I3'^ 

The  treasurer  of  a  union  free  school  district  must  be  a  taxable  inhabitant  of  the 

district.    The  treasurer  can  not  hold  the  of»ce  of  collector  (4510) 1403 

Tlie  law  provides  that  the  treasurer  of  a  union  free  school  district  shall  hold  the 
appointment  during  the  pleasure  of  the  board  but,  where  the  board  at  the  time 
of  the  appointment  of  the  treasurer  fixes  the  term  of  the  appointment  for  the 
ensuing  year,  it  will  be  held  to  have  exercised  its  pleasure  and  the  appointee 
shall  hold  for  that  period  of  time.     In  such  a  case,  the  board  is  estopped 

from  removing  the  treasurer  except  for  some  other  cause   (4418) 1409 

The  office  of  treasurer  can  not  be  filled  at  district  meetings  until  a  resolution 
has  been  duly  adopted  creating  such  office.  A  treasurer  must  be  a  voter 
and  taxable  inhabitant  of  the  district  and  can  not  hold  the  office  of  collector 

(4271)    -••     '-^'^ 

A  board  of  education  can  not  legally  elect  one  of  its  members  treasurer.  The 
board   may  appoint  any  taxable  inhabitant  of  the  district  treasurer  and   lix 

his  compensation  (4984)    ^■*'' 

Voters 

Colored  persons  may  vote  at  school  district  meetings,  provided  they  possess  tlie 

requisite  qualifications ; '"^''^ 

An  alien,  though  he  has  taken  the  incipient  measures  to  be  naturalized,  is  not 
qualified  to  vote  at  a  school  district  meeting  in  the  district  in  which  he 
resides,  unless  an  affidavit  of  that  fact  is  deposited  and  recorded  in  the 
office  of  the  Secretary  of  State •     '•♦^'^ 

\   leading  case   in   which   the  qualifications   of   voters  are    fully   discussed   and 

determined    (539-^ '. i'-"i"  '1" 

The  fact  that  a  woman   is  the  wife  of  a  man  owning  real  estate  in   which  she 

has  a  dower  right  is  not  sufficient  to  qualify  her  to  vote  at  school  district 

,         ■.  14JO 

meetings    (37") •     . 

Ownership  of  a  revisionary  interest  in  real  estate  which  is  subject  to  an  unexpired 

life  estate,  is  not  such  a   present  ownership  of  land  as  qualities  an  elector 

at  school  meetings.     The  mere   fact  that  two  women  swear  that  tiiey  own 


1508  THE    UNIVERSITY    OF   THE    STATE    OF    NEW    YORK 

\'oTERS  —  continued  page 

real  estate  without  disclosing  the  location  or  show  that  land  has  been  cov- 
enanted to  them  is  not  sufficient  to  establish  their  claim  to  be  eligible  voters. 
{2,7^2)    1426 

When  a  person  leases  a  farm  from  the  owner  thereof,  the  agreement  in  relation 
thereto  must  establish  the  relation  of  landlord  and  tenant  if  the  party  leasing 
such  farm  is  thereby  entitled  to  vote  at  school  district  meetings.  Where  the 
relation  is  simply  that  of  master  and  servant,  the  right  to  vote  does  not 
follow  (4693) 1428 

Where  the  arrangement  between  father  and  son  relative  to  the  occupancy  of 
real  estate  owned  by  the  father  can  not  be  regarded  as  constituting  a  technical 
lease,  but  the  relation  created  thereby  is  that  of  master  and  servant  instead 
of  landlord  and  tenant,  the  son  is  not  a  qualified  voter  (S334) 1432 

Ownership  of  personal  property  which  does  not  appear  on  the  assessment  roll 

is  not  sufficient  ground  to  qualify  a  voter  at  school  district  meetings  (3781)..     1433 

An  appeal  in  which  the  qualifications  to  vote  at  school  district  meetings  are  fully 

determined    (4373) I434 

To  be  a  qualified  voter  at  a  school  district  meeting,  a  person  must  be  a  citizen  of 

the  United  States    (4498) 1435 

An  appeal  which  determines  in  a  general  way  the  qualifications  of  voters,  method 

of  challenging,  etc.  and  penalty  for  illegal  voting   (3664) 1436 

Upon  the  challenge  of  a  person  offering  a  vote,  it  is  the  duty  of  the  chairman 
of  the  meeting  to  administer  the  oath  prescribed  by  statute  and,  if  the  oath 
is  taken  by  the  person,  the  vote  must  be  received.  The  chairman  of  the 
meeting  has  not  the  power  to  determine  who  are  or  Avho  are  not  voters 
(4007)    1438 

Where  an  assessment  roll  is  not  completed  prior  to  the  holding  of  the  annual 
meeting,  it  can  not  be  used  to  determine  the  property  qualifications  of  voters 
at  such  meeting   (5429) 1439 

In  the  absence  of  allegations  of  material  facts  tending  to  show  the  disqualifications 
of  an  alleged  illegal  voter,  it  must  be  held  that  such  voter  was  qualified 
(5418)    1442 

An  appeal  in  which  it  is  held  that  a  clergyman  who  is  the  pastor  of  a  church, 
residing  in  a  dwelling  owned  by  such  church,  is  not  a  legal  voter  of  the  district 

(4257)    1444. 

An  appeal  in  which  it  is  held  that  the  Constitution  does  not  prohibit  the   right 

of  women  to  vote  at  school  district  meetings   (3300) 1450 

An  appeal  in  which  it  is  held  that  the  uniform  ballot  act  docs  not  apply  to  school 

districts    (3513).     Meetings 3S2 

A  person  who  merely  occupies  land  for  which  he  pays  no  rent  and  which  he  does 
not  own  or  hire  and  upon  which  he  is  an  occupant  upon  mere  sufferance, 
is  not  a  qualified  voter  at  a  school  district  meeting  (3752).     Elections 207 

An  appeal  in  which  the  qualifications  of  voters  are  fully  set  forth  and  determined 

(4930) .     Elections    274 

An  appeal  in  which  an  application  of  the  law  as  to  qualifications  of  voters  and 

procedure  in  challenging,  etc.  at  district  meetings  is  made  (4406).     Meetings.       350 

An  appeal  which  determines  generally  the  qualifications  of  voters  in  school  dis- 
tricts   (3989).     Trustees 1248 

A   tax   can   not   be   authorized   at   a   district   meeting  by   viva   voce   vote   or   by 

acclamation  (4391).    Tax  lists 1021 


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